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High Court of KeralaSingle JudgeAppeal allowed; matter remanded to trial court ...

Fr. Issac Mattammel Cor-episcopa v. St. Mary's Orthodox Syrian Church Kandadu and Others

Case / Petition Number:FAO No. 288/2011 (OP 1295/2010)
Neutral Citation:/

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • Harun-ul-Rashid, J.
Judgment Date
2012-03-28
Court Decision / Holding
The appeal is allowed. The order dated 27/9/2011 in O.P.1295/2010 is set aside and the matter is remanded to the court below for de novo consideration of O.P.No.1295/2010. No order as to costs.
Final Disposition
Appeal allowed; matter remanded to trial court for de novo consideration of OP 1295/2010; no costs.

Parties to the Case

Appellants / Petitioners

  • Fr. Issac Mattammel Cor-episcopa
  • V.K. George
  • Salu David

Respondents

  • St. Mary's Orthodox Syrian Church Kandadu
  • Fr. John Punnchalil
  • Thampu George
  • K.C. Sabu
  • Wilson Paulose
  • Joy Kurian (Receiver)

Legal Representation & Advocates

Counsels for Petitioners

  • • Sri S. Sreekumar (Sr.)
  • • Sri P. Prijith
  • • Sri Aneesh James
  • • Sri P. Martin Jose

Counsels for Respondents

  • • Sri K. J. Kuriachan

Case Synopsis & Summary

This is a first appeal from an order dismissing a petition for leave to institute a suit under Section 92 CPC by the appellants, who are plaintiffs in a prior suit seeking administration of a public religious trust. The appellants, Fr. Issac Mattammel Cor-episcopa, V.K. George and Salu David, challenged the District Court’s dismissal of their petition for leave under Section 92 CPC in O.P. No.1295/2010. The court below held that (i) it could not be ascertained from the pleadings when the cause of action for the prayers arose; (ii) the proposed suit would be barred by limitation if the cause of action as of October 2006 were considered; and (iii) the prayers did not show the suit was aimed at proper administration of the lst defendant church but rather a power struggle between factions. The High Court clarifies that a Section 92 suit is of a special nature alleging breach of trust or a direction for administration, and leave must be granted only if the Section 92 ingredients are satisfied. The Court notes a grave error by applying Order VII Rule 11 (plaint) to a leave petition and remands for de novo consideration. It cites St. John’s Jacobite Syrian Church v. Fr. John Moolamattom to outline prerequisites for Section 92. The appeal is allowed and remanded with no costs.

Provisions of Law Cited

Section 92 of the Code of Civil ProcedureOrder VII Rule 11 of the CPC

Legal Doctrines & Maxims

  • Section 92 CPC creates a special suit for public trusts requiring breach of trust or court direction for administration; leave under Section 92 CPC must be based on ingredients satisfied therein.
  • A petition for leave under Section 92 should be evaluated on the basis of Section 92 CPC, not by the standard plaint rejection under Order VII Rule 11.
  • To attract Section 92 CPC, there must be a public trust and relief sought must be of the nature enumerated in Clause (a) to (h).
  • Order VII Rule 11 concerns plaints, not leave petitions; misapplication constitutes jurisdictional error.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants contended that leave under Section 92 CPC should be granted if the ingredients of Section 92 are met—i.e., existence of a public religious trust, a breach of trust or a required court direction for administration, and reliefs enumerated in the section. They argued the court below erred by applying Order VII Rule 11 to a leave petition and by treating lack of a precise cause of action and potential limitation as grounds to dismiss the petition rather than evaluating the Section 92 ingredients. The remedy sought was administration of the trust, not a dispute about power, and must be considered under the statute with deference to prior authoritative judgments.

Contentions of Respondents

The respondents argued that the petition failed to show a valid cause of action under Section 92 CPC, that the suit would be barred by limitation, and that the prayers sought do not demonstrate proper administration but reflect internal power struggles within the church.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
St. John's Jacobite Syrian Church v. Fr. John Moolamattom(2005 (1) K.L.T. 307)PositiveCited to outline the prerequisites for attracting Section 92 CPC (public trust, breach or administration direction, and enumerated relief).

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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 HARUN-UL-RASHID WEDNESDAY, THE 28TH DAY OF MARCH 2012/8TH CHAITHRA 1934 FAO.No. 288 of 2011 ( ) ----------------------OP.1295/2010 OF THE I ADDL.DISTRICT COURT, ERNAKULAM APPELLANT/PETITIONERS/PLAINTIFFS: --------------------------------------------- 1. FR.ISSAC MATTAMMEL COR-EPISCOPA, AGED 58, S/O.MATHAI, RESIDING AT MATTAMMEL HOUSE MULAMTHURUTHY P.O., KANAYANNUR TALUK, ERNAKULAM DISTRICT, VICAR,ST.MARY'S ORTHODOX SYRIAN CHURCH KANDANAD. 2. V.K.GEORGE, AGED 68, S/O.V.C.KURIAKOSE, VAISYAMPARAMBIL HOUSE, KANDANADU P.O. ERNAKULAM DISTRIT. 3. SALU DAVID, AGED 54, S/O.DAVID, MATTAMMEL HOUSE, KANDANADU P.O., ERNAKULAM DISTRICT NOW RESIDING AT MATTAMMEL HOUSE, ERUVELI, CHOTTANIKKARA P.O., ERNAKULAM DISTRICT. BY ADVS.SRI.S.SREEKUMAR (SR.) SRI.P.PRIJITH SRI.ANEESH JAMES SRI.P.MARTIN JOSE RESPONDENTS/RESPONDENTS/DEFENDANTS: --------------------------------------- 1. ST.MARY'S ORTHODOX SYRIAN CHURCH KANDANADU, REPRESENTED BY ITS TRUSTEE. 2. FR.JOHN PUNNCHALIL, AGED 66, S/O.LATE VARGHESE, RESIDING AT PUNNAVELIL HOUSE KANDANADU, MANAKUNNAM VILLAGE, KANDANADU DESOM KANAYANNUR TALUK, ERNAKULAM DISTRICT. 3. THAMPU GEORGE, AGED 50, S/O.T.V.GEORGE, RESIDING AT PULIYATTUTHUKALAN, MULAMTHURUTHY DESOM MULAMTHURUTHY VILLAGE, KANAYANNUR TALUK ERNAKULAM DISTRICT. 4. K.C. SABU, AGED 46 YEARS, S/O.CHACKO, KATTADIYIL HOUSE, KUREEKKAD DESOM KUREEKKAD VILLAGE, KANAYANNUR TALUK ERNAKULAM DISTRICT. -2- FAO.NO.288/2011 5. WILSON PAULOSE, S/O. PAULOSE, AGED 46 YEARS, NEDUMPURATHUKUDILIL HOUSE KUREEKKAD DESOM, KUREEKKAD VILLAGE KANAYANNUR TALUK, ERNAKULAM DISTRICT. 6. JOY KURIAN, (FATHER'S NAME AND AGE NOT KNOWN) RECEIVER, ST.MARY'S ORTHODOX SYRIAN CHURCH KANDANAD RESIDING AT BLESSY VILAYIL MALLAPPALLY P.O., MALLAPPALLY, KOTTAYAM DIST. R1 to R5 BY ADV. SRI.K.J.KURIACHAN THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 28-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: FAO.NO.288/2011 ORDER ON I.A.NOS.3124/11, 470/12 AND 526/12 IN FAO.NO.288/2011 ------------ DISMISSED 28/3/2012 Sd/HARUN-UL-RASHID, JUDGE. ## APPENDIX PETITIONERS' EXTS IN IA.NO.526/2012: ANNEXURE-I TRUE COPY OF THE ORDER IN I.A.NO.67/90 IN O.S.NO.36/1976 DTD.10/1/1990 OF THE IST ADDITIONAL DISTRICT COURT, ERNAKULAM. ANNEXURE-II TRUE COPY OF ORDER IN I.A.NO.1690/93 IN O.S.NO.36/76 DTD. 18/12/1993 OF THE IST ADDDITIONAL DISTRICT COURT, EARNAKULAM. ANNEXURE-III TRUE COPY OF THE JUDGMENT IN O.S.NO.36/76 DTD.29/9/1998 OF THE IST ADDITIONAL DISTRICT COURTY, ERNAKULAM. ANNEXURE-IV TRUE COPY OF THE JUDGMENT IN O.S.NO.13/98 DTD.16/12/2002 OF DISTRICT COURT, ERNAKULAM. ANNEXURE-V TRUE COPY OF JUDGMENT IN O.S. NO.30/97 DTD. 14/6/2005 OF IST ADDITIONAL DISTRICT COURT, ERNAKULAM. ANNEXURE-VI TRUE COPY OF COMMON ORDER IN I.A.NO.3609/06 AND 3852/06 IN O.S.NO.36/76 DTD. 31/1/2007 OF DISTRICT COURT, ERNAKULAM. RESPONDENTS' EXTS IN I.A.526/2011 ANNEXURE-R1(a) TRUE COPY OF THE PLAINT IN O.S.NO.30/97 ON THE FILE OF THE DISTRICT COURT, ERNAKULAM. ANNEXURE-R1(b) TRUE COPY OF JUDGMENT IN RFA.NO.363/2005. ANNEXURE-R1(c) TRUE COPY OF ORDER DTD. 289/10/2006 IN I.A.NO.3344/2006 IN O.S.NO.36/2976 ON THE FILE OF DISTRICT COURT, ERNAKULAM. ANNEXURE-R1(d) TRUE COPY OF PLAINT IN O.S.NO.1305/06 ON THE FILE OF THE MUNSIFF'S COURT, ERNAKULAM. ANNEXURE-R1(e) TRUE COPY OF THE PLAINT IN O.S.NO.223/09 ON THE FILE OF THE MUNSIFF'S COURT, ERNAKULAM. ANNEXURE-R1(f) TRUE COPY OF THE PLAINT IN O.S.NO.1049/09 ON THE FILE OF THE MUNSIFF'S COURT, ERNAKULAM. ANNEXURE0R1(g) TRUE COPY OF THE ORDER DT. 212/10/2009 IN I.A.NO.7223/09 IN O.S.NO.1049/09 ON THE FILE OF THE MUNSIFF'S COURT, ERNAKULAM. True Copy P.S. TO JUDGE. ## **HARUN-UL-RASHID,J.** **------------------------------F.A.O. NO. 288 OF 2011 ------------------------------DATED THIS THE 28TH DAY OF MARCH, 2012** ## **JUDGMENT** Petitioners in O.P.No.1295/1020 (unnumbered suit) are the appellants. They are the plaintiffs in the suit filed under Section 92 of the Code of Civil Procedure. The court below by the impugned order dismissed the petition seeking leave to institute the suit. The reasons stated are: “ _i) It could not be ascertained from the pleadings when the cause of action for the prayers in the proposed suit arose._ _ii) The proposed suit will be barred by limitation when the cause of action assessed in the petition as October, 2006 is taken into consideration._ _iii) The prayers in the proposed suit do not show that the suit is intended to be filed for proper administration and management of the lst defendant Church, but only to decide regarding the struggle for power between the two factions.”_ 2. It is settled law that the suit under Section 92 of the Code **-2-** ## **F.A.O.No.288/2011** of Civil Procedure is a suit of a special nature which presupposes the existence of a public trust of a religious or charitable character. Such a suit can proceed only on the allegation that there is a breach of trust or that the direction of the court is necessary for the administration of the trust and it must pray for one or more of the reliefs that are mentioned in the section. It is only if these conditions are fulfilled, a suit has to be brought in conformity with the provisions of Section 92 of the C.P.C. Leave can be granted, if the conditions laid down under Section 92 of the C.P.C. are satisfied. In a petition seeking leave of the court under Section 92 of the C.P.C. enquiry should be confined to the ingredients under Section 92 of the C.P.C. On a reading of the plaint and the materials produced, if it is found that the ingredients laid down in Section 92 C.P.C. is satisfied, the court will have to grant leave. Only when leave is granted, a suit is said to have been instituted. A petition for leave has to comply with the requirements of Section 92 of the C.P.C. only. Order VII Rule 11 of the C.P.C. deals with **-3-** ## **F.A.O.No.288/2011** rejection of plaint. The plaint shall be rejected, a) where it does not disclose a cause of action; **==> picture [264 x 43] intentionally omitted <==** d) where a suit appears from the statement in the plaint to be barred by any law; xx xx xx e) xx xx xx f) 3. Order VII Rule 11 of the C.P.C. applies only to a plaint. The court is not empowered to go into the question of cause of action in an application seeking leave to institute the suit. It is pointed out that the court below has committed a grave error of jurisdiction in holding that a petition for leave under Section 92 of the C.P.C. can be dismissed for the reason that it could be ascertained from the pleadings when the cause of action for the prayers in the suit arose and if the suit is barred by limitation. It is clear from the reasons stated that the court below applied the conditions under Order VII Rule 11 of the C.P.C. for rejecting the petition for leave. The court is called upon to consider the **-4-** ## **F.A.O.No.288/2011** application for leave in the context of Section 92 C.P.C. Two reasons stated above are the proper grounds for rejecting the plaint and not a petition for grant of leave. In the said circumstances and in the interest of justice, it has become necessary to direct the court below to reconsider the matter afresh and pass appropriate orders in accordance with law. 4. In the decision reported in **St.John's Jacobite Syrian Church v. Fr. John Moolamattom (2005 (1) K.L.T. 307)** this Court considered the scope and ambit of the suit filed under Section 92 C.P.C. This Court held that in order to attract Section 92 of the C.P.C., not only that it should be a public trust, but also there should be an allegation of breach of trust either express or constructive or there should be a direction sought for from the Court for the administration of the trust. Besides the relief sought for in the suit should be one for a decree of the nature enumerated in clause (a) to (h). In the result, the appeal is allowed. The order **-5-** ## **F.A.O.No.288/2011** dated 27/9/2011 passed in O.P.No.1295/2010 is set aside and the matter is remanded to the court below for denovo consideration of O.P.No.1295/2010. No order as to costs. **HARUN-UL-RASHID, JUDGE.** **kcv.**