Madras High Court
Tirupattur Nagarathu Vysiyargal ... vs Tirupattur Periyakulam Nandavanam ... on 13 August, 1997
Equivalent citations: (1998)1MLJ303
Author: Ar Lakshmanan
Bench: Ar Lakshmanan
ORDER AR Lakshmanan, J.
1. Tirupattur Nagarathu Vysiyargal Sangam, represented by its President is the petitioner in this revision. He filed this revision against the order made in I.A. No. 42 of 1994 in O.S. No. 23 of 1994, dated 20.1.1994 on the file of the Sub Court, Tirupattur, North Arcot District, granting leave to the respondent herein under Section 92 of the Code of Civil Procedure.
2. According to Mr. V.S. Subramanyan, learned Advocate for the petitioner, the order passed by the Sub Court, granting leave without notice to the petitioner, who are vitally interested in the trust and the trust properties is materially irregular and illegal. He further contends that the learned Subordinate Judge has not even found that the respondent/proposed plaintiff has any interest in the trust properties or in the proper administration of the trust. Arguing contra Mr. V. Raghavachari contends that the civil revision petition itself is not maintainable against the order passed by the Sub Court in view of the recent pronouncement of this Court in the case of Raju Pillai v. Paramasivan (1995) 1 M.L.J. 417. The learned Judge held that the revision is maintainable to the High Court only against any case which is decided by a court subordinate to the High Court against which no appeal lies. Further, the order of the Court must also be of the nature mentioned in Section 115, Sub-clause (1) of C.P.C. A reading of that section makes it clear that, while exercising the power under Section 115, C.P.C. the Court subordinate to it must be exercising judicial power and it must be in respect of a case decided. There must be a decision affecting the rights of the parties. The judgment, in my opinion, squarely applies to the fact of this case. Mr. V.S. Subramnayan, learned Counsel appearing for the petitioner has however cited two other decisions in the case of Gurdwara Prabandhak Committee v. Amarjit Singh A.I.R. 1984 Del. 39 and Ram Prakash v. Dayalchand . The learned single Judge of the Delhi High Court held that an order granting leave without the trust being heard is a material irregularity, and therefore, the trust which has a direct and substantial interest in the matter can maintain a revision. The learned single Judge of the Punjab & Haryana High Court held that granting permission to institute a suit under Section 92 of the Code, two of the essential requirements have to be considered. They are, (1) that the person applying for permission to institute a suit must have an interest in the trust, and (2) that the trust must be for a public purpose of a charitable or religious nature and that the interest re-quired by Section 92 is a real, substantive and existing interest in the particular trust. Therefore, against the order granting permission under Section 92 to institute a suit, a revision under Section 115(1)(c) read with proviso (a) lies.
3. From the above judgments, it is seen that there are conflicting views on the maintainability of the revision petition. But, however, as propriety demands, I am bound by the decision of a learned single Judge of this Court holding that the revision is maintainable to this Court only against any case which is decided by a court subordinate to the High Court against which no appeal lies. I am of the view, that without going into the controversy with reference to the maintainability of the revision in this Court, the petitioner herein may be asked to move the Sub Court, Tirupattur by filing an application to revoke the leave granted in favour of the respondent herein. Such a course, if adopted, would meet the ends of justice. The Supreme Court in an identical case in R.M. Narayana Chettiar v. N. Lakshmanan Chettiar has observed that, as a rule of caution, court should normally give notice to the defendant before granting leave under the said section to institute a suit, but the court has not bound to do so, and that the grant of leave cannot be regarded as defeating or even seriously prejudicing any right of the proposed defendants because it is always open to them to file an application for revocation of the leave which can be considered on merits and according to law. In the present case, the petitioner Sangam is vitally inter-ested in the list and therefore, they must be give an opportunity and permission to intervene in the matter and to file a petition to revoke the leave granted by the lower court. Therefore, the petitioner is permitted to file an application for revocation within four weeks from today, after giving notice to the other side. The lower court thereupon shall hear the matter on merits after affording opportunity to both parties to put forth their case and decide the matter on merits. 4. This civil revision petition is ordered accordingly. No costs.