High Court of KeralaSingle JudgeDismissed
A.S. No. 361/1999-F (Kerala High Court) - Against the judgment and decree in O.S. No. 41/1977 of the 1st Additional District Court, Ernakulam, dated 28/11/1998
Case / Petition Number:A.S. No. 361/1999-F
Case Details & Bench
- Court
- High Court of Kerala
- Hon'ble Judges
- P. Bhavadasan
- Judgment Date
- 2012-03-09
- Court Decision / Holding
- Appeal allowed; the impugned judgment and decree are set aside; the suit shall stand dismissed
- Final Disposition
- Dismissed
Parties to the Case
Appellants / Petitioners
- Markose, S/O. Varkey
- Pauloose, S/O. Varghese
- Pauloose, S/O. Varkey (Died)
- Varghese, S/O. Thomas
- Kuriakoose, S/O. Varkey
- Thachettu Chacko Varghese
- Thachethu Paily Varghese
- Paily Varghese (Died)
Respondents
- Cheria, S/O. Mathew (died)
- Yohannan, S/O. Kora (died)
- K.C. Kora, S/O. Mathew
- A.P. Varghese, S/O. A.C. Paulose
- Rev. Fr. Mathai, S/O. Paulose
- Paily Alias, Thachettu
- Mathew Jonachan, Thachettu
- Abraham Yohannan, KunNath
Legal Representation & Advocates
Counsels for Petitioners
- • P.K. Behanan
- • M.P. Sreekrishnan
- • Shahna Karthikeyan
Counsels for Respondents
- • Biju Abraham
- • B.G. Bhaskar
- • A.K. Chinnan
- • Sajan Varghese K
- • Liju M.P.
Case Synopsis & Summary
The short question before the court is whether the suit is hit by Section 92 of the Code of Civil Procedure. The appellants contend that, on the basis of the plaint prayer, the suit falls within the ambit of Section 92 CPC and ought to be dismissed for want of leave to institute the suit. The respondents argue that the reliefs granted in the trial court — an injunction restraining the defendants from handing over church records, funds, and administration to anyone not elected by the parish assembly — pertain to the administration of a public religious trust and do not fall outside the scope of Section 92; hence the suit is maintainable. The court recaps the church’s administration under the 1934 Constitution of the Malankara Church and the events around the 19 May 1974 General Body Meeting, including the dispute over custody of records and leadership. It surveys authorities such as Mathew v. Thomas, Lucknow Diocesan Trust Association v. Sachindranand Bakshi, Madappa v. Mahanthadevar, St. Peters Orthodox Syrian Church v. Fr. Abraham Mathews, Vidyodaya Trust v. Mohan Prasad, Swamy Parmatmanand, and Kiran Singh v. Chaman Paswan. The court emphasizes that leave under Section 92 is a precondition for a “public trust” suit, and that the focus must be on the object of the suit, not merely the relief. It concludes that the main relief concerns administration of the church and protection of trust property, a public-trust matter; since no leave was obtained, the suit is not maintainable. The appeal is allowed; the impugned judgment and decree are set aside and the suit is dismissed.
Provisions of Law Cited
Section 92(1) CPCSection 92(2) CPCSection 92(3) CPCOrder IV Rule 1 CPCReligious Endowments Act, 1863 (20 of 1863)1934 Constitution of the Malankara Orthodox Syrian Church
Legal Doctrines & Maxims
- Leave of the Court is a condition precedent to filing a suit under Section 92 CPC (representative suit)
- A decree passed by a court without jurisdiction is a nullity
- A Section 92 CPC suit is a representative suit binding all interested in the public trust
- The focus must be on the object or purpose of the suit, not merely the relief granted
- Public religious trusts require the Advocate-General or leave of the court to file suits under Section 92 CPC
Submissions & Arguments
Contentions of Appellants / Petitioners
The appellants contended that the plaint prayer indicates a matter of administration of a public religious trust, which squarely falls within Section 92 CPC; hence leave of the Court was mandatory before instituting the suit and the absence of such leave renders the suit incompetent. They stress that even interim relief cannot validate a suit instituted without leave.
Contentions of Respondents
The respondents argued that the reliefs relate to the church’s administration and preservation of records and funds; the suit is not one personal to any party but a representative matter concerning the parish trust; if leave is required, it should have been sought, but the reliefs are within the scope of Section 92, and the court’s order governing administration could be sustained.
Cited Precedents (8)
| Case Name | Citation | Treatment | Explanation |
|---|---|---|---|
| Mathew v. Thomas | 1982 KL T 493 | Positive | Cited to illustrate that leave under Section 92(1) must precede the institution of suit; records and leave may be required for proper orders under Sec.92(1). |
| Lucknow Diocesan Trust Association v. Sachindranand Bakshi | AIR 1990 Allahabad 202 | Positive | Held that relief may fall under clause (h) of Sec.92(1) and thus leave is essential; suit without AG consent not maintainable. |
| Madappa v. Mahanthadevar | AIR 1966 SC 878 | Positive | Addresses the scope of Sec. 92(1) and the protective aim for public trusts; supports requiring leave before filing. |
| St.Peters Orthodox Syrian Church v. Fr.Abraham Mathews | 2011 KLT 540 | Positive | States leave is necessary when suit is by private individuals for trust administration under Sec. 92. |
| Vidyodaya Trust v. Mohan Prasad | 2008(2) KL T 68 | Positive | Emphasizes focusing on the purpose of the suit to determine public-right vindication; relevant to Sec.92 analysis. |
| Swamy Parmatmanand's case | not specified | Positive | Used to support the rule that purpose or object, not merely relief, determines public-right litigation under Sec.92. |
| Kiran Singh v. Chaman Paswan | AIR 1954 SC 340 | Positive | Holds that a decree without jurisdiction is a nullity; supports challenge where leave under Sec. 92 was not obtained. |
| A.S. 768/1998 | unreported | Mentioned Only | Cited as an additional authority but not elaborated or directly relied upon. |
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Extracted Judgment Text
Exact text extracted from official judgment records.
## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN**
## **FRIDAY, THE 9TH DAY OF MARCH 2012/19TH PHALGUNA 1933**
## **AS.No. 361 of 1999 (F)**
**------------------------------[AGAINST THE JUDGMENT AND DECREE IN OS.NO.41/1977 OF I ADDITIONAL DISTRICT COURT, ERNAKULAM DTD. 28/11/1998]**
## **APPELLANTS/DEFENDANTS:**
|**APPELLANTS/DEFENDANTS:**|**APPELLANTS/DEFENDANTS:**||
|---|---|---|
|**------------------------------------------**|||
|**1.**|**MARKOSE, S/O. VARKEY,**||
||**RESIDING AT CHALAKKATTUKUDI HOUSE,**||
||**PAZHAMTHOTTAM KARA,**||
||**AIKARANAD VILLAGE, KUNNATHUNADU TALUK,**||
||**PAZHAMTHOTTAM (P.O),**||
||**VIA., KUMARAPURAM.**||
|**2.**|**PAULOSE, S/O. VARGHESE,**||
||**RESIDING AT THAZHATHU HOUSE,**||
||**-DO- -DO-**||
|**3.**|**PAULOSE, S/O. VARKEY,**|**(DIED).**|
||**MANAYATHU HOUSE,**||
||**-DO-**<br>**-DO-**||
|**4.**|**VARGHESE,**||
||**S/O. THOMAS, THATHATTU HOUSE,**||
||**PANKODE KARA,**||
||**-DO-**<br>**-DO-**||
|**5.**|**KURIAKOSE, S/O. VARKEY,**||
||**RESIDING AT MANAYATHU HOUSE,**||
||**-DO-**<br>**-DO-**||
|**6.**|**THACHETTU CHACKO VARGHESE,**||
||**RESIDING AT MANAYATHU HOUSE,**||
||**-DO-**<br>**-DO-**||
|**7.**|**THACHETHU PAILY VARGHESE,**||
||**PAZHAMTHOTTAM,**||
||**-DO-**<br>**-DO-**||
|**8.**|**PAILY VARGHESE,**|**(DIED)**|
||**THAZHETHUDE,**||
||**-DO-**<br>**-DO-**||
**A.S. NO.361/1999-F:**
|**9.**|**THOMAS CHACKO,**||
|---|---|---|
||**THATCHETHU,**||
||**PAZHAMTHOTTAM,**||
||**AIKARANADU.**||
|**10.**|**PAILY MATHAI,**|**(DIED)**|
||**THATCHETHU,**||
||**-DO-**<br>**-DO-**||
|**11.**|**PAILY PAULOSE,**||
||**THATCHETHU,**||
||**-DO-**<br>**-DO-**||
|**12.**|**PAILY VARGHESE,**||
||**THATCHETHU,**||
||**-DO-**<br>**-DO-**||
|**13.**|**CHACKO PAILY,**|**(DIED)**|
||**THATCHETHU,**||
||**-DO-**<br>**-DO-**||
|**14.**|**MATHEW PAULOSE,**|**(DIED)**|
||**-DO-**<br>**-DO-**||
|**15.**|**MATHEW MATHAN,**|**(DIED)**|
||**-DO-**<br>**-DO-**||
|**16.**|**VARKEY MATHAI,**||
||**-DO-**<br>**-DO-**||
|**17.**|**VARKEY MATHEW,**||
||**-DO-**<br>**-DO-**||
|**18.**|**MATHEW VARGHESE,**|**(DIED)**|
||**-DO-**<br>**-DO-**||
|**19.**|**MATHEW PAILY,**|**(DIED)**|
||**-DO-**<br>**-DO-**||
|**20.**|**VARGHESE CHERIAN,**|**(DIED)**|
||**-DO-**<br>**-DO-**||
|**21.**|**CHACKO VARKEY,**|**(DIED)**|
||**PADAPPARA,**||
||**-DO-**<br>**-DO-**||
|**22.**|**VARKEY CHACKO,**||
||**-DO-**<br>**-DO-**||
|**23.**|**MATHEW PAILY,**|**(DIED)**|
||**-DO-**<br>**-DO-**||
**A.S. NO.361/1999-F:**
|**24.**|**PAILY**|**CHACKO,**||
|---|---|---|---|
||**-DO-**|**-DO-**||
|**25.**|**MATHEW PAILY,**||**(DIED)**|
||**PADAPPARA,**|||
||**-DO-**|**-DO-**||
|**26.**|**PAILY**|**MATHAN**|**(DIED)**|
||**-DO-**|**-DO-**||
|**27.**|**PAILY**|**CHANDI,**||
||**-DO-**|**-DO-**||
|**28.**|**PAILY**|**PAULOSE,**|**(DIED)**|
||**-DO-**|**-DO-**||
|**29.**|**YOYAK PAULOSE,**|||
||**-DO-**|**-DO-**||
|**30.**|**VARKEY VARGHESE,**||**(DIED)**|
||**-DO-**|**-DO-**||
|**31.**|**VARKEY VARGHESE,**||**(DIED)**|
||**-DO-**|**-DO-**||
|**32.**|**VARKEY YOHANNAN,**||**(DIED)**|
||**-DO-**|**-DO-**||
|**33.**|**VARKEY PAILY,**||**(DIED)**|
||**-DO-**|**-DO-**||
|**34.**|**PAILY**|**VARGHESE,**||
||**-DO-**|**-DO-**||
|**35.**|**PAILY**|**KURIAKOSE,**|**(DIED)**|
||**-DO-**|**-DO-**||
|**36.**|**PAILY**|**PAULOSE,**|**(DIED)**|
||**-DO-**|**-DO-**||
|**37.**|**PAILY**|**PAILY,**|**(DIED)**|
||**MANAYATHU, PANGODE,**|||
||**-DO-**|**-DO-**||
|**38.**|**PAILY**|**DANIEL,**||
||**MANAYATH,**|||
||**PAZHAMTHOTTAM,**|||
||**AIKKARANADU VILLAGE.**|||
|**39.**|**PAILY**|**PATHROSE,**|**(DIED)**|
||**-DO-**|**-DO-**||
**A.S. NO.361/1999-F:**
|**40.**|**PAILY MATHAI,**|**(DIED)**|
|---|---|---|
||**-DO-**<br>**-DO-**||
|**41.**|**PAILY PAULOSE,**||
||**-DO-**<br>**-DO-**||
|**42.**|**PAILY DANIEL,**|**(DIED)**|
||**PANGODE,**||
||**-DO-**<br>**-DO-**||
|**43.**|**PAILY MATHAI,**||
||**-DO-**<br>**-DO-**||
|**44.**|**CHAKCO VARKEY,**|**(DIED)**|
||**PLACHERIMONATH,**||
||**PAZHAMTHOTTAM,**||
||**-DO-**<br>**-DO-**||
|**45.**|**VARKEY MATHEW,**||
||**-DO-**<br>**-DO-**||
|**46.**|**CHACKO VARKEY,**|**(DIED)**|
||**EDAYANAL,**||
||**-DO-**<br>**-DO-**||
|**47.**|**VARKEY PAULOSE,**||
||**-DO-**<br>**-DO-**||
|**48.**|**VARKEY THOMAS,**||
||**-DO-**<br>**-DO-**||
|**49.**|**PAILY PAULOSE,**|**(DIED)**|
||**MELATTU,**||
||**-DO-**<br>**-DO-**||
|**50.**|**PAULOSE PAULOSE,**||
||**-DO-**<br>**-DO-**||
|**51.**|**PAULOSE VARGHESE,**||
||**-DO-**<br>**-DO-**||
|**52.**|**AVIRA VARKEY,**|**(DIED)**|
||**-DO-**<br>**-DO-**||
|**53.**|**VARKEY JACOB,**||
||**-DO-**<br>**-DO-**||
|**54.**|**AVIRA MATHAI,**|**(DIED)**|
||**-DO-**<br>**-DO-**||
|**55.**|**AVIRIA VARGHESE,**||
||**-DO-**<br>**-DO-**||
**A.S. NO.361/1999-F:**
|**56.**|**AVIRIA PAULOSE,**||
|---|---|---|
||**-DO-**<br>**-DO-**||
|**57.**|**PAILY THOMAS,**|**(DIED)**|
||**MANAYATHU,**||
||**-DO-**<br>**-DO-**||
|**58.**|**PAILY PAULOSE,**|**(DIED)**|
||**KUNNATHU,**||
||**-DO-**<br>**-DO-**||
|**59.**|**THOMAS KURIAN,**|**(DIED)**|
||**KUNNATHU,**||
||**-DO-**<br>**-DO-**||
|**60.**|**ABRAHAM PAULOSE,**||
||**-DO-**<br>**-DO-**||
|**61.**|**ABRAHAM ABRAHAM,**||
||**-DO-**<br>**-DO-**||
|**62.**|**OUSEPH PAULOSE,**|**(DIED)**|
||**ELOKULAM,**||
||**-DO-**<br>**-DO-**||
|**63.**|**OUSEPH OUSEPH,**|**(DIED)**|
||**-DO-**<br>**-DO-**||
|**64.**|**PAILY KURIAKOSE,**||
||**-DO-**<br>**-DO-**||
|**65.**|**AVIRA PAULOSE,**|**(DIED)**|
||**-DO-**<br>**-DO-**||
|**66.**|**VARKEY MATHAI,**|**(DIED)**|
||**PADIPURAKKAL,**||
||**PAZHAMTHOTTAM,**||
||**-DO-**<br>**-DO-**||
|**67.**|**CHACKO VARKEY,**|**(DIED)**|
||**CHITTILAPPARA,**||
||**-DO-**<br>**-DO-**||
|**68.**|**VARKEY KURIACKO,**||
||**-DO-**<br>**-DO-**||
|**69.**|**VARKEY PAULOSE,**|**(DIED)**|
||**-DO-**<br>**-DO-**||
|**70.**|**KURU PAULOSE,**||
||**-DO-**<br>**-DO-**||
|**71.**|**KURU VARGHESE,**||
||**-DO-**<br>**-DO-**||
**A.S. NO.361/1999-F:**
|**72.**|**KURU MATHAI,**||
|---|---|---|
||**-DO-**<br>**-DO-**||
|**73.**|**CHACKO CHACKO,**|**(DIED)**|
||**-DO-**<br>**-DO-**||
|**74.**|**CHACKO KURIACKO,**||
||**-DO-**<br>**-DO-**||
|**75.**|**PAILY KURIAKO,**||
||**MANAPPILLY,**||
||**-DO-**<br>**-DO-**||
|**76.**|**VARKEY MATHAI,**|**(DIED)**|
||**MANAPPILLY,**||
||**-DO-**<br>**-DO-**||
|**77.**|**MATHAI VARGHESE,**||
||**-DO-**<br>**-DO-**||
|**78.**|**VARKEY KURIACKO,**||
||**THEKKEKARA,**||
||**-DO-**<br>**-DO-**||
|**79.**|**ABRAHAM ABRAHAM,**||
||**-DO-**<br>**-DO-**||
|**80.**|**ABRAHAM MATHUKUTTY,**||
||**-DO-**<br>**-DO-**||
|**81.**|**ABRAHAM KURIACHAN,**||
||**-DO-**<br>**-DO-**||
|**82.**|**PAILY MATHAN,**|**(DIED),**|
||**ALATHARA,**||
||**-DO-**<br>**-DO-**||
|**83.**|**MATHAI ELIAS,**|**(DIED),**|
||**-DO-**<br>**-DO-**||
|**84.**|**MATHAI VARGHESE,**||
||**-DO-**<br>**-DO-**||
|**85.**|**PAILY PATHROSE,**||
||**KANJIRAVELI,**||
||**-DO-**<br>**-DO-**||
|**86.**|**VARKEY VARGHESE,**|**(DIED)**|
||**-DO-**<br>**-DO-**||
|**87.**|**OUSEPH VARGHESE,**||
||**KIZHAKKEKUNNATH,**||
||**-DO-**<br>**-DO-**||
**A.S. NO.361/1999-F:**
|**88.**|**CHACKO OUSEPH,**|**(DIED)**|
|---|---|---|
||**THEKKEKUDI,**||
||**-DO-**<br>**-DO-**||
|**89.**|**OUSEPH PAULOSE,**||
||**-DO-**<br>**-DO-**||
|**90.**|**KURIAKO OUSEPH,**|**(DIED)**|
||**-DO-**<br>**-DO-**||
|**91.**|**CHACKO MATHEW,**||
||**-DO-**<br>**-DO-**||
|**92.**|**MATHAI CHACKO,**|**(DIED)**|
||**THEKKEKUDI,**||
||**-DO-**<br>**-DO-**||
|**93.**|**PAULOSE PATHROSE,**||
||**CHITTILAPARA,**||
||**-DO-**<br>**-DO-**||
|**94.**|**OUSEPH OUSEPH,**||
||**CHAKKUNGAL,**||
||**-DO-**<br>**-DO-**||
|**95.**|**OUSEPH JOSEPH,**||
||**-DO-**<br>**-DO-**||
|**96.**|**KORA ABRAHAM,**|**(DIED),**|
||**MANAPPILLIKUDI,**||
||**-DO-**<br>**-DO-**||
|**97.**|**ABRAHAM PAULOSE,**||
||**-DO-**<br>**-DO-**||
|**98.**|**VARKEY PAULOSE,**||
||**PAZHAMPILLIKUDI,**||
||**-DO-**<br>**-DO-**||
|**99.**|**VARKEY PHILIPOSE,**||
||**-DO-**<br>**-DO-**||
|**100.**|**VARKEY KURIAKOSE,**||
||**-DO-**<br>**-DO-**||
|**101.**|**VARKEY VARGHESE,**||
||**-DO-**<br>**-DO-**||
|**102.**|**MATHEW VARGHESE,**|**(DIED)**|
||**THOTTATHIL,**||
||**PUNNARKOTTUPARAYIL,**||
||**-DO-**<br>**-DO-**||
**A.S. NO.361/1999-F:**
|**103.**|**VARGHESE MATHAI,**||
|---|---|---|
||**-DO-**<br>**-DO-**||
|**104.**|**PAILY VARGHESE,**||
||**KURUVICHERAYARA,**||
||**KAITHAKATTU KARA,**||
||**-DO-**<br>**-DO-**||
|**105.**|**PAILY ABRAHAM,**||
||**-DO-**<br>**-DO-**||
|**106.**|**ABRAHAM VARGHESE,**||
||**PALATHADATHIL,**||
||**RAMANATTUKARA,**||
||**-DO-**<br>**-DO-**||
|**107.**|**PAILY KURIAKO,**|**(DIED)**|
||**CHAKKATTUKUDI,**||
||**KAITHAKKATTUKARA,**||
||**-DO-**<br>**-DO-**||
|**108.**|**KURIAKO PAULOSE,**||
||**-DO-**<br>**-DO-**||
|**109.**|**KURIAKO GEORGE,**||
||**-DO-**<br>**-DO-**||
|**110.**|**KURIAKO DANIEL,**||
||**-DO-**<br>**-DO-**||
|**111.**|**PATHROSE PAULOSE,**|**(DIED)**|
||**KOLENCHERI,**||
||**-DO-**<br>**-DO-**||
|**112.**|**VARKEY ABRAHAM,**||
||**-DO-**<br>**-DO-**||
|**113.**|**CHACKO YOHANNAN,**||
||**THAINIKKOTTIL,**||
||**-DO-**<br>**-DO-**||
|**114.**|**CHACKO OUSEPH,**|**(DIED)**|
||**MUTHIRIKALA,**||
||**-DO-**<br>**-DO-**||
|**115.**|**OUSEPH JACOB,**||
||**-DO-**<br>**-DO-**||
|**116.**|**MATHEW DANIEL,**||
||**THATHARA,**||
||**-DO-**<br>**-DO-**||
**A.S. NO.361/1999-F:**
|**117.**|**PAILY MATHEW,**|**(DIED)**|
|---|---|---|
||**-DO-**<br>**-DO-**||
|**118.**|**ITTAN DANIEL,**||
||**-DO-**<br>**-DO-**||
|**119.**|**MATHAN CHACKO,**||
||**THATHARA,**||
||**KAITHAKKATTUKARA,**||
||**-DO-**<br>**-DO-**||
|**120.**|**MATHEW PAULOSE,**||
||**-DO-**<br>**-DO-**||
|**121.**|**OUSEPH CHERIAN,**||
||**-DO-**<br>**-DO-**||
|**122.**|**ITTAN PAILY,**||
||**THATHARA,**||
||**-DO-**<br>**-DO-**||
|**123.**|**ITTAN ABRAHAM,**||
||**-DO-**<br>**-DO-**||
|**124.**|**VARKEY MATHEW,**|**(DIED)**|
||**MALAYIL,**||
||**PARAKODUKARA,**||
||**-DO-**<br>**-DO-**||
|**125.**|**MATHEW VARKEY,**||
||**-DO-**<br>**-DO-**||
|**126.**|**MATHEW VARGHESE,**||
||**-DO-**<br>**-DO-**||
|**127.**|**MATHEW CHACKO,**||
||**-DO-**<br>**-DO-**||
|**128.**|**PAILY MATHEW,**||
||**KODIYADU,**||
||**RAMALLUR KARA,**||
||**-DO-**<br>**-DO-**||
|**129.**|**PAILY CHACKO,**|**(DIED)**|
||**KUZHIKATTIL,**||
||**-DO-**<br>**-DO-**||
|**130.**|**CHACKO MATHAI,**|**(DIED)**|
||**-DO-**<br>**-DO-**||
|**131.**|**VARKEY PAULOSE,**||
||**AYATHATTUTHARA,**||
||**RAMALLUR KARA,**||
||**-DO-**<br>**-DO-**||
**A.S. NO.361/1999-F:**
|**132.**|**PAULOSE GEORGE,**||
|---|---|---|
||**-DO-**<br>**-DO-**||
|**133.**|**VARKEY ELIAS,**|**(DIED)**|
||**PEEDIYAKKAL,**||
||**VEMBILLY KARA,**||
||**-DO-**<br>**-DO-**||
|**134.**|**PAILY VARGHESE,**|**(DIED)**|
||**THOTTATHIL,**||
||**PAZHAMTHOTTAM KARA,**||
||**-DO-**<br>**-DO-**||
|**135.**|**VARKEY PAILY,**|**(DIED)**|
||**-DO-**<br>**-DO-**||
|**136.**|**PAILY KURIAKO,**||
||**-DO-**<br>**-DO-**||
|**137.**|**KURIAKO MATHEW,**|**(DIED)**|
||**VEMBILLIKARA,**||
||**-DO-**<br>**-DO-**||
|**138.**|**ULAHANNAN KURIAN,**|**(DIED)**|
||**-DO-**<br>**-DO-**||
|**139.**|**KURIAN CHACKO,**|**(DIED)**|
||**VEMBILIKARA,**||
||**-DO-**<br>**-DO-**||
|**140.**|**KURIAN KURIAN,**|**(DIED)**|
||**-DO-**<br>**-DO-**||
|**141.**|**MATHAI PAULOSE,**|**(DIED)**|
||**ALATTARA,**||
||**KAITHAKATTUKARA,**||
||**-DO-**<br>**-DO-**||
|**142.**|**MATHEW YOYAK,**|**(DIED)**|
||**THEKKEKUDI,**||
||**-DO-**<br>**-DO-**||
|**143.**|**ITTAN ABRAHAM,**|**(DIED)**|
||**THATHARA,**||
||**KAITHAKKATTUKARA,**||
||**-DO-**<br>**-DO-**||
**BY ADVS.SRI.P.K.BEHANAN, SRI.M.P.SREEKRISHNAN, SMT.SHAHNA KARTHIKEYAN.**
**A.S. NO.361/1999-F:**
## **RESPONDENTS/PLAINTIFFS AND DEFENDANT NOS. 1,9,11,12,65,95,99,100, 121,140,143,144,147,152,153,158:**
**------------------------------------------------------------------------------------------------------------**
**1. CHERIA, S/O. MATHEW, (DIED) RESIDING AT KUNNATHU HOUSE, PAZHAMTHOTTAM KARA, AYKARANAD VILLAGE, PAZHAMTHOTTAM P.O., KUNNATHUNAD TALUK.**
**2. YOHANNAN, S/O. KORA, (DIED) RESIDING AT PERINGATTU HOUSE, PAZHAMTHOTTAM KARA, -DO-DO-**
**3. K.C. KORA, S/O. MATHEW, CHERIAKUNNATH HOUSE, ERNAKULAM DISTRICT, PAZHAMTHOTTAM P.O.**
**4. A.P. VARGHESE, S/O. A.C. PAULOSE, AIKKATHUTHARA, RAMALLOOR, VAMBILLY P.O., ERNAKULAM DISTRICT.**
**5. REV. FR. MATHAI, S/O. PAULOSE, EDAYANAL HOUSE, KUTTA KARA, CHEMMANAD VILLAGE, KUNNATHUNAD TALUK, PAZHAMTHOTTAM P.O., (VIA), KUMARAPURAM.**
**6. PAILY ALIAS, THACHETTHU, PAZHAMTHOTTAM P.O., (VIA), KUMARAPURAM.**
**7. MATHEW JONACHAN, THACHETHU, PAZHAMTHOTTAM P.O., (VIA) KUMARAPURAM.**
**8. ABRAHAM YOHANNAN, KUNNATH, -DO-DO-**
**9. OUSEPH ABRAHAM, MANAPPILLYKUDY, -DO-DO-**
**A.S. NO.361/1999-F:**
## **10. PAILY CHACKO, KODIATT, RAMALLUR, PATTIMATTOM (P.O), (VIA) KUMARAPURAM.**
**11. MATHEW KURIAKO, THOTTATHIL, PAZHAMTHOTTAM P.O., -DO-DO-**
**12. MATHEW ALIAS, THACHETTHU, PAZHAMTHOTTAM P.O., -DO-DO-**
**13. MATHEW MATHAI, KUMARICKAL, PAZHAMTHOTTOM P.O., -DO-DO-**
**14. PAILY MATHEW, THATTARA, PAZHAMTHOTTOM.P.O., -DO-DO-**
**15. VARKEY VARKEY, KUMUNCHIRANGARA, KAITHEKADU, -DO-DO-**
**16. MATHEW VARKEY, PERUVA, PAZHAMTHOTTOM.P.O., -DO-DO-**
**17. MATHEW KURIAKO, PERUVA, PAZHAMTHOTTOM.P.O., -DO-DO-**
**18. PAILY PATHROSE, KARNIYAMKUDY, PAZHAMTHOTTOM.P.O., -DO-DO-**
- ***19. CHERIA CHACKO, KUNNATHU, PAZHAMTHOTTOM P.O., -DO-DO*(EXPIRED).**
***IT IS RECORDED THAT R.19 IS DEAD AND THAT NO STEPS ARE NECESSARY FOR IMPLEADING THE LR'S OF THE DECEASED 19TH RESPONDENT AT THE RISK OF THE APPELLANT AS PER ORDER DATED 14/09/10 IN MEMO DATED 10/08/2010, C.F. 4563/10.**
**A.S. NO.361/1999-F:**
**20. KURIAN SKARIA, VALIYAVEETTIL, -DO-DO-**
**R3 & R4 BY ADVS. SRI.BIJU ABRAHAM, SRI.B.G.BHASKAR, R5 BY ADV. SRI.A.K.CHINNAN, R13 & R18 BY ADVS. SRI.SAJAN VARGHEESE K, SRI.LIJU. M.P.**
**THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 06-02-2012, THE COURT ON 09/03/2012 DELIVERED THE FOLLOWING:**
**A.S.NO.361/1999-F:**
## **APPENDIX**
## **APPELLANT'S ANNEXURES:-**
**ANNEXURE A: COPY OF THE MEMORANDUM DTD. 24/10/2010 SUBMITTED BY THE PARISHIONERS.**
**ANNEXURE B: COPY OF THE EDAVAKA REGISTER (MEMBERSHIP REGISTER) AS ON 1974.**
**ANNEXURE C: COPY OF THE RECORD OF DISCUSSION WHICH WAS HELD ON 16/06/1977 AT THE ROOM OF THE HON'BLE CHIEF MINISTER OF KERALA.**
**ANNEXURE D: COMMUNICATION DTD. 14/11/1986 MADE BY THE CIRCLE INSPECTOR OF POLICE, MUVATTUPUZHA TO THE SUB INSPECTOR OF POLICE, PUTHENCRUZE.**
**ANNEXURE E: COPY OF THE PETITION DTD. 28/05/2009 SUBMITTED BY FR. MATHAI, EDAYANAL HOUSE (DEFENDANT NO.1) TO THE DISTRICT COLLECTOR, ERNAKULAM.**
## **RESPONDENT'S ANNEXURES:-**
- **ANNEXURE 1: COPY OF THE COMPLAINT DTD. 07/07/2011 TO THE SUB INSPECTOR OF POLICE, PUTHENCRUZ.**
- **ANNEXURE 2: COPY OF THE RECEIPT OF THE COMPLAINT ISSUED BY THE SUB INSPECTOR OF POLICE, PUTHENCRUZ DTD. 08/07/2011.**
- **ANNEXURE 3: COPY OF THE COMPLAINT DTD. 11/07/2011 TO THE SUPERINTENDENT OF POLICE, ERNAKULAM RURAL.**
- **ANNEXURE 4: COPY OF THE RECEIPT OF COMPLAINT ISSUED BY THE DEPUTY SUPERINTENDENT OF POLICE DTD. 11/07/2011.**
**ANNEXURE X: COPY OF THE MEMORANDUM DTD. 24/10/2010 SUBMITTED BY THE PARISHIONERS TO THE APPELLANT.**
- **ANNEXURE R.84 (A): COPY OF THE ORDER DTD. 02/08/1986 IN I.A. NO. 125/86 IN O.S. NO. 41/77 ON THE FILES OF 1ST ADDITIONAL DISTRICT COURT, ERNAKULAM.**
- **ANNEXURE R.84 (B): COPY OF THE ORDER DTD.20/08/1990 IN C.R.P.NO.2697/86 OF THIS HON'BLE COURT.**
**A.S. NO.361/1999-F:**
**ANNEXURE R.84 (C): COPY OF THE ORDER DTD. 10/01/2003 IN I.A. NO.1702/99 IN O.S. NO. 141/77 ON THE FILES OF 1ST ADDITIONAL DISTRICT COURT, ERNAKULAM.**
## **//TRUE COPY//**
**P.A. TO JUDGE**
**Prv.**
## **P. BHAVADASAN, J.**
- - - - - - - - - - - - - - - - - - - - - - - - - - -
A.S. No. 361 of 1999
- - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9[th] day of March, 2012.
## **JUDGMENT**
The short question that arises for consideration is whether the suit is hit by Section 92 of the Code of Civil Procedure. According to the appellants, going by the prayer contained in the plaint, the suit falls within the ambit of Section 92 C.P.C. and the suit ought to have been dismissed for want of leave to institute the suit.
2. The respondents in this appeal on the other hand would say that going by the reliefs granted in the suit, it could not be said said that the suit is governed by Section 92 C.P.C. All that the court below has done is to grant an order of injunction restraining the defendants from handing over the records, funds and administration of the plaint Church to anybody else other than who are duly elected by the parish assembly. The relief is only just and proper and does not fall within anyone of the reliefs contemplated
A.S.361/1999.
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under Section 92 C.P.C. Therefore, they sey that there are no grounds to interfere with the judgment and decree of the court below.
3. The brief facts necessary for the disposal of
this appeal are as follows:
The Church in question is a parish church of Ankamaly Diocese of the Malankara Church. It is being administered under the 1934 Constitution of the Malankara Church. The first defendant is the Vicar and the plaintiffs and other defendants are parishnioners of the Church. It was alleged that on 19.5.1974 a General Body Meeting was held in the Church and it was presided over by the first defendant. In the said meeting defendants 2 to 6 and some of their partisans who are members of the Patriarch group demanded consideration of certain matters which are not included in the agenda. That caused objection being raised by certain other members in the General Body Meeting which resulted in exchange of words and commotion.
A.S.361/1999. 3
Thereafter no business could be transacted and the first defendant dispersed the meeting. It is alleged that thereafter there was a scuffle between the two groups for the custody of the records. The allegation is that the attempt of the defendants was to create a situation in the Church challenging the authority of the Catholicos cum Malankara Metropolitan and the Metropolitan of the Angamali Diocese representing the Catholicos group. Therefore, it was prayed that the defendants be restrained from inducting any Priest other than the first defendant or somebody who is appointed by the successor of Philipose Mar Theophiles. Consequential injunction was also sought for regarding handing over of the records etc.
4. The first defendant filed a written statement
wherein he supported the claim of the plaintiffs.
5. Defendants 2 to 6 contested the suit. In the written statement, they contended that the Patriarch of Antioch is having spiritual supremacy over the Catholicos of
A.S.361/1999.
4
the Malankara Church. They disputed the allegations contained in the plaint. They conceded that a meeting was held on 19.5.1974 and that the said meeting was presided over by the first defendant as Vicar of the Church. The allegation that there was commotion etc are disputed. The entire agenda was discussed and resolutions passed. The assets and the records of the Church were in the possession of the trustees. When the new trustees were elected, the records are to be handed over to them. Defendants 2 and 3 have handed over the records and assets to defendants 4 and 5, who are elected as the new trustees. It was contended that the plaintiffs are not entitled to any relief.
6. On the basis of the above pleadings, issues were raised. The evidence consists of the testimony of P.W.1 and documents marked as Exts.A1 to A4 from the side of the plaintiffs. The defendants did not adduce any evidence. On an appreciation of the evidence in the case, the trial court came to the conclusion that there was no
A.S.361/1999. 5
evidence to show that a meeting was conducted on 19.5.1974 wherein there was an election of the new trustees and therefore the first relief was not granted. As regards the relief regarding handing over of the records are concerned, that was allowed.
7. Shri.M.C.Sen, learned Senior Counsel appearing for the appellants contended that the court below ought to have seen that going by the reliefs sought for in the plaint, the suit falls squarely within the ambit of Section 92 of C.P.C. and the suit ought to have been dismissed on that ground. Learned Senior Counsel referred to the reliefs in the suit and pointed out that the first relief relates to the administration of the Church and if that be so, the relief is covered by Section 92 C.P.C. Learned counsel went on to point out that the averments in the plaint are to be considered for determining whether the suit falls within the ambit of Section 92 C.P.C. and not on the basis of the reliefs ultimately granted.
A.S.361/1999.
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8. Learned counsel went on to contend that there can be no dispute that the Church in question is a public religious trust and if the relief sought for falls within the ambit of Section 92, then the suit is only to be dismissed. In support of his contention, learned counsel relied on the decisions reported in **Mathew v. Thomas** (1982 K.L.T. 493), **Lucknow Diocessan Trust Association v. Sachindranand Bakshi** (AIR 1990 Allahabad 202), **Madappa v. Mahanthadevar** u (AIR 1966 SC 878), **St.Peters Orthodox Syrian Church v. Fr.Abraham Mathews** (2011(4) K.L.T. 540) and an unreported decision in A.S.768 of 1998 dated 4.1.2012.
9. Learned counsel appearing for the respondents, Shri. B.G. Bhaskar, did not dispute that the Church in question is a public religious trust. The contention was confined to the fact that going by the written statement, it is conceded that the Church is governed by 1934 Constitution and the various applications
A.S.361/1999. 7
filed by the appellants during the pendency of the appeal whould show that they too want an election to be conducted and if that be so, the reliefs sought for in the plaint do not fall within the ambit of Section 92 C.P.C. At any rate, the relief now granted has nothing to do with Section 92 C.P.C. and therefore the suit is perfectly maintainable.
10. It is well settled that the application of Section 92 C.P.C. has to be determined with reference to the averments in the plaint. It is not to be determined with reference to the ultimate relief that is to be granted in the suit. It is not in dispute that the Church in question is a public religious trust. If that be so, one of the conditions necessary to attract Section 92 C.P.C. is satisfied. Section 92 reads as follows:
“ **92. Public charitie** s.- (1) In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate-General, or two or
A.S.361/1999.
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more person having an interest in the trust and having obtained the leave of the Court, may institute a suit, whether contentious or not, in the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subjectmatter of the trust is situate to obtain a decree-
(a) removing any trustee;
(b) appointing a new trustee;
(c) vesting any property in a trustee;
(cc) directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property;
(d) directing accounts and inquiries;
(e) declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust;
(f) authorizing the while or any part of the trust property to be let, sold, mortgaged or exchanged;
(g) settling a scheme; or
A.S.361/1999.
9
(h) granting such further or other relief as the nature of the case may require.
(2) Save as provided by the Religious Endowments Act, 1863 (20 of 1863), or by any corresponding law in force in the territories which, immediately before the 1[st] November, 1956, were comprised in Part B States, no suit claiming any of the reliefs specified in sub-section (1) shall be instituted in respect of any such trust as is therein referred to except in conformity with the provisions of that sub-section.
(3) The Court may alter the original purposes of an express or constructive trust created for public purposes of a charitable or religious nature and allow the property or income of such trust or any portion thereof to be applied Cypres in one or more of the following circumstances, namely:-
(a) where the original purposes of the trust, in whole or in part,-
(i) have been, as far a may be, fulfilled; or
(ii) cannot be carried out at all, or cannot be carried out according to the directions given in the instrument creating the trust or, where there
A.S.361/1999.
10
is no such instrument, according to the spirit of the trust; or
(b) where the original purpose of the trust provide a use for a part only of the property available by virtue of the trust; or
(c) where the property available by virtue of the trust of other property applicable for similar purposes can be more effectively used in conjunction with, and to that end can suitably be made applicable to any other purpose, regard being had to the spirit of the trust and its applicability to common purposes; or
(d) where the original purposes, in whole or in part, were laid down by reference to an area which then was, but has since ceased to be, a unit for such purposes; or
(e) where the original purposes, in whole or in part, have, since they were laid down,-
(i) been adequately provided for by other means, or
(ii) ceased, as being useless or harmful to the community, or
(iii) ceased to be, in law, charitable, or
A.S.361/1999. 11
(iv) ceased in any other way to provide a suitable and effective method of using the property available by virtue of the trust, regard being had to the spirit of the trust.”
11. In order to attract Section 92, the following conditions must be satisfied:
“(a) There is a trust created for public purposes of a charitable or generous nature;
(b) There is a breach alleged of such trust, or the direction of the Court is necessary for the administration of such trust;
(c) The suit must be a representative one on behalf of the public and is not by individuals for their own interest; and
(d) the relief claimed in the suit is the one or other reliefs mentioned in the section.”
12. One may now have a look at the plaint to ascertain whether the reliefs sought for falls within any one of the reliefs mentioned in Section 92 C.P.C. That the suit is in a representative capacity is not a matter in dispute. Each
A.S.361/1999. 12
group represents independent factions. The reliefs sought for in the plaint reads as follows:
“A) Restraining the defendants from allowing any priest not appointed by the Diocesan Metropolitan Philipose Mar Thophilos or whomsoever may succeed in his office under the 1934 Constitution of the Malankara Orthodox Syrian Church from entering or officiating religious worship in the plaint schedule church;
B) Restraining defendants 2 to 4 from handing over the records and funds or administration of the plaint Church to anyone not elected by the plaint parish yogam and approved by the said Diocesan Metropolitan.”
It is specifically contended in the plaint that there is no election conducted on 19.5.1974, as the meeting had been dispersed due to the commotion created by defendants 2 to 6 and others.
13. In the decision reported in **Mathew's case** (supra) it was held as follows:
A.S.361/1999.
13
“While exercising its power under S.92(1) the court will be guided by the principles laid down by judicial decisions to regulate the power of the Advocate General under the sub-section. Along with the petition for leave the plaintiffs should produce in Court the plaint for the Court's perusal to enable it to pass a proper order under S.92(1). This does not preclude the Court from requiring the production of any other record necessary for a proper decision. The Court can, if it is so satisfied, grant the leave without issuing notice to the respondents-defendants or hearing them. S.92(1) does not provide for the grant of interim leave to the plaintiffs. What it contemplates is only the grant of leave and as a corollary the refusal of leave. On the terms of S.92(1) the leave is to precede the institution of the suit as the relevant words are “two or more persons .... having obtained the leave of the court may institute a suit”. This means that prior to the grant of leave there could not be any valid suit with the further consequence that the court cannot pass interim orders in “the suit” before granting the leave.”
14
## 14. In the decision reported in **Lucknow**
**Diocessan Trust Association's case** (supra) it was held as follows:
“That the trust was a public trust and the college was a charitable institution. Suit was not filed for vindication of a personal right of the plaintiffs or any other person but for vindicating the right of the public for preventing the breach of trust. Object of the suit was to prevent the breach of trust and to force the trustees to discharge their obligations and perform the duties of trustees in accordance with the object of the trust. No doubt the relief claimed by the plaintiffs does not fall in cls.(a) to (g) of S.92, C.P.C. but in view of the averments made in the plaint and the finding recorded by the trial court, the relief claimed in the suit falls under Cl.(h) of the said section. Since the suit was not filed with the consent in writing of the Advocate General the same was not maintainable and hence had to be dismissed.”
A.S.361/1999.
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## 15. In the decision reported in **Madappa's case**
(supra), it was held as follows:
“Let us now see if there is anything in S. 92 (1). Cl. (f) which prohibits the giving of such directions even if there is a provision to that effect in the scheme. Section 92 (1) provides for two classes of cases, namely, (i) where there is a breach of trust in a trust created for public purposes of a charitable or religious nature, and (ii) where the direction of the Court is deemed necessary for the administration of any such trust. The main purpose of S. 92 (1) is to give protection to public trusts 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 either by the AdvocateGeneral, or two or more persons having an interest in the trust with the consent in writing of the Advocate-General. The object clearly is that before the Advocate-General files a suit or gives his consent for filing a suit under S. 92, he would satisfy himself that there is a prima facie case either of breach of trust or of the necessity for
A.S.361/1999.
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obtaining directions of the Court. The reliefs to be sought in a suit under S. 92 (1) are indicated in that section and include removal of any trustee, appointment of a new trustee, vesting of any property in a trustee, directing a removed trustee or person who has ceased to be a trustee to deliver possession of trust property in his possession to the person entitled to the possession of such property, directing accounts and enquiries, declaring what proportion of the trust-property or of the interest therein shall be allocated to any particular object of the trust, authorisation of the whole or any part of the trust-property to be let, sold, mortgaged or exchanged, or settlement of a scheme. The nature of these reliefs will show that a suit under S. 92 may be filed when there is a breach of trust or when the administration of the trust generally requires improvement. One of the reliefs which can be sought in such a suit is to obtain the authority of the Court for letting, selling, mortgaging or exchanging the whole or any part of the property of the trust, as provided in Cl. (f) of the reliefs.”
17
## 16. In **St.Peters Orthodox Syrian Church's**
**case (supra)** it was held as follows:
“Thus, leave of the Court is not necessary if it is the Advocate General who has instituted the suit which is of the nature referred to in Section 92 C.P.C. Leave of the Court is insisted upon only if the suit is one falling under Sec. 92 C.P.C. and is instituted by 2 or more persons having an interest in the public trust concerned. The usage of the words “having obtained the leave of the Court, may institute a suit” occurring in Section 92(1) C.P.C. is a clear indication that leave of the Court is a condition precedent to the very institution of the suit and such leave cannot be given subsequent to the institution of the suit. If the case is one falling under Section 92 C.P.C. and the suit is instituted for any of the reliefs enumerated under clauses (a) to (h) of Section 9291) C.P.C. failure to obtain the leave of the Court before the institution of the suit, will go to the root of the matter and is a jurisdictional defect or infirmity which cannot be cured by a post-institutional leave granted by the Court. .... The rigid requirement of law is that the leave
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petition itself should contain all the necessary facts which as the nature of the public trust concerned, the alleged breach of trust or the circumstances under which the direction of the Court is considered necessary for the administration of the trust and the main reliefs prayed for in the proposed suit. It is only after the leave of the Court is obtained can the plaintiffs institute the suit as provided under Order IV Rule 1 C.P.C...... Grant of leave being a jurisdictional pre-condition, any consent, waiver or acquiescence on the part of the opposite party either in the pleadings or otherwise, will not cloth the court with the jurisdiction to entertain the suit, much less, try and dispose of such suit. Conversely, if the suit has been instituted after obtaining the leave of the Court, that by itself will not preclude the Court from revoking the leave already granted if the Court is thereafter convinced that the suit is not one falling under section 92 C.P.C. ... In such an event, the suit will have to be filed before the proper Court having jurisdiction to try such suit. Even though the Court is not bound to give notice to the proposed
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defendants before granting leave under Sec.92 C.P.C. as a rule of caution, Court should normally give notice to the defendants. .....It is important to remember that a suit under Sec.92 C.P.C. is a representative suit and the decision in the suit will bind not only the parties to the suit but also all persons interested in the public trust concerned.”
17. A reading of the plaint leaves one in no doubt
that the suit was not for vindication of any personal right, but relating to administration of the trust. A reading of the first relief above extracted leaves one in no doubt that it relates to the administration of the Church in question.
18. In the decision reported in **Vidyodaya Trust**
**v. Mohan Prasa** d (2008(2) K.L.T. 68) it was observed as follows:
“As was observed by this Court in Swamy Parmatmanand's case, (supra) to gauge whether the suit was for vindicating public rights, the court has to go beyond the relief and to focus on the purpose for which the suit is filed. To put it
20
differently, it is the object or the purpose for filing the suit and not essentially the relief which is of paramount importance. There cannot be any hard and fast rule to find out whether the real purpose of the suit was vindicating public right or the object was vindication of some personal rights. For this purpose the focus has to be on personal grievances.”
19. Applying the principles laid down in the various decisions, one cannot omit to notice that the main relief sought for relates to the administration of the Church and if that be so, it falls within the ambit of Section 92 CPC.
20. Merely because a decree has been passed, does not enable the respondents in this appeal to contend that since the relief granted does not fall within the ambit of Section 92 C.P.C., no interference is called for.
21. As already noticed, the main relief is regarding the administration of the Church and the relief which falls within the ambit of Section 92 and if that be so, the decree passed is without jurisdiction.
21
22. In the decision reported in **Kiran Singh v. Chaman Paswan** (AIR 1954 SC 340), it was held as follows:
“It is a fundamental principle that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction whether it is pecuniary or territorial, or whether it is in respect of the subject matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties.”
23. It may be true that many of the allegations in the plaint are admitted in the written statement and also that the appellants herein have sought for an election by filing an application for appointment of a Commissioner to conduct election in this appeal. But that does not change the initial character of the suit which infact relates to the administration of the Church. If that be so, as rightly contended by the learned Senior Counsel for the appellants,
A.S.361/1999. 22
the suit is hit by Section 92 C.P.C., and the suit is not maintainable since no leave has been obtained or granted. In the result, this appeal is allowed, the impugned judgment and decree are set aside and the suit shall stand dismissed. There will be no order as to costs.
**P. BHAVADASAN, JUDGE**
sb.