Kerala High Court
Musaliyarakath Abdul Azeez vs Liwa Educational And Charitable on 18 June, 2010
Equivalent citations: 2010 A I H C 3026, (2010) 2 KER LJ 579, (2010) 93 ALLINDCAS 626 (KER), (2010) 3 KER LT 158, (2010) 4 CIVLJ 601, (2010) 4 CURCC 233
Author: Thomas P.Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 252 of 2010()
1. MUSALIYARAKATH ABDUL AZEEZ,
... Petitioner
2. PULIKUTH MUHAMMED,
Vs
1. LIWA EDUCATIONAL AND CHARITABLE
... Respondent
2. MACHINGAL MUHAMMED, S/O.MOIDEENKUTTY
3. ABDUL RAZACK, S/O.MOIDEENKUTTY,
For Petitioner :SRI.A.K.MADHAVAN UNNI
For Respondent :SRI.N.M.MADHU
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :18/06/2010
O R D E R
"C.R."
THOMAS P.JOSEPH, J.
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C.R.P. No.252 of 2010
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Dated this the 18th day of June, 2010
O R D E R
Legality and regularity of the order dated 17.02.2010 on I.A. No.2452 of 2009 in O.S. No.184 of 2009 of the court of learned Sub Judge, Manjeri refusing to revoke leave granted to respondent Nos.1 and 2 to institute the suit under Section 92 of the Code of Civil Procedure (for short, "the Code") is under challenge in this Civil Revision Petition. Respondent No.1 is described as an Educational and Charitable Society (for short, "the Trust") represented by its Treasurer and Member in his individual capacity and as its duly authorised representative. Respondent No.2 is said to be a Member of that Trust. Respondent Nos.1 and 2 presented the plaint in the court of learned Sub Judge, Manjeri on 13.08.2009 along with I.A.No.1645 of 2009 seeking leave under Sec.92 of the Code. Learned Sub Judge ordered to number the suit tentatively and to issue summons to the petitioners and respondent No.3/defendant Nos.1 to 3. On 20.10.2009 respondent Nos.1 and 2 pointed out that no formal leave was C.R.P. No.252 of 2010 -: 2 :- granted to institute the suit. Learned Sub Judge amended the order dated 13.08.2009 (numbering the suit tentatively) invoking power under Section 152 of the Code and stated that the word "granted" omitted to be stated in the order dated 13.08.2009 is incorporated after the word "tentatively". Learned Sub Judge directed that since no application was filed by petitioners or respondent No.3 to revoke the leave granted, I.A. No.1645 of 2009 is closed. Petitioners filed I.A. No.2452 of 2009 on 31.11.2009 to revoke the leave granted. Learned Sub Judge dismissed I.A.No.2452 of 2009 vide impugned order dated 17.02.2010. It is contended by petitioners that order dated 13.08.2009 as amended on 20.10.2009 granting leave to respondent Nos.1 and 2 to institute the suit is illegal and irregular. According to the petitioners suit is not properly instituted by two persons in a representative capacity as required under Sec.92 of the Code. Yet another contention is that on the averments made in the affidavit in support of I.A. No.1645 of 2009 and the plaint, suit did not come within the mischief of Sec.92 of the Code. At any rate procedure adopted by the learned Sub Judge in receiving the plaint and numbering the same without granting leave are illegal. Respondent Nos.1 and 2 supported the order dated C.R.P. No.252 of 2010 -: 3 :- 17.10.2009 declining to revoke leave granted.
2. It is necessary to refer to the facts of the case in short. Reliefs sought for in the plaint are a declaration that suit property is a Public Charitable Trust property and a consequential injunction to restrain petitioners and respondent No.3 from reducing all or any of the suit property into their unlawful possession and restrain petitioners from alienating or inducting third parties into the suit property. In paragraph 3 of the plaint it is stated that suit property was transferred to the Trust (respondent No.1) as per assignment deed dated 10.4.2000 for the benefit of the Trust which is founded and constituted as a Public Charitable Trust for maintaining orphans, establishing and running of schools, imparting education to the backward communities and for such other charitable purposes. In paragraph 4 it is stated that by virtue of execution and registration of the document, a public charitable trust came into existence and that (respondent No.1) is in reality and in substance a Public Charitable Trust in existence from the year 2000 onwards. Paragraph 5 states that as is manifest from a reference to the document that while there is no provision empowering any of members to alienate property (of the Trust) C.R.P. No.252 of 2010 -: 4 :- there is an express provision that acquisition of property (by the Trust) has to be in the joint names of its Chairman and Treasurer and hence in the absence of any other express provision transfer of the property (of the Trust) also is to be made by Chairman and Treasurer jointly and at the worst by the office bearers of the Trust. The affairs of the Trust is to be done pursuant to decision of its working committee and hence decision of the working committee is required to sell or transfer its property and/or junction of at least two persons among office bearers is necessary for such sale/transfer so as to bind the Trust. In paragraph 6 it is stated that respondent No.3 who is Chairman of the Trust proposed to transfer suit property to the petitioners as per assignment deed dated 26.04.2003 on behalf of the Trust but for the said purpose no decision was taken by the executive committee of the Trust. The transfer in favour of petitioners (effected by respondent No.3 on 26.4.2003) is not supported by consideration and the sale is null and void for the said reasons and especially since it is patently violative of the Memorandum of Association. In paragraph 7 it is stated that to bind the Trust sale has to be for its purposes and objects. Otherwise it will amount to commission of grave and gross breach of trust. C.R.P. No.252 of 2010 -: 5 :- Petitioners and respondent No.3 between themselves had financial dealings by siphoning huge amounts of the Trust which came to the hands of respondent No.3 in his capacity as its Chairman. Because trustee is guilty of act of fraud and defalcation of trust funds impugned sale deed is null and void and non-est. In the remaining paragraphs of the plaint mention is made about alleged mischievous acts of petitioners in the suit property pursuant to the assignment deed dated 26.4.2003 such as pulling down structures, committing waste, etc.
3. Application for leave under Sec.92 of the Code was filed in the form of an interlocutory application supported by an affidavit. In paragraph 3 of that affidavit it is stated that for the sake of brevity deponent is not repeating averments in plaint which may be read and treated as part of the affidavit. Paragraph 6 of the affidavit speaks about sale deed dated 26.4.2003 being null and void having been executed by respondent No.3 without authority. Paragraph 7 states that execution of the sale deed was kept a closely guarded secret. It was done collusively and fraudulently without being acted upon. Possession of the suit property is not transferred to petitioners. Execution of sale deed amounts to serious acts of breach of trust and C.R.P. No.252 of 2010 -: 6 :- misappropriation of Trust property by respondent No.3 in collusion with petitioners.
4. Question for a decision is whether order granting leave to respondent Nos.1 and 2 to institute the suit under Sec.92 of the Code is legal land proper and whether learned Sub Judge was correct in refusing to revoke the leave granted. As first above stated application for leave (I.A. No.1645 of 2009) was filed along with the suit on 13.08.2009 and on that application learned Sub Judge ordered to number the suit tentatively. That order was amended as aforesaid on 20.10.2009. Section 92 contemplates grant of leave before institution of the suit. This is clear from the phraseology used in Secs.20(b), 80(2), 91 and Order I Rule 8 as against the wordings in Sec.92 of the Code. Section 20(b) of the Code speaks about institution of suit provided that in such case "the leave of the court is given". Sections 80(2) and 91 state about institution of the suit "with the leave of the court". Order I Rule 8(1) of the Code states about institution of the suit "with the permission of the court". Section 92 of the Code states, ".....two or more persons having an interest in C.R.P. No.252 of 2010 -: 7 :- the trust and having obtained the leave of the court may institute a suit...."
(emphasis supplied) Section 26 of the Code states that "every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed". But as seen from Sec.27 of the Code every presentation of plaint will not amount to a valid institution of the suit though for institution of the suit there must be a valid presentation of plaint. Reading the phraseology used in Sec.92 and in the above said provisions of the Code it is revealed that while leave referred to under Secs.20(b), 80(2), 91 and Order I Rule 8 of the Code could be obtained simultaneously with or even after institution of the suit and may even be implied, grant of leave under Sec.92 of the Code must be in express terms and has to be before institution of the suit. Leave is a sine qua non for institution of the suit under Sec.92 of the Code (See Amrithakumari & Aother v. Ramanathan & Others
- 1998 [2] KLJ 143). So far as grant of leave under Section 92 of the Code is concerned it is not necessary that a copy of plaint should be produced along with the petition for leave (See Saraswathi Pillai Mahvir v. Gopala Pillay - 1987 [2] C.R.P. No.252 of 2010 -: 8 :- KLT 471). 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 the petition for leave and proceeding for the grant of leave is independent of the suit. In a suit coming within the scope of Sec.92 any interlocutory order could be passed only after leave is granted and the suit is validly instituted. That being the position it is not the proper procedure that petition for leave is filed and registered as an interlocutory application as if it is an application preferred in the pending suit. Petition for leave must be in the form of an Original Petition as provided in Rule 56 of the Civil Rules of Practice and in the form prescribed for Original Petitions. Court fee has to be paid on such petition as provided under Schedule II, Article 11(l)(2)(ii) of the Kerala Court Fees and Suits Valuation Act as in the case of an Original Petition not otherwise provided for and filed in the Sub Court/District Court. It shall not be in the form of an interlocutory application supported by an affidavit. Petition must be registered and numbered as an Original Petition. The suit is to be registered only when it is C.R.P. No.252 of 2010 -: 9 :- validly instituted after leave is granted on the Original Petition. In this case the suit was registered (though tentatively) and the application for leave was numbered as an interlocutory application as if it was made in the suit. Procedure adopted by the learned Sub Judge is irregular.
5. Though it is within the power of court to grant leave (provisionally) even without issuing notice to the opposite party, normally leave shall not be granted without notice to the opposite party. Even when leave is granted without notice to the opposite party the latter can seek revocation of the leave. Petitioners filed I.A. No.2452 of 2009 for revocation of the leave granted. Now the question is whether learned Sub Judge was correct in granting leave by order dated 13.09.2009 as amended on 20.10.2009 and whether refusal to revoke the leave granted is legal land proper. Section 92 of the code enumerates the reliefs that could be sought for in a suit of the nature referred to therein. Clauses (a) to (g) deals with specified reliefs while clause (h) states about, "granting such further or other relief as the nature of the case may require".
C.R.P. No.252 of 2010 -: 10 :- I have referred to the averments and reliefs sought for in the plaint and the averments in the affidavit in support of application for leave (I.A. No.1645 of 2009). Relief prayed for is a declaration that the suit property is property of the Trust and for consequential injunction to restrain petitioners and respondent No.3 from reducing suit property into their unlawful possession, alienating or inducting strangers to the said property. Learned Sub Judge observed.
"suit is in respect of vesting the properties in a trustee which will come within the scope of Sec.92(c) of the Code and hence this court was inclined to grant leave to the respondents to institute the suit".
6. Section 92(1)(c) deals with "vesting any property in a trustee". Respondent No.3 is impleaded in the suit in his capacity as Chairman of the Trust. But no relief of vesting the suit property with the trustee is sought for. Decisions of the Rangoon, Bombay and Delhi High Courts (Johnson D Po Min v.
U.Ogh - AIR 1937 Rangoon 132, Ranchhoddas v.
Mahalaxmi - AIR 1953 Bombay 153 and Uma Shanker v. C.R.P. No.252 of 2010 -: 11 :- Salig Ram - AIR 1975 Allahabad 36 [F.B.]) are to the effect that clause (c) of Sec.92 refers to cases where a new trustee is appointed and not to cover cases where it is to recover property of the trust from a trespasser who is in wrongful possession of it. Respondent Nos.1 and 2 did not ask for removal of respondent No.3 as trustee. Relief prayed for is a declaration that suit property is property of the Trust. Such a relief does not fall within the specified reliefs under clauses (a) to (g) of Sec.92(1). Clause
(c) of Sec.92(1) contemplates order of vesting of management of property with the trustee. That clause has no application to a case where claim is made for possession of trust property in the hands of alienees of the trustee inasmuch as there is no question of obtaining a decree vesting any property in the trustee. In the light of the above legal position, learned Sub Judge was not correct in observing that the relief prayed for came within the mischief of clause (c ) of Sec.92 (1) of the Code.
7. Obviously as respondent Nos.1 and 2 had to reconcile to the above legal position learned Senior Advocate raised a contention that the nature of relief sought in the suit brought it within the mischief of clause (h) of Sec.92(1) of the Code. According to the learned Senior Advocate clause (h) cannot be C.R.P. No.252 of 2010 -: 12 :- read as ejusdem generis following the specified reliefs referred to in clauses (a) to (g) of Sec.92(1). Learned Senior Advocate has placed reliance on the decisions in Jambulinga Pathan v. Akilanda Asari (AIR 1927 Madras 886), Aiyanachariar v. Sadagopa Chettiar (AIR 1939 Madras 757) and Haji Mhammad v. Province of Bengal ( AIR [29] 1942 Calcutta 343). Leaned counsel for petitioners contended that clause (h) of Sec.92(1) of the Code cannot be read in isolation to clauses (a) to (g) and that clause (h) has to be read ejusdem generis with the specified reliefs referred to in clauses (a) to (g). In Jambulinga Pathan v. Akilanda Asari (supra) relied on by learned Senior Advocate the suit did not specifically ask for reliefs stated in Sec.92(1) of the Code but did so by implication. In that case plaintiffs alleged that on account of mismanagement of defendants who were trustees (of the Public Charitable Trust) and as they refused to render accounts they were removed from office and plaintiffs were appointed in their place. Plaintiffs wanted recovery of possession of the property of the Trust from the old trustees. The Madras High Court while observing that none of the reliefs referred to in clause (a) to (g) of Sec.92(1) of C.R.P. No.252 of 2010 -: 13 :- the Code were specifically asked for, held that it has been done by implication inasmuch as the object of suit was to get dismissal of the old trustee and appointment of new trustees by the Committee recognized by the court and recover possession of the property from the trustees who had been removed from office. In the circumstances the High Court held that the suit came within the mischief of Sec.92(1) of the Code. In Aiyanachariar v. Sadagopa Chettiar (supra) the suit was between the trustees inter se as regards namas to be put on the idol which was held to be covered by Sec.92 of the Code. There, plaintiffs alleged that the trustees who belonged to the other sect committed breach of trust in putting or causing to be put new or additional namas or marks to idols in and about the temple and in several articles and things thereof with a view to alter the character of the temple. Considering the nature of averments in the plaint it was held that suit is really one between trustees inter se and came within the mischief of Sec.92 of the Code. In Haji Mhammad v. Province of Bengal (supra) scope of clause (h) of S3c.92(1) of the Code was considered. It was held that whether the suit falls under the section or not depends on the form of the suit as revealed by the plaint. There relief prayed C.R.P. No.252 of 2010 -: 14 :- was to compel the trustee to cease spending wakf income on secular objects. It was held that the said relief fell under clause
(h) of Sec.92(1) of the Code as it is of the same nature as is contemplated in Sec.92(1) (e) of the Code. There can be no doubt that to decide whether the suit was for vindicating public right one has to go beyond the relief sought and focus on the purpose for which the suit is filed. It is the object or purpose of the suit and not essentially the relief prayed for which is of paramount importance (See Vidyodaya Trust v. Mohan Prasad - 2008 [2] KLT 68 - SC).
8. Clause (h) of Sec.92(1) has to be read along with the specified reliefs provided under clauses (a) to (g). In Jamaluddin v. Mujtaba Husain (1903) ILR 25 Allahabad
631) Stanley, C.J. And Burkitt, J have held referring to a similar clause in Section 539 of the Old Code that the expression "granting such further or other reliefs as the nature of the case may require" must be read with what has preceded as referring to further relief to which the party may be entitled which arises out of the existence of Trust in respect of which the suit has been brought. The Full Bench of the Madras High Court in Kalyana C.R.P. No.252 of 2010 -: 15 :- Venkataramana Aiyangar v. Kasturi Ranga Aiyangar (AIR 1917 Madras 112) held that relief that can be granted under the general clause (clause (h) of Sec.92(1)) should not be of a character different from those expressly mentioned (in clauses (a) to (g) and that the expression "granting such further or other relief as the nature of the case may require" has to be read along with the specified reliefs. If the only relief claimed in the suit is a declaration that certain properties are properties of the Trust, the suit does not come within the purview of clause
(h) of Sec.92(1). The view taken in Budree Das Mukim v. Chooni Lal Johurry and Others (1906) ILR 33 Calcutta
789) is that the general clause occurring in Section 539 of the Old Code should be read with the five preceding specified reliefs and that nature of reliefs which may be properly granted under it is of the same character as the reliefs which may be granted under the preceding clauses. The five specific clauses are not merely illustrative but furnish an indication of the nature of the reliefs which may be granted in the suit under Section 92 of the Code. Clause (h) of Sec.92(1) of the Code has therefore to be read in conjunction with the specified reliefs provided under clauses (a) to (g) of Sec.92(1). That is the view taken by this C.R.P. No.252 of 2010 -: 16 :- Court in Pazhukkamattom Devaswom and Others v. Kunju Muhammed (2005 [3] KLJ 125). I am in agreement with that view.
9. Though there is an averment in paragraph 7 of the plaint that there are financial dealings between petitioners and respondent No.3, Chairman of the Trust and that by siphoning of huge amounts of that trust which came into the hands of respondent No.3 in his capacity as Chairman he is guilty of grave act of breach, defalcation and misappropriation of trust funds no relief is claimed in the suit as against respondent No.3 with reference to his said acts. Challenge is only to the validity of sale deed executed by respondent No.3 in favour of petitioners on 26.4.2003 on the ground that he alone without the junction of other office bearers of the Trust and in the absence of a decision by the executive committee of the Trust respondent No.1 could not validly execute the assignment deed binding the Trust. It is alleged that the said document was not intended to take effect. In the circumstances respondent Nos.1 and 2 prayed for a declaration that the suit property is property of the Trust and for a consequential relief of injunction. Reliefs prayed for in the plaint do not come within any of the clauses of Sec.92(1) of the C.R.P. No.252 of 2010 -: 17 :- Code expressly or impliedly. The object or purpose of the suit is also is not for vindication of any public right. The suit contemplated under Sec.92(1) of the Code is one among members or beneficiaries of the Public Charitable Trust. Section 92 is enacted to provide means for obtaining directions of the court in connection with matters relating to administration of the Trust and to expose misdeeds of trustees. Issues relating to rights of third parties is outside the scope of Sec.92. In this case fight is between respondent Nos.1 and 2 on the one side and petitioners on the other side, former challenging validity of assignment deed in favour of the latter executed by respondent No.3. To get reliefs prayed for in the plaint junction of respondent No.3 as Chairman of the Trust is not at all necessary. On the allegations made in the plaint respondent Nos.1 and 2 could on behalf of the Trust assail the transaction in favour of petitioners as not binding on the Trust. Mere presence of respondent No.3 in the suit or an allegation that he is siphoning the funds of the Trust does not bring it within the scope of Sec.92(1) of the Code. The suit in essence is for vindication of private right of respondent Nos.1 and 2 as members or beneficiaries of the Trust in that they on behalf of the Trust C.R.P. No.252 of 2010 -: 18 :- assail the document executed by respondent No.3 in respect of property of Trust. This view gets support from the decisions in Abdur Rahim v. Mahomed Barkat Ali (55 Indian Appeals 96), Pragdasji Guru Bhagwandasji v.
Iswarlalbhai Narsibhai (AIR 1952 SC 143) and Mukaremdas Mamudas v. Chhagan kisan
Bhawasar (AIR 1959 Bombay 491). In Bishwanath and Another v. Sri Thakur Radha Ballabhji and Others (AIR 1967 SC 1044) and T.G. Viswanathan Chettiar v. T.A. Shanmugha Chettiar (AIR 1992 Madras 148) the suit was on behalf of a Public Trust with the object or purpose of enforcing a private right, i.e., for declaration of its title and for possession from an alienee under a void document. It was held that suit does not come within the mischief of Sec.92(1) of the Code.
10. On going through the averments in the plaint and affidavit in support of I.A. No.1645 of 2009 I conclude that the suit does not come within any of the clauses of Sec.92(1) of the Code. Learned Sub Judge was not correct in granting leave under Sec.92 of the Code. So much so the application for C.R.P. No.252 of 2010 -: 19 :- revocation of leave ought to have been allowed. Dismissal of I.A. No.2452 of 2009 in the circumstances cannot be justified. That application is only to be allowed.
11. After leave was granted interlocutory orders were passed by the learned Sub Judge in the suit. Those orders also are under challenge in this revision. In consequence of my above finding those orders are only to be vacated.
Resultantly this Civil Revision Petition is allowed setting aside the impugned order dated 17.02.2010 on I.A.No.2452 of 2009. That application is allowed. Leave granted under Sec.92 (1) of the Code is revoked and I.A. No.1645 of 2009 will stand dismissed. The suit is struck off from the file. All interlocutory orders passed in the suit will stand vacated. It will be open to respondent Nos.1 and 2 to institute suit afresh as provided under law, if they are otherwise entitled to that course.
THOMAS P. JOSEPH, JUDGE.
vsv