Kerala High Court
Sree Narayana Trust vs Sivadasan on 11 December, 2014
Author: P. Bhavadasan
Bench: P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
THURSDAY, THE 11TH DAY OF DECEMBER 2014/20TH AGRAHAYANA, 1936
CRP.No. 705 of 2013
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AGAINST THE ORDER IN I.A.2210/2011 IN OS 286/2011 of
SUB COURT, ATTINGAL
REVISION PETITIONERS/PETITIONERS/DEFENDANTS:
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1. SREE NARAYANA TRUST,
REPRESENTED BY THE SECRETARY, SN TRUST OFFICE,
KOLLAM - 1.
2. V.K.NATESAN, AGED 73 YEARS
SON OF KESAVAN, SECRETARY, SN TRUST
KOLLAM - 691 001, AND RESIDING AT VELLAPPALLY
KANICHUKULANGARA P.O., MAITHARA MARKET, CHERTHALA.
BY ADVS.SRI.A.N.RAJAN BABU
SRI.P.GOPALAKRISHNAN (MVA)
SRI.A.R.EASWAR LAL
RESPONDENTS/PLAINTIFFS:
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1. SIVADASAN,, AGED 65 YEARS
SON OF GOPALAN, RESIDING AT PALAZHI, ASHITHA,
SARKARA, VALIYAKADA ROAD, SARKARA VILLAGE,
CHIRAYINKEEZHU, THIRUVANANTHAPURAM.
2. ASOK KUMAR V., AGED 62 YEARS
SON OF VAMADEVAN, PALAZHI, VILABHAGAM
VETTOOR VILLAGE, NEDUGANDA P.O., THIRUVANANTHAPURAM.
3. MOHANDAS, AGED 56 YEARS,
SON OF DHARMARAJAN, RESIDING AT PUTHUVAL
VAKKOM VILLAGE, VAKKOM P.O., THIRUVANANTHAPURAM.
R1-R3 BY ADV. SRI.P.B.KRISHNAN
R1-R3 BY ADV. SRI.N.AJITH
R1-R3 BY ADV. SRI.P.M.NEELAKANDAN
R1-R3 BY ADV. SRI.P.B.SUBRAMANYAN
THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON
24-11-2014, THE COURT ON 11.12.2014 PASSED THE FOLLOWING:
P. BHAVADASAN, J.
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C.R.P. No. 705 of 2013
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Dated this the 11th day of December, 2014.
ORDER
The defendants in O.S. 286 of 2011 of Sub Court, Attingal calls in question the order dated 26.8.2013 in I.A. No. 2210 of 2011 in O.S. No. 286 of 2011 whereby the court rejected the prayer for revocation of leave granted to institute the suit under Section 92 of the Code of Civil Procedure.
2. The suit was in respect of S.N. Trust and it is stated in the plaint that since aid of the court is required for the smooth running of the Trust, the court is being approached by the plaintiffs. The second defendant is stated to be the Secretary of the Trust. It is averred in the plaint that the petitioners are beneficiaries of the Trust and are vitally interested in the affairs of the Trust. Control of the Trust is with the Board of Trustees and the Board of Trustees elects C.R.P. 705/2013. 2 the Executive Committee which runs the day to day affairs of the Trust. The Trust owns several institutions and other establishments. The plaint in brief narrates the object and purpose of the Trust.
3. It is seen from the plaint that a scheme was prepared by this Court for the proper running of the Trust. From 1996, January onwards till date, the second defendant in the suit has been the Secretary of the Trust. The allegations against him are that his activities are contrary to the interests of the Trust and is detrimental to the Trust. He is alleged to be making use of the Trust for making gains of his own and he pays little heed to the decisions taken by the General Body which he is bound to implement. It is alleged that for admission to the various institutions under the Trust, the second defendant receives huge amounts, which is illegal and contrary to the interests of the Trust. The plaint makes reference of instances where the court had removed one of the trustees on similar allegations. The second defendant is C.R.P. 705/2013. 3 alleged to be making use of others for making illegal gains. It is further alleged that out of the amounts received by the second defendant, a portion is given to the RDC Trust. This can be seen from the audit report of the RDC. The plaint makes mention of various amounts seen in the account of the Trust. It is alleged that from 1996 onwards this illegal activity has been carried on by the RDC and amounts have been received. It is under the instructions of the second defendant that the said illegal activity is being carried on. It is further alleged that out of the amounts so received, a good portion of which is used by the second defendant to make his stooges as permanent members of the Trust and thus misappropriating the amounts and retaining the control over the trust. The plaint makes mention in detail the various instances where such activities have been carried on by the second defendant. It is further alleged that in 2010-2011 the second defendant made appointment to 150 posts and it is further alleged that huge amounts were received as illegal gratification for the said C.R.P. 705/2013. 4 appointment. The amount so received are not found in the account of the Trust. The act committed by the second defendant in making those appointments for illegal gratification are contrary to the object and purpose of the Trust and he is disqualified to continue as Secretary. He acts as an autocrat and does not even care to consult the Board of Trustees or the Executive Committee elected by the Board of Trustees. Instances are pointed out in the plaint where the second defendant attempted to transfer the properties belonging to the Trust clandestinely and which was thwarted by the timely intervention of some of the members of the Trust. The plaint goes on to say that the second defendant, who is bound by the instructions and orders given by the Executive Committee, deliberately flouts them to make gains for himself. The amendment brought out to the bye-law and the scheme was directed to be placed for approval before this Court and Executive Committee had entrusted the second defendant to do so. But contrary to the directions so issued, C.R.P. 705/2013. 5 he did not get the approval of the High Court. Several other allegations are made in the plaint like making his close relatives as life members of the Trust, non-submission of Bank Account for audit etc. Finally it is prayed that the second defendant may be removed from the Secretaryship of the Trust and he may be debarred from advancing any official post in the Trust. It is also prayed that the amounts misappropriated by the second defendant may be recovered from him.
4. Along with the suit, an interlocutory application was moved seeking leave of the court for instituting suit under Section 92 of the Code of Civil Procedure. The court without issuing notice to the respondents in the petition granted leave.
5. On issuance of notice, the defendants entered appearance and they filed I.A. 2210 of 2011 for revocation of leave granted by the court below.
6. Sri. Rajan Babu, learned counsel appearing for the petitioners raised the following contentions: C.R.P. 705/2013. 6
i. In the facts and circumstances of the case, leave ought not to have been granted without issuing notice to the defendants.
ii. The application for leave does not contain the necessary averments as is required under law.
iii. Even assuming that there are allegations to attract Section 92 of C.P.C., there are no documents to support the allegations made in the plaint.
iv. As per the Scheme adopted by this Court, the Executive Committee is vested with the power of administration and the Secretary is only a nominee of the Administrative Body and the suit without making the Executive Committee and Board of Trustees as parties is not maintainable.
7. Elaborating on the above aspects, Sri. Rajan Babu contended that going by the decisions reported in St.Peter's Orthodox Syrian Church v. Fr.Abraham Mathews (2011(4) KHC 119) and Abdul Azeez v. L.I.W.A. Educational C.R.P. 705/2013. 7 Charitable Society (2010(3) K.L.T. 158) it is absolutely essential that the petition for leave should contain all the necessary facts, grounds and reliefs for attracting Section 92 of C.P.C. If one looks at the petition on hand, it is without any details and it is not self contained so as to meet the requirements. It is therefore contended that leave ought not to have been granted on the basis of that petition.
8. The further contention of the learned counsel is that Trust owns a number of institutions and taking aid of the fact that one of the institutions is situated within the territorial jurisdiction of the lower court, the suit has been laid. It is illegal. At any rate, according to the learned counsel, Board of Trustees or Executive Committee should have been made a party to the suit and without them on the party array the suit was not maintainable. Learned counsel then went on to point out that except for making vague and indefinite allegations against the second defendant, there are no supporting materials to substantiate the allegations and mere allegations C.R.P. 705/2013. 8 are not sufficient to allow institution of a suit under Section 92 of C.P.C.
9. Learned counsel brought to the notice of this Court that Section 92 C.P.C. is intended to serve a definite purpose. It is intended to see that public trusts are not drawn to litigations unnecessarily and on vague allegations and imputations. Unless there are sufficient materials to show that reliefs under Section 92 C.P.C. are necessary in order to carry on the proper administration of the Trust, interference of the court is not warranted. If that principle is to be applied to the case on hand, it can be seen that the allegations are totally insufficient to attract Section 92 of C.P.C.
10. Most of the allegations, according to the learned counsel, is directed against the second defendant who is only the Secretary nominated by the Board of Trustees and he has no independent existence. He is answerable to the Executive Committee and Board of Trustees and without making the Executive Committee and Board of Trustees as C.R.P. 705/2013. 9 parties, the suit against the second defendant alone will not lie. Finally it is contended that the order of the court below is too cryptic and does not indicate that there was any application of mind at the time of granting leave for institution of the suit.
11. Sri. P.B. Krishnan, learned counsel appearing for the contesting respondents on the other hand pointed out that none of the above contentions have any substance. The criterion for considering the question as to whether leave ought to be granted under Section 92 C.P.C. at the time of seeking revocation is entirely different from the initial stage where leave is sought for at the time of institution of the suit. Even assuming that at the time of institution of the suit, while granting leave, the petition seeking leave should contain the details, no such restriction is available when leave granted is sought to be revoked. At that point of time, the entire records are before the court and the court can pursue and ascertain whether there are any grounds to revoke the sanction granted C.R.P. 705/2013. 10 by the court. It is too well settled, according to the learned counsel, that the court can grant leave without issuing notice to the respondents as it does not affect any of the rights of the respondents since they can always seek revocation of the grant. So also the contention that the petition does not contain the necessary details cannot be countenanced. There are definite allegations, according to the learned counsel, against the second defendant to show that he is incompetent to continue as Secretary of the Trust and his activities are detrimental to the Trust. The relief sought for squarely fall within the ambit of Section 92 of C.P.C. and therefore this petition is misconceived. In support of his contention that the averments in the plaint as well as other records could be looked into for the purpose of granting leave, learned counsel relied on the decision reported in St. Peters and St.Paul's Syrian Orthodox Church v. K.S. Varghese (2010(3) KHC 313) and All India Women's Conference v. Sarla Shah ((2004) 13 SCC 402).
C.R.P. 705/2013. 11
12. As rightly pointed out by the learned counsel for the petitioners, Section 92 is included in the Code with a definite purpose. The intention is to see that public trusts are not drawn into unnecessary litigations at the whims and fancies of litigants. Public Trust must be left to function on their own unless there are compelling circumstances which calls for interference of the court. The reliefs that can be sought for are mentioned in Section 92 itself. It is not that for any and every purpose, a suit can be instituted under Section 92 C.P.C.
13. As contended by the learned counsel for the contesting respondents, it is not the mandate of law that before granting leave to institute a suit under Section 92 C.P.C. notice should be issued to the respondents. It is too well settled by now that leave can be granted by the court even without issuing notice to the respondents, but that is only tentative. By granting leave at the threshold, the precedents hold that no rights of the respondents are affected for, they C.R.P. 705/2013. 12 always have the right to get the leave granted revoked or to point out that leave ought not to have been granted at the first instance itself. In the light of this position of law, the contention that merely because the Trust runs many institutions and establishments, notice ought to have been granted before granting leave and the omission to do so is fatal cannot be accepted.
14. In the decision reported in St. Peter's Orthodox Syrian Church v. Fr. Abraham Mathews (2011 (4) KHC 119) it was held as follows:
"The rigid requirement of law is that the leave petition itself should contain all the necessary facts such as the nature of the public trust concerned, the alleged breach of trust or the circumstances under which the direction of the Court is concerned, the alleged breach of trust or the circumstances under which the direction of the Court is considered necessary for the administration of the trust and the main reliefs prayed for in the proposed suit. It is only after the leave of the Curt is obtained can the plaintiffs institute the suit as provided under Order IV Rule 1 CPC."C.R.P. 705/2013. 13
15. So also in the decision reported in Abdul Azeez v. L.I.W.A Educational Charitable Society (2010 (3) K.L.T. 158) it was held as follows:
"... But it is necessary that petition seeking leave contained all necessary facts, grounds and reliefs claimed whether a copy of the plaint is produced along with that petition or not. That is because there is no valid institution of the suit until leave is granted even if the plaint is produced along with the petition for leave and proceeding for the grant of leave is independent of the suit."
16. However, the decision in Abdul Azeez's case, (supra) was clarified in the decision reported in St.Peter's and St. Paul's Syrian Orthodox Church v. K.S. Varghese (2010(3) KHC 313) wherein it was held that the former decision does not hold that the averments in the plaint cannot be looked into at the initial stage while considering the petition for granting leave.
17. In the decision reported in All India Women's Conference v. Sarla Shah ((2004) 13 SCC 402) it was held as C.R.P. 705/2013. 14 follows:
"11. The Division Bench set aside the order passed by the learned Single Judge and came to the conclusion that the averments made in the plaint and the documents brought on the record clearly demonstrated that the suit related to a trust created for a public purpose of charitable nature. In the plaint there were allegations of the Court were required to be issued for the administration of the trust. It was held that the leave to institute the suit under Section 92 CPC was rightly granted and the learned Single Judge had erred in revoking the leave so granted."
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13. Although a number of submissions touching the merits of the dispute were made before us during the course of hearing but we refrain from recording the findings thereon, lest it may prejudice either of the parties in the suit proceedings. Suffice it to say that we agree with the view taken by the Division Bench. We have satisfied ourselves after going through the averments made in the plaint and the documents placed on the record that all the ingredients of Section 92 CPC are satisfied, namely, the existence of a public trust, allegations of breach of trust as well as the necessity to issue directions for administration of the trust."C.R.P. 705/2013. 15
18. Keeping the above principles in mind, one may have a look at the contentions raised in this case. If one looks at the petition seeking leave, it is devoid of details. It is significant to notice that in the petition seeking leave, it is not mentioned that the plaint may be read as part of the petition. But as rightly pointed out by the learned counsel for respondents, the criterion to be applied at the stage of seeking revocation is different from the test to be applied at the threshold claiming leave. The law seems to be that at the time of considering the revocation, the court is entitled to look into the records before it.
19. There seems to be considerable force in the contention that the second defendant is only a Secretary nominated by the Executive Committee which is elected from the Board of Trustees and hence without the Board of Trustees or Executive Committee on party array, the suit may not be maintainable. It is significant to notice that neither in the petition for leave nor in the plaint there is any definite C.R.P. 705/2013. 16 allegation that the second defendant is one of the trustees though from the relief portion it is so discernible. It is significant to notice that as per the allegations in the plaint which makes mention of the second defendant receiving illegal gratification for various purposes it is also mentioned that a portion of the same is handed over to the Trust. However, the petitioner seems to have no grievance against the Trust at all. The entire wrath is directed against the second defendant. Being a nominee of the Executive Committee and the Executive Committee having been elected by the Board of Trustees, it is difficult to comprehend that the second defendant could have acted on his own without being bridled by the Executive Committee and Board of Trustees. In this context, it becomes necessary to consider the question whether without the Board of Trustees or Executive Committee on the party array, the suit could be instituted and continued.
20. There seems to be force in the contention that except for allegations and imputations, there are no C.R.P. 705/2013. 17 supporting documents. Of course, there are number of allegations against the second defendant acting according to his whims and fancies and receiving huge amounts as illegal gratification. But at the same time, it is also the claim of the petitioner that a portion of the amount so received is handed over to the Trust. No specific instances are pointed out either in the petition seeking leave or in the plaint in that regard.
21. The grant of leave under Section 92 of C.P.C. is not automatic. At the time of considering the petition for granting leave, the court has to necessarily look into the petition in question and see whether the averments in the petition, even assuming that the plaint could be looked into, are sufficient to attract Section 92 of C.P.C. The order granting leave should reflect application of mind. It is not something which is granted as a matter of course for the reason that it has considerable impact on the functioning of the Trust. If that test is to be applied in the case on hand, one can see that the only order passed on petition for leave is C.R.P. 705/2013. 18 'allowed'. There is nothing to show that there was a consideration by the court below whether the ingredients necessary to attract Section 92 of C.P.C. are present in the case on hand. To that extent, the order is bad.
For the above reasons, this Civil Revision Petition is allowed, and the matter is remanded to the trial court for fresh consideration in accordance with law and in the light of what has been stated above. The court below may make every endeavour to dispose of the matter afresh as expeditiously as possible, at any rate, within three months from the date of this order.
P. BHAVADASAN, JUDGE sb.