OP(C).No.3743 of 2011 (O)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN** **MONDAY, THE 9TH DAY OF APRIL 2012/20TH CHAITHRA 1934** ## **OP(C).No. 3743 of 2011 (O)** **-------------------------OS.16/2011 of DISTRICT COURT & SESSIONS COURT, ERNAKULAM** **PETITIONER(S)/RESPONDENTS: -------------------------** **1. THE CHURCH OF SOUTH INDIA,REPRESENTED BY ITS GENERAL SECRETARY,5,WHITE ROAD ROYAPETTAH, CHENNAI-600 014.** **2. THE CHURCH OF SOUTH INDIA TRUST ASSOCIATION,REPRESENTED BY ITS SECRETARY, 5 WHITE ROAD,ROYAPETTAH,CHENNAI-600 014.** **BY ADVS.SRI.SATHISH NINAN SRI.SANTHOSH MATHEW SRI.ARUN THOMAS** ## **RESPONDENT(S)/PETITIONERS.:** **---------------------------** **1. T.J.JOHN,AGED 54 YEARS,S/O.T.B.JOHN, RESIDING AT 542-A,'PRAKRUTHI',THEVARTHUNDIYIL SWARGOM ROAD,DESOM,ALUVA-683102.** **2. THARIAN CHACKO,S/O.P.C.CHACKO, AGED 59 YEARS,A-2 RB,IMPERIAL PARK OLD DESOM ROAD, THOTTAKKATTUKARA,ALUVA-683108.** **R1 & R2 BY ADV. SRI.K.V.SADANANDA PRABHU R1 & R2 BY ADV. SRI.TITUS MANIVETTOM** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 21-03-2012, THE COURT ON 09-04-2012 DELIVERED THE FOLLOWING:** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS** **EXT.P1: TRUE COPY OF THE APPLICATION-I.A.NO.1081/2010 IN UN-NUMBERED O.S.NO. OF 2010 FILED BY THE RESPONDENTS BEFORE THE DISTRICT COURT, ERNAKULAM.** **EXT.P2: TRUE COPY OF THE COUNTER FILED BY THE PETITIONERS/RESPONDENTS IN I.A.1081/2010 IN UN-NUMBERED O.S.NO. OF 2010 OF THE DISTRICT COURT,ERNAKULAM.** **EXT.P3: TRUE COPY OF THE ADDITIONAL OBJECTION DATED 5.8.2010 FILED BY THE PETITIONERS HEREIN IN I.A.NO.1081/2010 IN UN-NUMBERED O.S. NO. OF 2010.** **EXT.P4: TRUE COPY OF THE ORDER DATED 4.12.2010 IN I.A.1081/2010 IN UN-NUMBERED O.S.NO. OF 2010 OF THE DISTRICT COURT,ERNAKULAM.** **EXT.P5: TRUE COPY OF THE PLAINT OS NO.16/2011 FILED BY THE RESPONDENTS BEFORE THE DISTRICT COURT,ERNAKULAM.** **RESPONDENTS' EXHIBITS : NIL** **//TRUE COPY//** **P.A. TO JUDGE** **C.R.** ## **S.S.SATHEESACHANDRAN, J. ------------------------------O.P.(C).NO.3743 OF 2011 (O) ----------------------------------Dated this the 9[th] day of April, 2012** ## **J U D G M E N T** Challenge in the original petition is against Ext.P4 order passed by the learned District Judge, Ernakulam granting leave to institute a suit under Section 92 of the Code of Civil Procedure, for short, the 'Code' against the petitioners, the first among whom is a trust created for public purposes of charitable and religious nature and the second, its trustee. 2. The respondents, two in number, who claimed to be persons having interest in the 1[st] defendant, moved Ext.P1 application seeking leave to sue the petitioners under Section 92 of the Code producing a draft copy of the plaint, in which, alleging breach of trust, removal of the trustee, preparation of a scheme for administration of the trust, settlement of accounts etc. were canvassed as reliefs. The application for leave was **O.P.(C).No.3743/2011** **2** opposed by filing of a counter affidavit (Ext.P2) by the General Secretary of the 1[st] petitioner, who also claimed to be the Secretary of the 2[nd] petitioner. An additional objection was also later filed by the counsel for the petitioners as Ext.P3. The learned District Judge, after hearing both sides, granted leave to institute the suit under Section 92 of the Code holding that a prima facie case has been made out to do so, vide Ext.P4 order. That order is challenged invoking the visitorial jurisdiction of this Court under Article 227 of the Constitution of India. 3. Ext.P4 order is impeached by the learned counsel appearing for the petitioners contending that it suffers from material irregularity and illegality by erroneous exercise of jurisdiction. The respondents, who applied for leave, have not even mentioned their interest in the trust and the learned District Judge without having any enquiry thereto and also whether there is any bona fides on their part in filing the application has granted leave, is the submission of the counsel. Contentions raised to oppose the grant of leave that the court **O.P.(C).No.3743/2011** **3** below has no territorial jurisdiction over the subject matter placing reliance on the Constitution of the 1[st] petitioner trust, and also the breach of trust imputed is without any basis or foundation, is also canvassed by the counsel to assail Ext.P4 order. Per contra, the learned counsel for the respondents contending that the order granting leave is not justiciable submitted that the challenge against Ext.P4 order passed by the learned District Judge is devoid of any merit. By grant of leave, the court is not deciding any right of the parties and so much so, at that stage, the allegations stated in the plaint alone need be looked into and even notice to the opposite parties, who are sought to be proceeded against as defendants in the suit, is not necessary and can be dispensed with, is the submission of the counsel. Reliance is placed on **A.K.Bhaskar v. Advocate General (AIR 1962 Kerala 90), Association of Radhaswami Dera Baba Bagga Singh and another v. Gurnam Singh and others (AIR 1972 Rajashtan 263), Swami Paramatmanand Saraswati and another v. Ramji Tripathi and another ((1974) 2 SCC 695)** and **Ambrish Kumar Singh v. Raja** **O.P.(C).No.3743/2011** **4** **Abhushan Bran Bramhshah and others (AIR 1989 Allahabad 194** ) to buttress the submissions made as above that the challenge against Ext.P4 order granting leave is only to be turned down. 4. After going through Ext.P4 order with reference to the submissions made by the counsel on both sides and also the other materials tendered with the original petition including the draft plaint produced with Ext.P1 application for grant of leave, what is noticed is that the learned District Judge has focused the enquiry on grant of leave precisely on the challenges mooted by the respondents in Ext.P1 application, without having regard to the broad principles to be taken note of when leave is applied for to institute a suit against any trust created for public purposes of charitable and religious nature. The very object of Section 92 of the Code is quite clear, that is, to give protection to public trust created for purposes of charitable and religious nature from being subjected to harassment by suits being filed against it. Essential conditions as covered under that Section have to be **O.P.(C).No.3743/2011** **5** satisfied for institution of a suit against such a public trust. The Apex Court in **Vidyodaya Trust v. Mohan Prasad R and others ((2008) 4 SCC 115)** has pointed out the nature of enquiry that is expected from the court from which leave is applied for, to institute a suit against a trust created for public purposes of charitable and religious nature as under Section 92 of the Code. The Apex Court in the aforesaid decision reiterating what has been stated in **Swami Paramatmanand Saraswati's case** (cited supra), has observed that to find out 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 was filed. In examining that question, it has been stated that it is the object and purpose and not essentially the relief which is of paramount importance. Dilating on the above aspects, the Apex Court has observed thus: _“..........................it is not every suit claiming reliefs specified in Section 92 that can be brought under the section; but only the suits which besides claiming any of the reliefs are brought by individuals as representatives of_ **O.P.(C).No.3743/2011** **6** _the public for vindication of public rights. As a decisive factor the Court has to go beyond the relief and have regard to the capacity in which the plaintiff has sued and the purpose for which the suit was brought. The courts have to be careful to eliminate the possibility of a suit being laid against public trusts under Section 92 by persons whose activities were not for protection of the interests of the public trusts.”_ When such be the law laid down by the Apex Court on the enquiry to be conducted when leave is applied for instituting a suit under Section 92 of the Code in respect of a trust created for public purposes of charitable and religious nature, it is puerile and futile to contend that the order granting leave by the subordinate court is not justiciable since grant of leave does not affect the rights of the parties to the lis. More than that, what is at stake by grant of such leave mechanically and solely based on the allegations in the plaint without having any enquiry as to the real object and purpose of filing the suit would be ripping open the insulation and protection given to the public trust from being vexed and harassed by frivolous and vexatious suits. The **O.P.(C).No.3743/2011** **7** learned counsel for the respondents has relied on **A.K.Bhaskar's case** (cited supra), to buttress his submissions that the order granting leave by the court to institute the suit is nothing but a consent for institution, the power of which was previously enjoined by the Advocate General, whose order, it has been held cannot be challenged by way of judicial review under Article 227 of the Constitution of India in the aforesaid decision. I cannot agree. Previously, before the Code of Civil Procedure (Amendment) Act, 1976, the consent in writing of the Advocate General was sufficient to institute the suit, but after such amendment, other than the suit by the Advocate General in the case of any other interested persons leave of the court is necessary. If the order granting leave is to be treated as an administrative order and not a judicial one, the consequence will be calamitous then, once leave is obtained to institute a suit that will not be open to challenge unless that is decided in the suit, which is instituted on the basis of the leave so granted. In fact, the grant of leave demands judicial exercise of the court though limited in nature having regard to the allegations raised in the **O.P.(C).No.3743/2011** **8** plaint and also focusing upon the object for which the suit is proposed to be instituted as pointed out by the Apex Court in **Vidyodaya Trusts' case** (cited supra). It is not something which can be obtained on mere asking by filing a petition producing a draft plaint incorporating the necessary ingredients by setting forth allegations and also reliefs which make out a case to institute a suit under Section 92 of the Code. If that be so, then the insulation and protection offered to the public trust from being vexed with suit only after obtaining of leave from the court would become nothing but an empty formality. In fact, when leave is granted, though such leave obtained is not final and it is still open to challenge in the suit, the substantive rights of the parties are being affected if not of the petitioners who seek such leave, but, that of the adversary, which is called upon to face the litigation, and, there is in fact an order deciding a case by the court which is amenable to further challenge by way of revision or under Article 227 of the Constitution of India, as the case may be. To say that the order allowing or declining of leave under Section 92 of the Code is an **O.P.(C).No.3743/2011** **9** administrative order, which is not amenable to judicial review is per se wrong. If that be so, a wrong order declining such leave would also foreclose a party from instituting a suit even where there is breach of trust and sufficient grounds are available to institute a suit under Section 92 of the Code. 5. Now coming to the allegations raised in the draft plaint (Ext.P5), which had been taken due note by the learned District Judge to hold that essential ingredients for institution of a suit are borne out by the allegations in the plaint no serious challenge was made before me, and as such, a detailed reference thereto is not called for. Similarly, challenges against Ext.P4 order granting leave canvassed on the basis of territorial jurisdiction and also the provisions of the Constitution governing the Church of South India, both of which have been repelled by the learned District Judge, prima facie, are found to be untenable. The allegations raised in the plaint would indicate that transactions by the trustees in relation to properties within the jurisdiction of the court below are imputed as constituting **O.P.(C).No.3743/2011** **10** breach of trust, and having regard to the conferment of jurisdiction of the court under Section 92 of the Code, which takes “within the local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate” challenge set up on the basis of territorial jurisdiction contending that the 1[st] defendant is a company having its registered office at Chennai, at this stage, when grant of leave is applied for, cannot be given much value. Similarly, the provisions of the Constitution of the 1[st] defendant cannot also be pressed into service at this stage to contend that leave cannot be granted under Section 92 of the Code if essential conditions to institute the suit are made out under that Section. 6. Still, Ext.P4 order passed by the learned District Judge granting leave suffers from serious infirmity and, in fact, a grave jurisdictional error as he has not focused the enquiry on the object or purpose for institution of the suit with reference to the interest of the petitioners, who applied for grant of leave to institute such suit against a public trust. In the affidavit sworn **O.P.(C).No.3743/2011** **11** to in support of Ext.P1 application by one among the petitioners, who applied for leave, the only averment as regards their interest in the trust is stated thus: _“The suit is filed by us, as two interested persons of the 1[st] defendant, a trust created for a religious and charitable purposes.”_ If that is the averment in the affidavit, what is stated in the plaint with respect to the interest of the petitioners, which finds expression in paragraph 18 other than a casual reference in paragraph 16 is that the plaintiffs are persons who have interest in the 1[st] defendant trust. What is stated in paragraph 18 is thus: _“The plaintiffs are really and substantially interested in the 1[st] defendant trust namely Church of South India. They have no personal interests in filing the suit. They filed this suit representing the body of interested persons or worshippers. The suit is filed for the benefit of the beneficiaries of the 1[st] defendant Church who are also its worshippers.”_ **O.P.(C).No.3743/2011** **12** Other than the averments made as above the petitioners have not produced any material with the draft plaint to show their interest in the trust. The learned counsel for the respondents has asserted that the aforesaid averments made is sufficient to show their interest in the trust to seek leave to sue in a representative capacity on behalf of the beneficiaries of the trust to institute a suit under Section 92 of the Code. I cannot agree. What should be the nature of interest which has to be shown by the petitioners, who seek leave to institute a suit under Section 92 of the Code? Whether mere assertion by them that they have interest in the affairs of the trust as interested persons or worshippers is sufficient, and on such averments made alone can they be permitted to institute a suit in a representative capacity on behalf of the beneficiaries or worshipppers of the trust? Such questions demand critical scrutiny and answers. Under the English Law, a suit similar to one under Section 92 of the Code demands that the plaintiffs must have a direct interest in the trust. That position prevailed in India also in the Code of 1877. But later, the word 'direct' has been omitted by the Amendment **O.P.(C).No.3743/2011** **13** Act of 1888, and, presently, the petitioners need only satisfy that they have interest in the trust. Omission of the word 'direct' from the Code does not indicate that mere averment that he is interested would suffice, nor that a person having some remote interest in the trust can institute a suit under Section 92 of the Code. The interest contemplated under the Section 92 of the Code must be a real, substantive and existing interest in the particular trust. Whether he has got such an interest to maintain an action under Section 92 of the Code seeking leave for institution of such suit has to be determined on the basis of evidence and also with reference to the allegations raised in the draft plaint produced with the application for leave. In **Vaidyanatha Ayyar and another v. Swaminatha Ayyar and another (AIR 1924 PC 221 (2)),** it has been pointed out that the petitioner/petitioners, who seek leave should show that they have real interest of their own in the administration of charitable trust and not the interest of some others. The Apex Court in **Mahant Harnam Singh v. Gurdial Singh (AIR 1967 SC 1415)** concurred with the view expressed by the Privy council. **O.P.(C).No.3743/2011** **14** This Court in **Narayana Pillai v. Jyothi (1991 (2) KLT 458)** and also **Ramlath Memorial Charitable Trust v. Peerukannu (2009 (4) KLT 848)** has also held that the persons seeking leave should have real, substantial and existing interest in the trust. A mere statement in the petition or in the draft plaint that they are well wishers and beneficiaries or worshippers would not suffice, to show that they have real and substantive interests. No material whatsoever has been placed by the petitioners before the court below to show that they have real, substantive and existing interest in the trust. When that be the case, Ext.P4 order passed by the learned District Judge granting them leave to institute a suit under Section 92 of the Code against the trust and its trustee cannot be sustained. Other challenges canvassed against the granting of leave at this stage, cannot be accepted as sufficient to refuse the leave, but whether the petitioners have interest in the trust, and if so, whether it is real and substantial, and leave is applied by them bona fide, has necessarily to be examined by the court below to determine whether they are entitled to get leave for instituting the suit as applied for. **O.P.(C).No.3743/2011** **15** I find the petitioners have to be provided with an opportunity to show that they have got real, substantive and existing interest in the trust, to institute a suit under Section 92 of the Code. So much so, setting aside Ext.P4 order, the court below is directed to examine the question whether the petitioners have interest in the trust, providing both sides opportunity to lead evidence on that limited question, that alone, for the purpose of determining whether the application moved by the petitioners for leave to institute the suit is allowable. I make it clear that the interests that has to be shown by the petitioners, at this stage, may be oral or documentary as no conclusive opinion on the question of their interests need be made at the stage of granting leave but to grant such leave, the court must be satisfied prima facie that they have real, substantive and existing interest in the trust. Any finding made in favour of the petitioners on such enquiry will still be open for adjudication in the suit if permission is granted to institute a suit by them. But such enquiry on the question whether they have real, substantive and existing interest at the time of grant of leave cannot be avoided as the **O.P.(C).No.3743/2011** **16** very foundation for grant of leave apart from other essential ingredients covered by Section 92 of the Code rests on their interests in the trust to institute the suit to protect and safeguard its interests. 7. Ext.P4 order is set aside directing the court below to examine the matter afresh taking note of the observations made above and pass appropriate orders in accordance with law. Parties are directed to appear before the court below on 04.06.2012. Subject to the above directions, the original petition is disposed of. ## **S.S.SATHEESACHANDRAN JUDGE** prp