Kerala High Court
Sree Gurudeva Charitable And ... vs K.Gopalakrishnan on 25 August, 2020
Equivalent citations: AIRONLINE 2020 KER 876
Author: Devan Ramachandran
Bench: Devan Ramachandran
CR
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
TUESDAY, THE 25TH DAY OF AUGUST 2020 / 3RD BHADRA, 1942
CRP.No.177 OF 2020
ORDER IN IA 4/2020 IN OP(TRUST) 4/2020 DATED 19-03-2020 OF
ADDITIONAL DISTRICT JUDGE - II, ALAPPUZHA
PETITIONERS/PETITIONERS/RESPONDENTS 1 TO 3:
1 SREE GURUDEVA CHARITABLE AND EDUCATIONAL TRUST,
KATTACHIRA, PALLICKAL P.O., KAYAMKULAM REP. BY
ITS GENERAL SECRETARY SUBASH VASU, SREE GURUDEVA
CHARITABLE AND EDUCATIONAL TRUST OFFICE, KATTACHIRA,
PALLICKAL P.O.,KAYAMKULAM,ALAPPUZHA DISTRICT-690 502.
2 VELLAPPALLY NATESAN COLLEGE OF ENGINEERING,
KATTACHIRA, PALLICKAL P.O., MAVELIKKARA,
ALAPPUZHA DISTRICT, PIN - 690 502, REPRESENTED
BY ITS GENERAL SECRETARY SUBHASH VASU.
3 SUBHASH VASU, AGED 56 YEARS, S/O.LATE VASU,
GENERAL SECRETARY, SREE GURUDEVA CHARITABLE
AND EDUCATIONAL TRUST, CHAITHRAM, KATTACHIRA,
PALLICKAL P.O., KAYAMKULAM, PIN - 690 503,
RESIDING AT PUTHENVEETTIL, SOUTH MANKUZHI,
PALLIKANNAKKU P.O., KAYAMKULAM, ALAPPUZHA
DISTRICT, PIN - 690 537.
BY ADVS.SRI.T.KRISHNUNNI (SR.)
SRI.VINOD RAVINDRANATH
SMT.MEENA.A.
SRI.K.C.KIRAN
SMT.M.R.MINI
SHRI.ANISH ANTONY ANATHAZHATH
RESPONDENTS/COUNTER PETITIONERS:
1 K.GOPALAKRISHNAN, S/O.K.KOCHU RAMAN, VARIKKOLIL
HOUSE, PALLICKAL NADUVILE MURI, KAYAMKULAM,
ALAPPUZHA DISTRICT, NOW RESIDING AT A/5/2, NSK
SOCIETY, TEMPLE ROAD, CIVIL LANES, NAGPUR-440 001.
CRP 177/20 & co. cases 2
2 A.SOMARAJAN, AGED 70 YEARS, S/O.ANANDAN,
KARITHKAMADOM, NAMBARUVIKALA, ALINKADAVU P.O.,
KARUNAGAPPALLY, KOLLAM, PIN - 690 573.
BY ADV. SRI.K.S.HARIHARAPUTHRAN
THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON
21-08-2020 ALONG WITH CRP.178/2020, CRP.225/2020,
OP(C).1224/2020, THE COURT ON 25-08-2020 PASSED THE FOLLOWING:
CRP 177/20 & co. cases 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
TUESDAY, THE 25TH DAY OF AUGUST 2020 / 3RD BHADRA, 1942
CRP.No.178 OF 2020
ORDER IN IA 3/2020 IN OP(TRUST) 4/2020 OF ADDITIONAL DISTRICT
JUDGE - II, ALAPPUZHA
PETITIONERS/COUNTER PETITIONERS 3 TO 5/RESPONDENTS 1 TO 3:
1 SREE GURUDEVA CHARITABLE AND EDUCATIONAL TRUST
KATTACHIRA, PALLICKAL P.O., KAYAMKULAM, REP. BY
ITS GENERAL SECRETARY SUBASH VASU, SREE GURUDEVA
CHARITABLE AND EDUCATIONAL TRUST OFFICE,
KATTACHIRA, PALLICKAL P.O., KAYAMKULAM, ALAPPUZHA
DISTRICT, PIN - 690 502.
2 VELLAPPALLY NATESAN COLLEGE OF ENGINEERING,
KATTACHIRA, PALLICKAL P.O., MAVELIKKARA,
ALAPPUZHA DISTRICT, PIN - 690502, REPRESENTED
BY ITS GENERAL SECRETARY SUBHASH VASU.
3 SUBHASH VASU, AGED 56, S/O.LATE VASU,
GENERAL SECRETARY, SREE GURUDEVA CHARITABLE
AND EDUCATIONAL TRUST, CHAITHRAM,
KATTACHIRA,PALLICKAL P.O., KAYAMKULAM,
PIN - 690 503.
BY ADVS.SRI.T.KRISHNUNNI (SR.)
SRI.VINOD RAVINDRANATH
SMT.MEENA.A.
SRI.K.C.KIRAN
SMT.M.R.MINI
SHRI.ANISH ANTONY ANATHAZHATH
CRP 177/20 & co. cases 4
RESPONDENTS/PETITIONER & COUNTER PETITIONERS 1, 2 & 6 TO 11:
1 S.BABU RAJ, TREASURDER, SREE GURUDEVA CHARITABLE
AND EDUCATIONAL TRUST OFFICE,CHITHRAM, KATTACHIRA,
PALLICKAL P.O.,KAYAMKULAM, ALAPPUZHA DISTRICT,
PIN - 690 503.
2 K.GOPALAKRISHNAN, S/O.K.KOCHU RAMAN, VARIKKOLIL
HOUSE, PALLICKAL NADUVILE MURI, KAYAMKULAM,
ALAPPUZHA DISTRICT, NOW RESIDING AT A/5/2, NSK
SOCIETY, TEMPLE ROAD, CIVIL LANES, NAGPUR-440 001.
3 A.SOMARAJAN, AGED 70 YEARS, S/O.ANANDAN,
KARITHKAMADOM, NAMBARUVIKALA, ALINKADAVU P.O.,
KARUNGAPPALLY, KOLLAM, PIN - 690 573.
4 B.SURESH BABU, TRUSTEE, SREE GURUDEVA CHARITABLE
AND EDUCATIONAL TRUST OFFICE, ALUMPARAMBIL HOUSE,
KOTTARKAVU, MAVELIKKARA, ALAPPUZHA DISTRICT,
PIN - 690 101.
5 THUSHAR VELLAPPALLY, CHAIRMAN, SREE GURUDEVA
CHARITABLE AND EDUCATIONAL TRUST OFFICE,
VELLAPPALLY HOUSE, KANICHUKULANGARA, ALAPPUZHA,
PIN - 688 582.
6 V.SADASIVAN, ASSISTANT SECRETARY, SREE GURUDEVA
CHARITABLE AND EDUCATIONAL TRUST OFFICE, SARAS,
PRAYAR P.O., OACHIRA, KOLLAM, PIN - 690 547.
7 VELANCHIRA SUKUMARAN, TRUSTEE, SREE GURUDEVA
CHARITABLE AND EDUCATIONAL TRUST OFFICE,
LEKSHMIPRIYA, PUTHIYAVILA, KAYAMKULAM P.O.,
ALAPPUZHA DISTRICT, PIN - 690 531.
8 PEPSIN RAJ, TRUSTEE, SREE GURUDEVA CHARITABLE AND
EDUCATIONAL TRUST OFFICE, GOURIVIHAR, KADAPPAKADA
P.O., KOLLAM, PIN - 690 008.
9 JAYAKUMAR PARAPURATH, TRUSTEE, SREE GURUDEVA
CHARITABLE AND EDUCATIONAL TRUST OFFICE,
PARAPURATHU HOUSE, MANKUZHY, MAVELIKKARA,
ALAPPUZHA DISTRICT, PIN - 690 558.
CRP 177/20 & co. cases 5
R1, R7 BY ADV. SRI.M.DEVESH
R2 & R3 BY ADV. K.S.HARIHARAPUTHRAN
R5, R8 & CAVEATOR BY ADV. SRI.A.N.RAJAN BABU
THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON
21-08-2020 ALONG WITH CRP.177/2020, CRP.225/2020,
OP(C).1224/2020, THE COURT ON 25-08-2020 PASSED THE FOLLOWING:
CRP 177/20 & co. cases 6
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
TUESDAY, THE 25TH DAY OF AUGUST 2020 / 3RD BHADRA, 1942
CRP.No.225 OF 2020
ORDER IN IA 3/2020 IN OP(TRUST) 4/2020 DATED 19-03-2020 OF
ADDITIONAL DISTRICT JUDGE, ALAPPUZHA
PETITIONER/PETITIONER/4th RESPONDENT:
S. BABU RAJ, TREASURER, SREE GURUDEVA CHARITABLE
AND EDUCATIONAL TRUST OFFICE, CHITHRAM, KATTACHIRA,
PALLICKAL P. O., KAYAMKULAM, ALAPPUZHA DISTRICT,
PIN - 690 503.
SRI.T.KRISHNANUNNI (SR.)
SRI.VINOD RAVINDRANATH
SMT.MEENA.A.
SRI.K.C.KIRAN
SMT.M.R.MINI
SRI.M.DEVESH
SRI.ASHWIN SATHYANATH
SHRI.ANISH ANTONY ANATHAZHATH
SHRI.THAREEQ ANVER
RESPONDENTS/COUNTER PETITIONERS/PETITIONERS & RESPONDENTS 1, 2 3
& 5 TO 11:
1 K. GOPALAKRISHNAN, S/O. K. KOCHU RAMAN, VARIKKOLIL
HOUSE, PALLICKAL NADUVILE MURI, KAYAMKULAM,
ALAPPUZHA DISTRICT, NOW RESIDING AT A/5/2,
NSK SOCIETY, TEMPLE ROAD, CIVIL LANES, NAGPUR,
PIN - 440 001.
2 A. SOMARAJAN, AGED 70 YEARS, S/O. ANANDAN,
KARITHKAMADOM, NAMBARUVIKALA, ALINKADAVU P. O.,
KARUNAGAPPALLY, KOLLAM, PIN - 690 573.
CRP 177/20 & co. cases 7
3 SREE GURUDEVA CHARITABLE AND EDUCATIONAL TRUST
KATTACHIRA, PALLICKAL P. O., KAYAMKULAM, REP. BY
ITS GENERAL SECRETARY SUBASH VASU, SREE GURUDEVA
CHARITABLE AND EDUCATIONAL TRUST OFFICE,
KATTACHIRA, PALLICKAL P. O., KAYAMKULAM, ALAPPUZHA
DISTRICT, PIN - 690 502.
4 SRI VELLAPPALLY NATESAN COLLEGE OF ENGINEERING
KATTACHIRA, PALLICKAL P. O., MAVELIKKARA,
ALAPPUZHA DISTRICT, PIN - 690 502, REPRESENTED
BY ITS GENERAL SECRETARY SUBHASH VASU.
5 SUBHASH VASU, AGED 56, S/O. LATE VASU,
GENERAL SECRETARY, SREE GURUDEVA CHARITABLE
AND EDUCATIONAL TRUST, CHAITHRAM, KATTACHIRA,
PALLICKAL P. O., KAYAMKULAM, PIN - 690 503.
6 B. SURESH BABU, TRUSTEE, SREE GURUDEVA CHARITABLE
AND EDUCATIONAL TRUST OFFICE, ALUMPARAMBIL HOUSE,
KOTTARKAVU, MAVELIKKARA, ALAPPUZHA DISTRICT-690101.
7 THUSHAR VELLAPPALLY, CHAIRMAN, SREE GURUDEVA
CHARITABLE AND EDUCATIONAL TRUST OFFICE,VELLAPPALLY
HOUSE, KANICHUKULANGARA, ALAPPUZHA, PIN - 688 582.
8 V. SADASIVAN, ASSISTANT SECRETARY, SREE GURUDEVA
CHARITABLE AND EDUCATIONAL TRUST OFFICE, SARAS,
PRAYAR P. O., OACHIRA, KOLLAM, PIN - 690 547.
9 VELANCHIRA SUKUMARAN, TRUSTEE, SREE GURUDEVA
CHARITABLE AND EDUCATIONAL TRUST OFFICE,
LEKSHMIPRIYA, PUTHIYAVILA, KAYAMKULAM P. O.,
ALAPPUZHA DISTRICT, PIN - 690 531.
10 PEPSIN RAJ, TRUSTEE, SREE GURUDEVA CHARITABLE AND
EDUCATIONAL TRUST OFFICE, GOURIVIHAR, KADAPPAKADA
P. O., KOLLAM, PIN - 690 008.
11 JAYAKUMAR PARAPURATH, TRUSTEE, SREE GURUDEVA
CHARITABLE AND EDUCATIONAL TRUST OFFICE,
PARAPURATHU HOUSE, MANKUZHY, MAVELIKKARA,
ALAPPUZHA DISTRICT, PIN - 690 558.
CRP 177/20 & co. cases 8
R1 & R2 BY ADV.SRI.K.S.HARIHARAPUTHRAN
R3 TO R6, R8 & R9 BY ADV.SRI.R.SIVADASAN
R7, R10 & R11 BY ADV.SRI.A.N.RAJAN BABU
THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON
21-08-2020 ALONG WITH CRP.177/2020, CRP.178/2020,
OP(C).1224/2020, THE COURT ON 25-08-2020 PASSED THE FOLLOWING:
CRP 177/20 & co. cases 9
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
TUESDAY, THE 25TH DAY OF AUGUST 2020 / 3RD BHADRA, 1942
OP(C).No.1224 OF 2020
OP(TRUST) 4/2020 OF DISTRICT JUDGE'S COURT, ALAPPUZHA
PETITIONER/4th RESPONDENT:
S.BABU RAJ, TREASURER, SREE GURUDEVA CHARITABLE
AND EDUCATIONAL TRUST OFFICE, CHITHRAM, KATTACHIRA,
PALLICKAL P.O., KAYAMKULAM, ALAPPUZHA DISTRICT,
PIN-690503.
BY ADVS.SRI.T.KRISHNANUNNI (SR.)
SRI.VINOD RAVINDRANATH
SMT.MEENA.A.
SRI.K.C.KIRAN
SMT.M.R.MINI
SRI.M.DEVESH
SRI.ASHWIN SATHYANATH
SHRI.ANISH ANTONY ANATHAZHATH
SHRI.THAREEQ ANVER
RESPONDENTS/PETITIONERS & RESPONDENTS 1, 2 3 & 5 TO 11:
1 K.GOPALAKRISHNAN, S/O.K.KOCHU RAMAN, VARIKKOLIL
HOUSE, PALLICKAL NADUVILE MURI, KAYAMKULAM,
ALAPPUZHA DISTRICT, NOW RESIDING AT A/5/2, NSK
SOCIETY, TEMPLE ROAD, CIVIL LANES, NAGPUR,
PIN-440001.
2 A.SOMARAJAN, AGED 70 YEARS, S/O.ANANDAN,
KARITHKAMADOM, NAMBARUVIKALA, ALINKADAVU P.O.,
KARUNAGAPPALLY, KOLLAM, PIN-690573.
CRP 177/20 & co. cases 10
3 SREE GURUDEVA CHARITABLE AND EDUCATIONAL TRUST,
KATTACHIRA, PALLICKAL P.O., KAYAMKULAM, REP. BY
ITS GENERAL SECRETARY SUBASH VASU, SREE GURUDEVA
CHARITABLE AND EDUCATIONAL TRUST OFFICE,
KATTACHIRA, PALLICKAL P.O., KAYAMKULAM, ALAPPUZHA
DISTRICT, PIN-690502.
4 SRI.VELLAPPALLY NATESAN COLLEGE OF ENGINEERING,
KATTACHIRA, PALLICKAL P.O., MAVELIKKARA, ALAPPUZHA
DISTRICT, PIN-690502, REPRESENTED BY ITS GENERAL
SECRETARY SUBHASH VASU.
5 SUBHASH VASU, AGED 56, S/O.LATE VASU, GENERAL
SECRETARY, SREE GURUDEVA CHARITABLE AND
EDUCATIONAL TRUST, CHAITHRAM, KATTACHIRA,
PALLICKAL P.O., KAYAMKULAM, PIN-690503.
6 B.SURESH BABU, TRUSTEE, SREE GURUDEVA CHARITABLE
AND EDUCATIONAL TRUST OFFICE, ALUMPARAMBIL HOUSE,
KOTTARKAVU, MAVELIKKARA, ALAPPUZHA DISTRICT,
PIN-690101.
7 THUSHAR VELLAPPALLY, CHAIRMAN, SREE GURUDEVA
CHARITABLE AND EDUCATIONAL TRUST OFFICE,
VELLAPPALLY HOUSE, KANICHUKULANGARA, ALAPPUZHA,
PIN-688582.
8 V.SADASIVAN, ASSISTANT SECRETARY, SREE GURUDEVA
CHARITABLE AND EDUCATIONAL TRUST OFFICE,SARAS,
PRAYAR P.O., OACHIRA, KOLLAM, PIN-690547.
9 VELANCHIRA SUKUMARAN, TRUSTEE, SREE GURUDEVA
CHARITABLE AND EDUCATIONAL TRUST OFFICE,
LEKSHMIPRIYA, PUTHIYAVILA, KAYAMKULAM P.O.,
ALAPPUZHA DISTRICT, PIN-690531.
10 PEPSIN RAJ, TRUSTEE, SREE GURUDEVA CHARITABLE AND
EDUCATIONAL TRUST OFFICE, GOURIVIHAR, KADAPPAKADA
P.O., KOLLAM, PIN-690008.
CRP 177/20 & co. cases 11
11 JAYAKUMAR PARAPURATH, TRUSTEE, SREE GURUDEVA
CHARITABLE AND EDUCATIONAL TRUST OFFICE,
PARAPURATHU HOUSE, MANKUZHY, MAVELIKKARA,
ALAPPUZHA DISTRICT, PIN-690558.
R1 & R2 BY ADV.SRI.K.S.HARIHARAPUTHRAN
R3 TO R6, R8 & R9 BY ADV.SRI.R.SIVADASAN
R7, R10 & R11 BY ADV.SRI.A.N.RAJAN BABU
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 21-08-2020
ALONG WITH CRP.177/2020, CRP.178/2020, CRP.225/2020, THE COURT
ON 25-08-2020 DELIVERED THE FOLLOWING:
CRP 177/20 & co. cases 12
ORDER
[CRP.177/2020, CRP.178/2020, CRP.225/2020, OP(C).1224/2020 ] Dated this the 25th day of August 2020 The jurisdictional lineaments and interpretational facets of Section 92 of the Code of Civil Procedure ('CPC' for short) have often engaged the close attention of courts, but the singular question posed in these petitions appears to have not been impelled before or answered by this Court, though the Madras High Court has, in one judgment, dealt with it, though not in detail.
2. The question wears a rather simple look: Can the Court of an Additional District Judge grant leave under Section 92 of the CPC to institute a suit against Public Charities, when there is no notification under Section 7(2) of the Kerala Civil Courts Act, 1957 ('Civil Courts Act' for brevity), authorising it to institute such a suit; and whether the District Judge can, nevertheless, make over a petition seeking such leave to the Additional District Judge?
3. This becomes relevant in the face of the contention of the petitioners in these cases, that only the District Judge is competent in CRP 177/20 & co. cases 13 law to consider a petition for leave to sue under Section 92 of the CPC
- filed before a District Court - and to grant it and not any other, including an Additional District Judge, when no notification under Section 7(6) of the Civil Courts Act has been issued, which alone would make the latter jurisdictionally competent to permit institution of a suit thereafter.
4. At this juncture, I must remind everyone that, in the year 1966, the Government of Kerala had issued a notification bearing No.G.O.(MS)No.384/1966/Home dated 24.10.1966, as per which, the Subordinate Courts in the State are also empowered to dispose of the suits under Section 92 of the CPC. This notification is still in force.
5. I have mentioned about this notification upfront, not because it has any real effect on the issues presented herein - and, as a matter of fact, it would be irrelevant - since the petition for leave and the annexed plaint thereto have been filed by respondents 1 and 2 in all these cases before the District Court and not before the Subordinate Court.
6. The answer to the various legal aspects that I will hereinafter indite are thus only with reference to a petition for leave presented before a District Court, though it certainly may have a CRP 177/20 & co. cases 14 bearing even on such petitions filed before the Subordinate Courts in Kerala.
7. That being said, the factual edifice on which the issues herein arise is that the Sree Gurudeva Charitable and Educational Trust ('the Trust' for brevity), one of the petitioners in C.R.P. Nos.177/2020 and 178/2020, which is concededly a Public Trust, has been sought to be sued by respondents 1 and 2 in all these cases - stating to be its beneficiaries - on various grounds; for which they sought leave of the court under Section 92 of the CPC.
8. Admittedly, the petition seeking such leave, accompanied by the plaint for the proposed suit, was filed by respondents 1 and 2 before the Principal District Court; but the said court, instead of considering the same, made it over to the Additional District Court for consideration. It appears that the petition was, thereafter, numbered as O.P.(Trust) No. 4/2020 and by order dated 20.01.2020, it was allowed, thus granting leave to respondents 1 and 2 to institute a suit against the Trust. On being aware of this, the petitioners in C.R.P. Nos.177/2020 and 178/2020 moved I.A.Nos.4/2020 and 3/2020 respectively before the same court, seeking that the leave so granted be revoked, leading to a subsequent order dated 19.03.2020, by CRP 177/20 & co. cases 15 which the court refused to accede to this and to confirm its earlier order.
9. The petitioners challenge the order dated 19.03.2020 of the Additional District Judge in C.R.P.Nos.177/2020 and 178/2020; while, in O.P.(C) No.1224/2020, they assail the act of making over of the petition seeking leave under Section 92 of the CPC by the District Judge to the Additional District Judge, with a prayer that the learned District Judge be directed to call back the records in O.P. (Trust)No.4/2020 from the Additional District Judge.
10. Since the facts pleaded and reliefs sought in these cases are cognate in nature, I deem it apposite to dispose of them together.
11. Before moving forward, I certainly bear in mind that there are other issues projected by the petitioners in the afore CRPs, including that the order of the Additional District Judge refusing to revoke the leave granted by it under Section 92 of the CPC is vitiated because none of the ingredients of the said section are attracted; and also since all the members of the Trust have not been arrayed as respondents in the petition seeking such leave.
12. However, I propose to first consider the question of jurisdiction of the Additional District Judge in having issued the CRP 177/20 & co. cases 16 impugned order and the competence of the District Judge in having assigned the petition for leave to the Additional District Judge; since if these or either of them is found in favour of the petitioners, then the matter will surely require to be sent back, to be considered by the appropriate Court.
13. I have, therefore, heard the learned counsel on this issue, on the specific understanding that if this Court should find the afore in favour of the respondents, then they will be further heard on the merits of the impugned order.
14. I have heard Sri.T.Krishnanunni, learned Senior Counsel, instructed by Sri.Vinod Ravindranath, learned counsel for the petitioners and Sri.K.S.Hariharaputhran, learned counsel for respondents 1 and 2; Sri.T.Sivadasan, learned counsel for various respondents supporting the petitioners and Sri.A.N.Rajan Babu, learned counsel for other respondents opposing the petitioners.
15. Sri.T.Krishnanunni, learned Senior Counsel, resolutely argued for the position that a Section 92 petition for leave can only be filed before the 'Principal Civil Court of original jurisdiction', which is the 'Principal' District Court and that it can only be heard and disposed of by the said court and no other. He thus contends that the CRP 177/20 & co. cases 17 act of the District Judge in having made over the same to the Court of the Additional District Judge and the orders subsequently issued by the latter court, are vitiated and hence null.
16. In asserting as afore, Sri.T.Krishnanunni relied upon the specific terminology of Section 92(1) of the CPC, juxaposingly referring to Sections 2 and 4 of the Civil Courts Act, along with Section 3(17) of the General Clauses Act, 1897.
17. I will, therefore, first extract the afore Sections below:
Section 92(1) of the CPC:
"92. Public charities.- (1) In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate-General, or two or more persons having an interest in the trust and having obtained the leave of the Court may institute a suit, whether contentious or not, in the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the State Government within the local limits of who jurisdiction the whole or any part of the subject-matter of the trust is situate to obtain a decree-
(a) removing any trustee;
(b) appointing a new trustee;
(c) vesting any property in a trustee;
[(cc) directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property;]
(d) directing accounts and inquiries;
CRP 177/20 & co. cases 18
(e) declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust;
(f) authorising the whole or any part of the trust property to be let, sold, mortgaged or exchanged;
(g) settling a scheme; or
(h) granting such further or other relief as the nature of the case may require."
Sections 2 and 4 of the Civil Courts Act:
"2. Classes of subordinate Civil Court.- In addition to the Courts established under any other law for the time being in force, there shall be the following classes of Civil courts in the state, namely:-
(i) the Court of a District Judge (hereinafter referred to as the District Court);
(ii) the Court of a Subordinate Judge (hereinafter referred to as the Subordinate Judge's Court);
(iii) the Court of a Munsiff (hereinafter referred as the Munsiff's Court).
4. Appointment of Additional District Judges.- (1) When the state of business pending before a District court so requires, one or more Additional District Judges may be appointed to that Court for such period as is deemed necessary.
(2) An Additional District Judge shall discharge all or any of the functions of the District Judge under this ct in respect of all matters which the District Judge may assign to him, or which under the provisions of Section 7 may be instituted before him, and in the discharge of those functions he shall exercise the same powers as the District Judge."
Section 3(17) of the General Clauses Act:
"'District Judge' shall mean the Judge of a Principal Civil Court of original jurisdiction, but it shall not include a High Court in the CRP 177/20 & co. cases 19 exercise of its ordinary or extraordinary original civil jurisdiction. "
18. According to Sri.T.Krishnanunni, learned Senior Counsel, the words employed in Section 92 of the CPC permit, without doubt, that the petition for leave as per its mandate and the consequent suit can only be filed before the 'Principal Civil Court of original jurisdiction or any other court empowered in that behalf by the State Government'. He then moved on to Section 2(i) of the Civil Courts Act to show that there can only be one 'District Judge', referred to as the 'District Court' in a district; and further that Section 4 authorises one or more Additional District Judges to be appointed to a 'District Court', who shall discharge all or any of the functions of the District Judge, which the latter may assign to them or which, under Section 7 thereof, may be instituted before them.
19. The learned Senior Counsel thus asserts that an 'Additional District Judge' can never be construed to be the same as a 'District Judge' for the purposes under Section 92 of the CPC; and that unless the High Court, under Section 7 of the Civil Courts Act, directs, by notification in the Gazette, that this particular class of proceedings may be instituted before the former, it can only be instituted before the District Court, which he says is sometimes called CRP 177/20 & co. cases 20 the 'Principal District Court' solely for convenience.
20. Sri.T.Krishnanunni, in further support of his afore submissions, then took me to Section 3(17) of the General Clauses Act, which defines a 'District judge' to mean the Judge of a Principal Civil Court of original jurisdiction and predicated that, therefore, when Section 92 of the CPC also refers to the 'Principal Civil Court of original jurisdiction' - before which alone a suit can be instituted with regard to the matters enumerated therein relating to public charities - it can only mean the Court of the District Judge and not the Court of the Additional District Judge.
21. The learned Senior Counsel added to the afore, arguing that grant of leave under Section 92 of the CPC can also be only considered and allowed by the District Judge, since the said act is one to be discharged only by the same court before which the suit is to be then instituted. He ingeminated that since Section 92 of the CPC mandates obtention of leave of 'the court' as a condition precedent for institution of the suit, and because such institution can be done only before the District Judge, the position becomes crystally clear that said section refers to the same court on both these events. CRP 177/20 & co. cases 21
22. Sri.Krishnanunni closed his arguments by relying upon the judgment of the Hon'ble High Court of Madras in Sri.Jeyaram Educational Trust and Others v. A.G.Syed Mohideen and Others ((2010) 2 SCC 513), which, he submitted, has held exactly as he has argued.
23. The response to the submissions of Sri.T.Krishnanunni by Sri.Hariharaputhran, learned counsel appearing for respondents 1 and 2, was primarily centered on the phraseology employed in Section 92 of the CPC. He concedes that the Principal Civil Court of original jurisdiction is the 'District Court'; but contends that the 'District Judge', as defined under Section 2(i) of the Civil Courts Act, as well as the 'Additional District Judge', under Section 4(1) of the said Act, being part of that court, will obtain equal jurisdiction in matters under Section 92 of the CPC. He emphasises that, since, Section 2 of the Civil Courts Act provides only for three classes of courts, namely, District Court, Subordinate Court and Munsiff's Court and because Section 4(1), thereafter, provides for appointment of Additional District Judges to a District Court, they also would come within the ambit of 'Principal Civil Court of original jurisdiction', being part of the District Court. In fortification of the afore CRP 177/20 & co. cases 22 contention, Sri.Hariharaputhran invited my attention to Section 2(4) of the CPC, which defines 'district' as under:
"'district' means the local limits of the jurisdiction of a principal Civil Court of original jurisdiction (hereinafter called a 'District Court'), and includes the local limits of the ordinary original civil jurisdiction of a High court."
24. On the afore basis, Sri.Hariharaputhran predicated that an Additional District Judge, being part of the District Court, as defined under Section 2 of the Civil Courts Act, is also a 'Principal Civil Court of original jurisdiction', as appearing in Section 92 of the CPC.
25. ccepted that a suit under Section 92 of the CPC can be instituted only before the 'Principal' District Judge, no such restrictive embargo is available therefrom in an Additional District Judge considering the grant of leave. He then submits that, therefore, once such a petition is filed before the 'Principal' District Court, nothing stops him from assigning its consideration to the Court of the Additional District Judge, as per the sanction of Section 4(2) of the Civil Courts Act.
26. Sri.Hariharaputhran thus asserted that since Section 92 of the CPC postulates that a suit be instituted thereunder only after obtaining 'leave of the court' - but without specifying that such court be solely that of the District Judge - any Court, within the 'District' as CRP 177/20 & co. cases 23 defined under Section 2(4) of the CPC afore extracted, would obtain jurisdiction for such purpose; and consequently, that the District Judge was well within its competence to have assigned the said petition to the Court of the Additional District Judge. He cited the judgment of this Court in Pazhukkamattom Devaswom v. Lakshmikutty Amma (1980 KLT 645) in support and argued that the question of jurisdiction of an Additional District Judge to consider and grant leave under Section 92 of the CPC is no longer res integra, it having been answered affirmatively in this judgment. He thus prayed that O.P.(C)No.1224/2020 be dismissed and that C.R.P.Nos.177/2020, 178/2020 and 225/2020 be decided on its merits, since the question of competence of the Additional District Judge, to consider the petition seeking leave under Section 92 of the CPC, cannot be challenged by the petitioners.
27. The submissions of the rival sides being as afore, this Court, at this stage, becomes enjoined to arrive at a decision on two aspects:
(a) Which is the 'Principal Civil Court of original jurisdiction' under the rigour of Section 92 of the CPC, before which a suit under it can be instituted?CRP 177/20 & co. cases 24
(b) Can the leave, as postulated under Section 92 of the CPC, which is the condition precedent for institution of a suit - be granted by any Judge of the 'District' as defined under Section 2(4) of the CPC?
28. When I so proceed, it certainly appears to me that the first aspect above presents no real problem, particularly since even Sri.Hariharaputhran does not vehemently argue against the proposition that the 'Principal Civil Court of original jurisdiction', as provided in Section 92 of the CPC, before which alone a suit under it can be instituted, is the Court of the District Judge. Of course, he then contends that this is not because the Court of the District Judge alone is the 'Principal Civil Court of original jurisdiction', but because - though the circulars dated 16.01.1968 and 03.06.1970 issued by this Court - a District Court can maintain only one Suit Register, thus making it solely for the purpose of convenience that suits are instituted before the District Judge and not before the Additional District Judges of the District Court. He says that, therefore, every Judge in a District Court - be that the District Judge or the Additional District Judge - can exercise every power of a 'Principal Civil Court of original jurisdiction'.
CRP 177/20 & co. cases 25
29. Notwithstanding these submissions of Sri.Hariharaputhran, which I will deal with in detail while answering the second issue, the admitted position is that a suit under Section 92 of the CPC can be instituted in the District Court only before the District Judge and no other.
30. Going forward, the Civil Court Act, in Part II thereof, under the heading 'Establishment and Constitution of Subordinate Civil Courts' provides - through Section 2 afore extracted - that there shall be, in the State of Kerala, the Court of a District Judge (referred to as the District Court), the Court of a Subordinate Judge (referred to as the Subordinate Judge's Court) and the Court of a Munsiff (referred to as the Munsiff's Court), in addition to the courts established under any other law in force. After providing so - though Section 4(1) of it - the Act then allows the appointment of one or more Additional District Judges to a District Court, if the state business of the said court so requires.
31. The General Clauses Act then defines 'District Judge' in Section 3(17) thereof, which is also extracted supra - to mean the Judge of a 'Principal Civil Court of Original Jurisdiction'. CRP 177/20 & co. cases 26
32. The combined effect of these make it ironclad that the words 'Principal Civil Court of Original Jurisdiction' occurring in Section 92 of the CPC, at least with respect to the institution of a suit thereunder, is intended solely to refer to the 'District Judge' and not to an Additional District Judge; and unimpeachably, therefore, that a suit under the sweep of this section can only be instituted in such court and no other. As said earlier, in fact, Sri.Hariharaputhran also agrees to this, subject to his contention that an Additional District Judge, being part of the District Court, is also competent to consider grant of leave, since he comes within the confines of the 'Principal Civil Court of original jurisdiction'.
33. The stage so set, I move on to the next aspect, namely, can a District Judge assign a petition for leave, sought under Section 92 of the CPC, to an Additional District Judge for consideration and if the latter would then get the competence to consider it.
34. Sri.Hariharaputhran argues in favour of this proposition because Section 92 of the CPC does not specify the court, while providing for obtention of leave thereunder. Hence, he predicates that even if a suit under this Section is accepted to be capable of being instituted only before the District Judge, there is no legal bar in the CRP 177/20 & co. cases 27 said court assigning consideration of the petition for leave under it to an Additional District Judge. As seen above, Sri.Hariharaputhran relies on Pazhukkamattom Devaswom (supra) for support.
35. No doubt, Section 92 of the CPC enables ' two or more persons having an interest in the trust and having obtained the leave of the court, may institute a suit, whether contentious or not, in the Principal Civil Court of original jurisdiction .... '. Sri.Hariharaputhran asserts that the words 'leave of the court' is not qualified to mean a particular court and, therefore, that leave can be granted by any Judge of the District Court, be that the District Judge or the Additional District Judge.
36. But, this argument of Sri.Hariharaputhran has a clear obstacle.
37. This is because, the Civil Courts Act refers to only one District Judge, called the 'District Court', with Additional District Judges being appointed to 'that court'. Hence, technically, there is no 'Additional District Court' in the frame work of the Act, but only Additional District Judges appointed to a District Court. Further, the Act does not contain the nomenclature 'Principal District Court' or 'Principal District Judge' and any such usage is only to identify the CRP 177/20 & co. cases 28 District Judge in contra distinction to an Additional District Judge, as a method in convenience and nothing more. There can be no two ways on this because the Civil Courts Act, when it refers to the Subordinate Court and Munsiff's Court, provides - through Section 6 thereof - for their designation as 'Principal' Subordinate Judge/Munsiff and 'Additional Subordinate Judges/Munsiffs. Hence, wherever the word District Court is employed in this Act, it can mean only the District Judge and not the Additional District Judges, though they are certainly appointed to the said court.
38. That said, Pazhukkamattom Devaswom (supra) relied on by Sri.Hariharaputhran cannot apply here because the said judgment was rendered in the factual background that the Government has issued the afore mentioned notification, G.O.(MS) No.384/1966/Home dated 24.10.1966, empowering Subordinate Courts also to try and dispose of the suits and the petitions under Section 92 of the CPC, within the limits of their respective jurisdiction. This notification is issued obviously under the sanction of Section 92 of the CPC, which permits institution of a suit in any other court empowered in that behalf by the State Government. It is in such context that this Court held therein that the Subordinate Court also CRP 177/20 & co. cases 29 obtains jurisdiction, along with the District Court, to consider grant of leave under Section 92 of the CPC; adding that ' under Section 24(1)
(a) of the Code the District Judge can transfer the suit to the Subordinate Judge because this Court is one subordinate to the District Court and competent to try and dispose of the suit ' (emphasis supplied). This observation of the court was not to mean that the District Court can transfer the petition for leave to a court which had no jurisdiction, but that when the aforementioned notification is in force, vesting jurisdiction in both the District Court and the Subordinate Court, the former can transfer it to the latter under Section 24(1) of the CPC, since it is also competent to try the suit.
39. Without dispute, there is no other notification in force in Kerala at this time and thus, apart from the Subordinate Courts mentioned therein, only the District Court, therefore, obtains jurisdiction under Section 92 of the CPC and not any other. Ineluctably, thus, the observations in Pazhukkamattom Devaswom (supra) cannot have any application to this case in whatsoever manner and Sri.Hariharaputhran himself concedes that there is no other specific notification authorising Additional District Judges to CRP 177/20 & co. cases 30 dispose of the suits under Section 92 of the CPC.
40. Keeping that aside, Section 92 of the CPC mandates obtention of leave from 'the court', before a suit can be instituted in the Principal Civil Court of original jurisdiction. The word 'instituted' is important because, as per Section 4(2) of the Civil Courts Act, an Additional District Judge can only dispose of the matters that are assigned to him by the District Judge or which, under the provisions of Section 7 of the said Act, can be instituted before him. Therefore, it becomes necessary to read Section 7(2) of the Civil Courts Act, for which reasons, I extract it below:
"The High Court may, with the approval of the Government, direct by notification in the Gazette that all or any class of proceedings arising in a specified local area in a district which would ordinarily be instituted in the District Court, may be instituted before an Additional District Judge of that Court sitting in a place other than the place where the District Judge sits."
41. The afore provisions is luculent that unless there is a specific notification issued under it by the High Court, enabling institution of any class of proceedings before an Additional District Judge, all such can be instituted only in the District Court, which is to mean in the Court of the District Judge.
42. Sri.Hariharaputhran has no case that there is any notification issued by the High Court enabling institution of a suit CRP 177/20 & co. cases 31 under Section 92 of the CPC in the Court of the Additional District Judge-II, Alappuzha. Therefore, in the backdrop of the provisions of the Civil Courts Act, as explained above and the Circulars dated 16.01.1968 and 03.06.1970 of this Court, relied upon by Sri.Hariharaputhran, the Principal Civil Court of original jurisdiction can only mean the Court of the District Judge - it alone being admittedly the court before which a suit can be instituted; and this, coupled with the inviolable statutory prescription of such a suit, capable of being instituted only after obtaining leave of 'the court', surely can admit to no other interpretation other than that such leave should be obtained from that Court and no other.
43. It can then be asked as an adjunct corollary that - even the above being accepted and it being taken that grant of leave under Section 92 of the CPC is the function of the District Judge - can he not assign it to the Additional District Judge under the sanction of Section 4(2) of the Civil Courts Act? In fact, this is what Sri.Hariharaputhran also asserts.
44. We will obtain a clear answer to this if the views of the Hon'ble Supreme Court in A.G.Syed Mohideen (supra) is read. Answering the question whether the provisions of Section 92 of the CRP 177/20 & co. cases 32 CPC will confer jurisdiction on a Subordinate Court, in addition to a District Court in terms of the Tamil Nadu Civil Courts Act, the Hon'ble Court declared that this section 'is a self contained provision and the conferment of jurisdiction in regard to suits under that section does not depend upon the value of the subject matter of the suit '. After holding so, the Hon'ble Court affirmatively concluded that only the District Court will obtain jurisdiction under Section 92 of the CPC.
45. Pertinently, following the afore view, the Madras High Court in Sri.Sowdeswari Charitable Trust v. S.Rajan and Others (2015 (1) CTC 745) held that ' it is very clear that the provisions of Section 92 do not give room for any interpretation and therefore, the reliance placed on by the I Additional District Judge on Section 3(4) of the Civil Courts Act is misconceived as Section 92 CPC will not grant jurisdiction on Additional District Courts'. For clarity, I record that Section 3(A) of the Tamil Nadu Civil Courts Act, referred to in this judgment, is in pari materia to Section 4(2) of the Kerala Civil Courts Act. Even though this view of the Madras High Court is not binding on me, it certainly has substantial persuasive force.
46. Lest there be any further doubt left, I will now advert compendiously to the statutory parameters of Section 92 of the CPC CRP 177/20 & co. cases 33 to examine if a contrary view is possible, in any manner whatsoever.
47. As is now well entrenched in law, three imperative conditions are required to be satisfied to justify invocation of Section 92 of the CPC, namely; (a) the Trust in question is created for public purposes of charitable or religious nature; (b) there is any breach of trust or a direction of court is necessary in the administration of such a Trust; and (c) the relief claimed is one or other of the reliefs as enumerated in the said section [see Pragdasai Guru Bhagwandasgai v. Patel Ishwarlalbhai Narsibhai and Others (AIR 1952 SC 143), Harendra Nath Bhattacharya and Others v. Kaliram Das (Dead) by his heirs and Lrs. And Others ((1972) 1 SCC 115), Sugra Bibi v. Hazi Kummu Mia (AIR 1969 SC 884), Vidyodaya Trust v. Mohan Prasad and Others ((2008) 4 SCC 115), Ashok Kumar Gupta and Anr. v. M/s.Sitalaxmi Sahuwala Medical Trust and Ors. (AIR 2020 SC 1257)].
48. Thus, when a petition under Section 92 of the CPC is filed, it becomes enjoined on the court to assess whether the afore criterion are attracted, leading to the grant of leave, if so; and to dismiss it, if not.
CRP 177/20 & co. cases 34
49. In the latter event afore, a suit under Section 92of the CPC cannot, thereafter, be instituted, since grant of leave is a condition precedent for it, as has been now well settled by the Hon'ble Supreme Court in several decisions, a few of them being R.M.Narayana Chettiar and Another v. L.Lakshmanan Chettiar ((1991) 1 SCC 48); Vidyodaya Trust (supra) and Bhupinder Singh v. Joginder Singh (dead) by LRs and Others (2020 (2) LW 297).
50. As regards the nature of inquiry at the stage of consideration of grant of leave is concerned, the Hon'ble Supreme Court has, through the judgments in Swami Paramatmanand Saraswathi v. Ramji Tripathi ((1974) 2 SCC 695); R.M.Narayana Chettiar (supra) and Vidyodaya Trust (supra) postulated that 'it is only the allegations in the plaint that should be looked into at the first instance to see whether the suit falls within the ambit of Section 92 of the CPC'.
51. Ineluctably, guided by the above view, the Hon'ble Supreme Court, thereafter, in Swami Sivasankar Giri Chella Swami and Another v. Satya Gyan Nikeran and another ((2017) 4 SCC 771) opined without any reservation that ' it was the statutory duty of the court to examine that whether the plaint is so annexed CRP 177/20 & co. cases 35 with the petition under Section 92 CPC or not ' and to reject it, if it is not so.
52. A close reading of Sugra Bibi (supra), Swami Paramatmanand Saraswathi (supra) and R.M.Narayana Chettiar (supra) would render it perspicuous that the Hon'ble Supreme Court also examined the quality of the satisfaction to be arrived at by a Court before granting leave under Section 92 of the CPC, to crystally hold that it is only in the event of the court obtaining subjective satisfaction, that the averments in the petition for leave and the annexed plaint justify a suit under it, can it be so granted.
53. The appurtenant question - if notice is to be issued to the proposed defendants and if they are to be heard before leave is granted under Section 92 of the CPC - has also been answered by the Hon'ble Supreme Court in most of the afore cited decisions and the established position today is that though this is desirable and a rule of caution, it cannot be regarded as a statutory requirement, particularly in view of the explanation added below the section to the effect that the court may grant leave without issuing notice to any person; however, with a note of diligence that this should not mean that the Court will grant leave as a matter of course [see B.S.Adiyan CRP 177/20 & co. cases 36 v. B.Ramachandran Adiyan ((2004) 9 SCC 720)].
54. Moving on, the Hon'ble Supreme Court then held that in cases where leave is granted without notice to the respondents/proposed defendants, they will obtain the right to seek its revocation by making suitable petition for such purpose [see Vidyodaya Trust (supra)].
55. The position of law and the binding precedents being so purveyed and noticed, the admitted facts in these cases are that respondents 1 and 2 filed a petition for leave under Section 92 of the CPC, along with the plaint of the proposed suit before the District Court, Alappuzha. This was, concededly, done by them correctly.
56. However, the learned District Judge, instead of considering the petition for leave, assigned it to the Additional District Judge, who then granted leave through order dated 20.01.2020. On being aware of this order, the petitioners in these cases filed two applications to revoke the leave contending, inter alia, that the Additional District Judge obtained no jurisdiction to consider or grant leave under Section 92 of the CPC. However, the objections of the petitioners have been overruled by the Additional District Judge, through order dated 19.03.2020 impugned in the afore CRPs, CRP 177/20 & co. cases 37 holding that since the learned District Judge has 'transferred' the matter to him under Section 24 of the CPC, he gets jurisdiction to hear and issue orders on the petition for leave under Section 92 of the CPC.
57. As I have already said above, the petitioners have assailed the order of the learned Additional District Judge in C.R.P.Nos.177/2020, 178/2020 and 225/2020; while they have called into question the act of the learned District Judge, in having assigned the petition for leave under Section 92 of the CPC to the Additional District Judge, in O.P.(C)No. 1224/2020.
58. In this context, it is irrefragable from the above discussion of law that a suit under Section 92 of the CPC can, at the District Court level, only be instituted before the District Judge; and further that such a suit can, however, be instituted only after obtaining leave of the court and not otherwise. Since grant of leave is an imperative condition precedent to the institution of the suit, the District Judge can permit such institution only if he is subjectively satisfied that the plaint averments disclose the essential ingredients required under Section 92 of the CPC. When the statutory mandate, strengthened by the afore case laws, emphasise subjective satisfaction to be arrived at CRP 177/20 & co. cases 38 by the court before grant of leave - which alone would then permit consequent institution of the suit - it becomes irresistible that only that court, before which a suit can be instituted, would obtain the jurisdiction to consider grant of leave and no other.
59. Any other interpretation, in my firm view, would certainly cause violence to the intent and purpose of Section 92 of the CPC; since, even if it is accepted that an Additional District Judge can grant leave under this Section, it is conceded that he would not obtain jurisdiction to grant permission to institute the suit, which only the District Judge can do.
60. This would give rise to a situation where the court grants leave is without jurisdiction to allow institution of the suit and that the file, which contains the petition for leave along with the plaint, will have to go back to the District Judge, who, thereafter, will have to permit the plaintiff to institute the suit based on a leave which he did not grant.
61. Worse still, if the suit is to be then heard by the Additional District Judge who granted the leave, the District Judge will have to again make it over to him after the suit is instituted, thus requiring the District Judge to assign the file twice to the Additional District CRP 177/20 & co. cases 39 Judge - once before leave is granted and once after the suit is instituted. I certainly cannot find this to be within the spirit of the section at all.
62. At the cost of repetition, since Section 92 of the CPC permits institution of a suit only after obtaining leave of the court and since the afore cited precedents make it apodictic that such leave can be granted only if the court obtains subjective satisfaction that ingredients of the section are attracted, it would brook no ambiguity that it is only that court, competent to permit institution of the suit, can grant leave for such purpose.
63. As a concomitant corollary to this, if an Additional District Judge is, through a valid notification under Section 7(1) of the Civil Courts Act, authorised to institute a suit under Section 92 of the CPC, then it would also obtain full jurisdiction to consider grant of leave for such purpose; but in no other case.
64. In such perspective, the submission of Sri.Hariharaputhran, that an Additional District Judge is also a 'District Court' within the purlieus of the Civil Courts Act and Section 2(4) of the CPC, becomes irrelevant because, even if it is so accepted, as long as such a Judge cannot permit institution of the suit under CRP 177/20 & co. cases 40 Section 92 of the CPC, which factum is admitted herein, he cannot consider grant of leave under it either.
65. Thus, viewed from any angle, in the absence of a notification under Section 7(1) of the Civil Courts Act, permitting institution of a suit before an Additional District Judge, the jurisdiction to consider a petition for leave under Section 92 of the CPC and to permit institution of a suit thereunder is only with the District Judge, but not with an Additional District Judge. As a necessary derivative, the District Judge would obtain no competence to assign such a petition for consideration to the Additional District Judge either.
66. The denouement of the conclusions above leads me to hold, without any doubt, that the challenge mounted by the petitioner in both theses cases deserve to be allowed.
Thus, in result:
(a) C.R.P.Nos.117/2020, 178/2020, 225/2020 are allowed and the order in I.A.Nos.3/2020 and 4/2020 in O.P.(Trust) No.4/2020 is set aside, declaring that the learned Additional District Judge, Alappuzha had no jurisdiction to consider the petition for leave under Section 92 of the CPC filed by respondents 1 and 2; and CRP 177/20 & co. cases 41
(b) O.P.(C)No.1224/2020 is allowed holding that the learned District Judge, Alappuzha could not have assigned the said petition for leave to any other court and ought to have considered it on its own.
Consequentially, the learned District Judge, Alappuzha is directed to call back the files and records in O.P.(Trust) No.4/2020 from the Additional District Judge, Alappuzha forthwith; and the former court will, thereupon, reconsider the same and issue appropriate orders on it, after affording necessary opportunity to both sides, as expeditiously as possible, but not later than one month from the date on which the files reach it from the Court of the Additional District Judge.
In order to enable the Court of the District Judge to act in compliance with the afore directions, I direct the parties to mark appearance before it on 15.09.2020.
In the backdrop of the singular factors involved in these cases, I make no order as to costs and direct the parties to suffer their respective costs.
Sd/-
Devan Ramachandran, Judge tkv CRP 177/20 & co. cases 42 APPENDIX OF OP(C) 1224/2020 PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE O.P.(TRUST) 4/2020 DATED 14.1.2020 FILED BEFORE THE HON'BLE DISTRICT JUDGE, ALAPPUZHA.
/True Copy/ P.S. To Judge