Allahabad High Court
Vinod Kumar Kapoor vs Sunil Kumar Kapoor And Others on 22 April, 2013
Bench: Sibghat Ullah Khan
HIGH COURT OF JUDICATURE AT ALLAHABAD
(Judgment reserved on 12.2.2013)
(Judgment delivered on 22.4.2013)
Court No. - 4
Case :- CIVIL REVISION No. - 35 of 2013
Petitioner :- Vinod Kumar Kapoor
Respondent :- Sunil Kumar Kapoor And Others
Petitioner Counsel :- Abhishek Mishra,Rahul Mishra
Respondent Counsel :- Sunit Daga
Hon'ble Sibghat Ullah Khan,J.
Heard Sri Rahul Mishra, learned counsel for the applicant and Sri Sumit Daga, learned counsel for respondent no. 2.
This revision is directed against order dated 13.12.2012 passed by A.D.J., Court no.10, Meerut in original suit no. 1 of 2004, Sunil Kumar Kapoor Vs. Vinod Kumar Kapoor and others which is a suit under Section 92 C.P.C.
Initially suit was filed by Sunil Kumar Kapoor and Raj Kumar Kapoor against Vinod Kumar Kapoor and Pramod Kumar Kapoor. (Vinod Kumar Kapoor is applicant in this revision, Pramod Kumar Kapoor is proforma respondent no.3). Permission had been granted by the District Judge Meerut to Sunil kumar Kapoor and Raj Kumar Kapoor to institute the suit under Section 92 C.P.C. Afterwards Raj Kumar Kapoor filed an application that he must be deleted from the array of the parties. Sri Sunil Kumar Kapoor filed an application that Devendra Kumar Katyal be added as plaintiff no.2. Through the impugned order learned A.D.J. allowed the application of Raj Kumar Kapoor and deleted him from array of the parties (as plaintiff no.2). The defendants had filed an application for dismissal of the suit on the ground that as one of the two plaintiffs i.e. Raj Kumar Kapoor had applied for withdrawal from the suit hence suit became incompetent as a suit under Section 92 C.P.C. can not be filed by only one person. Through the impugned order said application was rejected and the application of impleadment of Devendra Kumar Katyal as plaintiff no.2 was allowed.
Learned counsel for the applicant has cited an authority of the Supreme Court reported in Narain Lal Vs. Sunderlal Tholia AIR 1967 SC 1540 holding that sanction granted by Advocate General (in accordance with Section 92 C.P.C. as it stood before its amendment in 1976) is joint authority hence if sanction is given to several persons, suit by some of them is not competent. However, after amendment of Section 92 C.P.C. in 1976/77 the position has changed. Now instead of sanction of the Advocate General leave is to be granted by the Court itself. Accordingly, if leave is granted by court in favour of A and B then it may be modified by the court and A and C may be granted leave to continue the suit.
The other authority cited by the learned counsel for the applicant is reported in M G. Das V. Bhupal Singh 1987 AWC 233, holding that while granting permission to sue under Section 92 C.P.C. the court must prima facie be satisfied that the persons seeking permission/leave are interested in the trust. In the impugned order it is mentioned that defendants also admit that Devendra Kumar Katyal is also distant relation of late Smt. Kaushalya Devi who created the trust. The Court below placed reliance upon an authority of Kerala High Court reported in Krishna Pillai Vs. P Devaswom AIR 1983 Kerala (page 8). The facts of the said case were exactly similar with the facts of the instant case. In this regard reference may also be made to the authority reported in Rajesh Kumar Aggarwal Vs. K.K. Modi 2006 SC FBRC 368 cited by learned counsel for the respondent holding that developments taking place during pendency of suit relating to a trust must be permitted to be brought on record through amendment. Sri Devendra Kumar Katyal is related to Smt. Kaushalya Devi the executant/creator of the trust through marriage to a lady who was her descendant. Accordingly, it can not be said that he is complete stranger to the family. I therefore do not find any error in the impugned order. Consequently the Revision is dismissed.
Order Date :- 22.4.2013
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