T.K. Unnikrishna Pillla and Others v Ajithkumar and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN WEDNESDAY, THE 31[ST] DAY OF JANUARY 2024/11TH MAGHA, 1945 OP(C) NO.2175 OF 2023** **AGAINST THE ORDER/JUDGMENT OP 1/2023 OF ASSISTANT SESSIONS COURT/PRINCIPAL SUB COURT/COMMERCIAL COURT, KOTTAYAM** ## **PETITIONERS/RESPONDENTS/PETITIONERS:** 1 T.K.UNNIKRISHNA PILLA, AGED 71 YEARS, S/O.KUMARAN NAIR, THEKKIL HOUSE, ARUMANOOR KARA, AYARKUNNAM VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT, PIN – 686564. 2 B.RAJAGOPAL, AGED 50 YEARS, S/O.LATE G.BALAKRISHNAN NAIR, ARUMANOOR KARA, AYARKUNNAM VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT, PIN – 686564. 3 V.P.SOMASEKHARAN, AGED 58 YEARS, S/O.LATE PARAMESWARAN NAIR, VADAKKEDATHU HOUSE, ARUMANOOR KARA, AYARKUNNAM VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT-686564. 4 RADHAKRISHNAN NAIR, AGED 69 YEARS, S/O.CHANDRASEKHARA PILLAI, ANUGRAHA HOUSE, ARUMANOOR KARA, AYARKUNNAM VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT, PIN – 686564. 5 ANEESH KUMAR, AGED 48 YEARS, S/O.LATE BHASKARAN NAIR, ARUN BHAVAN, @ THARAMANGALATH, ARUMANOOR KARA, AYARKUNNAM VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT, PIN – 686564. 6 RAJESH KUMAR, AGED 47 YEARS, S/O.GOPALAKRISHNAN NAIR, KAREDATH THARAVATTATHIL HOUSE, PEROOR KARA, PEROOR VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT, PIN – 686564. BY ADVS. B.KRISHNA MANI N.V.SANDHYA DHANUJA M.S **OP(C) No.2175 of 2023** **- 2 -** ## **RESPONDENTS/PETITIONERS/RESPONDENTS:** 1 AJITHKUMAR, S/O.RAMACHANDRAN, NOW RESIDING AT INDRADHANUS FROM JYOTHI BHAVAN, ARUMANOOR KARA, AYARKUNNAM VILLAGE, KOTTAYAM TALUK, PRESIDENT OF SREEKRISHNA VILASAM, N.S.S.KARAYOGAM NO.1388, ARUMANOOR KARA, AYARKUNNAM VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT, PIN – 686564. 2 AJITHKUMAR, S/O.RAMACHANDRAN, NOW RESIDING AT INDRADHANUS FROM JYOTHI BHAVAN, ARUMANOOR KARA, AYARKUNNAM VILLAGE, KOTTAYAM TALUK, PRESIDENT OF SREEKRISHNA VILASAM, N.S.S.KARAYOGAM NO.1388, ARUMANOOR KARA, AYARKUNNAM VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT-686564. 3 SREEPATHI, S/O.LATE RAMAKRISHNA PANICKER, PANANGOTTU HOUSE, ARUMANOOR KARA, AYARKUNNAM VILLAGE, KOTTAYAM TALUK, SECRETARY OF SREEKRISHNA VILASAM N.S.S. KARAYOGAM NO.1388, ARUMANOOR KARA, AYARKUNNAM VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT, PIN – 686564. 4 SATHEESH KUMAR, S/O.LATE SUKUMARAPILLAI, KOODATHINAYIL HOUSE, ARUMANOOR KARA, AYARKUNNAM VILLAGE, KOTTAYAM TALUK, VICE PRESIDENT OF SREEKRISHNA VILASAM N.S.S. KARAYOGAM NO.1388, ARUMANOOR KARA, AYARKUNNAM VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT, PIN – 686564. 5 NIDHEESH P.V., S/O.LATE VASUDEVAN NAIR, PAZHUVAKKATTIL HOUSE, ARUMANOOR KARA, AYARKUNNAM VILLAGE, KOTTAYAM TALUK, JOINT SECRETARY OF SREEKRISHNA VILASAM N.S.S. KARAYOGAM NO.1388, ARUMANOOR KARA, AYARKUNNAM VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT, PIN – 686564. **OP(C) No.2175 of 2023** **- 3 -** 6 ANILKUMAR, S/O.LATE RAGHAVAN PILLA, VALLOMPARAMBIL HOUSE, PUNNATHURA WEST KARA, PEROOR VILLAGE, KOTTAYAM TALUK, TREASURER OF SREEKRISHNA VILASAM N.S.S. KARAYOGAM NO.1388, ARUMANOOR KARA, AYARKUNNAM VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT, PIN – 686564. 7 RAMACHANDRAN NAIR, S/O.LATE GOPALAPILLA, VARAKUKALAYIL HOUSE, ARUMANOOR KARA, AYARKUNNAM VILLAGE, KOTTAYAM TALUK, ADMINISTRATIVE COUNCIL MEMBER OF SREEKRISHNA VILASAM N.S.S. KARAYOGAM NO.1388, ARUMANOOR KARA, AYARKUNNAM VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT, PIN – 686564. 8 SANTHOSHKUMAR, S/O.LATE KESAVAN NAIR, PUZHAYIL HOUSE, PUNNATHURA WEST KARA, ETTUMANOOR VILLAGE, KOTTAYAM TALUK, ADMINISTRATIVE COUNCIL MEMBER OF SREEKRISHNA VILASAM N.S.S. KARAYOGAM NO.1388, ARUMANOOR KARA, AYARKUNNAM VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT-686564. 9 RADHAKRISHNAN NAIR, S/O.LATE VASUDEVAN NAIR, SUBHADRALAYAM HOUSE, ARUMANOOR KARA, AYARKUNNAM VILLAGE, KOTTAYAM TALUK, ADMINISTRATIVE COUNCIL MEMBER OF SREEKRISHNA VILASAM N.S.S.KARAYOGAM NO.1388, ARUMANOOR KARA, AYARKUNNAM VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT, PIN – 686564. 10 SREEKANTH, NOW RESIDING AT ATHIRA HOUSE, FROM MOOLAYIL HOUSE, ARUMANOOR KARA, AYARKUNNAM VILLAGE, KOTTAYAM TALUK, ADMINISTRATIVE COUNCIL MEMBER OF SREEKRISHNA VILASAM N.S.S. KARAYOGAM NO.1388, ARUMANOOR KARA, AYARKUNNAM VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT-686564. BY ADVS. G.SREEKUMAR (CHELUR) MANU NAIR G.(K/2361/2021) THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 31.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **OP(C) No.2175 of 2023** ## **- 4 -** ## **'CR'** ## **JUDGMENT** ## **Dated, this the 31[st] January, 2024** **The question, which arise for consideration in this Original Petition, is whether an interlocutory application for issuance of Commission, that too at the instance of the defendants in the suit, can be allowed before grant of leave under Section 92 of the Code of Civil Procedure.** **2. The plaintiffs filed an application under Section 92 of the Code seeking leave to file the instant suit. While so, the defendants sought for issuance of a Commission, apparently to disprove the allegations in the plaint. The same was allowed by the learned Sub Judge by Ext.P6 order, which is under challenge herein.** **3. Sri.B.Krishna Mani, learned counsel for the petitioners relied upon the following judgments to** **OP(C) No.2175 of 2023** **- 5 -** **canvass the proposition that a commission application cannot be allowed before grant of leave under Section 92 of the Code.** **i) Achuthan Pillai v. Mohanan Unnithan [1979 KLT SN 53(Case No.116)];** **ii) Mathew v. Thomas [1982 KLT 493];** **iii) Sulaiman v. Chunakara S.M.Jama Ath [1982 KLT 790]; and iv) Govindan v. Koovalasseri S.M.K. Trust [2001 (2) KLT 907].** **4. Per contra, it was argued by Sri.G.Sreekumar Chelur, learned counsel for the respondents that the** _**prima facie**_ **correctness of the allegations in the plaint will be a relevant consideration for the court to decide, as to whether the leave sought for should be granted or not, for which purpose, it is not illegal to allow a commission application. What was sought is a commission for local inspection to disprove the allegations in the plaint levelled against the defendants. Such facts cannot be said to be completely irrelevant in the context of grant of leave, is the** **OP(C) No.2175 of 2023** ## **- 6 -** **submission made by the learned counsel for the respondents. Learned counsel relied upon the judgment of this Court in Malankara Orthodox Syrian Church Catholicate Palace and Others v. Eldho Basil and Others [2022 KHC 4026]. On the requirements for grant of leave under Section 92, learned counsel relied upon a judgment of the Honourable Supreme Court in Ashok Kumar Gupta and Another v. Sitalaxmisahuwala Medical Trust and Others [(2020) 4 SCC 321].** **5. Having heard the learned counsel appearing on both sides, this Court finds substantial merit in the submissions made by the learned counsel for the petitioners. Going by the scheme of Section 92, a suit of the nature referred to therein can be instituted, after having obtained the leave of the court. Thus, a suit can be said to live and pending consideration before the court, only after leave under Section 92 is granted. Leave of the court is a pre-condition/condition precedent for** **OP(C) No.2175 of 2023** **- 7 -** **institution of the suit, as held by the Honourable Supreme Court in R.M.Narayana Chettiar and another v. N.Lakshmanan Chettiar and Others [AIR 1991 SC 221]. As far back as in 1940, a Patna High Court held that, it is allegations in the plaint that determine the jurisdiction of the court under Section 92 and an allegation of breach of trust as levelled in the plaint is sufficient to confer jurisdiction under Section 92. [See, Ramdas Bhagat** **v. Krishna Prasad Tewari and Others - AIR 1940 Patna 425]. The legal position got the seal of approval from the Honourable Supreme Court in Swami Paramatmanand Saraswati and Others v. Ramji Tripathi and Others [AIR 1974 SC 2141] and Charan Singh and Others v. Darshan Singh and Others [AIR 1975 SC 371]. As a necessary corollary, the defendants are not at liberty in law to adduce evidence to disprove the contents of the plaint at that stage, though they have a right to object the grant of leave, as held by a Division Bench of this Court in T.R.Sanjeev and Others v.** **OP(C) No.2175 of 2023** ## **- 8 -** **Karanakodam Sri Venkitachalapathy Devaswom and Others [AIR 2005 (3) Ker 302 : ILR 2005 (3) Kerala 642]. In a suit under Section 92, a court is not bound even to issue notice to the defendant before granting leave, though it is always desirable. [See, R.M.Narayana Chettiar (supra)].** **6. In the instant case, the Commission is sought for by the defendants to establish that the plaint allegations are false, especially in the context of an allegation regarding cutting and removal of trees. The legal position being as expatiated above, the impugned Ext.P6 order cannot be sustained. The legal position that it is not permissible to pass interlocutory orders in a suit under Section 92, before leave is granted, as held in Achuthan Pillai (supra) has been confirmed by a Division Bench of this Court in Mathew(supra). The same is seen followed by another learned Single Judge in Sulaiman(supra) and further by this Court in Govindan(supra).** **OP(C) No.2175 of 2023** ## **- 9 -** **7. Coming to Eldho Basil (supra), relied upon by the learned counsel for the respondents, this Court notice that it deals with the scope of Section 141, which is applicable to all proceedings in a Civil Court – not confined to original proceedings, but also to other proceedings. Another Bench decision relied upon in that decision in paragraph no.14, Prof.Meeran** **Maluk Mohammed S. v. Muslim Association, Thiruvananthapuram and Others [2017 (1) KHC 738 (DB)], was rendered in the context of an application to amend the leave petition, which dictum is of little avail to the respondents in the present factual setting.** **8. In the circumstances, Ext.P6 order cannot be sustained and the same is hereby set aside. The learned Sub Judge will proceed with the matter, in accordance with law.** **As regards the injunction sought for in I.A. No.1/2024 in the above Original Petition, the** **OP(C) No.2175 of 2023** **- 10 -** **petitioners' right to approach the court below, seeking appropriate remedy, is reserved.** **This Original Petition is disposed of, as** **above.** **Sd/-** **C.JAYACHANDRAN, JUDGE** ww **OP(C) No.2175 of 2023** ## **- 11 -** ## **APPENDIX OF OP(C) 2175/2023** PETITIONERS' EXHIBITS: Exhibit-P1 A TRUE COPY OF THE ORIGINAL PETITION IN O.P.NO.1/2023 BEFORE THE HON'BLE SUB COURT KOTTAYAM DATED NIL. Exhibit-P2 A TRUE COPY OF THE OBJECTION IN O.P. NO.1/2023 BEFORE THE HON'BLE SUB COURT KOTTAYAM DATED 14-7-2023 FILED BY THE RESPONDENTS 1 TO 5. Exhibit-P3 A TRUE COPY OF THE OBJECTION IN O.P. NO.1/2023 BEFORE THE HON'BLE SUB COURT KOTTAYAM DATED 15-7-2023 FILED BY THE RESPONDENTS 6 TO 10. Exhibit P4 A TRUE COPY OF THE COMMISSION APPLICATION IN I.A.NO.5/2023 IN O.P. NO.1/2023 BEFORE THE HON'BLE SUB COURT, KOTTAYAM DATED 7-8-2023. Exhibit 5 A TRUE COPY OF THE OBJECTION IN COMMISSION APPLICATION IN I.A.NO.5/2023 IN O.P.NO.1/2023 BEFORE THE HON'BLE SUB COURT, KOTTAYAM DATED 29-9-2023. Exhibit P6 A TRUE COPY OF THE ORDER IN COMMISSION APPLICATION I.A.NO.5/2023 IN O.P. NO.1/2023 BEFORE THE HON'BLE SUB COURT, KOTTAYAM DATED 29-9-2023.