Allahabad High Court
Lilanand Thakur Pagal Baba Trust ... vs Thakur Radha Govindji Maharaj ... on 18 May, 2000
Equivalent citations: 2000(3)AWC2064
Author: D. K. Seth
Bench: D.K. Seth
JUDGMENT D. K. Seth, J.
1. Two suits were Instituted seeking the leave under Section 92 of C.P.C. In one of the suits, being Original Suit No. 2 of 1999, the learned District Judge, Mathura was one of the party, namely, defendant No. 9 filed in respect of the property of the Trust of Sri Lilanand Thakur Pagal Baba Trust Vrindavan, with regard to the temple. in the other suit, being Original Suit No, 5 of 1999 relating to the Management of the property of the Hospital of Sri Lilanand Thakur Pagal Baba, the District Judge was not made a defendant. In both the suits, applications for grant of leave have been filed before the learned District Judge who had granted the leave.
2. It is contened that the District Judge has also granted injunction and the said order was challenged before this Court and the order of injunction was set aside by this Court in F.A.F.O. No. by an order dated. The petitioner as one of the defendent in suit has filed an application for transfer before this Court under Section 24 of the C.P.C. being transfer application No. which was disposed of on by this Court.
3. Now Mr. R. N. Sharma, learned counsel for the petitioner in these revisions, has challenged the grant of the leave in both the suits, on the ground that in Original Suit No. 2 of 1999 the District Judge was a party and as such he could not try the suit under Section 38 of Bengal, Agra and Assam Civil Courts Act, 1887. Since the trusts were created by one person, therefore, according to him, learned District Judge was also interested in the trust property involved in Original Suit No. 5 of 1999 as such he could not try that suit also. Therefore, the grant of leave is wholly without jurisdiction and hit by Section 38 of the said Act and as such, the leave should be revoked. He also relied on the decision in the case of Ram Kishore Sharma. and others a. Gopi Nath and others. 1979 AWC 393, in support of his contention.
4. Mr. V. K. Barman, learned counsel for the opposite parties, on the other hand, contended that since the suits had been transferred to Agra from Mathura, the question cannot be raised in the grant of leave. He further contended that the injunction that was granted by the learned District Judge, having been vacated by this Court in the appeal, the question has now become academic. He then contended that Section 38 prohibits the trial of suit but not the Institution thereof. He then contended that the District Judge was a defendant in one of the suits, who had granted leave, as against him as well as granted injunction which has also affected him, therefore it cannot be said that he had acted according to his Interest. He has also relied on a decision of R M. Narayana Chettiar and another v. N. Lakshmanan Chettiar and others, AIR 1991 SC 221. He further contended that the grant of leave is not absolute since it was granted without notice. It is still open to the parties aggrieved to apply for revocation of leave before the Court on any ground concerning the merit with regard to grant of leave. If such application is made, the Court is bound to decide the same on merit. Further according to him no prejudice or injury will be caused to the petitioner if the orders allowing the leave in two suits come within the meaning under Section 115 of C.P.C. Therefore, these revisions are not maintainable.
5. I have heard both the learned counsel at length. Section 38 of Bengal, Agra and Assam Civil Courts Act, 1887, provides that the Presiding Officer of a civil court shall not try any suit or other proceeding to which he is a party or in which he is personally Interested. The expression used in the Section "shall not try* means the trial of the suit. This does not prohibit institution of the suit. By reading Section 92. C.P.C., it appears that a suit can be instituted with regard to the matter referred to under Section 92 only with the leave of the Court. Therefore, a suit covered Section 92 can be deemed to be instituted only when the leave ts granted and not otherwise. In other words, by reason of grant of leave only the institution of the suit is permitted. Therefore, grant of leave does not mean anything more than permission to institute the suit. By reading of Section 92, C.P.C., it appears that no suits can be instituted without the leave of the Court and as such even if a plaint is present before the Presiding Officer who is personally interested or a party to it, he has to return it or to grant leave and then transmit the record. Since the suit has to be Instituted in the principal civil court having jurisdiction over the area, which is the Court of the learned District Judge, therefore, it may not have been returned for being presented before any other Court.
6. At the most, this matter could be transmitted to the High Court under Section 38(3) for being disposed of under Section 25 of C.P.C. But the same was not done. On the other hand, on an application under Section 24. C.P.C. this Court has virtually transferred the matter to the district Agra. Though it was not done through Section 38(3) of the said Act but still It was so done to meet the requirements contained under Section 38 of the Act. The trial court by reason of grant of injunction has contravened Section 38 of the 1887 Act. But the said order has since been set aside. As such now it cannot be said that two suits are being tried by the Presiding Officer though forbidden under Section 38 of the said Act. The question has now become purely academic by reason of the facts disclosed above.
7. Then again, the leave was granted only for institution of the suit which is also subject to revocation on merit if it is pointed out by any of the parties that the leave could not have been granted on any ground whatsoever otherwise on account of fact that the trustees were not made parties or that there was statement of the fact or suppression of fact or that the plaintiffs are not interested and had no locus standi or any such other ground or otherwise. If such application is made, it is always open to the Court to decide the said question on merit in the suit Itself even before proceedings with the suit as the Court may deem fit and proper having regard to the claim of the respective parties.
8. Thus, the grant of leave. If allowed in two suits, the same may not be termed as suit decided at the same time the grant of leave, which is subject to revocation as above is also not a case decided within the meaning of Section 115 of C.P.C. Thus, the petitioner cannot maintain revision against the order granting leave under Section 92 unless his prayer for revocation is refused otherwise. Thus, it is neither a case decided within the meaning of Section 115 of C.P.C. nor it would cause any injustice if the order is allowed to stand.
9. Thus it appears on the facts and circumstances of the case, that the petitioner cannot raise any grievance by reason of transfer of two suits to Agra from Mathura and as such he cannot maintain this revision. The decision in the case of Ram Kishore Sharma and others cited by Mr. Sharma does not help him to support his contention on the ground of reason that in para 5 of the said decision, it was held that Section 92 of C.P.C. merely requires the institution of a suit under that provision before the District Judge. Therefore, this decision on the other hand holds that it is only an Institution of the suit by grant of such leave by the learned District Judge. But then the learned District Judge after grant of leave cannot proceed further. The learned District Judge has no power to proceed to grant injunction or to do anything after grant of leave. The only thing is to transmit the same to Additional District Judge to try the suit If the learned District Judge is prohibited to try the suit by the reason of the proceedings under Section 38 of the said Act. In the decision in the case of Ram Narayana Chettiar and another, this question was dealt with by Apex Court to the extent that grant of leave does not defeat the right of the petitioner since it is open to the aggrieved party to apply for revocation of the leave which can be considered on merits and according to law. The defendants could bring to the notice of the Court for the Instance that the allegations made in the plaint are frivolous. Apart from this, they could in an appropriate case, point out that the persons who are applying for leave under Section 92 are doing so deliberately with a view to harass the trust or have such antecedents that it would be undesirable to grant leave to such persons. Thus, by reason of grant of leave, the petitioner does not suffer any injustice or prejudice and neither grant of leave amounts to be a case decided.
10. For the reasons stated above, both the revision applications fail and are accordingly dismissed. However, there will be no order as to costs.
11. At this stage, learned counsel for the opposite parties contended that the Interim order may be vacated. The interim order that was granted in the revision remains in operation only for the period when the revision applications remain pending. As soon as the revision is dismissed, the Interim order that was granted in the revision would automatically merge with the final order that is passed in the revision itself and the interim order loses its significance. Therefore, it is not necessary to record that the interim orders stand vacated.