Madras High Court
The Sengunthar Charitable Trust vs R.Manickam on 3 July, 2012
Author: S.Tamilvanan
Bench: S.Tamilvanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03.07.2012
CORAM:
THE HONOURABLE MR.JUSTICE S.TAMILVANAN
Civil Revision Petition (PD) No.1036 of 2010,
Tr.C.M.P.No.464 of 2010 and
M.P.Nos.1,1,1 of 2010 in C.R.P (PD).Nos.2350 to 2352 of 2010
and connected miscellaneous petitions
C.R.P (PD).No.1036 of 2010
1. The Sengunthar Charitable Trust
Rep by its Secretary
Mr.T.P.Arumugam
Tiruchengode having its
Registered Office at
Door No.47-1, S.N.D.Road,
Tiruchengode, Namakkal District.
2. T.P.Arumugam
3. T.N.Arumugam
4. T.S.Natarajan
5. M.K.Dhanasekaran
6. T.Shanmugasundaram
7. B.Pennarasi
8. A.Dhanalakshmi
9. T.N.Kalaimani
10. T.N.A.Rajah
11. K.Murugesan
12. S.Malarvizhi
13. A.Baladhandapani .. Petitioners
Vs.
1. R.Manickam
2. M.Vetrivel ... Respondents 1 & 2 / plaintiffs
3. The Karur Vysya Bank
Tiruchengode Branch,
Sangagiri Road,
Tiruchengode, Namakkal District.
4. The Axis Bank
Tiruchengode Branch,
S.S.D. Road, Opp. to Lorry Stand,
Tiruchengode, Namakkal District. .. Respondents 3 & 4
Civil Revision Petition filed against the Order, dated 19.10.2009 passed in I.A.No.309 of 2009 in unnumbered O.S.No......... of 2009 on the file of the District Judge, Namakkal, granting leave to file a suit under Section 92 of the Code of Civil Procedure.
For petitioner : Mr.T.V.Ramanujam, Senior Counsel
for Mr.T.V.Krishnamachari
For respondents : Mr.N.Jothi
for Mr.M.C.Govindan for R1 and R2
Tr.C.M.P.No.464 of 2010
1. R.Manickam
2. M.Vetrivel .. Petitioners / Plaintiffs
vs.
1. The Sengunthar Charitable Trust
Rep by its Secretary
Mr.T.P.Arumugam
Tiruchengode having its
Registered Office at
Door No.47-1, S.N.D.Road,
Tiruchengode, Namakkal District.
2. T.P.Arumugam
3. T.N.Arumugam
4. T.S.Natarajan
5. M.K.Dhanasekaran
6. T.Shanmugasundaram
7. B.Pennarasi
8. A.Dhanalakshmi
9. T.N.Kalaimani
10. T.N.A.Raja
11. K.Murugesan
12. S.Malarvizhi
13. A.Baladhandapani
14. The Karur Vysya Bank
Tiruchengode Branch,
Sangagiri Road,
Tiruchengode, Namakkal District.
15. The Axis Bank
Tiruchengode Branch,
S.S.D. Road, Opp. to Lorry Stand,
Tiruchengode, Namakkal District. .. Respondents
Petition filed by the plaintiff, seeking an order to withdraw the O.S.No.103 of 2009 from the file of the District Court, Namakkal and to transfer the same to any other court having jurisdiction.
For petitioners : Mr.N.Jothi
for Mr.M.C.Govindan
For respondents : Mr.T.V.Ramanujam, Senior Counsel
for Mr.T.V.Krishnamachari for R1 to R13
COMMON ORDER
C.R.P (PD).No.1036 of 2010 is filed under Article 227 of the Constitution of India, by the respondents against the order, dated 19.10.2009 made in I.A.No.309 of 2009 in the unnumbered O.S.No... of 2009 on the file of the District Judge, Namakkal, granting leave to file suit under Section 92 of the Code of Civil Procedure.
2. The plaintiffs, who are respondents 1 and 2 in the Civil Revision Petition, had filed the suit, stating that they are trustees of the Sengunthar Charitable Trust, the first revision petitioner herein, having its registered office at Door No.47-1, S.N.D.Road, Tiruchengode, Namakkal District, represented by its Secretary, wherein the reliefs sought for are : (a) to settle a scheme for the property by constituting public charitable trust in accordance with law (b) to remove the defendants 2, 4, 6 to 9, 12 and 13 from the first defendant trust, as per Section 92 (1) CPC and (c) for directing the defendants 1, 2 and 3 to submit the accounts of the first defendant trust from the financial year 2006-2007 onwards till the date of the decree.
3. As per the Interlocutory Application in I.A.No.309 of 2009, the plaintiffs in the suit have filed a petition under Section 92 (1) read with Section 151 of Code of Civil Procedure, seeking leave to file and maintain the suit, as required under Section 92 (1) of the Code. Though in the accompanying affidavit, the number of the Interlocutory Application is stated as I.A.No.109 of 2009, in the petition the said number is stated as I.A.No.309 of 2009 and the Court below has also passed the impugned order only in I.A.No. 309 of 2009. Therefore, it is clear that the correct Interlocutory Application number relating to the Civil Revision Petition is only I.A.No.309 of 2009 and not I.A.No.109 of 2009 as stated in the copy of the affidavit and the index of the typed set filed by the petitioner herein.
4. It is seen that by order, dated 19.10.2009, the Principal District Judge, Namakkal, allowed the interlocutory application, whereby granted permission under Section 92 (1) CPC to file the suit. The Civil Revision Petition in C.R.P.No.1036 of 2010 has been preferred against the said order passed in I.A.No.309 of 3009 by the Court below.
5. In the interlocutory application, the respondents 1 and 2 herein, as applications / plaintiffs have stated that the suit properties are the properties of the first revision petitioner-trust and further, averred that the Trust is being misused and abused for the personal benefit of the petitioners herein, who are the defendants in the suit. According to the respondents 1 and 2 / plaintiffs, a heavy amount to an extent of 10 crores had been borrowed on behalf of the Trust from the fourth respondent Bank, for which neither there was any agenda nor any resolution passed by the Trust. According to respondents 1 and 2 / plaintiffs, though the first revision petitioner is a public and charitable trust by its nature, the revision petitioners herein have misused and abused the same, in view of their close relationship with each other and they act as a close net work keeping the plaintiffs / respondents 1 and 2 away from the affairs and administration of the trust and the plaintiffs were also kept in dark with regard to the affairs of the trust. It has been further averred that there was pre-suit notice sent by the plaintiffs as early as on 12.12.2008, for which, no reply from the revision petitioners 2 to 13 was received. However, they are keen in lodging caveats and extending the caveats for the reasons best known to them.
6. According to the respondents 1 and 2 / plaintiffs, they have locus standi and got sufficient cause of action to file the suit and hence, they sought leave from the Court below to file and maintain the suit, in terms of Section 92 (1) CPC. As per Section 92 (1) CPC, in case of any alleged breach of any express or constructive trust created for public purposes of charitable or religious nature or where the direction of the Court is deemed necessary for the administration of any such trust, Advocate-General of the State or two or more persons having interest in the trust is entitled to seek leave of the Court to institute a suit, whether contentious or not in the Principal Civil Court or Court having original civil jurisdiction or in any other Court, which empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situated to obtain a decree in respect of
(a) removing any trustee;
....
(d) directing accounts and inquires;
....
(g) settling a scheme etc., It is not in dispute that as per Act 104 of 1976, the term leave of the Court has been substituted under Section 92 of the Code of Civil Procedure, so as to enable two or more persons interested in the public Trust to institute any suit after getting leave from the Court having jurisdiction.
7. It is seen in paragraph number 21 of the accompanying affidavit of the interlocutory application that the respondents 1 and 2 as applicants / plaintiffs have sought leave to file the suit and they had prayed before the Court below, seeking leave to file the suit, without notice to the revision petitioners / defendants, as the defendants could seek revocation of the same at any point of time, in case they choose to do so, as it is always open to them as per law. The respondents 1 and 2 / plaintiffs have averred in the application, that if notice is ordered in the leave petition, the defendants might be in a position to make any correction in the records pertaining to the Trust and on that ground, an urgent order of leave was sought for, to file the suit. The plaintiffs pleaded to consider petition, seeking leave to file the suit without notice to the proposed defendants, who are the revision petitioners herein.
8. It is seen that the Court below has held that the respondents 1 and 2 / plaintiffs are trustees of Sengunthar Charitable Trust, Tiruchengode, the first revision petitioner herein. Having satisfied with the averments made in the accompanying affidavit and the submissions made by the learned counsel for the applicants / plaintiffs, the Principal District Judge, Namakkal, allowed the Interlocutory Application and leave was granted, accordingly the suit was ordered to be taken on file.
9. Mr.T.V.Ramanujam, learned Senior counsel appearing for the revision petitioners / defendants submitted that the said Interlocutory Application was filed under Section 92 (1) CPC and according to the learned Senior counsel, the suit was originally filed as O.P.No.299 of 2009 and caveat had also been filed by the revision petitioners herein. Hence, in view of caveat being filed and was valid for 90 days and considering the scope of Section 92 (1) CPC, the Court below should have sent notice to the caveators / defendants, before deciding the Interlocutory Application, seeking leave to file the suit. It was contended further that as per Order 52 Rule 6 CPC, after a caveat being lodged, if any application is filed in a suit, appeal, revision or any other proceeding, the Court shall serve notice of the application etc., on the pleader for the caveator, if any, or on the caveator in the manner provided for service on the defendant, respondent or opposite party, of the summons to appear. As per the proviso relating to Order 52 Rule 6 CPC, at the time when an application coming up for hearing the caveator or his pleader may take notice, hence, it is not necessary for the Court to serve a notice even on the caveator and on the said grounds, the learned Senior counsel argued for allowing the Revision.
10. It is also brought to the notice of this Court that by order, dated 19.07.2010, this Court (K.Mohanram,J) in C.R.P.Nos.2350, 2351 and 2352 of 2010 directed the District Judge, Namakkal to dispose the Interlocutory Applications in I.A.Nos.310, 311 and 312 of 2009 within a period of two months from the date of receipt of a copy of the said order passed by this Court, which is also under challenge.
11. It is seen that M.P.No.1 of 2010 in C.R.P No.2350 of 2010 has been filed under Order 41 Rule 21 CPC, seeking relief to recall the order, dated 19.07.2010 passed in C.R.P No.2350 of 2010. M.P.No.1 of 2010 in C.R.P No.2351 of 2010, filed under Order 41 Rule 21 CPC, the relief sought for is to recall the order, dated 19.07.2010 passed in C.R.P No.2351 of 2010. M.P.No.1 of 2010 in C.R.P No.2352 of 2010 is filed under Order 41 Rule 21 CPC is seeking the relief to recall the order, dated 19.07.2010 passed in C.R.P No.2352 of 2010. All the aforesaid miscellaneous petitions have been filed in the respective Civil Revision Petitions by the petitioners, who are defendants 1 to 13 in the suit.
12. The Transfer CMP in Tr.C.M.P.No.464 of 2010 has been filed by the plaintiffs in the suit in O.S.No.103 of 2009, seeking an order to withdraw the suit in O.S.No.103 of 2009 on the file of the District Court, Namakkal and to transfer the same to any other Court, having competent jurisdiction on the grounds raised by the plaintiffs in the Tr.C.M.P.
13. Mr.N.Jothi, learned counsel appearing for the respondents 1 and 2 in the CRP, the petitioners / plaintiffs in Tr.C.M.P.No.464 of 2010 submitted that there is no error in the impugned order passed in I.A.No.309 of 2009 granting leave under Section 92 (1) of the Code of Civil Procedure for filing the suit against the Trust. The learned counsel further argued that granting leave under Section 92 (1) CPC is only an administrative order, which cannot be construed as a Judicial order and hence, no notice is required to be served on the respondents / proposed defendants before granting such leave. It is further argued byMr.N.Jothi, that merely because caveat filed by the petitioners was pending before the trial court, the scope of Section 92 (1) of the Code cannot be expanded and it makes no difference, being an administrative order, so as to warrant notice to the caveators. According to him, the revision petitioners herein are adopting only a delay tactics for their personal benefit, detrimental to the interest and object of the first petitioner / public Trust and hence, leave to file the suit was granted, without notice to the respondents therein, which is no way prejudicial to their rights.
14. In order to enlighten the legal aspect, the following decisions were cited by both the learned counsel :
1. Oswal Fats and Oils Ltd., vs. Additional Commr., (Admn.), (2010) 4 MLJ 567 (SC)
2. Manimegalai Ramu vs. K.Rashid Khan, 2009 (2) CTC 395
3. A.V.Papayya Sastry vs. Government of A.P, (2007) 3 MLJ 784 (SC)
4. Suresh Chandra Nanhorya vs. Rajendra Rajak, (2007) 1 MLJ 193 (SC)
5. R.M.Narayana Chettiar vs. N.Lakshmana Chettiar, (1991) 1 SCC 48
6. A.M.L.K.S.V Perumal Thirukovil Arakkattalai vs. K.Thandapani, (2009) 4 MLJ 251
7. R.Manickam vs. The Sengunthar Charitable Trust, 2009 (5) CTC 550
8. K.Rajasekaran vs. K.Sakunthala, 2008 (5) CTC 319
9. Ananthara, E.V vs. Rajas Educational Trust, 2005 (1) CTC 285
10. Akbar Ali vs. Alia Pitchai, 2000 (II) CTC 281(mad)
11. Kannan Adityan & 4 others vs. Adityan & 6 others, 1996-2-LW 364
12. Railway Cooperative Labour Contract Society Ltd., etc., vs. Union of India & 3 others, 1995-1-LW 665
13. S.Kamalasekaran vs. K.R.Kumarasami, 1993 (2) Civil LJ 719
14. Contemporary Target Pvt., Ltd., vs M/s. M.B.Enterprises, 1993 (2) Civil LJ 875
15. Sudhakaran vs. Thankamma, 1998 (2) Civil LJ 150
16. L.Ranganna vs. Chikkanna, 1996 AIHC 905
17. Nova Granites (India) Ltd., vs. Coach Kraft (Bangalore) Pvt., Ltd., 1994 (1) Civil LJ 711
18. Ambrish Kumar Singh vs. Raja Abhushan Bran Bramhshah, AIR 1989 Allahabad 194
19. Ranjit Kumar Malo Das vs. Khanindra Nath Gayan, 1993 (2) Civil LJ 881
15. In R.M.Narayana Chettiar vs. N.Lakshmana Chettiar, reported in (1991) 1 SCC 48, the Hon'ble Supreme Court has held that under Section 92 CPC, leave of the Court is a pre-condition or condition precedent for the institution of a suit against a public trust. Having in mind the objectives underlying, section 92 CPC and the language thereof, it appears that, as a rule of caution, the court should normally, unless it is impracticable or inconvenient to do so, give notice to the proposed defendants before granting leave under section 92 CPC, to institute a suit and the defendants could bring it to the notice of the Court that the allegations made in the plaint are frivolous or wreckless. They could also in a given case, point out that the persons who are applying for leave under section 92 CPC are doing so merely with a view to harass the trust or persons running the Trust. It has been further held in the decision by the Hon'ble Apex Court as follows :
"The desirability of such notice being given to the defendants, however, cannot be regarded as a statutory requirement to be complied with before leave under section 92 can be granted as that would lead to unnecessary delay, and in a given case, could cause considerable loss to the public trust. If a suit is instituted on the basis of such leave granted without notice to the defendants, the suit would not thereby be rendered bad in law or non-maintainable. 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."
However, it has been made clear by the Hon'ble Apex Court that notice given under Section 92 CPC cannot be regarded as a statutory requirement to be complied with before getting leave under Section 92 CPC. The leave may be granted without notice, if that would lead to unnecessary delay, and in a given case, if it could cause considerable loss to the public trust. Hence, leave may be granted even without notice to the defendants and in such circumstances, the suit would not be bad in law and the suit could not be construed as not maintainable.
16. In Kannan Adityan & 4 others vs. Adityan & 6 others, reported in 1996-2-LW 364, a Division Bench of this Court (M.Srinivasan and S.S.Subramani, J.J) has held that proceeding under Section 92 CPC is administrative in character, which is neither judicial not quasi judicial. Hence, an order granting leave does not affect the rights of any party, though an order refusing to grant leave may affect the rights of the persons seeking such leave. In any event, the nature of the proceeding is only administrative, though the amendment of the Act, 1976 requires the leave of the Court in the place of consent by the Advocate-General. Hon'ble Division Bench of this Court has further ruled that the main purpose of the provisions under Section 92 CPC is to give protection to public trust of charitable or religious nature, from being subjected to harassment by suits being filed against the Trust. The said Division Bench of this Court held that the proposed plaint therein contained several serious allegations against the administration of the trust and the same could be established only by adducing evidence and if they were proved, there would be no doubt what so ever that the first defendant therein was guilty of breach of trust. As the prayer in the proposed plaint was to frame scheme for the administration of the trust etc., the relief prayed for was found to be within the scope of Section 92 CPC and accordingly, held that leave being granted without notice would not be against law.
17. In G.R.Govinda Chettiar vs. Sethu Rao, reported in 1998 MLJ 554, this Court (S.S.Subramani,J), held that revision filed under Article 227 of the Constitution of India by the proposed defendants in a suit, under Section 92 (1) of the CPC was not maintainable, holding the view that this Court as well as the Supreme Court have come to a definite conclusion that a revision is not maintainable either under Section 115 of the Code of Civil Procedure or under Article 227 of the Constitution of India against the order, granting leave. Relying on R.M.Narayana Chettiar vs. N.Lakshmana Chettiar, reported in (1991) 1 SCC 48 and various other decisions and accordingly, this Court has held the same view, that revision is not maintainable.
18. In A.M.L.K.S.V Perumal Thirukovil Arakkattalai vs. K.Thandapani, reported in (2009) 4 MLJ 251, this Court (S.Rajeswaran,J), relying on the decision rendered by a Division Bench of this Court in Kannan Adityan & 4 others vs. Adityan & 6 others, reported in 1996-2-LW 364, held that an order granting relief to institute a suit against a trust under Section 92 CPC is administrative in nature, hence, no revision would lie under Article 227 of the Constitution of India. It has been made clear that an order granting relief to institute a suit against a public trust under Section 92 CPC is construed to be an administrative order and not a Judicial order, hence before granting leave, notice need not be given to the respondents / proposed defendants.
19. In Ambrish Kumar Singh vs. Raja Abhushan Bran Bramhshah, reported in AIR 1989 Allahabad 194, the Allahabad High Court has held that while passing an order under Section 92 CPC, the Court does not decide the rights of the parties, as no rights could be adjudicated at that stage. In such circumstances, the Court has merely to see whether there is prima facie case made out for granting leave to file a suit against the Trust and further, the order does not in any way affect the final decision of the Court, since the same would be decided finally on merits after the parties have let in evidence in the suit. It has been further held that so far as Section 92 CPC is concerned, it does not contemplate for giving any notice to the contesting defendants before granting leave and it is also not necessary to pass a detailed order and it would be sufficient if the order indicates that it was a result of the application of mind of the concerned Judge, passing the order.
20. In L.Ranganna vs. Chikkanna reported in 1996 AIHC 905, Karnataka High Court relying on the decision in R.M.Narayana Chettiar's case (cited supra) has held that no right of the petitioner therein would be prejudiced, during the trial of the suit and no prejudice or injury would be caused by simply granting leave to sue under Section 92 of the Code of Civil Procedure and so there is no question of violation of principles of natural justice in granting leave to file suit, without notice to the respondents.
21. The other point raised by Mr.T.V.Ramanujam, learned Senior counsel appearing for the revision petitioner is that caveat was pending before the Court below, however, without ordering notice to the revision petitioners / caveators, the impugned order could not have been passed, hence, the impugned order is against law. In support of the said contention, learned Senior counsel relied on the decision in Akbar Ali vs. Alla Pitchai, reported in 2000 (II) CTC 281 rendered by this Court (S.S.Subramani,J), wherein the lower appellate court granted injunction, merely because the respondent was absent, though caveat was pending and hence, notice ought to have been served on the Advocate for caveator. As contended by Mr.N.Jothi, learned counsel appearing for the respondents 1 and 2, the aforesaid decision is not applicable to the facts and circumstances of the case, since the said order is an interim injunction granted under Order 39 Rule 1 CPC, which is admittedly a Judicial order and cannot be termed as an Administrative order, as that of an order being passed under Section 92 (1) of the Code.
22. In S.Kamalasekaran vs. K.R.Kumarasami reported in 1993 (2) Civil LJ 719, this Court (M.Srinivasan,J), in a revision petition, held that the District Munsif has no jurisdiction to pass the order, without notice to the caveator, since caveat was pending. It is seen that Section 148-A of the Code of Civil Procedure would apply to any interlocutory petition filed in a suit and it is not confined in its application to petitions, seeking injunction only. It is also applicable to a petition for appointment of Commissioner. It was categorically held in a case that the District Munsif, ought to have ordered notice to the defendants in the Interlocutory Application, seeking appointment of Commissioner before passing any order thereon, wherein the learned Judge has also relied on the earlier decision rendered in N.Krishnappa Chetty and another vs. P.E.Chandrasekaran @ Chandran, reported in 1993 (1) MLJ 18.
23. In Railway Cooperative Labour Contract Society Ltd., etc., vs. Union of India & 3 others, reported in 1995-1-LW 665, a Division Bench (M.Srinivasan and S.S.Subramani, J.J), has held thus :
"The order which had been passed floating all the principles of natural justice and against all the settled principles of law will be nullity even if it is passed by a Judge of the High Court. The contention that an order passed by a Judge of the High Court cannot be treated as a nullity and there is always a presumption that it has been validly passed is not correct."
In the aforesaid decision, it was held by the Division Bench of this Court that the order, dated 02.03.1995 could be taken as the order pronounced by the learned Judge, supported by the reasons to be given by him later, though the Supreme Court has deprecated such a practice and normally such practice is not accepted. In case of extraordinary urgency, such a course was adopted and that there would not be a precedent. As per the decision of the Division Bench, it is seen that mandatory injunction was granted in the case relating to the decision, without notice to the respondent and that order was obtained by way of fraud, hence, it was held to be a nullity. The aforesaid decision is no way relevant in the present case and that the impugned order therein was a judicial order. In the instant case, granting leave under Section 92 (1) CPC is only an administrative order, as decided by the Division Bench of this Court.
24. In K.Rajasekaran vs. K.Sakunthala reported in 2008 (5) CTC 319, this Court (M.Jeyapaul,J) held that an order passed without notice to the respondent / caveator is not sustainable in law, in view of Section 148-A of the Code of Civil Procedure. However, it is seen that the said impugned order was passed under Order 39 Rule 1 CPC, without notice, which cannot be construed as an administrative order.
25. Learned Senior counsel appearing for the revision petitioner cited various decisions referred to above. However, it is seen that the orders passed without notice to the caveator are only Judicial orders, held not sustainable. As decided by the Division Bench of this Court reported in 1996-2-LW 364 (cited supra), granting leave to file a suit under Section 92 CPC is an administrative order, which is not even a judicial or quasi judicial order.
26. Mr.T.V.Ramanujam, learned Senior counsel appearing for the revision petitioners strenuously argued that before granting leave for filing the suit under Section 92 of the Code of Civil Procedure, the Court should have ordered notice to the revision petitioners herein, who are the defendants in the suit, mainly on the pendency of caveat filed by the revision petitioners. Learned Senior counsel contended that when caveat filed by the revision petitioners were pending, in view of Section 148 A of the Code of Civil Procedure, without notice to the caveator, the Court below could not have passed an order granting leave to file the suit. In support of his contention, the learned Senior counsel relied on the decision rendered by a Division Bench of this Court (M.Srinivasan & S.S.Subramani,JJ).
27. Though the Division Bench has categorically held that the order passed therein was floating all principles of natural justice and against all settled principles of law and that the order would be a nullity, as contended by Mr.N.Jothi, learned counsel appearing for the respondents 1 and 2 / plaintiffs, the aforesaid decision relates to granting of mandatory injunction, without notice and further, as per the finding of the Division Bench, the said order was obtained by fraud, even without notice to the defendant in the suit. Admittedly, in the referred case, Judicial order for mandatory injunction was granted without notice to the defendants therein and that was also found to be an order obtained by fraud and therefore, the aforesaid decision is not applicable to the facts and circumstances of the case on hand, since the impugned order is only an administrative order, for which no notice is required to be served on the respondents.
28. Mr.N.Jothi, relied on the decision, Kannan Adityan & 4 others vs. Adityan & 6 others, reported in 1996-2-LW 364 rendered by the very same Judges in another Division Bench, which relates to Section 92 of Civil Procedure Code, wherein the Division Bench has categorically held that a proceeding under Section 92 CPC is administrative in character, which is neither judicial nor quasi-judicial. An order granting leave does not affect the right of any party, though the order of refusing to grant leave may affect the rights of the persons who seek such leave and in any event, the nature of the proceedings is only administrative. The amendment of the Code in 1976 requiring leave of the Court in place of consent by the Advocate-General does not change the order, that is administrative in nature. As held by the Hon'ble Division Bench, it has been made clear that prior to the amendment, consent of the Advocate-General was required but after the amendment, in 1976, for filing a suit by two or more persons against a Public Trust, leave has to be obtained under Section 92 CPC. However, the nature of the order granting leave to file a suit against the Trust has to be construed only an administrative order, not even a quasi-judicial order. It is also relevant to consider the scope of Section 92 CPC, to decide the impugned order, that is under challenge in the revision.
29. When a suit is filed against public trust, doing some service, either religious or charitable, vexatious suits should be avoided, otherwise, filing such suits may adversely affect the functioning of any public trust. However, it does not mean that the trustees are immuned or having protection to commit anything against the object of such Trust. As held by the Division Bench in the decision referred to above, trustees should not be permitted to misuse or abuse the trust for their personal gain by using the time gap available in granting leave to file the suit. In this case, learned counsel appearing for the respondents 1 and 2 / plaintiffs submitted that had there been notice to the respondents / defendants, there could be possibility for correcting the entries or manipulating any record and on the other hand, if notice is not ordered, that would not prejudice the rights of the revision petitioners / trustees.
30. On the aforesaid facts and circumstances, this Court is of the view that balancing the balance is important, which is also depending on the concept of balance of convenience. In other words, the Court has to consider whether granting leave without notice or ordering notice would be beneficial to the public Trust, to achieve its object.
31. It is seen that Section 92 of the Code is so clear and it is also a settled proposition of law that even if leave is granted under Section 92 (1) CPC, without notice, the defendants are entitled to seek an order to recall the leave, already granted, if the leave so granted is prejudicial to the rights of the Trustees, on the ground that the same was obtained by fraud or when there is no prima facie case or there is no cause of action to maintain the suit.
32. It is pertinent to note that the very purpose of the provisions under Section 92 of the Code of Civil Procedure is to provide protection to public trust of charitable or religious nature from being subjected to harassment by suits being filed against the Trust or Trustees. Earlier, as per the provisions of law, the Advocate-General, having satisfied himself that there is a prima facie case, either on breach of trust or when there is necessity for seeking directions from the Court on the basis of the allegations made in the plaint and the documents produced along with the plaint and give consent. As per the amended CPC, apart from the Advocate-General, two or more persons having interest in the trust may also institute suit, after having obtained leave from the Court. Here in this case, the respondents 1 and 2 / plaintiffs filed the suit and obtained leave from the Court below. As held by the Division Bench in Kannan Adityan's case (cited supra), an order granting leave under Section 92 CPC by the Court is administrative in character, which is neither judicial nor quasi-judicial and there is no contra decision on this view.
33. Having considered various decisions rendered by the Hon'ble Supreme Court and this Court, referred to by both the learned counsel, I am of the view that it is a settled proposition of law that granting leave under Section 92 of the Code of Civil Procedure is administrative in nature, which is neither judicial nor quasi-judicial. As it is administrative in nature, issuance of notice to the respondents / defendants is not mandatory before numbering the suit.
34. The Hon'ble Supreme Court in R.M.Narayana Chettiar's case (cited supra), has held that under Section 92 CPC, leave of the Court is a pre-condition, or a condition precedent for the institution of the suit against a public trust. Having in mind, the objectives underlying Section 92 and the language thereof, as a rule of caution, the Court should normally, unless it is impracticable or inconvenient to do so, give a notice to the proposed defendants before granting leave under Section 92 to institute a suit. However, the desirability of such notice being given to the defendants, cannot be regarded as a statutory requirement to be complied with before leave under Section 92 be granted as that would lead to unnecessary delay, as the same could cause considerable loss to the public trust. The Hon'ble Apex Court has further held that if a suit is instituted on the basis of such leave granted without notice to the defendants, the suit would not thereby be rendered bad in law or non-maintainable. 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, according to law. It has been categorically held in the decision that while granting leave under Section 92 CPC, ordering notice to the respondent is not a mandatory requirement and such an order would not make the suit bad in law. It has been further made clear that there would be no prejudice cause to the respondent / proposed defendant. As it is always open to them to file an application for revocation of leave, which would be considered on merits, according to law.
35. The other question of law raised by the learned Senior counsel appearing for the petitioners / defendants in the revision petition is that the Court below could have issued notice before granting leave, in view of the pendency of the caveat filed by the revision petitioners herein under Section 148 A CPC. Section 148 A CPC deals with the rights to lodge a caveat. As per sub-section (1) of the said section, where an application is expected to be made, or has been made, in a suit or proceeding instituted or about to be instituted in a Court, any person claiming a right to appear before the Court on the hearing of such application may lodge a caveat in respect thereof. As per sub-section (2) of the said section, where a caveat has been lodged under sub-section (1), the person by whom the caveat has been lodged, otherwise known as caveator shall serve notice of the caveat by registered post with acknowledgement due, on the person by whom the application has been or is expected to be, made under sub-section (1).
36. It is not in dispute that the caveat, so lodged shall be in force for 90 days, as per sub-section (5) of Section 148 A CPC. Similarly, for passing any interim order, it is mandatory on the part of the Court to issue notice to the caveator.
37. This Court in S.Kamalasekaran vs. K.R.Kumarasami reported in 1993 (2) Civil LJ 719 has held that Section 148 A of the Code of Civil Procedure would apply to any Interlocutory Application filed in a suit. As per the decision it is not confined to an application, seeking for injunction alone and it is applicable to a petition for appointment of Commissioner also, relied on the earlier decision rendered by this Court in N.Krishnappa Chetty and another vs. P.E.Chandrasekaran @ Chandran reported in 1993 (1) MLJ 18. It is seen that the same view has been followed by this Court in Manimegalai Ramu vs. K.Rashid Khan reported in 2009 (2) CTC 395 (S.Rajeswaran, J), in an application filed under Order 2 Rule 2 CPC.
38. A Division Bench of Karnataka High Court in Nova Granites (India) Ltd., vs. Coach Kraft (Bangalore) Pvt., Ltd., reported in 1994 (2) Civil LJ 711 held that it is the duty of the Court to see that notice of the application should be served on the Advocate for caveator as long as caveat petition is alive, in a petition that was filed under Order 39 Rule 1 and 2 CPC, seeking injunction.
39. In Ranjith Kumar Malo Das vs. Khanindra Nath Gayan reported in 1993 (2) Civil LJ 881, Gauhati High Court has held that the Court below could have issued notice to the caveator, as per Section 148 A of the Code, while granting injunction, accordingly, the impugned order was set aside, on the ground of material irregularity in exercising jurisdiction.
40. However, all the decisions referred to above were relating to judicial orders. When there is a judicial order passed by any Court, while caveat is pending, in view of Section 148 A of the Code of Civil Procedure, notice to the caveator is mandatory before passing any Judicial order, otherwise, it would be against law and liable to be set aside, for violating the mandate of Section 148 A of the Code. However, it has been categorically held by a Division Bench of this Court in Kannan Adityan's case (cited supra), that an order passed under Section 92 (1) of the Code of Civil Procedure is only administrative in character, which could not be considered as judicial or quasi-judicial order and therefore, notice to the caveator is not mandatory. There is no contra decision on this legal aspect and the decision is directly applicable to the facts and circumstance of the case on hand.
41. In the light of the decisions cited by both the learned counsel, this Court is of the considered view that Section 148 A of the Code of Civil Procedure is applicable only for judicial orders and not to an administrative order. If plaint is otherwise in order, making out a prima facie case and disclosing cause of action to maintain the suit, no notice is required to be sent to any caveator before numbering the suit. Similarly, in view of Section 92 (1) of the Code of Civil Procedure, while granting leave for instituting a suit against a public trust, it being an administrative order, it is only the discretion of the Court to issue notice or otherwise based on the plaint averments and the supporting materials placed before the Court. If there is any fraud being played or there is no cause of action to maintain the suit or there is no jurisdiction for the Court, which has granted leave, it is open to the caveator / defendant to file an application to set aside the said order granting leave. Therefore, there could be no legal grievance to any caveator, in granting leave to file a suit.
42. The Court below, on considering the plaint averments and the supporting materials held it urgent to grant leave, in order to prevent any abuse or manipulation of records, relating to the public trust. Considering the public interest, the Court is empowered to grant leave, which cannot be construed as illegal or an order passed without jurisdiction, as there was no notice to the respondents, while passing the administrative order.
43. In the instant case, the revision petitioners have not specifically pointed out any fraud being played by the applicants 1 and 2 / plaintiffs in getting the leave. Similarly, they have not raised any ground that the Court below has passed an order granting leave without jurisdiction. In the circumstance, remedy could be available to the revision petitioners before the Court below and as there is no illegality or material irregularity in the impugned order passed by the Court below in granting leave under Section 92 (1) of the Code of Civil Procedure, the C.R.P.No.1036 of 2010 is liable to be dismissed.
44. In the Transfer Civil Miscellaneous Petition in Tr.C.M.P.No.464 of 2010, the petitioners / plaintiffs have stated that even after numbering the suit, the defendants 1 to 13 blocked the progress of the suit and the applications filed in I.A.Nos.310 to 312 of 2009, seeking various interim prayers and the case was adjourned on various dates for more than 1 = years, without proper reason and it is further averred that the conduct of the defendants is highly deplorable, since after the pleadings of the plaintiffs continue to remain unanswered by the defendants till date from the date of filing of the suit and hence, it would not be conducive to conduct the suit before the District Court, Namakkal, accordingly prayed to withdraw the suit in O.S.No.103 of 2009 on the file of the District Court, Namakkal and to transfer the same to any other court having jurisdiction.
45. Having gone through the grounds raised in the Tr.C.M.P.No.464 of 2010, I am of the view that there is no sufficient ground to transfer the case to some other Court, since the grounds are trivial in nature for seeking transfer of the case to some other Court.
46. It is seen that the first defendant, a chartiable trust, has its registered office only at Tiruchengode, Namakkal District. Most of the plaintiffs and the defendants in the suit are also stated to be residents of Namakkal District. In the aforesaid circumstances, I am of the view that transferring the case to some other District Court certainly affect both the parties and cause delay and further, there is no strong circumstance alleged to transfer the case to other District, having competent jurisdiction, hence, Tr.C.M.P is liable to be dismissed.
47. M.P.Nos. 1, 1 and 1 of 2010 in C.R.P.(PD).Nos.2350, 2351 and 2352 of 2010 have been filed seeking to recall the order, dated 19.07.2010 passed in the aforesaid civil revision petitions. It is seen that by order, dated 19.07.2010, this Court directed the court below to dispose the I.A.Nos.310, 311 and 312 of 2009 within a period of two months from the date of receipt of the order and the two months time limit granted by this court is also over.
48. It cannot be disputed that under Article 21 of the Constitution of India, speedy justice is a fundamental right and hence, no party to a suit or proceeding is entitled to raise a plea against speedy justice and hence, M.P.Nos. 1, 1 and 1 of 2010 in C.R.P (PD).Nos.2350, 2351 and 2352 of 2010 are liable to be dismissed.
49. In the result, C.R.P (PD).No.1036 of 2010, Tr.C.M.P.No.464 of 2010 and the miscellaneous petitions, M.P.Nos. 1, 1 and 1 of 2010 in C.R.P (PD).Nos.2350, 2351 and 2352 of 2010 are dismissed. While pronouncing the order, Mr.N.Jothi, learned counsel appearing for the respondents 1 and 2 / plaintiffs requested this Court to fix an early date for the disposal of the Interlocutory Applications in I.A.Nos.310, 311 and 312 of 2009, since the same are pending before the Court below for a long time and the pendency would prejudice the rights of the said respondents / plaintiffs. There is no tenable objection from the revision petitioners / defendants in the suit for early disposal of the interlocutory applications, according to law. Hence, the Court below is directed to dispose I.A.Nos.310, 311 and 312 of 2009, according to law, at an early date, on or before 31.08.2012, without seeking extension of time on merits, uninfluenced by the findings, if any in this order. Consequently, connected miscellaneous petitions are also dismissed. However, there is no order as to costs.
03.07.2012 Index : Yes Internet : Yes tsvn To The District Judge Namakkal.
Note to Office :
Issue order copy on 19.07.2012.
S.TAMILVANAN, J.
tsvn common Order in C.R.P. (PD) No.1036 of 2010, Tr.C.M.P.No.464 of 2010 and M.P.Nos.1,1,1 of 2010 in C.R.P (PD).Nos.2350 to 2352 of 2010 03.07.2012