S.K.S. Rangacharyulu and Another vs Kailash Vyas and Others

Shiv Kumar Sharma, J.—Pivotal question that falls for consideration in this revision is whether an order of trial Court granting permission to file suit u/s 92 of the CPC is revisable u/s 115, C.P.C?

BACK-GROUND FACTS

This question emerges in the following circumstances:

(a) The plaintiff-non-petitioners (for short the plaintiffs) instituted suit against the defendant-petitioners (for short defendants) in the Court of the District Judge, Kota stating therein that a registered trust was created for temple of Shri Jagdishji situated in Rampura Kota, for the proper management of the temple properties. Defendant, S.K.S. Rangacharyulu was appointed as working Trustee but for the management of the temple a committee was constituted. The defendants, it was averred is given the said committee and started selling the temple property. They instead of arranging Seva Puja, started spending the income of temple for their own pleasure. Therefore, it was prayed that the defendant S.K.S. Rangacharyulu be removed from the office of trustee and new trustee be appointed for the proper management of the temple property. Alongwith the suit, application u/s 27, CPC. seeking leave to file suit was also moved by the plaintiffs.

(b) The learned Additional District Judge No. 2, Kota, where the suit was transferred, allowed the said application vide order dated July 19,1995. The validity of this order that the defendants have now questioned in the instant revision.

RIVAL CONTENTIONS

Mr. Sanjay Mehrish, learned counsel for the defendants canvassed that as per averments made in Para 12 of the plaint, the temple is a registered public trust under the provisions of Rajasthan Public Trusts Act, 1959 ((or short the Act, 1959), therefore, provisions of Section 92, C.P.C., are not applicable to the said trust by virtue of Section 44 of the Act, 1959. Provisions of Sections 38. 39 and 40 of the Act 1959 are in peri materia with the provisions of Section 92, CPC. Since the provisions under the Act, 1959 are special provisions, the applicability of general provisions contained in CPC is completely excluded. It was next contended that pursuant to the permission dated September, 19, 1986 granted by the Assistant Commissioner, Devasthan, Shri Pooran Chand could have filed an application u/s 40 of the Act, 1959 within 30 days before the District Judge seeking the relief''s provided in Section 40(2) of the Act, 1959 and no suit could be filed u/s 92, CPC. Shri Pooran Chand was not impleaded as party in the suit, application u/s 92, CPC was not maintainable. The suit was barred by limitation as permission was granted on September, 19,1986 whereas suit was filed in the year, 1987.

Mr. G.C. Garg, learned counsel for the plaintiff contended that, order impugned is not revisable as it does not decide the rights of the parties. Reliance was placed on Raju Pillai and Others Vs. V.P. Paramasivan and Others, and R.M. Narayana Chettiar and another Vs. N. Lakshmanan Chettiar and others,

STATUTORY BACKGROUNDS.

Before considering the merits of the aforesaid contentions it would not be out of place to refer the relevant statutory provisions.

Earlier the leave u/s 92 was to be granted by the Advocate General. But by virtue of Amendment of 1976 words "Leave of the Court" have been substituted in the place of "Advocate General". The function of the Advocate General have now been given to the Court.

Mulla on the Code of Civil Procedure, 14th Edition, at page 534, has stated thus:

...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 non the evidence from which it would be called up on the 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.

In Raju and Another Vs. Advocate General H.C. Buildings, Madras and Others, it was held that "That granting or refusing consent by the Advocate-General u/s 92, C.P.C. is no judicial determination of any legal rights of the parties to the intended action. All the question in controversy between the parties to such an action have to be decided only by the Court which entertain the suit."

Shrimali Lal v. Advocate-General, AIR 1955 Raj 166, was the case where the question that came for consideration was, whether a writ can be issued under Article 226 or 227 of the Constitution against an order of the Advocate-General while acting u/s 92, C.P.C, Hon''ble Wanchoo, C.J. (as he then was) propounded thus -

...This function of the Advocate General cannot be called a judicial or quasi-judicial function under the circumstances, and there is no question of revising it under Article 227 or issuing a writ under Article 226 compelling him to do this, that or the other.

Ambrish Kumar Singh Vs. Raja Abhushan Bran Bramhshah and Others, was the case where the Allahabad High Court indicated that, "while granting leave the Court does not decide the rights of the parties. No right is adjudicated at this stage. The Court has merely to see whether there is a prima facie case for granting leave to file a suit. This order does not in any way affect the final decision which will be given on merits after the parties have led evidence in the suit. Section 92 of the Code does not contemplate giving of any notice to the proposed defendants before granting leave."

The legislative history of Section 92, C.P.C. demonstrate that one of the object which led to the enactment of the said section was to enable two or more persons interested in any trust created for a public purpose of a charitable or religious nature should be enable to file a suit for the relief''s set out in the said section without having to join all the beneficiaries since it would be highly inconvenient and impracticable or all the beneficiaries to join in the suit, hence any two or more of them were given the right to institute a suit for the relief mentioned in the Section 92 of the Code. However, it was considered desirable to prevent a public trust from being harassed or put to legal expenses by reckless or frivolous suits being brought against the trustees and hence, a provision was made for leave of the Court having to be obtained before the suit is instituted.

In Swami Paramatmanand Saraswati and Another Vs. Ramji Tripathi and Another, it was observed by their Lordships of the Supreme Court that to see whether the suit falls within the ambit of Section 92, only the allegations in the plaint should be looked into the first instance. But, if after the evidence is taken, it is found that the breach of trust alleged has not been made out and that the prayer for direction of the Court is vague and is not based on any sold foundation of fact or reason but is made only with a view to bring the suit under the section then such a suit must be dismissed.

R.M. Narayana Chettiar and another Vs. N. Lakshmanan Chettiar and others, was the case where the apex Court propounded thus:

Although as a rule of caution, Court should normally give notice to the defendants before granting leave under the said section to institute a suit, the Court is not bound to do so. If a suit is instituted on the basis of such leave, granted without notice to the defendants, the suit would not thereby be rendered bad in law or non-maintainable. The grant of leave cannot be regarded as defeating or even seriously prejudicing any right of the proposed defendants....

In Raju Pillai and Others Vs. V.P. Paramasivan and Others, it was observed by the Madras High Court that an order of Court granting permission to file suit against trust u/s 92 is an administrative order and not a judicial one. Such an order is not revisable u/s 115, C.P.C.

CONCLUSION

The principles that are deducible from the discussion of the authorities mentioned hereinabove can be summed as under -

(i) While granting leave to file suit u/s 92, C.P.C. no notice to the proposed defendants is necessary. Although, as a rule of caution, Court should normally give notice to the defendants before granting leave, yet the Court is not bound to do so.

(ii) If a suit is instituted on the basis of such leave, granting without notice to the defendants, the suit would not thereby be rendered bad in law or non-maintainable.

(iii) The grant of leave cannot be regarded as defeating or even seriously producing any right of the proposed defendants.

(iv) It is always open to the defendants to file an application for revocation of the leave which can be considered on merits and according to law. The defendants can bring to the notice of the Court for instance that the allegations made in the plaint are frivolous or reckless. Apart from this, they can, in a given case, point out that the persons who have applied for leave u/s 92 are doing so merely with a view to harass the trust or have such antecedents that it would be undesirable to grant leave to such persons.

(v) If leave is granted by the Court without notice to the defendants, the order of the Court is not revisable but when the defendants by filing application sought revocation of the leave and the Court declined to revoke the leave, the revision is maintainable against said order of the Court.

In the case on hand both plaintiffs and defendants moved application on August 31, 1987 and July 13, 1990 respectively. Both the applications relate to the appreciation of the provisions of Section 92, C.P.C, the plaintiffs sought leave to file suit u/s 92, whereas the defendants opposed it. The learned Court below without expressing any opinion on the merits of the case granted-leave to the plaintiffs u/s 92, C.P.C. and dismissed the objections raised by the defendants. The order impugned is, therefore, a judicial order and it cannot be termed as administrative order. I do not agree with the views expressed by the learned Judge in Raja Pillai''s case (supra) that the order of Court granting permission u/s 92, CPC is an administrative order, therefore, it is not revisable u/s 115, C.P.C. The Court vide order impugned has decided the objections raised by the defendants and granted leave to the plaintiffs and, therefore, I am of the view that said order is revisable.

I do not propose to discuss the arguments of the learned Counsel for the defendants-regarding applicability of the provisions of Act, 1959. The defendants can still raise the arguments regarding the applicability of Act, 1959 and the trial Court has to decide the same.

At the time of granting leave u/s 92, CPC, the Court has to only see the allegations in the plaint, but if after the evidence it is found that the breach of trust alleged has not been made out and that the prayer for direction of the Court is vague and is not based on any solid foundation of facts or reason but is made only with a view to bring the suit under the section then such a suit must be dismissed. Granting leave u/s 92, C.P.C. does not snatch the rights of the defendant to raise preliminary objection showing that the plaint does not disclose cause of action or is not maintainable being barred by law. (Emphasis supplied)

The result of the foregoing discussion is that the Court below has not committed jurisdiction error in passing the order impugned and if it is allowed'' to stand it would not occasion failure of justice.

Consequently, the revision fails and is hereby dismissed with no order as to costs.