Ashok Kumar Awasthi And Another vs Sri Morar Bhai Thakkar And 6 Others
2021 Latest Caselaw 11384 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 2							     Reserved
 
										A.F.R.
 
Case :- CIVIL REVISION No. - 139 of 2019
 

 
Revisionist :- Ashok Kumar Awasthi And Another
 
Opposite Party :- Sri Morar Bhai Thakkar And 6 Others
 
Counsel for Revisionist :- Harsh Vikram,Dharm Vir Jaiswal
 
Counsel for Opposite Party :- Hari Manish Bahadur Sinha
 

 
Hon'ble J.J. Munir,J.

1. In this case, Mr. H.M.B. Sinha, learned Counsel for the respondents has raised a preliminary objection in opposition to the motion to admit this revision to hearing. He says that this revision is not maintainable. Mr. Sinha submits that the order impugned is an order granting leave under Section 92 of the Code of Civil Procedure (for short, ''CPC'), which is revisable. According to him, it is almost an administrative order and a matter between the applicant for leave and the Court. Therefore, the revisionists, who are opposite parties nos.4 and 5 to the Application under Section 92 CPC, are not entitled to maintain this revision. They can contest the suit, that comes into existence upon grant of leave by the order impugned.

2. Reliance has been placed by the learned Counsel for the respondents upon the decision of the Supreme Court in Ghat Talab Kaulan Wala v. Baba Gopal Dass Chela Surti Dass (Dead) by LR Ram Niwas, (2020) 13 SCC 50 and particularly upon the decision of their Lordships of the Supreme Court in B.S. Adityan and others v. B. Ramachandran Adityan and others, (2004) 9 SCC 720.

3. Learned Counsel has also drawn the attention of this Court to a decision of our Court in Ambrish Kumar Singh vs. Raja Abhushan Bran Bramhshah and others, AIR 1989 All 194. Also, relied upon by the learned Counsel for the respondents, to say that this revision is not maintainable is the decision of the Madras High Court in G.R. Govindarajulu and Sons Charities, Coimbatore and 2 others v. R. Sethurao and 12 others, 1998 SCC OnLine Mad 292.

4. On the other hand, learned Counsel for the revisionists, Mr. Dharm Vir Jaiswal, has submitted that the objection as to maintainability is ill-founded. He submits that the general principle that an order granting leave under Section 92 CPC is not revisable may be true, but not in a case, where the grant of leave would amount to an abuse of process of Court. He particularly submits that relating to this trust an earlier suit being Original Suit no.8 of 1995, under Section 92 CPC was instituted by the revisionist, seeking to frame a scheme for the management of the trust and to appoint him a trustee. He has been appointed as the Chief Trustee by virtue of the decree dated 24.12.2001 passed in O.S. no.8 of 1995, which too is a class action with a judgment that binds all persons holding an interest in the instant public religious trust. The decree there has appointed the revisionist as the Chief Trustee and the Sarvarakar, besides Brahmadatt Mishra, Gyan Prakash, Vimal Chandra Awasthi and B.L. Narang as the other trustees.

5. In this background, if fresh leave under Section 92 CPC were granted, it would amount to a parallel invocation of the Court's jurisdiction under Section 92 CPC, where it has already been invoked and a scheme for the management of the trust is in force. If the respondents, who have applied for leave feel that the revisionists or the other trustees are abusing their office or mismanaging the affairs of the trust, they can apply to the Court that passed the decree dated 24.12.2001 in O.S. no.8 of 1995 to remove them and appoint other trustees, or may be for a modification of the scheme to manage the trust. In no case, however, leave could be granted afresh under Section 92 CPC in respect of same trust, where the said jurisdiction has been once exercised by the Court. The exercise of powers, therefore, is an utter abuse of process of Court and the impugned order deserves to be set aside.

6. I have considered the rival submissions. It is true that the power under Section 92 CPC in respect of the same trust is exerciseable once and is not to be invoked by a fresh suit over and over again. A decree under Section 92 is the result of a class action, where those who apply for leave and become plaintiffs represent a class of persons, all of whom are bound by the outcome. Once the Court frames a scheme or appoints a Board of Trustees, it is always open to one of the represented community or class to come forward and apply to the same Court to remove the trustees, about whom it can be shown that they are abusing their position or misusing the office or mismanaging the affairs of the trust. A modification of the scheme can also be made by the Court that has once exercised jurisdiction; and, depending on the circumstances obtaining a new scheme may also be framed. But, the question is whether a Revision again an order granting leave, even in the background of an existing decree relating to the same trust passed by the Court under Section 92 CPC, is maintainable. It is true that an order passed on an application under Section 92 CPC is not required to be an speaking order though it should disclose application of mind.

7. This Court in Mahant Sita Ram Das and another vs. Ram Chandra Arora and others, 1988 ALL. L.J. 259, held:

"4. It has now to be seen as to whether the District Judge while granting leave under section 92 C.P.C. has to pass a detailed speaking order. It is true that the order granting leave by the District Judge is a judicial order and should indicate that the District Judge applied his mind before granting leave. However, as rights of the parties are not affected, it is not necessary to pass detailed order but it would suffice if the order indicates that it has been passed by the District Judge after due application of mind."

8. Of particular relevance to the issue are the remarks of their Lordships of the Supreme Court in B.S. Adityan and others (supra), where it is said:

"9. ......... Although as a rule of caution, court should normally give notice to the defendants before granting leave under the said section to institute a suit, the court is not bound to do so. 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. 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 or even in the course of suit which may be established that the suit does not fall within the scope of Section 92 CPC. In that view of the matter, we do not think, there is any reason for us to interfere with the order made by the High Court."

9. In Ambrish Kumar Singh (supra), it was held by this Court, thus:

"11. So far as Section 92, Civil Procedure Code is concerned it does not contemplate of giving any notice to the proposed defendants before granting leave. However, it has been held by the decision of this Court reported in 1987 All LJ 369, Mahanth Gurmukh Das v. Bhupal Singh, that the proceedings under S.92, C.P.C. are judicial proceedings and the order of the District Judge is a judicial order. The Court should pass the order after hearing the defendants. It is not necessary to pass a detailed order. It is sufficient if the order indicates that it is the result of the due application of mind of the Judge. May be that he has not written very elaborate order which in my opinion it was actually not needed. There is application of mind. Moreover, I see no jurisdictional error or illegal exercise of jurisdiction."

10. The Madras High Court in Raju Pillai and others v. V. P. Paramasivan and others, AIR 1995 MAD 253 after an extensive review of authorities about the maintainability of a revision against an order granting leave under Section 92 CPC held:

"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 S. 115 of the Code of Civil Procedure is not maintainable."

11. Yet again, in the case of G.R. Govindarajulu and Sons Charities (supra), it has been held by the Madras High Court that a revision against an order granting leave is not maintainable. In the aforesaid decision, it has been held:

"15. In a recent decision of our High Court in Tirupattur Nagarathu Vysiyargal Sangam v. Tirupattur Periyakulam Nandavanam Inam Land tenants Association (1998 1 M.L.J. 303) Their Lordships held that the leave granted even without hearing the proposed defendant is not justifiable under Section 115 of the Code of Civil Procedure.

16. I also had an occasion to consider a similar question in Raju Pillai and 4 others v. V.P. Paramasivam and 7 others (1995 1 L.W. 518) wherein I have held that a revision under Section 115 of the Code of Civil Procedure or a revision under Article 227 of the Constitution of India is not maintainable.

17. In this connection, it is worthwhile to note that in all these decisions cited supra reference is made to the decision of Supreme Court in R.M. Narayana Chettiar v. N. Lakshmana Chettiar (A.I.R. 1991 S.C. 221 = 1990 2 L.W. 468) Their Lordships, in para 17 of the judgment have held that the grant of leave is a condition precedent against a public trust. Their Lordships further said that merely because notices were not given to the proposed defendents before the grant of leave, the leave granted will not become invalid or void. Likewise if no rreason in the order is given, that will not make the leave invalid and there is remedy in such cases. Their Lordships also held that grant of leave cannot be regarded as defeating or even seriously prejudicing any right of the proposed defendents 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.

18. Considering the case law, it cannot be doubted that this revision is not maintainable. The petitioners submitted that they have already filed an objection before Court and contested the application that the same should not be granted. Learned counsel apprehended that if there is already an order against them, it would prevent them from filing an application for revoking the leave.

19. "I do not think that such a submission is in any way correct. Learned Senior Counsel for the petitioner is invoking the principle of res judicata in the case. Once it is declared by the Supreme Court as well as by this Court that the order is administrative in character and same does not affect the rights of the parties, nor there is prejudice to the proposed defendant, there is no scope for application of res judicata in such cases". If any specific decision is required in that regard I would only refer to the decision in Simon v. Advocate General (1975 K.L.T 78) corresponding to A.I.R. 1975 Kerala - 38 which is followed in Kannan Adiyta's case cited supra.

27. In view of the declaration of law by this Court and the Supreme Court, leave alone is granted. After granting of leave, a suit is instituted. Thereafter the Court functions as a Court of law. At that time, the petitioners or any persons, who are also likely to be impleaded can very well bring to the notice of the Court that the leave was granted without taking into consideration the relevantt materials or that the principles settled for granting leave were not followed etc. and can apply to have the leave revoked. That power is given to the Court of law."

12. No doubt, the case here presents a background where this Court thinks that the decree passed in the earlier suit ought to be taken into account to judge, whether a subsequent suit also under Section 92 CPC relating to the same trust is at all maintainable, but that would not render the order granting leave under Section 92 CPC amenable to our revisional jurisdiction under Section 115 CPC. The reason is far too obvious. The impugned order does not decide any rights of parties and is made at the stage before the suit comes into being. Of course, it is open to the revisionist to apply for revocation of leave to the Court that has made the order impugned and if that application is made, the Trial Court would be bound to dispose of that application on merits before proceeding with the suit. So far as this revision goes, it is held to be not maintainable and liable to be dismissed as such.

13. This revision is, accordingly, dismissed as not maintainable. There shall be no order as to costs.

Order Date :- 26.11.2021

Anoop

(J.J. Munir, J.)

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