FAO Nos. 96, 99, 100 & 101 of 2018 (Common Judgment)

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **TUESDAY, THE 10TH DAY OF JULY 2018 / 19TH ASHADHA, 1940** **FAO.No. 96 of 2018** **AGAINST THE ORDER IN IA 5432/2017 DATED 20.3.2018 IN OS 7/2014 BEFORE THE 1ST ADDITIONAL DISTRICT COURT, ERNAKULAM** ## **APPELLANTS/RESPONDENTS/PLAINTIFFS 1 TO 3** **1 K.V.JOSE, S/O. ULAHANNAN, AGED 55 YEARS, KULLAPPILLIL HOUSE, OLIPPARA, THIRUVIZHAYADU VILLAGE, PALAKKAD DISTRICT-679533.** **2 JOY THOMAS, AGED 55 YEARS, S/O. THOMAS, KULAPPARA HOUSE, PALIYAMANGALAM, AYILOOR P.O., PALAKKAD DISTRICT-678510.** **3 FR. MATHAI PANAMKUTTI, AGED 62 YEARS, S/O. P.M. PURAVATH PANAMKUTTI HOUSE, PANNIYAMKARA P.O., PALAKKAD DISTRICT-678683.** **BY ADVS.SRI.K.K.APPU** **SRI.ISAC SANJAY** **SRI.B.G.BHASKAR** ## **RESPONDENTS/PETITIONERS IN IA/DEFENDANTS 1 TO 5 :** **1. JOMON JOSEPH, S/O. JOSEPH, AGED 40 YEARS, KATTAKKAKATH HOUSE, KATTILAPOOVAM P.O., RAMAVARMAPURAM, THRISSUR-680631.** **2. KURIAKOSE MOR EUSEPHIOUS,** **(WRONGLY DESCRIBED AS SRI. KURIAKOSE) NOW AGED 46 YEARS, S/O. GEORGE, NOW RESIDING AT BISHOPS' HOUSE, DELHI DIOCESE GOLDA KHANA CHURCH, NEW DELHI-110001.** **3. BESELIOUS THOMAS-1,** **(WRONGLY DESCRIBED AS THOMAS MOR DIONACIOUS), S/O.MATHU, AGED 89 YEARS, RESIDING AT PARTRIARCHAL CENTRE, PUTHUNCRUZE VILLAGE, ERNAKULAM DT.-682308.** **4. E.K. PAULOSE,** **(WRONGLY DESCRIBED AS E.P. PAULOSE), AGED 73 YEARS, EDAPPATTU HOUSE, UPPUMANUR, KARINGAYAM P.O., PALAKKAD DISTRICT-678706.** **5. P.P. ELIAS, S/O. PAULOSE, AGED 55 YEARS, PANAKKATTU HOUSE, POTHANKODE, OLINKADAVU P.O., MANGALAM DAM VILLAGE, ALATHOOR TALUK, PALAKKAD DISTRICT-678706.** **THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 10-07-2018, ALONG WITH FAO 99/2018 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **A. HARIPRASAD, J.** **------------------------------F.A.O.Nos.96, 99, 100 & 101 of 2018 ---------------------------------------------Dated this the 10[th] day of July, 2018** ## **COMMON JUDGMENT** Common questions arise in all these appeals. Aggrieved by the orders passed in four different suits by the First Additional District Judge, Ernakulam, revoking the leave granted under Section 92 of the Code of Civil Procedure, 1908 (in short, the Code) and striking off the suits from the file, the plaintiffs have come up in these appeals. 2. Heard the learned Senior Counsel appearing for the appellants and learned counsel for the contesting respondent. 3. Four suits were instituted before the Sub Court, Ottappalam, on various dates. Along with the suit, interlocutory applications were also filed seeking leave to institute the suits under Section 92 of the Code. As seen from the impugned orders, all the suits were numbered initially and thereafter, leave was granted on the interlocutory applications. For example, in **2** ## **FAO 962018 & connected cases** O.S.No.91 of 2012 on the file of the Sub Court, Ottappalam (which is renumbered as O.S.No.9 of 2015 before the District Court, Ernakulam), the suit was instituted on 9.3.2012. I.A.No.1009 of 2012, filed under Section 92(1) of the Code, was allowed only on 12.3.2012 by granting a leave for institution of the suit. Same is the situation in all the other cases. In fact, after institution only, the leave was granted under Section 92 of the Code. 4. Learned Senior Counsel for the appellants strongly argued that since there is no prejudice caused to the defendants, revocation of the leave and striking off the suits from the file were totally illegal. According to him, the written statement filed by the defendants would show that they are acting against the interest of the public charities involved in the suits. The dispute in these cases centers around different churches belonging to Malankara Jacobite denomination of Christians. It is the case of the plaintiffs that the churches are to be administered under the provisions of 1934 Malankara Church Constitution. The defendants, in their written statement, mainly raised contentions that the churches in question are not to be **3** ## **FAO 962018 & connected cases** administered under the 1934 Malankara Church Constitution. It is also asserted that administration of the churches are smoothly going on under the Constitution framed in the year 2002. Learned Senior Counsel for the appellants contended that the contentions raised are diametrically opposite to the declaration of law by the apex Court in **Varghese v. St.Peters and Pauls Syrian Orthodox Church [2017 (3) KLT 261]** . However, that is a matter to be decided at the time of trial. 5. The common question cropping up for determination in these cases is whether revocation of the leave under Section 92 of the Code and striking off the suits from the file can be justified. 6. Learned Senior Counsel, relying on **St.Peters and Pauls Syrian Orthodox Church v. K.S.Varghese [2010 (3) KHC 313]** contended that there is no legal infirmity in seeking leave under Section 92 of the Code through an interlocutory application filed along with the suit. According to him, the plaintiffs have done their duty by instituting the suit along with an application under Section 92 of the Code and at the most, it is the mistake on the part of the court in numbering the suit first **4** ## **FAO 962018 & connected cases** and sanctioning leave at a later point in time. 7. Learned counsel for the contesting respondents would oppose this argument by contending that without sanctioning leave under Section 92 of the Code, institution of the suit itself is bad in law and it cannot be rectified by any subsequent act. As it goes to the root of the matter, subsequent grant of leave cannot salvage the situation. It is true that in **St.Peters and Pauls Syrian Orthodox Church's case (supra)** a learned Single Judge of this Court has opined that grant of leave can be applied by way of an interlocutory application and such application should contain all the necessary details for applying the Court's mind for sanction of leave. I am afraid, I cannot subscribe to that view because an interlocutory application can be entertained only in a properly instituted substantive proceeding, like suit, appeal, original petition, etc. With respect, I may observe that a later decision in **Ramachandran** **Unnithan v. Sree Bhagavathi Thriporittakkavu Bhagavathi Kshethram [2017 (2) KLT 522]** rendered by another learned Single Judge laid down the correct proposition of law in respect of seeking leave by filing an original petition. Without a **5** ## **FAO 962018 & connected cases** substantive proceedings, no interlocutory application can be filed. Viewing from that angle also, the ratio in **Ramachandran Unnithan's case** is more appropriate. 8. Another point raised by the learned Senior Counsel for the appellants based on **Kintali China Jaganadham v. K.Laxmi [AIR 1988 Orissa 100]** is that even if institution of the suit was prior to the grant of leave, there is nothing wrong in treating the suit to have been instituted on the date on which the leave was obtained. I am afraid this principle is against a direct decision of this Court reported in **B.K.N.Pillai v. George Mendez [1988 (2) KLT 605]** . After considering the provisions in Sections 91 and 92 of the Code elaborately, this Court observed as follows: The following words "having obtained the leave of the court may institute a suit" appearing in S.92 of the Code make it clear that obtaining leave is sine qua non for institution of the suit. Sub-section (2) of S.92 makes the position further clear as institution of suit without obtaining leave is not permitted. 9. The question whether the defendants would suffer **6** ## **FAO 962018 & connected cases** prejudice or not, is not the sole criterion for deciding the essentiality of grant of a leave before institution of the suit. The question of prejudice to any of the parties normally arises in a proceedings properly instituted. Here, the defect goes to the root of the matter as the institution itself is bad for want of sanction, which is held to be a pre-condition for institution of a suit under Section 92 of the Code. 10. It has been settled by the decisions of the apex Court and this Court that leave can be granted even without hearing the opposite party. However, if the Court feels that notice should be issued to the opposite party at the time when leave is sought for under Section 92 of the Code, then, certainly the other party should be heard before sanctioning leave. It is also settled that leave once granted can be revoked at a later point in time, provided, the conditions for revocation of leave has been established. The court below has exercised its jurisdiction correctly and found that the suit was not properly instituted as the leave was not obtained before institution of the suit. Hence, revocation of leave in this case is proper and I find no reason to interfere. Consequence of the revocation of leave in these cases **7** ## **FAO 962018 & connected cases** will be taking off the suits from the file of the Court. It is made clear that this will not prevent or preclude the plaintiffs from instituting a proper suit strictly in accordance with the provisions in Section 92 of the Code. In the result, the appeals are dismissed. All pending interlocutory applications will stand dismissed. JV Sd/- **A. HARIPRASAD JUDGE**