R. Kannan Adityan and 4 others vs B.S. Adityan and Others

Srinivasan, J.—O.S.A. Nos. 62 to 64 of 1996 arise out of one proceeding viz.. Application No. 33 of 1994 filed by the appellants for leave

to institute a suit undo Section 92 of the CPC O.S.A. No. 62 of 1996 is against the order dismissing the said application for leave to said O.S.A.

No. 63 of 1996 is against the order allowing Application No. 2421 of 1994 filed by respondents 1 to 3 for dismissing Application No 33 of 1994

in limine under Sections 92 and 151. C.P.C. O.S.A. No. 64 of 1996 is against an order dismissing Application No. 1030 of 1994 filed by the

appellants for amendment of the proposed plaint All the three applications are disposed by a common order dated 21.12.1995. The facts leading

to the present proceedings are as follows: - One S.B. Adityan, familiarly known as Silpa. Aditanar in this State executed a deed of declaration

creating a public charitable trust by name ""Thanthi Trust"", which is the third respondent herein, on 1.3.1954. Earlier in 1944 he had started a Tamil

daily called ''Dhina Thanthi'' with his own funds. In the Deed of Declaration of Trust, he appointed besides himself, has brother S.T. Adityan and

his eldest son B. R. Adityan, who is the first appellant herein, as trustees of the third defendant trust. The purposes of the trust are (a) to establish

''Dhina Thanthi Daily Thanthi as an oran of educated public opinion for the Tamil reading public; (b) to disseminate news and to ventilate opinion

upon matters of public interest through the said newspaper (c) to maintain the said newspaper and its press in an efficient condition devoting the

surplus income of the said newspaper after defraying all expenses in improving and enlarging the said newspaper and its services and placing the

same on a footing at permanency. The deed provided that the trustees for the time being may appoint one of themselves to be the Director of the

Daily Thanthi and on such appointment, he shall be designated as such. The deed proceeded to appoint S.B. Adityan as the Director of the Daily

Thanthi. A clause in the deed read, ''The Founder may appoint from time to time inter vivos or by will any persons to be Trustees in addition to or

in substitution of the First Trustees or the Trustees for the time being. After the lifetime of the Founder the surviving trustees, and the trustees for the

time being may appoint any persons to be trustees or trustees in addition to themselves; and it is the desire of the Founder that if and when such

additional trustees are appointed, and if and when a Court has to appoint trustees or additional Trustees, the heirs of descendants of the Founder

may be preferred to others. A supplementary deed was executed on 9.7.1957 by which three more clauses were added with reference to

remuneration of the trustees excepting the founder, the exercise of the power conferred on the trustees or director being confined to the purposes

of the Trust only on the irrevocability of the Trust.

On 11.7.1957, one Ramarathinam was added as a Trustee. By a deed dated 6.11.1957 the first appellant herein was appointed as Director of

Daily Thanthi, as the Founder had resigned on that day and relinquished his Directorship. On 19.5.1959, the first appellant resigned from the Trust

and relinquished his position both as Trustee and as Director of Daily Thanthi. On 22.5.1959, respondents 1 and 2 herein were appointed by a

deed as Trustees of the Trust and the first respondent as the Director of the newspaper. By a Supplementary Deed dated 28.6.1961 executed by

the Founder, the newspaper Daily Thanthi was placed on a permanent footing and the surplus income of the Trust after defraying all expenses was

directed to be devoted for six purposes named therein. That document also refers to the Trust as a Public Charitable Trust. On 8.11.1961, the

Founder resigned from the Trust.

The brother of the Founder. Mr. S.T. Adityan and three others filed Originating Summons in this Court in C.S. No. 90 of 1961 seeking certain

reliefs for establishing and running a school or college etc. The Court held that the objects of the Trust were not in any manner opposed to law and

the prayers made in the said proceeding could be allowed. A consequential order was. therefore, passed. Thus, in the said proceeding, the

character of the Trust was recognised to be a Public Charitable one.

On 7.11.1962, one Saravanaperumal was appointed as Trustee On 27.12.1963, S.T. Adityan resigned his trusteeship. In 1965.

Saravanaperumal also resigned. On 20.6.1978. the Founder appointed the first appellant as an additional trustee by a deed for the proper

administration of the Trust and to raise the strength of the Trust Board. On the same day, another document was executed by the Founder, called a

Supplemental Deed, clarifying the position regarding the rights and powers of the additional trustee, as the same as those of the trustees then in

office. By another deed dated 30.6.1978, the Founder appointed his brother S.T. Adityan also as an additional trustee to act jointly with the

existing trustees.

Then commenced the first round of litigation at the instance of the first respondent herein, who for himself and on behalf of respondents 2 and 3

filed Application Nos. 2378 and 2433 of 1978 for leave u/s 92 of the CPC to file a suit challenging the appointments made by the Founder on the

ground that the Founder had no power to appoint Additional Trustee and such appointment could be only by the Court. The applications wee

opposed by the Founder, his brother and the first appellant. But the Court granted leave and the plaints were taken on file and the suits were

registered as C.S. Nos. 352 and 353 of 1978. The first respondent filed Application Nos. 2823 and 2825 for interim injunction restraining the

appellants from interfering with his managing the Trust. Those applications were opposed. On 29.8.1978, the first appellant and S.T. Adityan filed

Application No. 3147 of 1978 for leave u/s 92 of the CPC for removing the first respondent herein from trusteeship. As many as 16 allegations

were made against him relating to misappropriation and breach of trust. On 13-9-1978, an interim order was passed in the application for

injunction filed by the first respondent herein directing him to deposit a sum of Rs. 1,00,000/- per month as a condition for grant of interim order.

The first respondent did not deposit any amount.

It is the case of the appellants that at that stage there were some negotiations between the parties who were members of the family and an

agreement was arrived at pursuant to which the three newly appointed trustees resigned their trusteeship Application No. 3147 of 1978 was also

withdrawn, but without leave of Court. As a consequence, the first respondent herein withdrew C.S. Nos. 352 and 353 of 1978.

In January 1981, the first appellant''s two sons by name Kannan Adityan and Kadiresa Adityan filed Application No. 165 of 1981 for grant of

leave u/s 92, C.P.C. to file a suit against respondents 1 to 3 herein for appointment of the plaintiffs as additional trustees, rendition of accounts and

other reliefs. Seven allegations were set out as against the first respondent. It may be mentioned that those two persons are the plaintiffs in C.S.

No. 1509 of 1994 out of which O.S.A. No. 54 of 1996, which is also dealt with herein, has arisen. In that application the first respondent herein

filed Application No. 879 of 1981 for cross-examining the plaintiffs to establish that they had no interest of their own in the Trust and they were

only projecting the cause of their father. The said application was dismissed on 21-9-1981 by a learned single Judge. On appeal, in O.S.A. No.

152 of 1981, it was allowed on 15-3-1982. A petition for Special Leave in S.L.P.6040 of 1982 against the judgment of the Bench was dismissed

on 21-7-1982, but with a direction that the cross-examination should be confined only to the question of sanction and the principles governing the

same.

The first respondent filed Application No. 3124 of 1982 for inspection of plaint documents, which was dismissed by the trial judge on 2-9-

1982. On appeal in O.S.A. No. 160 of 1982, a Division Bench allowed the same on 8-9-1982 Thereafter, inspection was given, but the

respondents filed Application No. 4736 of 1982 for rejecting the main Application No. 165 of 1981 On the ground of non-compliance with the

order of inspection. That application was allowed by a learned single judge on 11-2-1983 whereby he dismissed Application No. 165 of 1981

also. The plaintiffs therein filed O.S.A. Nos. 105 and 106 of 1983. They were dismissed. The plaintiffs filed S,.L.P. Nos. 3362 and 3363 of 1987.

On 19.10.1992, the Supreme Court directed the first respondent to file an affidavit meeting the allegations made against him by the plaintiffs. He

filed a counter affidavit and a reply was filed by the plaintiffs on 4-1-1993. The Supreme Court dismissed the SLP on 18-1-1983 by a non-

speaking order.

On 3-1-1994, the appellants filed Application No. 33 of 1994 for leave to file a suit u/s 92, C.P.C. With the permission of the Court, the

application was moved on 4-1-1994 At that time, respondents 1 to 3 took notice through their counsel, who prayed for time for filing counter.

Time was granted upto 11-1-1994 In the counter affidavit it was stated that three additional trustees had been appointed to the third defendant

Trust and that they were necessary parties to the proceeding. Copies of certain documents were filed along with the counter affidavit to show that

three additional trustees were appointed on 29-12-1993 by a resolution passed by the Trust. Another document appointing the said three persons

as additional trustees was registered on 3-1-1994 between 5 and 6 P.M. in the office of the Sub Registrar, Periamet, Madras. Two advocates of

this Court filed Application Nos. 214 and 215 of 1994 for impleading themselves as plaintiffs in the proceeding. They were also posted along with

the main application for leave. On 31.1.1994 respondents 1 to 3 filed Application No. 657 of 1994 for cross-examining the applicants in

Application No. 214 and 215 of 1994. On 8-2-1994, they filed Application No. 868 of 1994 for cross-examining the applicants in the main

Application No. 33 of 1994.

The appellants filed Application No. 1030 of 1994 for amending Application No. 33 of 1994 and the draft plaint and for impleading the three

additional trustees as defendants/respondents and also to add certain paragraphs regarding the invalidity of the appointment of the said additional

trustees, besides making allegations against the said person. The appellants also filed O.A. No. 153 of 1994 for appointment of receiver to manage

the trust. The three additional Trustees appeared before Court through counsel and represented that they have no objection to implead them as

parties but opposed the amendment of the Application and the draft plaint. They were impleaded as parties and the cause title was consequentially

amended.

Another Advocate filed Application No. 1901 of 1994 for impleading himself as a plaintiff.

Respondents 1 to 3 filed Application No. 2421 of 1994 for dismissal of Application No.33 of 1994 in limine under Order 7, Rule II, C.P.C.

on the ground that the proposed suit is a vexatious one and an abuse of process of Court. It was also alleged that no cause of action is disclosed in

the plaint.

The two sons of the first appellant filed C.S. No. 1509 of 1994 on 19-8-1994 for setting aside the orders passed in Application No. 165 of

1981 on the ground that the said orders were procured by the first respondent by playing a fraud on the Court by suppressing a vital document

viz., a memorandum. The plaintiffs also filed Application No. 1056 of 1994 for appointment of a receiver for managing the trust. In November

1994, respondents 1 to 3 filed Application No. 6571 of 1994 for dismissing C.S. No. 1509 of 1994 on the ground it does not disclose a cause of

action, it is vexatious and is an abuse process of court. As respondents 1 to 3 insisted upon all matters being heard together, they were all posted

together for hearing. The request of the appellants to dispose of Application No. 1030 of 1994 in the first instance before the applications are

taken up was rejected. All the applications were argued and orders were reserved in April 1995. On 21.12.1995, the learned Judge passed

orders dismissing Application No. 33 of 1994 and C.S. No. 1509 of 1994 under Order 7, Rule II. C.P.C., in limine, as a result of allowing

Application Nos. 2421 of 1994 and 6571 of 1994. Consequently, the learned Judge dismissed Application Nos. 153 of 1994, 214 of 1994, 215

of 1994, 1030 of 1994, 1056 of 1994 and 1901 of 1994.

Applicants in Application No. 33 of 1994 have filed O.S.A. Nos. 62 to 64 of 1996 against the orders in Application No. 33 of 1994,

Application No. 2421 of 1994 and Application No. 1030 of 1994 respectively. The plaintiffs in C.S. No. 1509 of 1994 have filed O.S.A. No. 54

of 1996 against the dismissal of the suit. The applicants in Application Nos. 215 of 1994 and 1901 of 1994 have respectively filed O.S.A. Nos.

128 and 129 of 1996. O.S.A. Nos. 62 to 64 of 1996

In so far as these three appeals are concerned, the appellants have been non-suited mainly on the ground that the proceedings were frivolous

and vexatious, instituted by persons who do not have real and subsisting interest in the Trust in pursuance of a personal vendetta against the first

respondent. It is also held that the prior proceedings between the parties prove the want of bona fides on the part of the first plaintiff and it is not

open to him to file the present proceeding after having withdrawn Application No. 3147 of 1978 without leave of Court. It is also held that the

Plaintiffs are seeking to re agitate the very same questions which arose for consideration in the earlier proceedings and they are not entitled to do

so.

The main argument of learned counsel for the appellants is that at this stage of the proceedings, the Court can look into the averments in the

plaint only, and before taking any evidence in the matter, the Court cannot hold that the claim of the plaintiffs is frivolous or vexatious. It is argued

that the learned Judge has accepted the contentions raised by the respondents in their affidavits as Gospel truth without any evidence therefor and

proceeded to hold against the appellants. Learned counsel argued that at this stage of the proceedings, neither Order 7, Rule 11, C.P.C. nor

Order 23, Rule 1, C.P.C. will apply. According to him, the Court is concerned only with the question whether the appellants have made out, on

the basis of their allegations in the proposed plaint, a case for grant of leave to institute the suit u/s 92, C.P.C. Alternatively, it is submitted by him

that even if the provisions of Order 7, Rule 11, C.P.C. can be invoked at this stage, the matter does not fall under any of the clauses of the Rule

and the Court is in error in thinking that the Rule is not exhaustive and the clauses are only illustrative. It is submitted by teamed counsel that

admittedly new allegations have been made as against the respondents and the proposed plaint differs from the plaints filed in earlier proceedings

and, therefore, the provisions of Order 23, Rule 1, C.P.C. are not applicable.

Learned counsel for the respondents has vehemently argued that the present proceeding is intended only to harass the first respondent and it is

nothing but vexatious. According to him, the history of the litigation would reveal the antecedent of the first appellant and the absence of bona fides

on his part. It would also disclose, according to him, that the appellants have no real and subsisting interest in the trust and the present proceeding

is not a true representative action. It is argued that though some of the allegations against the respondents are new and they were not made in the

prior proceedings, the present proceedings cannot be sustained as it is not open to the first appellant to simply add some more allegations and

some more persons and re agitate the same subject matter. Learned counsel for the respondents referred to the fact that the first appellant

voluntarily resigned his office of Trustee and Director in 1959 and did not evince any interest in the Trust till 1978 and even after instituting a

proceeding in Application No. 3147 of 1978, chose to withdraw the same without the leave of the Court, thus giving up his entire claim.

Thereafter, he set up his son to institute proceedings, which went up to the Supreme Court and concluded in 1993 against them and then only in

1994 he has come forward with the present proceedings and at the same time instigated his sons to file a separate suit in C.S.No.1509 for 1994.

According to him, the common order passed by the learned Judge does not warrant any interference.

Before considering the validity of the respective contentions, it is necessary for us to advert to the general principles governing an application

for leave u/s 92. C.P.C.

A. (i). A proceeding u/s 92, C.P.C. is administrative in character and neither judicial nor quasi-judicial. An order granting leave does not affect the

rights of any party, though an order refusing to grant leave may affect the rights of the persons who seek such leave. In any event, the nature of the

proceedings is only administrative. In Mulla''s Code of Civil Procedure, 15th Edition Volume I. at pages 634 and 635, the following passage

occurs:-

Nature of the order granting leave by the Court. Under the section as it stood before its recent amendment and when what was required was

the consent of the Advocate-General, there was some divergence of opinion on the question whether the proceedings for consent before the

Advocate-General were quasi-judicial in character, and if they were whether they were open to challenge in writ proceedings under Art. 226 of

the Constitution. In Abu Backer v. Advocate General (AIR 1954 Travancore-Cochin 331) the High Court of Travancore-Cochin held that such

proceedings were quasi-judicial and that view was shared by the Pepsu High Court in Sadhu Singh v Mangal Gir Mohatmin (AIR 1956 Pepsu

65). But a contrary view was taken by the High Court of Rajasthan in Srimali v. Advocate- General (AIR 1955 Raj 166), Allahabad in

Shanthanand v. Advocate-General (AIR 1955 Allahabad 372), Madras in Raju v Advocate-General (AIR 1962 Madras 320 = 75 L.W. 240),

and in Abdul Kasim v. Mohd. Dawood (AIR 1961 Madras 244 (1960) 73 L.W. 649), and Jammu and Kashmir in Desraj v. Dy. Commissioner,

Jammu and Kashmir, AIR 1962 J & K 86 A Full Bench of the Kerala High Court later on reconsidered the position and held reversing Abu

Backer''s case (supra) that the proceedings before the Advocate-General were only administrative (A.K. Bhaskar v. Advocate-General ( AIR

1962 Kerala 90 F.B.). Further, it has also been held that the function of the Advocate-General not being a judicial one, notice by him to the trust

or its trustees was not obligatory and that the absence of such notice did not invalidate the consent given by him. All that was required of him at

that stage was to satisfy himself that it was worthwhile to institute the suit. Shavax A. Lal and Others Vs. Syed Masood Hosain and Others, Notice

to the defendants before granting leave is not mandatory. The Supreme Court now so held. Although as a rule of caution, such notice should be

given, leave granted without notice is not bad in law. The proposed defendants can always apply for revocation of leave already granted. R.M.

Narayana Chettiar and another Vs. N. Lakshmanan Chettiar and others, . The mere fact that the amended section now requires leave of the Court

in place of consent by the Advocate-General does not seem to change the nature of the order of leave made by the Court. In making such an

order the Court, like the Advocate-General earlier, would no doubt have to apply its mind but that is only to satisfy itself whether the persons

asking leave have interest in the trust, whether the trust is a public trust specified in the section and whether there are prima facie grounds for

thinking that there has been a breach of the trust. At that stage the Court would not have before it all the parties to the proposed suit nor the

evidence from which it would called upon to adjudicate any issue. All that it would have to see is whether it is in the interest of the trust to file the

suit for which leave is sought.

We are entirely in agreement with the view expressed by the learned author that the amendment of the Code in 1976 requiring leave of the Court in

place of consent by the Advocate-General does not change the nature of the order.

(ii). In K.M. Abdul Kasim and Others Vs. P.M.N. Mohamed Dawood and Others, , a learned single Judge of this Court had to consider a similar

provision in Section 55(1) and (2) of Muslim Wakfs Act (1954). After referring to the earlier ruling u/s 92, C.P.C., the learned Judge held that the

decision of the Board to file or not to file a suit itself, or to sanction or withhold sanction to another person to file a suit is not equivalent to a judicial

or quasi judicial decision affecting the rights of parties and the decision to permit another to file a suit is an administrative act and is outside the

purview of correction by the issue of a writ of certiorari.

(iii). Another learned Judge of this Court in Raju v. Advocate-General, H.C. Buildings (AIR 1962 Madras 320 = 75 L.W.240) held that a writ of

certiorari under Article 226 of the Constitution to quash the order of the Advocate-General on a sanction application is not maintainable. He

dissented from the view expressed in Abu Backer v. Advocate-General (AIR 1954 Travancore-Cochin 331). The learned Judge held that the

nature of the proceeding was only administrative.

(iv). A Full Bench of Kerala High Court in A.K. Bhaskar v. Advocate-Gemeral (AIR 1962 Kerala 90) over-ruled the above decision of the

Travancore Cochin High Court in Abu Backer''s case (AIR 1954 Travancore-Cochin 331) and held that when the Advocate- General acts u/s 92,

C.P.C. it is neither judicial nor a quasi-judicial order as it does not decide anybody''s right, though it may be proper for him to issue notice to the

proposed defendants and hear their view-point also. It was held that the order passed by the Advocate General giving or refusing sanction cannot

be judicially reviewed under Article 226 of the Constitution of India.

(v). In Mayer Simon Parur v. Advocate General (AIR 1975 Kerala 57), a larger Bench considered the question once again and overruled the

decision of the earlier Full Bench in A.K. Bhaskar''s case (AIR 1962 Kerala 90), in so far as it negatived the maintainability of a proceeding under

Article 226 of the Constitution of India. However, the Full Bench accepted the view that the proceeding before the Advocate-General was

administrative in character. After considering all the relevant rulings on the question, the Full Bench negatived the contention that the Advocate-

General was performing a judicial or quasi judicial act. But, even as an administrative order, the Full Bench held that it was liable to be questioned

under Article 226 of the Constitution, when it declined to grant leave.

(vi). In New College v. Basheer Mohammed ((1979) I M.L.J. 145), a Division Bench of this Court held that an order granting leave u/s 92 of the

CPC is a judgment within the meaning of Clause 15 of the Letters Patent. The Bench took the view that the order, though preliminary'' or

interlocutory in nature, definitely determines some right or liability of the parties to the suit and once for all decides the right of the plaintiffs to get

the leave u/s 92, CPC and negatives the contention of the opposite party that leave should not be granted and, therefore, it is a judgment. The

Bench did not consider the question whether the order u/s 92, Civil Procedure Code, is administrative in nature. In our view, the decision of the

Bench runs counter to the dictum of the Supreme Court in Shah Babulal Khimji Vs. Jayaben D. Kania and Another, wherein the Supreme Court

held that for the purpose of clause 15 of the Letters Patent, only those orders will be judgments which decides matters of moment or affect vital

and valuable rights of the parties and which work serious injustice to the party concerned. If the test prescribed by the Supreme Court is applied,

the ruling of the Division Bench in New College v. Basheer Mohammed ((1979) I M.L.J. 145) cannot be considered to be good law.

(vii). In Prithipal Sing v. Mah Singh (AIR 1982 Punjab and Haryana 137), a learned single Judge of that Court held that order granting leave is

administrative in nature and reasons need not be given in that order. The same proposition was reiterated by a Division Bench of that Court in

Lachman Dass v. Ranjit Singh (AIR 1987 Punjab and Haryana 108). The Division Bench also held that no notice was necessary to the defendants

before gracing leave.

(viii). In T.M. Shanmugam and Others Vs. The Periyar Self Respect Propaganda Institution and Others, a learned single Judge of this Court relying

upon the judgment of the Division Bench in The New College and Others Vs. Basheer Mohammed and Others, held that if leave is granted u/s 92,

Civil Procedure Code, without ordering notice to the defendants, the same is void in law and further action in pursuance of such order, namely,

entertaining and numbering of suit, is unsustainable in law. This judgment is considered to have been impliedly overruled by the Supreme Court in

R.M. Narayana Chettiar and another Vs. N. Lakshmanan Chettiar and others, ), to which we are going to refer in detail a little later.

(ix). In Ambrish Kumar Singh v. Rajaram hushan Bran Bramhishah (AIR 1989 Allahabad 194), it was held that giving notice to proposed

defendants before granting leaver u/s 92, C.P.C. is not contemplated, as the Court is not deciding the rights of parties but merely scoop whether

prima facie case for grating leave is made out.

(x). While upholding the principle that notice to defendants before granting leave is not necessary as a rule of law. the Supreme Court held in R.M.

Narayana Chettiar and another Vs. N. Lakshmanan Chettiar and others, that as a rule of caution, the Court should normally give notice to the

defendants before granting leave under the said section to institute a stall The Court observed that the defendants could bring to the notice of the

Court, for instance that the allegations made in the plaint are frivolous or reckless and that in a given case, they could point out that the persons

who are applying for leave he doing so merely with a view to harass the trust or have such antecedents that it would be updatable to grant leave to

such persons. The Court hastened to add that the desirability of the issue of such notice being given to the defendants cannot be regarded as a

statutory requirement to be complied with before leave u/s 92 can be granted, as that would lead to unnecessary doily and, in a given case, cause

considerable loss to the public trust.

Thus, it is clear that the application u/s 92, C.P.C. for grant of leave is administer live in nature.

B. (i). Section 141, C.P.C is not applicable to a proceeding which is administrative. It applies only to matters which are to be considered judicially

by a Court.

(ii). In Ramchandra Aggarwal and Another Vs. State of Uttar Pradesh and Another, the Court said:-

Bearing in mind that the term ""proceeding"" advocates something in which business is conducted according to a prescribed mode it would be only

right to give it, as used in the aforesaid provision, a comprehends meaning so as to include within it all matters coming of for judicial adjudication

and not to confine it to a civil proceeding alone.

(iii). The trial Judge has placed reliance on the judgment in Samar Singh v. Kedar Nath (AIR 1987 SC 1926 ,100 L.W.146 S.N.). That was a

case of Election petition, which had to be judicially adjudicated. In fact the question before the Court was whether the provisions of Order 7, Rule

11, C.P.C., could be invoked at a stage subsequent to the framing of issues and it was answered in the affirmative. The ruling has no relevance in

this case.

(iv). As Section 141, C.P.C. will not apply to an application u/s 92, C.P.C, the provisions of Order 7, Rule 11, C.P.C. or Order 23, Rule 1,

C.P.C. cannot be invoked at this stage. They may be available after the suit is taken on file. If the contention of the respondents'' counsel is

accepted, it will lead to a trial in a truncated manner before a suit is registered and such a course is not contemplated at all by the framers of the

Code. Hence, Order 7, Rule 11, C.P.C. and Order 23, Rule 1C.P.C. are not applicable to an application u/s 92, C.P.C. for leaver to institute a

suit.

C. It is well settled that to invoke Section 92, C.P.C., three conditions have to be satisfied, namely,

(i). the trust is a public trust;

(ii). there is a breach of trust or a direction of Court is necessary in the administration of such a trust; and

(iii). the relief claimed is one or other of the relief''s enumerated in the Section (See : Bishwanath and Another Vs. Shri Thakur Radhaballabhji and

Others, .

D. It has also been held that the suit must be in a representative character instituted in the interests of the public and not merely for vindication of

individual or personal rights of the plaintiff. (See Sugra Bibi Vs. Hazi Kummu Mia,

E. At the stage of granting of leave, the Court has to look into the allegations in the proposed plaint and the documents produced by the plaintiff

only. (See; Swami Paramatmanand Saraswati and Another Vs. Ramji Tripathi and Another, and Charan Singh and Another Vs. Darshan Singh

and Others,

F. (i) The main purpose of the provision u/s 92, Civil Procedure Code, is to give protection to public trust of a charitable or religious nature, from

being subjected to harassment by suits being filed against them. That is why it provides that suits under that Section can only be filed by the

Advocate-General or two or more persons having an interest in the Trust and having obtained leave of the Court. The object is that before the

Advocate-General files the suit, he would satisfy himself that there is a prima facie case, either of breach of trust or of the necessity for obtaining

directions of the Court on the basis of the allegations made in the proposed plaint and the documents produced along with the plaint. So also, the

Court is expected to satisfy itself that there is a prima facie case either of breach of trust or of necessity for obtaining directions of Court on the

basis of allegations made in the plaint and the documents played before it along with the plaint. Vide: Pitchayya v. Venktakrishnamacharlu (AIR

1930 Madras 129) and Madappa v. Mahanthadevaru (AIR 1966 SC. 878).

(ii) It is in that view, the Section provides that the plaintiffs in a suit u/s 92, Code of Civil Procedure, must be persons having an interest in the Trust.

Before 1887 the corresponding provision of law prevailing at that time required a direct interest in the Trust. The word ''direct'' was dropped in

1887 and thereafter the requirement was to have an interest. The words ''having an interest'' have been subject matter of judicial consideration in

several judgments. In T.R. Ramachadra Aiyar v. Parameswaran Unni (I.L.R.42 Madras 360), a Full Bench of this Court held that ''interest'' in

Section 92, C.P.C. denotes an interest which is present and substantial and not sentimental or remote or fictitious or purely illusory interest. In that

case, a Hindu residing in Madras and another residing in Tellicherry instituted a suit in the District Court of North Malabar u/s 92, Civil Procedure

Code, in respect of a Hindu temple situated in Tellicherry. It was found that the former had gone to worship in the temple on one or two occasions

in the past and might go there to worship in the future if business took him to Tellicherry and he relied on his right as a Hindu to worship in the

temple as entitling him to institute the suit. The majority held that though as a Hindu he might have the right to worship in the temple, he had not on

that ground alone the ''interest'' required by Section 92 of the Code to maintain the suit.

(iii). In Vaithinatha Aiyar and Another Vs. S. Tyagaraja Aiyar and Another, a Division Bench of this Court held that where the two plaintiffs

instituting a suit u/s 92 of the CPC are the descendants of the founder of the charity, they have an interest within the meaning of the said Section.

The Bench observed that the fact that the plaintiffs belong to the family of the founder would naturally give them an interest in the family charily so

as to enable them to bring a suit u/s 92 of the Civil Procedure Code. The Bench distinguished the judgment of the Full Bench in T.R. Ramachandra

Ayyyar''s case (I.L.R.42 Madras 360 = (1919) 9 L.W.492). The judgment of this Court was affirmed on appeal by the Privy Council in

Vaidyanatha Ayar v. Swaminathyya Ayyar, AIR 1924 PC. 221. The Judicial Committee held that the descendants in the female line from the

founder of the charity have an ""interest"" therein within the meaning of Section 92; Civil Procedure Code, although they may not directly obtain any

benefit from it.

(iv). In Ramaswami v. Karumuthu (AIR 1957 Madras 597), a learned single Judge of this Court held that a person who was a Hindu and was

residing only three miles away, and had saved the trust properties from being sold away by a decree-holder and had got the attachment released,

and was a lessee in respect of the trust to be by being the highest bidder at an auction held by a Commissioner of Court, is a person vitally

interested in the trust and its proper management.

(v). In Mahant Harnam Singh, Chela of Bhai Narain Singh Vs. Gurdial Singh and Another, the residents of a village, where free food is served to

visitors by an institution running a free kitchen, do not have any interest con-titling them to file a suit u/s 92. CPC On the facts it was found by the

Court that the institution was meant for Nirmala Sadhus and the plaintiffs as lambardars and followers of Sikh religion cannot be said to have an

interest entitling them to file a suit as Nirmala Sadhus are not Sikhs.

(vi) In C. Kalahasti v. R. Sukhantharaj (1975 T.L.N.J. 155 = (1975) 88 L.W.57 ). a Division Bench of this Court held that old students of a

College are persons having an interest in the trust which is in management of the College

(vii). In Kumudavalli v. P.N. Purushotham (AIR 1978 Madras 205 = 91 L.W.205), another Division Bench of this Court held that a resident of

the locality, who has some nexus or connection with the trust in the sense that he has interest in its well-being and prosperity can under certain

circumstances be taken to be a person having an interest in the trust and in the cause of a public School, such presumption could also be raised it

he is an old student of the school. The Bench said that if a fair inference could be drawn that a resident in the locality is subjectively interested in the

well-being of the school and, therefore, the trust then such an interest would come within the meaning of the expression ''having an interest and

cannot be held to be illusory or hypothetical In that case, the Bench also held that a remote relationship through the female line by itself cannot be

such an interest sufficient to lay an action u/s 92, C.P.C.

G. (i) In Jugul Kishore v. Shamlal (AIR 1944 Allahabad 231), a Division Bench of that Court held that in cases of alleged mismanagement of

public trust, the Advocate-General should go into the question not only of the condition of the trust but also into the question of the bona fides of

the would-be plaintiffs and of their capacity properly to represent the public on whose behalf they are purporting to sue.

(ii) In Mayer Simon v. Advocate General, Kerala (AIR 1975 Kerala 57), to which we have made a reference earlier, the Court held that a consent

u/s 92, Code of Civil Procedure, could be refused by the Advocate-General for all or one of the following reasons:-

(1). the persons approaching the Advocate-General may not have sufficient interest;

(2). their motives may not be pure;

(3). they ma not be solvent;

(4). there may be no breach of trust, and

(5). direction of the Court may not be deemed necessary

With respect, we are unable to agree with the Full Bench as regards the third reason set out above.

Keeping the above principles in mind, we shall now advert to the facts of the case. There are four plaintiff in the suit The first plaintiff is

admittedly a son of the founder. It cannot by any stretch of imagination be said that he is not a person having interest in the trust. The argument that

is advanced against him is that he voluntarily resigned his trusteeship in 1959 and did not evince any interest till 1978. It is also argued that even

after initiating an action, he withdrew the same, thus giving up his claim to trusteeship. He has not done anything to show his interest in the trust, till

he filed the present proceeding in 1994. None of the above arguments can hold good to defeat the claim of the first plaintiff that he is a person

having an interest in the Trust. Just because he had reigned in 1959 and kept quiet till 1978, it does not preclude him from initiating proceeding to

protect the interests of the Trust as and when he finds that they are in jeopardy and the Trust is not managed properly. When a person who is a

descendant in the female line has been held by the Privy Council to be one having an interest (vide Vaidyanatha Ayyar v. Swaminatha Ayyar (AIR

1924 P.C. 221(2) = 20 L.W. 803), there can be no doubt that the son of the founder is a person having an interest and for that mater, a direct

interest in the Trust. In the deed of Trust, clause (d) provides that if and when additional trustees are appointed and if and when a Court has to

appoint trustees or additional trustees, the heirs of descendants of the Founder may be preferred to others That itself is sufficient to make him a

person having an interest in the Trust.

The second plaintiff is a regular reader of Daily Thanthi and a person interested in education. The third plaintiff is a seller of newspapers and

magazines and in that process has also sold Daily Thanthi. He is also a reader of Daily Thanthi from his boyhood and concerned about education.

The fourth plaintiff is employed as a reporter and has been a reader of Daily Thanthi for a very long time. He is also interested in education. The

first object of the Trust is to establish ""Dhina Thanthi"" or Daily Thanthi as an organ of educated public opinion for the Tamil reading public. Thus, it

is clear that the beneficiary of the trust is the Tamil reading public. Naturally, plaintiffs 2 to 4 are beneficiaries and thus, they have an interest in the

trust. They do not belong to the family and they have no axe to grind against the first defendant. We are unable to accept the contention of learned

counsel for the respondents that the plaintiffs have no substantial or subsisting interest in the trust.

He next argued that the suit is being instituted for a personal vendetta and not with bona fide motives. We are unable to appreciate this

argument. It is not known how the Court will be in a position to decide before taking evidence that the plaintiffs have come to this Court only so

achieve some personal gains or with mala fide motives. It was repeatedly argued that the history of the litigation would automatically prove the

same. Reference is made again and again to the resignation of trusteeship in 1959 and withdrawal of the proceeding instituted in 1978 without

leave Court as well as the institution of proceedings by the sons of the first plaintiff. We are unable to draw any inference from those circumstances

that the plaintiffs are actuated by malice. The case set out in the plaint is cogent and it is possible for the plaintiffs to prove the same by adducing

evidence. It is only if the plaintiffs fail to adduce acceptable evidence, the Court can hold that the plaintiffs have come forward with a frivolous and

vexatious litigation with ulterior motives. While the respondents harp upon the conduct of the first plaintiff in having initialed similar proceedings

earlier and not taking decisions from the Court, the plaintiffs are equally vehement in pointing out the conduct of the first respondent in making

every attempt at his command to stifle the proceedings at the threshold not having the courage to face the same in the Court. It is necessary for the

Court to bear in mind the fact that the first defendant did not on the earlier occasions allow the plaints to be registered as suits. We have already

narrated the sequence of events. It was the first defendant who started the first round of litigation questioning the power of the founder to appoint

additional trustees in spite of the fact that there is an express provision in the trust deed empowering the founder to appoint additional trustees.

When the Court passed a conditional order of injunction in that proceeding, the first defendant did not comply with the condition, Thus, he is also

prima facie guilty of disobeying the order of the Court.

If is quite evident that the first defendant has been adopting the same tactics of cross-examining the plaintiffs in each case. In spite of the

directions of the Supreme Court in SLP 6040 of 1982 that the cross-examination should be confined only to questions applicable to sanction of

leave, he chose to widen the scope of the same in such a manner that the Court could not take notice of it. If the conduct of the plaintiffs could be

said to be bad, the conduct of the first defendant is equally bad, if not worse. We are still unable to appreciate the need for cross-examination of

the plaintiffs at the initial stage before grant of leave, when the matter has to be decided on the basis of the allegations in the plaint and the

documents produced by the plaintiffs only. Obviously, the attempt of the first defendant is only to bring in other materials in support of his

undisclosed defence in the guise of cross-examination without adducing proper proof therefore.

Even when the present proceedings were instituted, the conduct of the first defendant in appointing three additional trustees in a hurry and

getting a document registered after office hours of the Sub Registrar on the day on which Application No. 33 of 1994 was filed would show that

there can be no denial that the first defendant was quite aware of every move on the part of the plaintiffs and notice was taken on 4.1.1994 when

the application came before the Court for the first time The contention of learned counsel for the plaintiffs that the appointment of additional

trustees was itself only on 3.1.1994 after the filing of Application No. 33 of 1994 and the first defendant ante-dated the documents as if it was on

29.12.1993. is not one without substance of - course. It is a matter for evidence. But. it should not be forgotten that it is this first defendant, who

instituted C.S Nos. 352 and 353 of 1978 questioning the power of the founder to appoint additional trustees in spite of the specific clause in the

deed of trust.

We are not convinced that the antecedents of the first plaintiff or the other plaintiff are such that leave should not be granted to them to institute

the proposed suit. Nor do we agree with the contention of learned counsel for the respondent that the only object of the suit is to cause harassment

to the first defendant and others

It is quite possible to draw an inference from the admitted facts and circumstances that there must have been an arrangement between the

parties after the passing of the conditional order of injunction in the earlier proceedings, hut for which, the first plaintiff would have continued his

Application No. 3147 of 1978. There was no necessity for him to withdraw the same, when at that time, it was the first defendant who was the

defaulter. We should not be mistaken to be giving a finding on that question. We are only pointing out that fact only to show that it is possible of

proof and without giving an opportunity to the parties to prove their cases, the Court cannot hold at this stage that the present proceeding is

frivolous or vexatious.

The proposed plaint contains several serious allegations against the management of the trust. They are matters to be established by evidence. If

they are proved, there will be no doubt whatever that the first defendant is guilty of breach of trust. The prayer in the proposed plaint is to frame a

scheme for the administration of the Trust, making provision for the number of trustees, the method of accounting, action to be taken for

misconduct of trustees and such other matters as may be necessary for the proper administration of the Trust and also to consider whether or not

the first defendant should continue as a trustee of the trust. Besides the above prayer, there is a prayer for directing the first defendant to render a

true and proper account of the administration of the trust. The relief''s prayed for will fall within the scope of Section 92, Code of Civil Procedure.

Learned counsel for the respondents has contended that the plaintiffs are only trying to re-agitate the same matter again and again in order to

harass the first defendant. The facts narrated earlier prove that on no prior occasion the Court considered the truth of the allegations. An attempt

was made by counsel to convince us that the Supreme Court dismissed the Special Leave Petitions S.LP. Nos. 3362 and 3363 of 1987 on

18.1.1993 only after it was convinced that there was no merit whatever in the allegations made against the first defendant. In support of the said

argument reference is made to the direction given by the Supreme Court in that case to the first defendant to file an affidavit meeting the allegations

made against him. According to learned counsel, the first defendant filed not only a counter affidavit but also typed copies of all relevant documents

in as many as 18 volumes and that the Court dismissed the S.L.Ps. only after perusing the same. We are somewhat surprised that such an

argument is advanced by a senior counsel in this Court. The order of the Supreme Court dated 18.1.1993 consists of only one line reading, ""The

Special Leaver Petitions are dismissed "" It is absolutely impossible and improper for this Court draw an inference that the Supreme Court was

convinced of the absence of merit in the case of plaintiffs and that was why the S.L.Ps. wee dismissed. We do not think it necessary to dilate any

longer on this aspect.

Learned counsel invited our attention to some rulings of the English Courts dealing with vexatious proceedings.

In Re Vernazza ((1959) 1 All E.R. 200), the Queen''s Bench Division held that in determining whether proceedings were vexatious the Court

must look at the whole history of the matter, not solely at the question whether the pleadings had throughout disclosed a cause of action. It is seen

that in that case the first action was compromised on the basis of which a decree was passed. An appeal against it was dismissed. Leave to appeal

to House of Lords was refused. All the subsequent proceedings in the years 1938, 1939, 1940, 1952, 1953, 1957, 1958 and 1959 to set aside

the earlier judgment were dismissed or refused. The facts in the present case are entirely different.

That case went on appeal to the Court of Appeal, which affirmed the judgment of the Division Court by its judgment dated 2.12.1959 and

refused to grant leave to appeal to the House of Lords. That judgment is reported in Re Vernazza ((1960)) 1 All E.R. 183). It is to be noted that

Section 51(1)of the Supreme Court of Judicature (Consolidation) Act, 1925 contained the expression ""habitually and persistently and without any

reasonable ground instituted vexatious legal proceedings"". On the facts of that case, the Court held that the appellant was a person convened by

the Section.

In Re Langton ((1966) 3 All E.R.576) the Queen''s Bench Division held that for the purpose of Section 51 (1) of the Supreme Court of

Judicature (Consolidation) Act, 1925, the Court can and should consider proceedings brought by the litigant in a representative capacity as well as

in his own personal capacity. On the facts, they held that the party concerned was a vexatious litigant.

None of the three cases referred to above can be compared with the present cane. There was no decision in any of the prior proceedings

between the parties in this matter. There was neither a decree on merits nor on compromise. There is no possibility of branding the first plaintiff as

a vexatious litigant even before giving an opportunity to him to adduce evidence in this case. If he is able to prove the allegations made by him in

the plaint, there is no question of the proceeding being vexatious.

Our attention is drawn by both sides to the judgment in Arivanandam v. Satyapal (AIR 1977 S.C. 2421 = 91 L.W. 21 S.N.). Each side had

its own purpose therefore. In that case, the father of the petitioner suffered an order or eviction which was confirmed on appeal and on further

revision. The Re-visional Court, however, granted six months time to vacate. After enjoying the benefit thereof, the party sought for extension of

time. Even when such a proceeding was pending, the petitioner''s father set up the petitioner to file a suit for a declaration that the order of eviction

was obtained by fraud and collusion. When the factum of the institution of that suit was brought to the notice of the High Court at the hearing of the

petition for extension of time, the Court persuaded the landlord to give more time for vacating the premises on the basis that the son''s suit would

be withdrawn. After gaining time by another five months, the son filed another suit before another District Munsif and got an interim order of

injunction. The landlord entered appearance and got it vacated by disclosing the above facts. An appeal against the order and a further revision to

the High Court failed. The SLP was against the said order. Holding that there was a gross abuse of process of Court, the Supreme Court

condemned severely the petitioner and his father and dismissed the petition with the following observations :-

5 We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentantly

resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First

Munsif s Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on u

meaningful, not formal reading of the plaint, it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should

exercise his power under O. 7, R. 11, C.P.C. taking care to see that the ground mentioned therein is fulfilled. And, if clear drafting has created the

illusion of a cause of action, nip it in the bud at the first hearing by examining the party searching under O. 10, C.P.C. An activist Judge is he

answer to irresponsible law suits. The trial courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be

shot down at he earliest stage. The Penal Code is also resource to enough to meet such men, (Ch. XI) and must he angered against them.

While the respondents'' counsel contends that the facts in the present case are similar and the proceedings must be held to be vexatious,

counsel for the appellants submits that this case can in any way be equated to the above case. According to him, the above passage clearly shows

that what the Court should look into at this stage is only the plaint which on a reading of it discloses that it is manifestly vexatious and merit less in

the sense of not disclosing a clear right to sue. We are in agreement with the contention of appellants'' counsel it should not be forgotten that in the

case before the Supreme Court, there was an order of eviction of merits which was tested on appeal and revision and confirmed. In the present

case, there was on judicial adjudication in any of the prior proceedings.

Relying on the observations of the Supreme Court in R.M. Narayana Chettiar and another Vs. N. Lakshmanan Chettiar and others, referred to

me us earlier, it is argued that it is open to the defendants in a proceeding u/s 92, C.P.C. It bring to the notice of the Court that the allegation made

by the plaintiff are frivolous or reckless and that the proceeding is initiated with a view to harass the trust and that the antecedents of the plaintiffs

are such that it would be undesirable to grant leave. In our opinion, the Supreme Court has not by such observations in that case, intended of

meant that a preliminary or a summary that should be held by the Court even before the grant of leave. The defendants could only rely upon the

admitted facts and circumstances and the do agreements filed along with the plant.

There is no merit in the contention that the plaintiffs are only re-agitating the same subject matter in the present proceeding. In the course of

arguments, learned counsel for appellants placed before us statements containing separate''s the at legations made in the plaint filed along with (1)

Application No. 3747 of 1978. (2) Application No. 165 of 1981 and (3) Application No. 33 of 1984. At our instance, he filed a separate

statement setting out the new allegations made in the present proceeding, which were not made in the earlier proceedings. The statement reads as

follows :-

The following are the new allegations contained in para 56 of the draft of the plaint filed along with Application No. 33 of 1994.

Paragraph 56 (ii) About land at Trichy given to Malai Malar.

(ii). About advancing monies from Trust out Malai Malar to construct building at Bangalore.

(v). Some procedure at Pondicherry.

(vi). About using the sophisticated Machinery of the Trust for multi colour printing for ""Rani

(vii). Malai Malar multi colour weekly Supplement printed at Trust Press.

(viii). Commission to News Agency for sale of Daily Thanthi - Sri Devi Agencies.

(ix). Sponsoring Video Programme with the Funds of Trust for the benefit of Malai Malar.

(xi). Advancing monies to Malai Malar

(xii). Advertisement Revenue directed through Sovereign Media Marketing Pvt. Ltd.,

It is seen that there are at least nine new allegations in the present proceedings. The correctness of the said statement has not been disputed before

us, and on the other hand, it is admitted by counsel for the respondents that some of the allegations in the present proceedings are new.

It is well settled that mere identity of some of the issues do not bring about identity of subject-matter. The entire cause of action and the reliefs

claimed must be the same to make the subject-matter identical. (See : Vallabh Dos V. Dr. Madanlal (MR 1970 SC 987).

It is equally well settled that if a suit is maintainable for part of the reliefs claimed, the suit cannot be thrown out in limine as not maintainable.

(See Ishar Singh Vs. National Fertilizers and another, Hence, the contention of learned counsel for the respondents that addition of new allegations

based on new facts will not help the plaintiffs to maintain the suit is not tenable. On the other hand, there is considerable force in the contention of

learned counsel for the appellants that even with regard to the old allegations which are repeated now, it is a case of continuing cause of action and

the suit is maintainable.

We have no hesitation to hold that the requirements of Section 92. CPC have been fulfilled in this case and A. No. 33 of 1994 deserves to be

allowed. Hence, O.S.A. No. 62 of 1996 has to be allowed.

Now we turn to O.S.A. 64 of 1996 in which the question is whether the prayer for amendment of the proposed plaint can be granted. We

have already referred to the fact that respondents 4 to 6 had no objection to be impleaded and they have been made parties to the proceeding. As

the plaintiffs were not aware of the appointment of additional trustees when they presented A. No. 33 of 1994. they could not make any allegation

against them in the proposed plaint. When the counter affidavit referred to the appointment of additional trustees, necessarily they have to be

impleaded as parties. While doing so, the plaintiffs are desirous of making allegations against the new trustees for the purpose of proving that they

are not fit to be trustees and their appointment as additional trustees is mala fide. In that view, they have made some allegations. The burden of

proving the same is entirely on the plaintiffs. Without giving an opportunity to the plaintiffs to adduce evidence in support of the same, how on Earth

any Court can come to the conclusion that they are frivolous or reckless or vexatious? Just because the defendants are holding high position in life

or apparently having good reputation, can a litigant be prevented from making specific allegations and proving the same in a Court of law? We are

somewhat surprised that even at this stage the trial Judge has characterised the allegations as frivolous and reckless. The plaintiffs will be taking the

risk of facing an order for compensatory costs if they fail to prove their allegations by evidence. We will not be transgressing our limits if we point

out that the recent happenings in this country bear ample proof that people who held high and powerful positions in this country are not exempt

from the necessity to face charges and judicial proceedings against them. In our opinion the order rejecting the application for amendment of the

proposed plaint is wholly erroneous and unsustainable. O.S.A. No. 64 of 1996 has to be allowed

As regards O.S.A. No. 63 of 1996, which is against the order allowing A. No. 2421 of 1994 in which the prayer is to dismiss A. No. 33 of

1994 in liming, we have now held that Order 7, Rule 11. Code of Civil Procedure, does not apply to A. No. 33 of 1994 as the proceeding is

administrative in nature. We have also found the requirements of Section 92, CPC are satisfied and there is no ground for throwing out the plaint at

the threshold by refusing leave. However, we would like to discuss the position in law even if Order 7, Rule 11, CPC applies.

Before ding so, we must refer to one interesting if not intriguing aspect of the matter. The application A. No. 2421 of 1994 has been filed only

u/s 151read with Section 92. Code of Civil Procedure. There is no reference in the petition to Order 7. Rule 11, CPC But, an argument as to the

applicability of the provision has been advanced before the learned trial Judge and considered by him at length. He has held that the provision can

be invoked even at this stage because of the provision in Section 141, Code of Civil Procedure. Similarly, before us, arguments have been

advanced by both sides as if the petition was under Order 7. Rule 11, Code of Civil Procedure. Unfortunately it was not noticed by anybody that

the petition is only u/s 151and Section 92, Code of Civil Procedure. It is contended by learned counsel for the appellants that under Order 7, Rule

Code of Civil Procedure, a plaint can be rejected only on the four grounds set out therein and the Court cannot travel outside the Rule and

reject the plaint on other grounds. The Rule reads as follows:-

Reaction of plaint.- The plaint shall be rejected in the following cases:-

(a). where it does not disclose a cause of actions

(b). where the relief claimed is undervalued and the plaintiff, on being required by the Court to consent the valuation within a time to be fixed by the

Court fails to do so;

(c). Where the relief claimed is properly but the plaint is written upon paper insufficient stamped, and the plaintiff, on being required for the Court

to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so, (High Court Amendment (Madras for clause (c) the

following clause shall be substituted -

(c). Where the relief claimed is properly valued but the plaint is written on paper insufficiently stamped and the plaintiff does not make good the

deficient within the time, if any, granted by the Court.

(d). where the suit appears from the statement a the paint to be barred by any law. Provided that the time fixed by the Court for the correction of

the valuation or supplying of the requested stamp-paper shall not be extended unless the Court for reasons to be recorded, is satisfied that the

plaintiff was prevented by any cause of an exceptional nature from correction of the valuation or supplying the requested stamp papers, as the case

may be, within the time fixed by the Court and that refusal to extend such time without cause grave injustice to the plaintiff.

The language of the Rule, the context in which it appears and the provisions in Rules 1 and 13 clearly show that the Rule is exhaustive and a

plaint can be rejected only on any one of the four grounds set out in the Rule The matter is no res integra Our attention is drawn by both side to

some rulings which we will refer now.

In Thakur Harihar Bakhsh Singh V. Tahkur Jagannath Singh (AIR. 1924 Oudh 413). The Division Bench held that the grounds on which the

Court is authorised to reject a plaint are not only those given in Order 7, Rule 11, CPC and that the instances given in the Rule cannot be regarded

as exhaustive or as limiting the powers of a court u/s 151 of the Code. In that case, the suit was filed by a minor through his mother, as his next

friend on the allegation that a sale deed executed by her was invalid There were already some other proceedings pending. The Subordinate Judge

rejected the plaint on the ground that the suit had not been brought in good faith. It was contended before the Appellate Bench that the only

grounds on which the Court was authorised to reject the plaint were those mentioned in Order 7, Rule 11. Code of Civil Procedure. The Bench

did not agree with that contention. By the time the appeal was heard by the Appellate Bench, the other proceedings ended in favour of the parties

to the suit. The argument advance before the Bench was that the trial Court had no jurisdiction to reject the plaint except on grounds set out in

Order 7, Rule 11, Code of Civil Procedure. The Bench agreed with the said contention by placing reliance on a judgment of this Court in

Lakshmana Chetty v. Lakshmanan Chettiar (1 L.W.875). However, the Bench held that in view of the conclusion of other proceedings in favour of

the parties to the suit, the same was maintainable and had to be considered on merits. Consequently, the appeal was allowed and the order of the

lower court was set aside in spite of the fact that the Bench expressed a particular opinion regarding the scope of Order 7, Rule 11. Code of Civil

Procedure. Strictly speaking, the opinion of the Bench is obiter dictum.

The ruling of this Court referred to in the above case viz., Lakshmanan Chetty v. Lakshmanna Chettiar (1 L.W.875) turned on the substantive

law of infants and not on the language of Order 7, Rule 11, Code of Civil Procedure. The objection taken before the Bench was that the suit was

not instituted in the interests of the minor, who was shown as the plaintiff. That objection was upheld and the paint was rejected. On appeal, a

preliminary objection was raised questioning the maintainability of the appeal. The Court held that the order rejecting the plaint would amount to a

decree, in view of the definition of ''decree'' contained in Section 2(2). Code of Civil Procedure. Under that Section, a decree shall be deemed to

include the rejection of a plaint. Hence, the preliminary objection was over-ruled. Reliance was placed on the decision in Beni Ram Bhatt v. Ram

Lal dhukri (I.L.R. 13 Calcutta 189). But. nowhere in that Judgment the Bench considered the question whether the provisions under Order 7. Rule

CPC were exhaustive. The Bench dealt with only the provision under Order 32, CPC and held that it was not exhaustive. Hence, the Division

Bench of Oudh was not justified in treating the decision of this Court in Lakshmanan Chetty''s case (1 L.W.875) as an authority for the proposition

that the grounds set out in Order 7, Rule 11. CPC are not exhaustive

In Radhakishen v. Wali Mohammed (AIR 1956 Hyderabad 133), the plaint in the suit was signed by a person said to be the muktar of the

plaintiff. An interim petition for stay filed by the plaintiff was signed by one Rameshwar. The Court found that the plaint and petition were signed by

two different persons. Therefore, it directed the plaintiff to file the power of attorney of the person who signed the plaint. On a perusal of the

power of attorney the Court found that it did not give any power or authority to the person concerned to sign the plaint and consequently rejected

the plaint holding that the power of attorney was defective. In the appeal, two contentions were urged :- The first was that the Court was in error in

holding that the power of attorney did not authorise the said person to sign the plaint and the second was that Order 7, Rule 11, CPC did not

apply to the case. The Bench held that the Court was not justified in rejecting the plaint without calling upon the plaintiff in the first instance to cure

the defect therein. They allowed the appeal and set aside the order of the court below. The case was remanded to the trial Court with a direction

that it should, after giving time to the plaintiff to sign the plaint, proceed with the case according to law. But, the question whether Order 7. Rule

11, CPC was considered. Manohar Pershad, J. held that the judgment of that Court in an earlier case laid down that the rule was not exhaustive.

The other learned judge, viz.. Bilgrami, J. held that though the grounds for rejection of the plaint in Order 7, Rule 11, were not exhaustive, the

defect for which the plaint could be rejected should not be such as is curable by amendment and nothing more than an error of procedure. The

dictum in that case is also an obiter.

We have already referred to the Judgment of the Supreme Court in T. Arivandandam Vs. T.V. Satyapal and Another, and extracted a passage

therefrom. The following sentence in that passage is relevant for the present purpose:-

The learned Munsif must remember that if on a meaningful-not formal-reading of the plaint it is manifestly vexatious and merit less, in the sense of

not disclosing a clear right to sue, he should exercise his power under O.7, R. 11, C.P.C. taking care to see that the ground mentioned therein is

fulfilled. (Underlining ours)

The underlined portion clearly shows that the Supreme Court has settled the law by holding that the Court must take care to see that the grounds

set out in Order 7, Rule 11, CPC are satisfied. That shows that the Court should not travel outside the rule. In fact, in the earlier part of the

judgment, the Court has referred to the circumstances in which the suit could be said to be vexatious and merit less by pointing out that the plaint is

not one disclosing a clear right to sue. That will be a case falling squarely under clause (a) of Rule 11of Order 7, Code of Civil Procedure. In our

opinion, after the pronouncement of the judgment of the Supreme Court, the rulings to the contrary are no longer good law,

In British Airways v. Art Works Export Ltd. (AIR 1986 Calcutta 120), a Division Bench held that the Court shall dismiss the suit only if on the

face of the plaint it appears to be barred by any law. The Bench said.

But where it does not so appear, but requires further consideration or, in other words, if there be any doubt or if the Court is not sure and certain

that the suit is barred by some law, the Court cannot reject the plaint under Cl. (d) of O. 7, R. 11 of the C.P.C. Both the grounds as embodied in

Cls. (a) and (b) of O. 7, R. 11must appear on the face of the plaint.

Thanikkachalam, J. had occasion to consider the scope of Order 7, Rule 11, CPC in Application No. 5379 of 1992 in CS. No. 963 of 1992.

In fact, the order has been referred to before the trial Judge and the latter has expressed his dissent. Thanikkachalam, J. has observed that if the

cause of action has been clearly disclosed in the plaint, there can be no manner of doubt that the application to reject the plaint totally

misconceived. The learned Judge was pointed out the difference between rejection of a plaint and dismissal of a suit The learned Judge said:-

There is no reported case where the courts have used the provisions in Order 7. Rule 11of CPC to dismiss a suit/reject a plaint as being barred by

law or for non disclosure of cause of action by agreement based on locus stand or by holding that the suit is not maintainable by general principles

of law.

Again the learned Judge said

At this stage, it is not open to this Court to find out the merits or dements, the truth or falsehood legality or illegality of the cause of action discloser

by the plaintiffs in the plaint, because this Court is not at present disposing of the suit on merits The point for consideration at this juncture is

whether in term Order 7, Rule 11 (a) of the CPC for plaintiffs have disclosed a cause of action in the plaintiff that is required under this provision is

that the plaintiff must disclose a cause of action which should be in the nature of an actionable claim and nothing else.

If the plaint discloses a cause of action the correctness or otherwise of the allegations constituting the cause of action is beyond the purview of

Order 7, Rule 11(a) (See British Airways v. Arts Works Export Ltd. (1986 Cal. 120 at 123)

After referring to the order of Thanikachalam, J. and the reasoning therein, the learned trial Judge has observed as follows -

With due respect to the learned Judge I wish to state that there is no prohibition to dismiss an application under Order 7, Rule 11 of the CPC if the

defendant is able to establish that the plaint suffers infirmities and shows that the application filed for leave to sue is a gross abuse of process of the

court or a vexatious proceeding brought by the application pursue his personal vendetta

We are unable to agree with the opinion expressed by the learned trial Judge The reasons therefore have already been given by us in this

Judgment. The learned Judge has also made a reference to the decision in Samar Singh v. Kedar nath (AIR 1987 SC 1926 = 100 L.W. 141

S.N.). to which we have already made a reference in another connection, and observed that the Supreme Court having held that if the cause of

action is not disclosed, the application can be dismissed at the threshold of the proceeding and, therefore, he is unable to accept the argument of

learned counsel for the plaintiffs. It is needless to point out that as a mater of fact, the learned Judge has gone into the merits of the cases of both

the parties without resting his conclusion on the basis of the allegations contained in the plaint, as if he is disposing of the suit itself after the

evidence.

One of the contentions raised by learned counsel for the respondents is that the present proceeding is barred by Order 23, Rule 1(4), CPC

and thus, the matter falls within the scope of clause (d) of Order 7, Rule 11, Code of Civil Procedure. We have already referred to the admitted

fact that all the allegations made in the present proposed plaint are not the same as those made in the earlier proceedings and there are several new

allegations. We have also referred to the circumstances that the cause of action is a continuing one. Clause (d) of Order 7, Rule 11, CPC itself

uses the expression ""where the suit appears from the statement in the plaint"". Hence, on a reading of the allegations made in the plaint, the Court

must be able to find that the proposed suit is barred by any law. In the facts and circumstances of the case, it cannot be said that the present

proposed suit is barred by the provisions of Order 23, Rule 1(4) of the Code of Civil Procedure. Hence, we reject that contention.

In the result, we hold that even if Order 7, Rule 11, CPC is applicable at this stage of the proceedings. Application No. 33 of 1994 cannot be

dismissed and no ground has been made out in Application No. 2421 of 1994 for dismissing the proceeding in limine. Hence. O.S.A. No. 63 of

1996 deserves to be allowed.

O.S.A. Nos. 128 and 129 of 1996 :-

O.S.A. No. 128 of 1996 is against the order in Application No. 215 of 1994 and O.S.A. No 129 of 1996 is against the order in Application

No. 1901 of 1994. The earlier application was filed by two persons by name P. Arivudai nambi and A. Fathimanathan, both being advocates

practicing at Madras. The appeal is filed only by P. Arivudai Nambi. The other applicant has not chosen to prefer an appeal against the order of

the learned Judge. Hence, we are concerned only with P. Arivudai Nambi. The later application, i.e., O.A. No. 1901 of 1994 is filed by one S.N.

Krubanandam. who is also an advocate practising in Madras. Both the applications have been filed for impleading the applicants as parties to the

proceedings in Application No. 33 of 1994. It is alleged in the affidavit that the applicants are regular readers of Daily Thanthi and have great

concern for the welfare of the newspaper and interested in the development of education. We have already pointed out while discussing the

position regarding plaintiffs 2 to 4 in Application No. 33 of 1994 that the Tamil reading public is the beneficiary of the Trust and as such the

persons who are regular readers of the newspaper are persons having an interest in the trust. The same reasoning will apply in so far as these two

appellants are concerned. It is argued on behalf of the respondents that one of them alleged that he wants to come on record in view of his

apprehension that the original plaintiffs may withdraw the proceedings without prosecuting the same. It is argued, therefore, that the applicants have

no bona fides and in any event, they cannot get impleaded themselves as parties to a proceeding which, according to the respondents, is not itself

maintainable. It is the contention of the respondents that the only remedy of the appellants is to file a separate suit, if they are so interested, and

establish their claims.

We are unable to accept any of the contentions of the respondents. The reasoning given by us regarding plaintiffs 2 to 4 in the proposed suit

will hold good for these two appellants. We hold that they are persons having interest in the trust and just because an apprehension was expressed

in the affidavit that the original plaintiffs may withdraw the proceedings, they do not cease to be persons having an interest in the trust. We must

point out that the plaintiffs have no objection whatever to the appellants being impleaded as co-plaintiffs in the suit.

No doubt, in view of our finding that the proceeding u/s 92, CPC is administrative in character, the provisions of Order I, Rule 10, CPC may

not be applicable as such. The appellants cannot as a mater of right insist upon maintaining an application under Order I. Rule 10, Code of Civil

Procedure. But as already pointed out the plaintiffs on record have no objection whatever to he appellants being impleaded as co-plaintiffs. In view

of the said consent of the plaintiffs on record, we permit the appellants to get impleaded as co-plaintiffs in the proceedings. The appeals have,

therefore, got to be allowed.

O.S.A. No. 54 of 1996:

We have already narrated the facts leading to the filing of this appeal, which is against the order dismissing the suit C.S. No. 1509 of 1994 in

limine u/s 151and Order 7, Rule 11, Code of Civil Procedure. The suit has been filed by the sons of the first plaintiff in Application No. 33 of

1994. The prayer in the suit is for declaring that the order of dismissal passed in Application No. 165 of 1981 filed by the plaintiffs is vitiated by

fraud, without jurisdiction and non-est in law and void. There is a consequential prayer to set aside all the orders made in the said application. The

main allegation in the plaint is that the first defendant had suppressed a material document and certain essential facts in the earlier proceedings,

thereby playing a fraud on the Court and obtained favourable orders even without allowing the Court to go into the truth or otherwise of the

allegations made against him in Application No. 165 of 1981. In particular, the case of the plaintiffs is that a memorandum evidencing the terms of

certain understanding between the father of the plaintiffs and the first defendant was suppressed by the first defendant. It is not necessary for us to

set out in detail the allegations made in the present plaint. According to learned counsel for the respondents, the plaint does not give the particulars

of fraud. It is also contended that even if the memorandum referred to in the plaint had been suppressed by the first defendant as alleged by the

plaintiffs, that work to be sufficient to give a cause of action to the plaintiff to institute the present suit for the reliefs prayed for by them. Thirdly it is

argued that the memorandum does not represent any agreement between the parties and it has not been supposition by the first defendant as

alleged. It is contended by learned counsel that the memorandum was written by the father of the plaintiffs and the plaintiffs cannot deny any

knowledge of the same It also argued that the case of an agreement between the parties is put forward for the first time by the plaintiffs.

In so far as the contentions of the counsel for the respondents regarding the memorandum and the terms thereof are concerned. they cannot be

considered at this stage. They are matters to decided at the trial after evidence. We must consider only the contention that the plaint does not

disclose any cause of action in favour of the plaintiffs. For that purpose, we have to read only the legating made in the plaint. If the allegations a

such that the plaintiffs will be entitled to get reliefs if they prove the same, then there can be doubt whatever that the plaint discloses cause action.

The plaintiffs have come forward will definite case of fraud on the part of the first defendant by suppressing a material document. The argument that

the plaintiffs would have been and ought to have been aware of the document has author of the document was their father cannot considered at this

stage. It is a matter for evident. It is the specific case of the plaintiffs in the plaint that they were not aware of the said document That is a matter to

be proved by them If the plaint allegations are proved, there can be no doubt whatever that the prior proceedings were vitiated by fraud. It is

agreed that the earlier proceedings was dismissed because of the failure on the part the plaintiffs to obey the order of the Court in the matter of

inspection of documents. But the reason given by the plaintiffs is that if they had been aware of the memorandum referred to in the plaint, there

would have been no occasion for the Court to pass an order of inspection of document as has been done. Thus, the basis of the entire plaint is the

non-disclosure of the memorandum referred to therein by the first defendant and the absence of knowledge on the part of the plaintiffs of the

existence of the memorandum. They are matters which can be established by the plaintiffs in the evidence. Hence, it cannot be said that on the face

of the plaint, it does not disclose a cause of action.

It has been held by the Supreme Court in Chengalavaraya Naidu v. Jagannath (1994-1 -L.W. 21) that fraud vitiates all proceedings. The law

is laid down in the following terms :-

The High Court, in our view, fell into patent error. The short question before the High Court was whether in the facts and circumstances of this

case, Jagannath obtained the preliminary decree by playing fraud on the Court. The High Court, however, went haywire and made observations

which are wholly perverse We do not agree with the High Court that ""there is no legal duly cast upon the plaintiff to come to court with a true case

and prove it by true evidence"". The principle of ""finality of litigation"" cannot be pressed to the extent of such an absurdity that it becomes an engine

of fraud in the hands of dishonest litigants. The Courts of law are meant for imparting justice between the parties. One who comes to the Court

must come with clean-hands. We are constrained to say that more often than not, process of the Court is being abused Property grabbers, tax-

evaders, bank-loan dodgers and other unscrupulous persons from all walk''s of life find the Court process a convenient lever to retain the illegal

gains indefinitely. We have no hesitation to say that a person, whose case is based on falsehood, has no right to approach the Court. He can be

summarily thrown own out at any stage of the litigation.

xxxxx xxxxxx xxxxxx

Non-production and even non-mentioning of the release deed at the trial tantamount to playing fraud on the Court. We do not agree with the

observations of the High Court that the appellants-defendants could have easily produced the certified registered copy of Exhibit B15 and non-

suited the plaintiff. A litigant, who approaches the Court, is bound to produce all the documents executed by him which are relevant to the

litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the Court as well

as on the opposite party.

If as alleged by the plaintiffs a fraud has been played by the first defendant, they will be undoubtedly entitled to get the reliefs prayed for by

them in the suit. Hence, it is not possible for the Court to dismiss the suit in limine under Order 7, Rule 11, CPC on the ground of non-disclosure of

cause of action in the plaint. Consequently, the Appeal O.S.A. No. 54 of 1996 has to be allowed.

O.S.A. No. 54 of 1996 is allowed. Application No. 6571 of 1994 is dismissed. No costs.

61.

(i) O.S.A. No. 62 of 1996 is allowed with costs. Application No. 33 of 1994 is allowed. Counsel fee Rs. 5000/-.

(ii) O.S.A. 63 of 1996 is allowed. Application No. 2421 of 1994 is dismissed. No costs.

(iii) O.S.A. No. 64 of 1996 is allowed. Application No. 1030 of 1994 is allowed. No costs.

O.S.A. Nos. 128 and 129 of 1996 are allowed. Application Nos. 215 and 1901 of 1994 are allowed in so far as the appellants are concerned.

No costs.