Pachomiose Educational & Charitable Enlightenment Foundation (PEACE Foundation) v. P.P. Mathai, Peter M.K. and George Sebastian

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE P.SOMARAJAN MONDAY, THE 26TH DAY OF FEBRUARY 2018 / 7TH PHALGUNA, 1939 **CRP.No. 144 of 2017** AGAINST THE ORDER IN OP NO.5/2016 OF THE SUB COURT, MUVATTUPUZHA DATED 2.3.2017. ## REVISION PETITIONERS/RESPONDENTS 1 TO 3:- - 1 PACHOMIOSE EDUCATIONAL & CHARITABLE ENLIGHTENMENT FOUNDATION, (PEACE FOUNDATION), ST.GEORGE ORTHODOX CARMELKUNNU CHURCH, MULAKKULAM NORTH KARA, PIRAVOM VILLAGE, MUVATTUPUZHA - 686 661, REPRESENTED BY ITS SECRETARY. - 2 THE SECRETARY, PACHOMIOSE EDUCATIONAL & CHARITABLE ENLIGHTENMENT FOUNDATION, (PEACE FOUNDATION), ST.GEORGE ORTHODOX CARMELKUNNU CHURCH, MULAKKULAM NORTH KARA, PIRAVOM VILLAGE, MUVATTUPUZHA - 686 661. - 3 TRUST ORGANIZING SECRETARY-CUM TREASURER, PACHOMIOSE EDUCATIONAL & CHARITABLE ENLIGHTENMENT - FOUNDATION, (PEACE FOUNDATION), ST.GEORGE ORTHODOX CARMELKUNNU CHURCH, MULAKKULAM NORTH KARA, PIRAVOM VILLAGE, MUVATTUPUZHA - 686 661. - BY ADVS.SRI.BIJU ABRAHAM SRI.B.G.BHASKAR ## RESPONDENTS/PETITIONERS & 4TH RESPONDENT:-: 1. P.P.MATHAI, S/O.LATE PAILY, PALACKAL HOUSE, AGED 68 YEARS, PIRAVOM KARA, PIRAVOM VILLAGE, MUVATTUPUZHA TALUK, PIN - 686 661. 2. PETER M.K., AGED 61 YEARS, S/O.MARKOSE, KUTTIPARICHEL HOUSE, MULAKKULAM NORTH P.O., PIRAVOM VILLAGE, MUVATTUPUZHA TALUK - 686 661. 3. GEORGE SEBASTIAN, S/O.SEBASTIAN, AGED ABOUT 46 YEARS, - MATHOOR HOUSE, PIRAVOM, RETURNING OFFICER, PACHOMIOSE EDUCATIONAL & CHARITABLE ENLIGHTENMENT FOUNDATION, (PEACE FOUNDATION), ST.GEORGE ORTHODOX CARMELKUNNU CHURCH, MULAKKULAM NORTH KARA, PIRAVOM VILLAGE, MUVATTUPUZHA - 686 661. R1 BY ADV. SRI.C.DILIP R1 BY ADV. SRI.T.KRISHNANUNNI (SR.) R1 BY ADV. SRI.PRADEEP R. R1 BY ADV. SRI.P.N.VIJAYAN NAIR THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26.02.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **I.A.NO.798/2017 IN C.R.P.NO.144/2017** CLOSED 26/02/2018 SD/- **P.SOMARAJAN, JUDGE** //TRUE COPY// AHZ/ **“C.R.”** ## **P.Somarajan, J. -----------------------------------------------------C.R.P.No.144 of 2017 (C) -----------------------------------------------------Dated this the 26[th] day of February, 2018** ## **O R D E R** Against the order granting leave to institute a suit under Section 92 of the Code of Civil Procedure in O.P.No.5 of 2016 of the Sub Court, Muvattupuzha, the aggrieved respondents (respondents 1 to 3) came up with this Revision. 2. The main challenge mooted is that in the Original Petition there is no allegation of breach of trust. Unless there is breach of trust, no suit can be brought under the purview of Section 92, which is a special provision. The second ground raised in the petition is non-issuance of notice to the members at the time of conducting election to the respective officers of the Trust which, according to respondents 1 to 3, would amount to vindicating personal rights, on that simple ground a suit cannot be brought under the purview of Section 92 of the Code of Civil Procedure. ## **C.R.P.No.144 of 2017 (C)** :: 2 :: 3. There is no dispute with respect to the nature of the Trust, being a public charitable trust. The dispute is that the suit framed challenging the election to the office bearers of the Trust mainly on the ground of non-issuance of notice to its members would not come under the purview of Section 92 CPC as it is one vindicating a personal right. 4. In the decision in _**Vidyodaya Trust v. Mohan Prasad R. and others (2008 (2) KHC 35)**_ the Apex Court had occasion to consider the jurisdiction of the Court under Section 92 CPC. The relevant portion of the said judgment is extracted below for reference: _“To find out whether the suit was for vindicating public rights there is necessity to go beyond the relief and to focus on the purpose for which the suit was filed. It is the object and purpose and not the relief which is material. A cotrustee is not remediless if the leave is not granted under S.92. The object of S.92 CPC is to protect the public trust of a charitable and_ ## **C.R.P.No.144 of 2017 (C)** :: 3 :: _religious nature from being subjected to harassment by suits filed against them. …... 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. When the plaintiffs do not sue to vindicate the right of the public but seek a declaration of their individual or personal rights or the individual or personal rights of any other persons or persons in whom they are interested, S.92 has no application. The fundamental question that arises is whether allegations against three of them would be sufficient to taint the Board's decision. As was observed by this Court in Swami Paramanand's case ((1974) 2 SCC 695: AIR 1974 SC 2141: 1975 (1) SCR 790) to guage 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 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_ **C.R.P.No.144 of 2017 (C)** :: 4 :: _suit was vindicating public right or the object was vindication of some personal rights. ….... The Courts have to be careful to eliminate the possibility of a suit being laid against public trusts under S.92 by persons whose activities were no for protection of the interests of the public trusts....”_ 5. The material question to be looked into is whether the suit was actually brought up for vindicating a personal right or for the benefit of public. What is challenged in the present suit is the selection of office bearers of the Trust without giving notice to all of its members. There cannot be any dispute that the election/selection to the Trust (governing body of the Trust) is something connected with the trusteeship and hence non-compliance of any of the requirements as mandated in its election/selection would also come under the purview of matters to be remedied under Section 92 of CPC. The test is to find out whether a particular requirement and its non-compliance would have any effect in the administration of trusteeship or the Trust, as ## **C.R.P.No.144 of 2017 (C)** :: 5 :: the case may be, and if the answer is yes it would come under the purview of Section 92 CPC. Clauses (a) to (h) to sub-section (1) of Section 92 CPC and sub-sections (2) and (3) have to be understood under the broad spectrum of “administration of Trust” and essentiality/necessity of a “direction from Court”. If issuance of notice to the members is required for the selection/election of trustees or office of trustees (governing body of trustee), its non-compliance would come under the purview of Section 92 CPC as the same would form part of the broad spectrum of “administration of Trust”. 6. In _**Vidyodaya Trust's**_ case the Apex Court has emphasized the importance of eliminating the possibility of a suit being laid against public trust under Section 92 CPC by persons whose activities were not for protection of the interests of the public trust. Section 92 being a special provision in which grant of leave is a _sine qua non_ for its institution would be understood so as to eliminate possibility ## **C.R.P.No.144 of 2017 (C)** :: 6 :: of being laying unwarranted suits and harassment against the trustees or in the matter of administration of trust. But the requirement to be complied with in the process of selection/election of trustees would fall under the matters covered under Section 92 CPC and hence there is no reason for any interference to the order granting leave to institute a suit under Section 92 CPC. Hence, the Revision fails. In the result, the Civil Revision Petition is dismissed. No order as to costs. **Sd/P. Somarajan Judge** ahz/