CRP No.304 of 2021

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN TUESDAY, THE 29[TH] DAY OF MARCH 2022 / 8TH CHAITHRA, 1944** **CRP NO. 304 OF 2021** **AGAINST THE ORDER/JUDGMENT IN OP 23/2021 OF DISTRICT COURT &** **SESSIONS COURT, PALAKKAD** ## **REVISION PETITIONERS/1st RESPONDENT/2ND RESPONDENT:** 1 SREENARAYANA VIDHYA MANDIR TRUST IIND FLOOR, P.K.V TOWER, PARALI CHECK POST (PO) PALAKKAD TALUK, PALAKKAD DISTRICT REPRESENTED BY COMMITTEE CHAIRMAN M. RAMAKRISHNAN, S/O. LATE MALLU, PUTHENTHODI VEEDU, 5TH MILE, EDATHARA POST, PARALI NO. II VILLAGE, PALAKKAD TALUK, PALAKKAD VILLAGE, PALAKKAD DISTRICT. 2 M. RAMAKRISHNAN AGED 66 YEARS S/O. LATE MALLU, PUTHENTHODI VEEDU, 5TH MILE, EDATHARA POST, PARALI NO. II VILLAGE, PALAKKAD TALUK, PALAKKAD VILLAGE, PALAKKAD DISTRICT. BY ADVS. RAJESH SIVARAMANKUTTY ARUL MURALIDHARAN K.VIJINA ## **RESPONDENTS/PETITIONERS AND RESPONDENTS 3 TO 16:** 1 UNNIKRISHNAN AGED 55 YEARS S/O. RAMAN, PIRAYIRI AMSOM, VILLAGE , PIRAYIRI POST, PALAKKAD TALUK AND DISTRICT, PIN 678 004. 2 SARITHA AGED 40 YEARS W/O. HARIDAS, ERANKKAD HOUSE, DEVINAGAR, PIRAYIRI AMSOM DESOM AND VILLAGE, PIRAYIRI POST, PALAKKAD TALUK AND DISTRICT, PIN 678 004. 3 R. UNNIKRISHNAN AGED 69 YEARS S/O. RAMANKUTTY, USHUS, THALAPOTTA, KINAVALLUR NO.1 VILLAGE, PALAKKAD TALUK, PALAKKAD PIN 678 612. CRP.No.304/2021 2 4 P. DIVAKARAN, AGED 71 YEARS, S/O. P.K MUNSHI VAIDHYAR (LATE), POTTIRAYIL VEEDU, KANHIKULAM POST, MUNDUR NO. 2 VILLAGE, PALAKKAD TALUK, PALAKKAD, PIN 678 596. 5 C.V SUMESH BABU AGED 43 YEARS S/O. C.R BHAVADAS, CHATHAMKULAM VEEDU, BANGLAVUKUNNU, KONGAD POST, KONGAD NO. 1 VILLAGE, PALAKKAD TALUK, PALAKKAD, PIN 678 631. 6 T.C SURESH AGED 60 YEARS S/O. T.M CHANDRAN, THONIPARAMBU VEEDU, MANKURISSI POST, MANKARA NO. 1 VILLAGE, PALAKKAD TALUK, PALAKKAD, PIN 678 613. 7 SURESH K, AGED 41 YEARS, S/O. UNNIKRISHNAN,KALATHIL VEEDU, MAILAVIL, MANKARA POST, MANKARA NO.1 VILLAGE, PALAKKAD TALUK,PALAKKAD, PIN 678 613. 8 ANILKUMAR AGED 64 YEARS S/O. KARUPPANDI, 158, PRARTHANA VEEDU, CHANDRANAGAR POST, MARUTHA ROAD VILLAGE, PALAKKAD TALUK, PALAKKAD, PIN 678 007. 9 RAGHU K AGED 46 YEARS S/O. KRISHNANKUTTY, KRISHNA VEEDU, MANKAVU, KUNNATHURMEDU POST, PALAKKAD NO. 3 VILLAGE, PALAKKAD TALUK, PALAKKAD, PIN 678 013. 10 P.K RAJAN AGED 68 YEARS S/O. KUNHUVELAN, 8/281, RADHIKA VEEDU, PATTAMPADAM, KERALASSERY POST, KERALASSERY VILLAGE, PALAKKAD TALUK, PALAKKAD, PIN 678 641. CRP.No.304/2021 3 11 P.M VIJAYAN, AGED 65 YEARS S/O. MADHAVAN, KAVUNGUVELIYIL VEEDU, 10TH MILE, VELIKKAD POST, MUNDUR NO. 2 VILLAGE, PALAKKAD TALUK, PALAKKAD, PIN 678 592. 12 P.B VIJAYAN, AGED 63 YEARS S/O. BAHULEYAN, BEEJIS, PUDUR, KODUNTHIRAPPULLI POST, PIRAYIRI VILLAGE, PALAKKAD TALUK, PALAKKAD, PIN 678 004. 13 P.K CHELLAPPAN, AGED 64 YEARS S/O. KUNHAN, DWARAKA VEEDU, PULIYAPARAMBU, PUDUR, KOUDUNTHIRAPPULLI POST, PIRAYIRI VILLAGE, PALAKKAD TALUK, PALAKKAD, PIN 678 004. 14 SATHEESHKUMAR, AGED 52 YEARS S/O. RAMAKRISHNAN, SATHEESH VIHAR, MELEPPURAM, OLAVAKKODE POST, PUTHUPPARIYARAM VILLAGE, PALAKKAD TALUK, PALAKKAD, PIN 678 002. 15 MANOJKUMAR,AGED 40 YEARS S/O. CHATHUKUTTY, VAPPARAKKAL VEEDU, PARASSERI POST, KONGAD NO. 2 VILLAGE, PALAKKAD TALUK, PALAKKAD, PIN 678 613. 16 VIJAYAN, AGED 62 YEARS, S/O.KARUPPAN, NO. 4, KRISHNA , VENKITESWARA GARDEN, PALLIPPURAM POST, PALAKKAD NO. 1 VILALGE, PALAKKAD TALUK, PALAKKAD,PIN 678 006. BY ADVS. A.S.DILEEP R.SREEHARI FOR R4 P.B.KRISHNAN FOR R8, R9, R10, R12, R13, R14, R16 P.B.SUBRAMANYAN SABU GEORGE B.ANUSREE MANU VYASAN PETER FOR R8, R9, R10, R12, R13, R14, R16 P.BINOD SUSEELA DILEEP SUDEEP ARAVIND PANICKER THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10.03.2022, THE COURT ON 29.03.2022 DELIVERED THE FOLLOWING: CRP.No.304/2021 4 _**“C.R”**_ ## _**A. BADHARUDEEN, J.**_ ================================ _C.R.P. No.304 of 2021_ ================================ _Dated this the 29[th] day of March, 2022_ ## _**O R D E R**_ Two relevant questions arise herein are: _(1) What is decisive while considering the question of referring a dispute to an arbitrator in terms of an arbitration agreement?_ _(2) What are the parameters governing grant of leave in a petition filed under Section 92(1) of the Code of Civil Procedure?_ Respondents 1 and 2 in O.P (leave) No.23/2021 on the file of the Principal of the District Judge, Palakkad, have filed this Revision Petition under Section 115 of the Code of Civil Procedure challenging order passed by the learned District Judge under CRP.No.304/2021 5 Section 92(1) of the Code of Civil Procedure. 2. Respondents herein are the original petitioners in the above scheme suit. 3. Heard Advocate Rajesh Sivaramankutty appearing for the petitioners, Advocate Sreehari, representing the 4th respondent and Advocate P.B.Krishnan appearing for other respondents. 4. Short facts: Petitioners filed O.P.No.23/2001 before the District Court, Palakkad under Section 92(1) of the Code of Civil Procedure seeking leave to institute the Suit. Suit also filed along with the leave petition. The prayers in the Suit in relation to a public Trust include direction to the defendants by way of mandatory injunction to register the trust deed in accordance with the general body decision on 17.11.2019 and 25.12.2019, a mandatory injunction to direct the defendants to vouch the accounts of the trust for the period between 12.08.2017 to 04.03.2022 and formation of adhoc committee to administer the trust till a new managing committee being elected in terms of the amendment CRP.No.304/2021 6 brought into, as per the general body meetings dated 17.10.2019 and 25.12.2019. Generally, the petitioners allege mis-management on the part of the respondents. 5. The learned counsel for the petitioners would submit that there is an arbitration clause in the trust deed and therefore the respondents herein ought to have opted the remedy of disputed resolution by way of arbitration. Whereas, Advocate P.B.Krishnan would urge that though there is an arbitration clause in the trust deed, the dispute sought to be adjudicated in the Scheme Suit filed by the respondents cannot be adjudicated by an Arbitrator since the reliefs sought for are not subject matter of arbitration. The learned counsel placed a decision of the Apex Court reported in [2016(4) KHC 669 : 2016(3) KLJ 652 : 2016(4) KLT SN 22], _**Vimal Kishor Shah & Ors. v. Jayesh Dinesh Shah & Ors.,**_ to butress this point. In the said decision, the Apex Court held in para.61 as under: _“61. We, accordingly, hold that the disputes relating to Trust, trustees and beneficiaries arising out of the Trust Deed and the Trust Act_ CRP.No.304/2021 7 _are not capable of being decided by the arbitrator despite existence of arbitration agreement to that effect between the parties. A fortiori – we hold that the application filed by the respondents under S.11 of the Act is not maintainable on the ground that firstly, it is not based on an “arbitration agreement” within the meaning of S.2(b) and S.2(h) read with S.7 of the Act and secondly, assuming that there exists an arbitration agreement (Clause 20 of the Trust Deed) yet the disputes specified therein are not capable of being referred to private arbitration for their adjudication on merits.”_ 6. The learned dcounsel for the petitioners submitted that though as per the decision in _**Vimal Kishor Shah & Ors. v. Jayesh Dinesh Shah & Ors.**_ 's case ( _supra_ ) the Apex Court expressed the view that disputes pertaining to public Trusts to be decided by applying the principle of _right in rem_ , subsequently a 3 Judge Bench of the Apex Court again considered the said question and settled 4 fold test to determine the subject matter of dispute involved in an arbitration agreement is arbitrable or not. The 4 fold test settled by the Apex Court in [2020 0 Supreme(SC) 727], _**Vidya Drolia & Ors. v. Durga Trading Corporation**_ , are as under:- CRP.No.304/2021 8 _“(1) when cause of action and subject matter of the dispute relates to actions in rem, that do not pertain to subordinate rights in personam that arise from rights in_ _rem._ _(2) when cause of action and subject matter of the dispute affects third party rights; have erga omnes effect;_ _require centralized adjudication, and mutual adjudication would not be appropriate and enforceable;_ _(3) when cause of action and subject matter of the dispute relates to inalienable sovereign and public interest functions of the State and hence mutual adjudication would be unenforceable; and_ _(4) when the subject-matter of the dispute is expressly or by necessary implication non-arbitrable as per mandatory statute(s)._ _These tests are not watertight compartments; they dovetail and overlap, albeit when applied holistically_ CRP.No.304/2021 9 _and pragmatically will help and assist in determining and ascertaining with great degree of certainty when as per law in India, a dispute or subject matter is nonarbitrable. Only when the answer is affirmative that the subject matter of the dispute would be non-arbitrable._ _However, the aforesaid principles have to be applied with care and caution as obsreved in_ _**Olumpus**_ _._ _**Superstructures Pvt. Ltd**_ 7. However, the learned counsel for the petitioners could not convince this Court that even going by the ratio in _**Vidya Drolia & Ors. v. Durga Trading Corporation**_ 's case ( _supra_ ), the nature of dispute raised herein is one could be referred for arbitration. 8. **Indubitably, the law is settled without ambiguity that in the matter of** _**in rem**_ **the dispute** _**right**_ **(right against the world at large), the same cannot be decided by an Arbitrator and the jurisdiction of the Arbitrator would be in relation to dispute in** CRP.No.304/2021 10 **the nature of** _**in**_ a **determinate** _**right personam**_ ( _**right**_ **against person or persons** ). 9. At this juncture, the prayers in the Suit, I have already referred herein above are relevant. It is not in dispute that the prayers therein are in the nature of _right in rem_ and not _right in personam_ . Therefore, the argument advanced by the learned counsel for the petitioners contending that the dispute involved in the present Scheme Suit, has to be referred to arbitration, cannot be countenanced and therefore, I pass up the said contention. 10. The second point in this case is as to whether the District Judge is right in granting leave to institute the Suit and consequently numbering the Suit as O.S.No.3/2021. To be straight off; **what are the parameters governing grant of leave in a petition filed under Section 92(1) of the Code of Civil Procedure?** 11. In this connection, the law is well settled. However, I am inclined to refer the relevant decisions dealing with Suit CRP.No.304/2021 11 relating to public charities as provided under Section 92 of the Code of Civil Procedure. 12. In [1966 KHC 517], _**Madappa v.**_ _**M.N.Mahanthadevaru**_ , a Constitution Bench of the Apex Court held that the main purpose of sub-section (1) of S.92 of Code 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 Advocate General or two or more persons having an interest in the trust with the [consent in writing of the Advocate General]. The object is that before the Advocate General files a suit or gives his consent for filing a 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. [*Substituted as `leave of the Court' by Act 104 of 1974]. 13. In [1967 KHC 696], _**Harnam Singh v. Gurdial Singh**_ , a Three – Judge Bench of the Apex Court reiterated the view of the CRP.No.304/2021 12 Privy Council in the decision in [AIR 192 PC 221], _**Vaidvanatha Ayyar v. Swaminatha Ayyar**_ that, the object of S.92 of the Code is to presvent people interfering by virtue of this Section in the administration of charitable trusts merely in the interests of others and without any real interests of their own. 14. In [1969 KHC 752], _**Sugra Bibi v. Hazi Kummu Mia**_ , a Three – Judge Bench of the Apex Court held that the fact that a suit relates to public trust of a religious or charitable nature and the reliefs claimed fall within clauses (a) to (h) of sub-section (1) of S.92 of the Code would not by themselves attract the operation of the Section, unless the suit is of a representative character instituted in the interest of the public and not merely for vindication of the individual or personal rights of the plaintiffs. When a person or persons sue not to establish the general rights of the public, of which they are a member or members, but to remedy a particular infringement of their individual right, the suit is not within or need not be brought under S.92 of the Code. CRP.No.304/2021 13 15. As regards the nature of inquiry at the stage of consideration of grant of leave is concerned, the Hon'ble Supreme Court has, through the judgments in [(1974) 2 SCC 695], _**Swami Paramatmanand Saraswathi v. Ramji Tripathi**_ **;** _**R.M. Narayana Chettiar**_ ( _supra_ ) and _**Vidyodaya Trust**_ ( _supra_ ) postulated that 'it is only the allegations in the plaint that should be looked into at the firstinstance to see whether the suit falls within the ambit of Section 92 of the CPC.' 16. In [1991 KHC 7], _**R.M.Narayana Chettiar v. N.Lakshmanan Chettiar**_ , the Apex Court held that, under S.92 of the Code leave of he Court is a precondition or a condition precedent for the institution of a suit against a public trust for the reliefs set out in the said Section; unless all the beneficiaries join in instituting the suit, if such a suit is instituted without leave, it would not be maintainable at all. 17. In [2008 (2) KHC 35], _**Vidyodaya Trust v. Mohan Prasad R.**_ , the Apex Court reiterated that, the object of S.92 of the CRP.No.304/2021 14 Code is to protect the public trust of a charitable and religious nature from being subjected to harassment by suits filed against them. Public trusts for charitable and religious purpose are run for the benefit of the public. No individual should take benefit from them. If the persons in management of the trusts are subjected to multiplicity of legal proceedings, funds which are to be used for charitable or religious purposes would be wasted on litigation. The harassment might dissuade respectable and honest people from becoming trustees of public trusts. Thus there is need for scrutiny. In the suit against public trusts, if on analysis of the averments contained in the plaint it transpires that the primary object behind the suit was the vindication of individual or personal rights of some persons, an action under the provision does not lie. 18. In [2018 (1) KHC 958 : 2018 (1) KLT 936 : ILR 2018 (1) Ker. 954], _**Valia Koonambaikulam Sree Bhadrakali Temple, Vadakkevila & Ors. v. Rajendran & Ors.,**_ this Court settled the following essential ingredients to be satisfied for maintaining an CRP.No.304/2021 15 ## action u/s. 92 of CPC. They are as follows: - _(1) The dispute must be in respect of an express or constructive trust_ - _created for public purpose of charitable or religious nature._ - _(2) There should be an allegation of any breach of express or_ - _constructive trust._ - _(3) Direction of the court is deemed necessary for administration of any_ _such suit._ - _(4) Advocate General may institute the suit._ - _(5) The plaintiffs in such a suit must be two or more persons having_ - _interest in the trust._ - _(6) They should obtain leave of the court before instituting the suit._ - _(7) Institution of the suit should be before the Principal court of original_ - _jurisdiction or any other court empowered in this behalf by the state Government._ _(8) The reliefs claimed in the suit must fall within clauses (a) to (h) in Section 92 (1) of CPC._ 19. In this context, it is apposite to refer a recent decision reported in [2020 KHC 489], _**Fr. O.S. Kuriakose and Others v. Fr. Andrews Chiravathara and Others**_ , rendered by another single bench of this Court, where it was held that “Sub - section (1) of S.92 of the Code provides for two classes of cases, namely, (i) where there CRP.No.304/2021 16 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 reliefs to be sought in a suit under sub-section (1) of S.92 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 reach of trust or when the administration of the trust generally requires improvement.” 20. The decisions referred above would render it luculent CRP.No.304/2021 17 that the Hon'ble Supreme Court also examined the attribute of the satisfaction to be arrived at by a court before granting leave under section 92 of the CPC, to hold that it is only in the event of the court obtaining subjective satisfaction, that the averments in the petition seeking leave and the accompanying plaint justify a suit under Section 92, leave is liable to be granted. 21. In view of the law settled in the matter of granting under Section 92(1) of the Code of Civil Procedure, when the plaint averments are perused, the same would go to show that the reliefs would come under Section 92(1)(b), 92(1)(d) and 92(1)(h) of the Code of Civil Procedure and the plaint averments in general would convince that a Suit under Section 92 is warranted to address the grievance of the respondents herein. Therefore, the learned District Judge rightly granted leave as per the order impugned and therefore the said order does not require any interference in any manner. 22. In the above circumstances, this Original Petition fails and is accordingly dismissed. CRP.No.304/2021 18 Advocate P.B.Krishnan submitted that certain petitions which would require urgent hearing are pending before the District Court and therefore, there may be a direction to District Judge to consider and pass orders thereon within a time frame. In response to the above submission, I direct the learned District Judge to expedite the disposal of the above petitions, as early as possible, at any rate, within a period of one month from the date of production of a copy of this order. _Sd/-_ ## _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_ CRP.No.304/2021 19 APPENDIX OF C.R.P.NO.304 OF 2021 ## REVISION PETITIONERS' EXHIBITS NIL. ## RESPONDENTS' EXHIBITS ANNEXURE-A: THE ORIGINAL OF THE NOTICE CUM REPORT ISSUED BY THE CONVENOR, SREE NARAYANA VIDHYA MANDIR TRUST. ANNEXURE-R1(A): TRUE COPY OF THE RELEVANT PAGES OF THE MINUTES BOOK OF THE MEETING OF THE GOVERNING BODY OF THE TRUST HELD ON 1.2.2022 AND ENTERED IN THE MINUTES BOOK OF THE GOVERNING BODY OF THE TRUST. ANNEXURE-R1(B): TRUE COPY OF THE RELEVANT PAGES OF THE MINUTES BOOK OF GOVERNING BODY OF THE TRUST.