Madras High Court
Adarsh Educational Trust vs N.Kumaraswamy on 20 August, 2018
Equivalent citations: AIRONLINE 2018 MAD 990
Author: M.V.Muralidaran
Bench: M.V.Muralidaran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 09.07.2018
DELIVERED ON : 20.08.2018
DATED: 20.08.2018
CORAM
THE HON'BLE MR. JUSTICE M.V.MURALIDARAN
C.R.P.(MD)(NPD) No.2274 of 2016 and
CMP(MD)Nos.10489 and 12344 of 2016 and
C.R.P.(MD)(NPD)No.2632 of 2015 and
M.P.(MD)No.2 of 2015
C.R.P.(MD) (NPD) No.2274 of 2016
1.Adarsh Educational Trust,
rep. by its Chairman Adarsh Vidyakendra,
Vettoornimadam, Nagercoil,
Kanyakumari District.
2.The Secretary,
Adarsh Educational Trust,
Vettoornimadam, Nagercoil,
Kanyakumari District.
3.The Treasurer,
Adarsh Educational Trust,
Vettoornimadam, Nagercoil,
Kanyakumari District.
4.Dr.Indira Surendran
5.Dr.Gopal Surendran
6.S.Padmanabhan
7.Jaiwant Kumar Babu
8.Dr.Mini Gopal
9.Dr.Arunchand
10.Dr.Krishna Surendran
11.L.Priyadharsini
12.Mahesh P.Subramanian ... Petitioners
vs
1.N.Kumaraswamy
2.Charumathi Raja
3.K.Manikanda Raja
4.R.K.Bhaskaran Nair
5.The Chairman,
Bank Baroda,
C.26 ? G.Block,
Bandra Kurla Complex,
Mumbai-400 051.
6.The Regional Manager,
Regional Office, Bank of Baroda,
III Floor, 82, Banu Road,
Coimbatore-641 018.
7.The Manager,
Bank of Baroda,
D.D.J. Complex,
Vadasery,
Nagercoil-629 001. .. Respondents
C.R.P.(MD) (NPD) No.2632 of 2015
1.Adarsh Educational Trust,
rep. by its Chairman,
Adarsh Vidhya Kendra,
M.S.Road, Vettoornimadam, Nagercoil,
Kanyakumari District.
2.Dr.Indira Surendran
3.Dr.Gopal Surendran
4.S.Padmanabhan
5.Jaiwant Kumar Babu
6.Dr.Mini Gopal
7.K.KBhaskaran Nair
8.Dr.Arunchand
9.Dr.Krishna Surendran
10.L.Priyadharsini
11.Mahesh P.Subramanian ... Petitioners
vs
1.N.Kumaraswamy
2.Charumathi Raja
3.K.Manikanda Raja .. Respondents
Civil Revision Petition No.2274 of 2016 filed under Article 227 of
Constitution of India against the Fair Order and Decreetal Order dated
19.08.2016 passed in Tr.O.P.No.495 of 2016 on the file of the District Judge,
Nagercoil, Kanyakumari District.
Civil Revision Petition No.2632 of 2015 filed under Section 115 of C.P.C.,
against the Fair and Decreetal Order dated 17.08.2015 passed in I.A.No.435 of
2012 in O.S.SR.No.651 of 2012 on the file of the District Court, Kanyakumari
Division at Nagercoil.
!For Petitioners:
Mr.V.MBalamohan Thampi
(CRP.No.2274/2016)
Mr.Isaac Mohanlal
Senior Counsel
for Mr.M.Paul Durai
(CRP.No.2632/2015)
^For Respondents:
Mr.V.Lakshminarayanan
for R1 to R3 in both CRPs
Mr.Pala Ramasamy
for R5 to R7 in
CRP.No.2274/2016
:COMMON ORDER
C.R.P.(MD)(NPD)No.2274 of 2016 is directed against the order dated 19.08.2016 passed in Tr.O.P.No.495 of 2016 on the file of the District Court, Nagercoil.
2. C.R.P.(MD)(NPD)No.2632 of 2015 is directed against the order dated 17.08.2015 passed in I.A.No.435 of 2012 in O.S.SR.No.651 of 2012 on the file of the District Court, Nagercoil.
3. Though both the Civil Revision Petitions arise out of separate orders, by consent, both the revisions were heard together and disposed of by this common order.
4. As far as C.R.P.(MD)No.2274 of 2016 filed by the petitioners is concerned, the same arises out of the order passed in Tr.O.P.No.495 of 2015, dated 19.08.2016, allowing the petition filed by the respondents 1 to 3 herein.
5. By the said order, the trial Court ordered transfer of the suit being O.S.No.307 of 2014 pending on the file of the Sub-Court, Nagercoil to be tried along with O.S.No.88 of 2015 pending on the file of the District Court, Nagercoil.
6. The respondents 1 to 3, who are plaintiffs in O.S.No.88 of 2015 have filed the above suit for framing a scheme for the first petitioner Trust and for rendition of accounts and other reliefs. The suit, being O.S.No.307 of 2014, has been filed by the first petitioner for declaration and for mandatory injunction in respect of Savings Bank Account and Current Account in the name of the Adarsh Educational Trust.
7. According to the respondents 1 to 3, there was substantial identity of parties and issues to be decided in O.S.No.88 of 2015 are directly and substantially the same to be decided in O.S.No.307 of 2014 pending before the Sub-Court, Nagercoil.
8. According to the petitioners, there is no identity of parties and issues to be decided in both the suits are different and also the reliefs claimed in both the suits are different.
9. Upon consideration of the rival submissions, the trial Court allowed the Tr.O.P. Aggrieved by the same, the petitioners have filed C.R.P(MD)(NPD).No.2274 of 2016.
10. Though the plaintiffs 2 and 3 and defendants 1 to 3 in O.S.No.307 of 2014 are not parties in O.S.No.88 of 2015 and similarly, the plaintiffs 2 and 3 and defendants 2 to 12 in O.S.No.88 of 2015 are also not parties in O.S.No.307 of 2014, on a perusal of the pleadings, issues to be decided in both the suits are directly and substantially the same. Therefore, the trial Court was right in allowing Tr.O.P.No.495 of 2015. No prejudice would be caused to the petitioners, if the suit in O.S.No.307 of 2015 is withdrawn from the file of Sub-Court, Nagercoil and transferred to the file of the District Court, Nagercoil to be tried along with O.S.No.88 of 2015. In such view of the matter, I am of the view that there is no illegality and perversity in the order of the trial Court made in Tr.O.P.No.495 of 2015 and the C.R.P.No.2274 of 2016 is liable to be dismissed.
11. As far as C.R.P.(MD)(NPD)No.2632 of 2015 is concerned, the same has been filed by the petitioners against the order dated 17.08.2015 passed in I.A.No.435 of 2012 in O.S.SR.No.651 of 2012, which was filed by the respondents 1 to 3 under Section 92 of the Code of Civil Procedure, 1908 to grant leave to them to institute the suit.
12. I.A.No.435 of 2012 has been filed by respondents 1 to 3 seeking leave of the Court to institute the suit stating that they are personally interested in the first petitioner Trust and the administration of the school. According to the respondents 1 to 3, the first petitioner Trust is a public Trust, which was formed by a registered trust deed dated 06.06.2007. The main objects of the Trust were to run the schools without profit motive and for the benefits of the students irrespective of caste, creed, religion, sex, etc.
13. It is alleged that the first respondent, as Treasurer of Adarsh Vidhya Kendra, was performing all his functions and accounts till 31.03.2009, which were also audited by the Auditors. Since the petitioners were doing illegal acts and were committing breach of Trust, the respondents had issued a lawyer notice, which was replied by the petitioners. It is alleged that because of the wrongful conduct of the petitioners, the right of the respondents 1 to 3 and public and also the Trust were seriously affected. Hence, the respondents 1 to 3 have filed the suit being O.S.SR.No.651 of 2012 along with petition under Section 92 of C.P.C. seeking leave of the Court to institute the suit.
14. Resisting the averments in the affidavit filed in support of I.A.No.435 of 2012, the petitioners have filed counter stating that the suit was not filed to protect the interest of the public, but for vindicating personal grievance. The first respondent ceased to be a trustee and also the respondents 1 to 3 ceased to be members of the Trust. It is stated that Dr.G.Surendran and Dr.Gopal Surendran alone are competent to deal with the administration of the school as well as first petitioner Trust. Moreover, the first petitioner Trust is not a public Trust.
15. According to the petitioners, the bank account in the name of Adarsh Vidya Kendra, said to be operated by the first respondent after formation of Trust was illegal and a clear breach of Trust. As per the provisions of the Trust deed, the Secretary and Chairman were in control of the school. It is stated that the petitioners Jaiwant Kumar Babu and L.Priyadarshini, who are son and daughter-in-law of late Babu, belong to pioneer family are the present trustees of the first petitioner Trust.
16. In the counter, it is stated that the petitioner K.K.Baskaran Nair was one of the active founder members of Adarsh Vidya Kendra Society and the school. Pursuant to the resolutions passed in the meetings of the Board of Trustees, supplementary trust deed dated 29.06.2009 was executed. According to the petitioners, the respondents 1 to 3 have made all hindrances for smooth running of the school.
17. It is stated that the first petitioner and others have filed suit being O.S.No.292 of 2012 on the file of the District Munsif Court, Nagercoil for mandatory injunction to de-freeze the Account Nos.1589, 1590, 1656, 1657 and 1658 and transferring amounts in the account of the first petitioner Trust. It is stated that the present suit filed by the respondents 1 to 3 was barred under Section 11 of C.P.C. and prayed for dismissal of I.A.No.435 of 2012.
18. Before the trial Court, the respondents 1 to 3 have produced Exs.A1 to A58 and the petitioners have produced Exs.R1 to R80.
19. Upon consideration of the rival submissions and also the documents produced before it, the trial Court allowed I.A.No.435 of 2012. Aggrieved by the same, the petitioners have field C.R.P.(MD)(NPD)No.2632 of 2015.
20. I heard Mr.V.M.Balamohan, learned counsel appearing for the petitioners in C.R.P.(MD)(NPD)No.2274 of 2016, Mr.Isaac Mohanlal, learned Senior Counsel for Mr.M.Paul Durai, appearing for the petitioners in C.R.P.(MD)(NPD)No.2632 of 2015, Mr.V.Lakshminarayanan, learned counsel appearing for the respondents 1 to 3 in both the CRPs and Mr.Pala Ramasamy, learned counsel appearing for the respondents 5 to 7 in C.R.P.(MD)(NPD)No.2274 of 2016 and also perused the material papers available on record.
21. It is to be noted that pursuant to the leave granted in I.A.No.435 of 2012, the suit was numbered as O.S.No.88 of 2015. The plaintiffs in O.S.No.88 of 2015 have filed Tr.O.P.No.495 of 2015 under Section 24 of C.P.C. to transfer the suit O.S.No.307 of 2014 pending on the file of the Principal Sub Court, Nagercoil to the District Court, Nagercoil for joint trial along with O.S.No.88 of 2015.
22. By an order dated19.8.2016, Tr.O.P.No.495 fo 2015 was allowed by the trial Court. As against the order passed in Tr.O.P., the petitioners have filed C.R.P.(MD)(NPD)No.2274 of 2016. This Court, earlier observed that there is no illegality in the order of the trial Court in allowing Tr.O.P. and arrived at a finding that C.R.P.(MD)(NPD)No.2274 of 2016 is liable to be dismissed.
23. Learned Senior Counsel for the petitioners submitted that the trial Court had failed to see that the respondents 1 to 3 as plaintiffs have already filed O.S.No.143 of 2010 for similar reliefs with respect to the first petitioner's Trust and the leave to file the suit in I.A.No.428 of 2010 was revoked as per the order in I.A.No.484 of 2010, dated 10.2.2011 and the consequent dismissal of the suit will operate as res judicata.
24. Learned Senior Counsel further submitted that the subsequent petition filed under Section 92 of C.P.C. for similar relief in I.A.No.268 of 2011 in O.S.SR.No.2213 of 2011 was also dismissed as withdrawn on 27.06.2012. Therefore, the above suits will operate as bar for the third petition and the suit by the principles of res judicata and under Order 2, Rule 2 of C.P.C.
25. Learned Senior Counsel argued that the trial Court had failed to see that the petition under Section 92 of C.P.C. and the suit were not filed to protect the interest of the public, but for vindicating personal grievances. Since the respondents 1 to 3 activities were hostile to the interest and welfare of the Trust and the school, first respondent was removed from the post of Treasurer. Learned Senior Counsel argued that pursuant to the resolution of the Board of Trustees dated 14.10.2011, the respondents 1 to 3 were removed from the membership of the first petitioner Trust.
26. Learned Senior Counsel contended that the trial Court had failed to see that framing of the suit as well as the description of the parties in I.A.No.435 of 2012 are mis-conceived in view of the death of Dr.G.Surendran on 09.05.2014 during the pendency of the petition and in fact the 4th petitioner was elected as the Chairman of the Trust and similarly, the 6th petitioner was appointed as Treasurer after the removal of the first respondent from Treasurer post.
27. Learned Senior Counsel would submit that the trial Court erroneously adjudicated the rights of the parties at the stage of granting leave under Section 92 of C.P.C. by holding that meetings of the Board of Trustees were not held at the proper place. He would submit that the reasoning of the trial Court in allowing I.A.No.435 of 2012 was contrary to law and unsustainable and the same has to be set aside. In support of his submissions, the learned Senior Counsel relied upon the following decisions:
(i)Swami Paramatmanand Saraswati and another v. Ramji Tripathi and another, reported in (1974) 2 SCC 695.
(ii)G.Vasantha Pai and another v. Gandhinagar Cooperative House Construction Society Ltd., reported in 2002-3-L.W. 116.
(iii)Vidyodaya Trust v. Mohan Prasad and others, reported in (2008) 4 SCC
115.
(iv)Rani Thaiyal Nayagi Ammal Choultry v. S.Venkatesan, reported in 2012 (4) CTC 89.
28. Per contra, the first and foremost contention of the learned counsel appearing for the respondents 1 to 3 is that no revision would lie against an order granting leave to institute the suit against a public trust under Section 92 of C.P.C.
29. The learned counsel then submitted that with a view to provide a comprehensive educational system to the students, one Babu was formed Adarsh Vidya Kendra and the same was registered under Societies Registration Act. He submitted that the wife of Babu viz., Rajammal had executed a settlement deed in favour of the second respondent and the first respondent was appointed as Treasurer of Adarsh Vidya Kendra and the respondents 2 and 3 were members.
30. Learned counsel further submitted that when the first respondent insisted to convene meeting, with a view to get domination over the Board of Trustees, the petitioners 2 to 4 have unilaterally inducted K.K.Baskaran Nair as a member of the Trust through supplementary Trust deed dated 29.06.2009. When the first respondent questioned the act of the petitioners 2 to 4, they issued notice to the first respondent proposing to initiate disciplinary proceedings. The first respondent also submitted his objection to the notice. While so, by the minutes of meeting dated 05.06.2010, the first respondent was removed from the post of Treasurer and Jaiwant Kumar Babu was appointed as Treasurer.
31. Learned counsel further submitted that since the petitioners 2 to 4 were acting illegally in collusive with the other petitioners and taking arbitrary action contray to the terms and conditions of the Trust deed, the respondents 1 to 3 have filed the suit along with petition seeking leave of the Court under Section 92 of C.P.C.
32. According to the learned counsel, the trial Court after analysing the facts and circumstances of the case and also the legal position has allowed I.A.No.435 of 2012. There is no illegality in the order of the trial Court and the same needs no interference. To fortify his submissions, the learned counsel cited the following decisions:
(i)R.Kannan Adityan and others v. B.S.Adityan and others, reported in 1996-2- L.W. 364.
(ii)AniKadavu Madamanai Lathekarar Kulam Sri Venkatesa Perumal Thirukovil Arakkattalai v. K.Thandapani and others, reported in (2009) 4 MLJ 251.
(iii)Senguthar Charitable Trust v. R.Manickam and others, reported in (2012) 5 MLJ 1023.
(iv)Sri Jeyaram Educational Trust v. A.G.Syed Mohideen and others, reported in CDJ 2010 SC 094.
33. The trial Court, while dealing with the issue involved in I.A.No.435 of 2012, has framed the following points for consideration:
(1)Whether the first petitioner Trust is a private Trust or public Trust? (2)Whether the respondents 1 to 3 are entitled to file the suit? (3)Whether the suit is barred by the principles of res-judicata? (4)Whether the suit is barred by Order 2, Rule 2 of C.P.C.?
34. The trial Court, upon consideration of the rival submissions and after relying upon the decisions and also the documents produced before it, came to the conclusion that if any of the acts of the first petitioner Trust comes within the purview of charitable purpose and the beneficiaries are not specific individuals, but general public and incapable ascertainment, then the first petitioner Trust can be considered as public Trust or otherwise it will be considered as private Trust and finally, the trial Court came to the conclusion that the first petitioner is a public Trust and any dispute with regard to the running and maintenance of the first petitioner Trust can be agitated only under Section 92 of C.P.C.
35. The trial Court while allowing I.A.No.435 of 2012 held that the respondents 1 to 3 were effectively prevented from participating in the Board of Trustees meeting and no procedure was followed before removing the respondents 1 to 3 from the Board of Trustees.
36. Qua the principles of res-judicata, the trial Court held that the earlier suit being O.S.No.143 of 2010 was dismissed on technical grounds and the subsequent un-numbered suit was withdrawn because of the subsequent developments and those suits have not been decided on merits. Therefore, the present suit is not barred by the principles of res judicata and/or under Order 2, Rule 2 of C.P.C.
37. It is to be noted that for a suit under Section 92 of C.P.C., the leave of the Court is necessary and since the same is mandatory in order to prevent any one to come to Court to wreck vengeance or personal vendetta against the management of the Trust. While considering the application seeking the grant of leave, the nature of the jurisdiction conferred on the Court is only an administrative one. It is for the Court to consider as to whether a prima facie case has been made out for the grant of the leave for the applicants to prosecute the matter with regard to the management of the Trust.
38. Coming to the cause of action for filing the instant suit (after leave numbered as O.S.No.88 of 2015), in the plaint, it has been stated as under:
?28. The cause of action for the suit arose on 6.6.2007 the date of trust deed and the date from which the 1st plaintiff became the Treasurer of 1st defendant trust; on 29.6.2009 the date of creation of motivated, illegal and fraudulent supplementary trust deed by which 8th defendant was illegally inducted as trustee; on 9.11.2009 the date of objection of 1st plaintiff; on 16.11.2009 the date of reply of 2nd defendant; on 4.12.2009 the date of rejoinder; on 14.5.2010 the date of notice of Agenda of Board meetings; on 29.5.2010 the date of letter of objection given by plaintiffs; on 5.6.2010, 10.12.2010, 5.2.2011, 10.9.2011 and 14.10.2011, the date of alleged trust meeting and the date on which impugned resolution was alleged to have been passed; on 20.6.2010 the date of objection, on 3.12.2010, 04.2.2011, 5.9.2011, 16.9.2011 and on 11.10.2011 the date of replies and on 14.10.2011, the date of alleged meeting and resolution passed illegally removing the plaintiffs as trustees and inducting defendants 9 to 12 as trustees illegally, on 19.10.2011 the date of communication issued by the 2nd defendant regarding the illegal resolution dated 14.10.2011 and from 11.11.2011 onwards when the plaintiffs came to know that the defendants 2 to 8 are taking speedy steps to withdraw the trust amount from the bank accounts and it arose at Vettoornimadam, Nagercoil, where the office of the 1st defendant trust is situated and the interest of 1st defendant trust are to the protect, which is within the jurisdiction of this Honourable Court.?
39. From the above, it is seen that there was a cause of action to file the instant suit by the respondents 1 to 3 and the trial Court, having found that there was a cause of action, had right granted the leave to institute the suit. Further, there is no dispute regarding jurisdiction of the Court.
40. Contending that revision against the order granting permission to institute a suit under Section 92 of C.P.C. is not maintainable, the learned counsel for the respondents 1 to 3 relied upon the decision in Raju Pillai and others v. V.P.Paramasivam and others, reported in 1995-I-L.W. 518, wherein the Single Judge of this Court held as under:
?25.Taking into consideration the law enunciated by the Apex Court and various High Courts, it is clear that while refusing to grant sanction to institute a suit or otherwise, the Court is not deciding the rights of parties, and that the function which was being done by the Advocate General till 1976 is being vested with the Court now. The effect is, though it is an Order of the Court, it is not discharging a judicial or quasi-judicial function. It only authorises a party to institute a suit in the place of the Advocate-General. The effect is, whether the Advocate-General instituted the suit, or the authorised persons institute the suit, the rights of the proposed defendants are not affected. The rights of the parties are also not determined. If no rights of the parties are affected, and there is no decision rendered by the Court, it follows that it is not a case decided, and hence a Revision under Section 115 of the Code of Civil Procedure is not maintainable.?
41. On the other hand, questioning the correctness of the order passed under Section 92 of C.P.C. by way of revision is maintainable, the learned Senior Counsel relied upon the decision in Vidyodaya Trust and others v. Mohan Prasad and others, reported in (2006) 7 SCC 452, wherein the Hon'ble Supreme Court held as under:
?3. ....... the suit as framed by is not maintainable under Section 92 CPC. The defendants filed an application before the District Judge, Ernakulam for hearing as preliminary issue, the question of maintainability of the suit. On the basis of contentions raised by the plaintiffs as well as the defendants, the court framed preliminary issue as to whether the suit as framed is maintainable under Section 92 CPC. By order dated 11.4.2003 the court held that the suit was maintainable.
4. Questioning the correctness of the order, a petition for revision in terms of Section 115 CPC was filed. The High Court dismissed the civil revision petition on the ground that the same was not maintainable. Though the High Court made reference to some factual aspects, it ultimately came to hold that the revision petition was not maintainable as order dated 11.4.2003 was an interlocutory one. Thereafter, the appellants filed writ petition before the High Court praying, itner alia, for writ, direction or order, questioning the order dated 2003. By order dated 20.8.2004 the High Court dismissed the writ petition holding that the view taken in the civil revision apparently was not correct, as by no stretch of imagination can it be held that the High Court had no jurisdiction. It accepted the stand of the respondents herein that since there was discussion on merits, though the petition was not held to be maintainable, subsequent proceedings initiated under Article 227 of the Constitution of India.
.......
11. Judged in the aforesaid background the view of the learned Single Judge that the civil revision was not maintainable is clearly indefensible.
Learned counsel for the respondent has fairly conceded to this position. If it is held that the suit in terms of Section 92 CPC is not maintainable, that would have the result of final disposal of the suit. However, the learned counsel made an attempt to justify the order by stating that the matter was also dealt with on merits. That would not improve the situation. The civil revision was clearly maintainable. Therefore, we allow the appeal so far as it relates to Civil Revision Petition No.1260 of 2003 disposed of by the judgment dated 5.2.2004 by the High Court. The said order is set aside.?
42. In view of the decision in Vidyodaya Trust and others v. Mohan Prasad and others, supra, this Court is of the opinion that the Civil Revision Petition filed against the order passed under Section 92 of C.P.C. is maintainable.
43. As far as the merits of the order dated 17.08.2015 passed in I.A.No.435 of 2012 is concerned, the learned Senior Counsel for the petitioners submitted that while dealing with the petition under Section 92 of C.P.C., the trial Court had considered the rights of the parties and the same is against law. In support, the learned Senior Counsel relied upon the decision in G.Vasantha Pai and another v. Gandhinagar Cooperative House Construction Society Ltd., supra.
44. In G.Vasantha Pai and another v. Gandhinagar Cooperative House Construction Society Ltd., a Division Bench of this Court held:
?6.When the court is not conferred with the jurisdiction to decide the rights of the parties at the stage of considering the application for the grant of leave under Section 92 C.P.C., the order of the learned single Judge cannot be sustained.?
45. In Swami Paramatmanand Saraswati and another v. Ramji Tripathi and another, supra, the Hon'ble Court held that when the right to the office of a trustee is asserted or denied and relief asked for on that basis, the suit falls out-side Section 92. In the very same decision, the Hon'ble Supreme Court observed that ?it is, no doubt, true that it is only the allegations in the plaint that should be looked into in the first instance to see whether the suit falls within the ambit of Section 92.? Admittedly, in the case on hand, the plain allegations really fall within the ambit of Section 92 of C.P.C.
46. Admittedly, in the case on hand, the trial Court had only considered as to whether the respondents 1 to 3 have made out a prima facie case for grant of leave and nothing beyond.
47. In Vidyodaya Trust v. Mohan Prasad and others, reported in (2008) 4 SCC 115, the Hon'ble Supreme Court held as follows:
?23. One of the factual aspects which needs to be highlighted is that the allegations which have been made against Respondents 2, 3 and 10 are referable to a decision taken by the Board, though may be by majority. The fundamental question that arises is whether allegations against three of them would be sufficient to taint the Board's decision. As was observed by this Court in Swami Paramatmanand case (1974) 2 SCC 695, to gauge whether the suit was for vindicating public rights, the Court has to go beyond the relief and to focus on the purpose for which the suit is filed. To put it differently, it is the object or the purpose for filing the suit and not essentially the relief which is of paramount importance. There cannot be any hard-and-fast rule to find out whether the real purpose of the suit was vindicating public right or the object was vindication of some personal rights. For this purpose the focus has to be on personal grievances.
24. On a close reading of the plaint averments, it is clear that though the colour of legitimacy was sought to be given by projecting as if the suit was for vindicating public rights the emphasis was on certain purely private and personal disputes.?
48. In Rani Thaiyal Nayagi Ammal Choultry v. S.Venkatesan, supra, the Single Judge of this Court held as under:
?19.When the reliefs in the Plaint are compared with the listed reliefs under Section 92(1) C.P.C., I could see that there is no relief sought for by the Plaintiffs in the Plaint vindicating the public interest. It is sheerly a private interest for declaration of the Plaintiffs as trustees and the action of the Defendants have been questioned personally for seeking such reliefs. ....
22. In view of the findings reached by this Court that there was no vindication of public right in the reliefs sought for by the Plaintiffs and therefore, the Suit filed by the Plaintiff would not be attracted by the provisions of Section 92, C.P.C. and the finding regarding the nature of the trust is not necessary to be gone into in this Revision. The Lower Court had elaborately discussed regarding the maintainability of the suit under Section 92, C.P.C. and had come to the conclusion that Section 92, C.P.C. is not applicable to the Suit filed by the Plaintiff. Therefore, I find no reasons to interfere with the orders passed by the Lower Court and therefore, the orders passed by the Lower Court in allowing the Application to revoke the leave granted to the Suit under Section 92, C.P.C. is confirmed.?
49. Admittedly, the petitioners have not established that there was a private interest involved in the suit. As rightly observed by the trial Court, there are materials to show that there were allegations and counter allegations against the petitioners and the respondents 1 to 3 with regard to the management and administration of the first petitioner Trust. In view of the same, the respondents 1 to 3 have right to file suit under Section 92 of C.P.C.
50. In R.Kannan Adityan and others v. B.S.Adityan and others, supra, a Division Bench of this Court held as under:
?27. The proposed plaint contains several serious allegations against the management of the trust. They are the matters to be established by evidence. If they are proved, there will be no doubt whatever that the first defendant is guilty of breach of trust. The prayer in the proposed plaint is to frame a scheme for the administration of the Trust, making provision for the number of trustees, the method of accounting, action to be taken for misconduct of trustees and such other matters as may be necessary for the proper administration of the Trust and also to consider whether or not the first defendant should continue as a trustee of the trust. Besides the above prayer, there is a prayer for directing the first defendant to render a true and proper account of the administration of the trust. The reliefs prayed for will fall within the scope of Section 92, Code of Civil Procedure.?
51. In the case on hand, one of the reliefs prayed in the suit, inter alia, is rendition of accounts qua the amounts collected and received and spent by defendants 2 to 12 therein on behalf of the first defendant trust. Therefore, the reliefs prayed for in the suit will squarely fall within the scope of Section 92 of C.P.C.
52. In Senguthar Charitable Trust v. R.Manickam and others, supra, the Single Judge of this Court held 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.?
53.It is settled that a proceeding under Section 92 of C.P.C. is administrative in character and neither judicial nor quasi-judicial. 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 who seek such leave. In any event, the nature of the proceedings is only administrative.
54. It is also settled that granting of leave primarily depends upon the allegations made in the plaint and/or petition seeking leave. Court could take prima facie view of bona fides of petitioner at the time of grant of leave and Court could refuse to grant leave if Court is satisfied that strong materials are available to show that the suit is vexatious.
55. As far as the allegations and counter allegations against each other, as stated supra, the veracity of the allegations and the counter allegations can be decided only at the time of trial. As rightly held by the trial Court that if the first petitioner was not run efficiently due to the power struggle between the two groups, certainly the object of the Trust i.e., to provide quality education, extra-curricular and social activities to students community would be defeated.
56. In Nadigar Sangham Charitable Trust v. S.Murugan @ Poochi Murugan, reported in (2013) 1 MLJ 433, this Court held:
? ...... The grant of leave does not essentially involve an adjudicatory process. The court should look into the averments and allegations in the plaint to arrive at a prima facie satisfaction that the suit would fall within the ambit of section 92 of C.P.C. The plaintiffs, who had produced prima facie materials in the form of plaint averments, has to demonstrate that the direction of the Court is necessary for the administration of the Trust. It is essentially for the Court to decide by taking a prima facie view of the matter as to whether the plaintiff has made out a case for grant of leave. The plaint averments regarding breach of trust would be primary material in arriving at a conclusion regarding prima facie case to grant leave.?
57. Considering the factual matrix involved in the case on hand and also considering the legal position, the trial Court was right in granting leave to the respondents 1 to 3 under Section 92 of C.P.C. to institute the suit. No valid grounds have been made out to interfere with the orders of the trial Court and the Civil Revision Petitions are liable to be dismissed.
58. In the result, both the Civil Revision Petitions are dismissed. No costs. Consequently, connected miscellaneous petitions are closed.
To The District Judge, Kanyakumari District @ Nagercoil.
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