Madras High Court
Maria Selvam vs V.S.Jeyapandi on 19 October, 2024
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
1 C.R.P.(MD)No.808 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 19.10.2024
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
C.R.P.(MD)No.808 of 2021 and
C.M.P.(MD)No.4374 of 2021
Rev.Fr.Savarimuthu (died)
1. Maria Selvam
2. Maria Christy ... Petitioners/ Respondents 2 & 3 /
Defendants 2 & 3
Vs.
1. V.S.Jeyapandi
2. P.Jerald Michael Raj
3. R.Jeyakumar ... Respondents / Petitioners /
Plaintiffs
PRAYER : Civil Revision Petition filed under Article 227 of the
Constitution of India, to set aside the order passed in I.A.No.14 of 2015
in unnumbered suit of 2015 on the file of the learned Principal District
Judge, Thanjavur dated 31.03.2021.
For Petitioners : Mr.T.A.Ebenezer
For Respondents : Mr.G.Karnan
***
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2 C.R.P.(MD)No.808 of 2021
ORDER
The respondents herein filed a suit under Order 7 Rule 1 read with
Section 92 of CPC for settling a scheme for administration of the Madha
Trust, Maruthanallur, Kumbakonam established under trust deed dated
22.12.1999. Since leave must be obtained for taking such a suit on file,
they filed I.A.No.14 of 2015. Notice was ordered. After hearing both
sides, the IA was allowed vide order dated 31.03.2021. Questioning the
same, this Civil Revision Petition has been filed.
2.The Interlocutory Application could not have been allowed for
two reasons. Firstly, Madha Trust had not been impleaded as one of the
respondents. Secondly, except making a bare averment in the plaint as
well as in the supporting affidavit that they are beneficiaries of the Trust,
the applicants have not shown as to how they are interested in the Trust.
3.The aforesaid issues go to the root of the matter and the
impugned order granting leave under Section 92 of CPC deserved to be
straighaway set aside. When I was about to do so, the learned counsel
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for the respondents submitted that my hands are tied since the Civil
Revision Petition itself is not maintainable. He contended that in a
catena of case laws, the Madras High Court has repeatedly laid down that
an order granting leave under Section 92 of CPC is merely an
administrative order and not a judicial order and that therefore it is not
amenable to challenge in exercise of jurisdiction either under Section 115
CPC or Article 227 of the Constitution of India.
4.It is true that in G.R.Govindarajulu & Sons Charities,
Coimbatore & 2 others Vs. V.R.Sethurao and 12 Others (1998 (2) CTC
65), it was held that granting of leave, though being exercised by the
Court, it is not by a Court of law, in the sense that the Court is
discharging its administrative function and not a judicial or quasi judicial
one. Section 151 of CPC also may not have any application. Hence a
revision is not maintainable against the order granting leave.
5.The aforesaid judgment has been followed in the following
cases:
“ (i) 2009 (1) CTC 416 (Anikadavu Madamanai
Lathekarar Kulam Sri Venkatesa Perumal Thirukovil
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Arakkattalai and Ors. Vs. K. Thandapani and Ors.)
(ii) 2009 SCC OnLine Mad 1821 (M.Azariah v.
T.D. Sundaravarathan)
(iii) 2010 SCC OnLine Mad 5618 (A.G.Syed
Mohideen Vs. Jayaram Educational Trust)
(iv) 2011 SCC OnLine Mad 52 (A.Vrishabados Vs.
P.Jayachandran)
(v) 2013 (4) CTC 566 (Sri. Aurobindo Ashram
Trust and Ors. Vs. S. Ramanathan and Ors.,)
(vi)MANU/TN/0966/2017 (Ottakoothar Charitable
Trust and Ors. Vs. V. Deivasigamani and Ors.).”
All the aforesaid orders are based on the ratio laid down by the Hon'ble
Division Bench of the Madras High Court in R.Kannan Adityan Vs.
B.S.Adityan ((1996) 2 LW 364).
6.The decision rendered in R.Kannan Adityan Vs. B.S.Adityan
((1996) 2 LW 364) was questioned in Civil.Appeal.Nos.12915 - 20 of
1996 and decided on 16.04.2024 (B.S.Adityan Vs. Ramachandran
Adityan (2004) 9 SCC 720). The appeals were dismissed. However, in
the judgment it was observed that while some High Courts have taken the
view that an order of granting permission under Section 92 of CPC is an
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administrative order, other Courts have taken the view that such an order
is liable to be judicially reviewed. The Hon'ble Supreme Court did not
endorse the ratio laid down in R.Kannan Adityan Vs. B.S.Adityan that
the order granting leave is administrative in character. On the other
hand, there is an observation in the judgment of Hon'ble Supreme Court
that in the normal course, if an appeal is filed against an order granting
permission to a party to file a suit under Section 92 of CPC, they would
not normally interfere with the same.
7.Swami Shivshankargiri Chella Swami Vs. Satya Gyan Niketan
(2017) 4 SCC 771 appears to strike a different note altogether. In that
case, the District Judge had granted leave under Section 92 of CPC. It
was questioned by filing revision petition under Section 115 of CPC.
The revision petition was allowed. The original applicants filed appeal
before the Hon'ble Supreme Court. The Hon'ble Supreme Court noted
that filing the plaint along with the leave application is a pre-requisite,
and since the plaint was not annexed, it held that the trial Court erred in
granting leave. The Hon'ble Supreme Court held that it was the statutory
duty of the Court to examine whether the plaint is annexed with
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application under Section 92 and commented that the High Court also
erred in neglecting this fact. The order of the High Court was not set
aside while disposing of the civil appeal. The Hon'ble Supreme Court
was cognizant of the distinction between an administrative order and
judicial order. Since it was satisfied in the facts and circumstances of the
case that the allegations made by the appellants deserved to be
determined by way of evidence in a special suit under Section 92, for the
ends of complete justice, the appellants were granted liberty to move
appropriate application in accordance with law. It directed that the civil
Courts having jurisdiction to entertain any suit are expected to carefully
examine an application filed under Section 92 of CPC. A careful study of
this decision leads me to the irresistible conclusion that the Supreme
Court impliedly endorsed the maintainability of Civil Revision Petition
against an order granting leave under Section 92 of CPC. This is evident
from the fact that the order of the High Court setting aside the order
granting leave was not interfered with.
8.At least three other Hon'ble High Courts have taken a view
contrary to G.R.Govindrajulu case. The Kerala High Court in 2012 (2)
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KHC 502 (Church of South India Vs. John), it was held that “to say
that the order allowing or declining leave under Section 92 of the Code
is an administrative order, which is not amenable to judicial review is
per se wrong”. When leave is granted, though such leave obtained is not
final and it is still open to challenge in the suit, the substantive rights of
the parties are being affected if not of the petitioners who seek such
leave, but, that of the adversary, which is called upon to face the
litigation, and, there is in fact an order deciding a case by the court which
is amenable to further challenge by way of revision or under Article 227
of the Constitution of India, as the case may be. It observed that the
grant of such leave under Section 92 CPC mechanically and solely based
on the allegations in the plaint without having any enquiry as to the real
object and purpose of filing the suit would have the consequence of
ripping open the insulation and protection given to the public trust from
being vexed and harassed by frivolous and vexatious suits.
9.The Karnataka High Court in Srimad Ujjaini Saddharma Vs.
Sri S S Patil (C.R.P.No.400 of 2021) expressly dissented from
G.R.Govindarajulu. It noted that the Division Bench decision in
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R.Kannan Adityan Vs. B.S.Adityan was appealed to the Supreme Court
and it concluded that if the judgment of the Hon'ble Supreme Court is
read, it can be seen that the Supreme Court did not lay down any ratio
that an order on an application under Section 92 of CPC is administrative
in nature. The Hon'ble Karnataka High Court then took note of the
decision rendered in (2006) 7 SCC 452 (Vidyodaya Trust Vs Mohan
Prasad R & Others) and held that though in the aforesaid decision of the
Hon'ble Supreme Court the distinction between administrative order and
judicial order was not considered, it was held that revision is
maintainable under Section 115 CPC.
10.The Hon'ble Orissa High Court in 2023 (II) ILR-CUT 497
(Kalinga Institute of Mining Engineering and Technology Trust
(KIMET), Chhendipada, Angul and Ors. Vs. Bipin Bihari Behera and
Ors.) had taken the view that an order passed under Section 92(1) of
CPC is a judicial order.
11.The 7 Judges Bench of the Hon'ble Supreme Court in SBP &
Co Vs Patel Engineering Limited (2005) 8 SCC 618 held that the power
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exercised by the Hon'ble Chief Justice of the High Court or the Hon'ble
Chief Justice of India under Section 11(6) of the Arbitration and
Conciliation Act, 1996 appointing an arbitrator is a judicial power and
not an administrative power. The majority Judges approvingly cited the
earlier decision reported in AIR 1965 SC 507 (Shankarlal Aggarwal and
Others Vs Shankar Lal Poddar & Others) to distinguish between an
administrative and judicial order. An administrative order would be one
which is directed to the regulation or supervision of matters as
distinguished from an order which decides the rights of parties or confers
or refuses to confer rights to property which are the subject of
adjudication before the Court. It was categorically held that in the case
of an administrative order, the discretion would involve purely subjective
consideration. If the discretion has to be exercised based on objective
considerations, it would be a judicial decision. The fact that the power is
wielded by a Court and that there is a lis involved are also relevant
considerations though not decisive. Applying the aforesaid tests, the
Hon'ble Supreme Court held that the power exercised under Section
11(6) of the Arbitration and Conciliation Act, 1996 is judicial and not
administrative. Though this decision has been statutorily superseded, the
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propositions laid down therein still hold good vide (N.N.Global
Mercantile (P) Ltd Vs. Indo Unique Flame Limited & Others) (2023) 7
SCC 1.
12.Adopting the same approach, one can easily conclude that the
power under Section 92 of CPC is judicial and not administrative.
Firstly, the power is wielded by the civil Court. Obviously, there is a lis
involved. Secondly, the civil Court has to exercise its discretion on
objective grounds as the matter involves the rights of parties. The
Division Bench Judgment in R.Kannan Adityan was put to challenge
before the Hon'ble Supreme Court. Leave was granted and judgment was
pronounced in Civil Appeal. Applying the doctrine of merger, it may not
be appropriate to rely on the ratio laid down in the Division Bench
judgment when the Hon'ble Supreme Court did not approve the same.
On the other hand, the decisions rendered in (2006) 7 SCC 452
(Vidyodaya Trust Vs Mohan Prasad R & Others) and (2017) 4 SCC 771
(Swami Shivshankargiri Chella Swami Vs. Satya Gyan Niketan) clearly
indicate that revision petition against an order granting leave under
Section 92 of CPC is maintainable.
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13.The Hon'ble Justice K.Puttaswamy (of Aadhar fame) in Church
of South India Trust Association Vs. Rev.D.I Ananda ((1980) SCC
OnLine Kar 218) observed as follows:
“13. An order refusing leave to two or more persons is
appealable to the Court to which an appeal would lie from
that Court (Vide Section 104(1)(ffa). But, an order granting
leave, though not appealable, is revisable by this Court
under Section 115 of the Code. An ultimate order made by
the High Court in a proceeding under Section 92 of the
Code, can be interfered by the Supreme Court either under
Article 133 or under Article 136 of the Constitution as the
case may be. An order that is subject to an appeal or
revision, can never be said to be an administrative order. By
any test, an order made under Section 92 of the Code is
clearly a judicial order and the learned District Judge in
holding to the contrary and dealing with the application on
that basis, has committed an illegality or material
irregularity affecting his jurisdiction.”
14.Unless it is held that an aggrieved party can question an order
granting leave by filing revision petition, a fundamental error committed
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by the Court below cannot be corrected at the earliest stage. There is no
merit in the contention that a revocation petition can be filed later. Most
often leave petitions are disposed of after giving notice. In this case also
the respondents were put on notice and leave was granted only after
enquiry. I fail to understand as to how a petition for revoking leave can
be filed later before the same Court. The Hon'ble Division Bench in the
decision reported in AIR 1988 MADRAS 1 (S.Guhan Vs Rukmini Devi
Arundale) categorically held that in a suit under Section 92 CPC the
Trust is a necessary party and if it is not impleaded as a party to the
proceeding, the suit deserves to be dismissed. In the present case, Madha
Trust which is a necessary party had not been impleaded as a party. The
Hon'ble Kerala High Court in the decision reported in 2012 (2) KHC 502
(Church of South India Vs. John) held that the interest contemplated
under Section 92 of the Code must be a real, substantive and existing
interest in the particular Trust. Whether a person has got such an interest
to maintain an action under Section 92 of the Code seeking leave for
institution of such suit has to be determined on the basis of evidence and
also with reference to the allegations raised in the draft plaint produced
with the application of leave. The interest in the administration of the
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charitable Trust must be of their own and not of some others (vide AIR
1924 PC 221(2). In the present case, the affidavit filed in support of
I.A.No.14 of 2015 seeking leave is bald. The Court below had
committed a basic error in overlooking these two aspects. The very
purpose of conferring supervisory jurisdiction under Article 227 of the
Constitution on the High Court is to correct the egregious errors
committed by the Courts below so that they can be kept within their
bounds. In this case, the learned trial Judge had observed that when the
Trust in question is a public Trust, any person who is having an interest
and anguish over the fair running of public Trust can institute a suit
under Section 92 of CPC. This is a clear misconception and
misapplication of the statutory provision. If such a grave error
committed by the Court below cannot be corrected in exercise of
revisional jurisdiction, then there is no purpose or meaning in conferring
revisional and supervisory jurisdiction on the High Court.
15.For these reasons, I have respectfully taken a contra stand and
hold that the order granting leave under Section 92 of CPC is a judicial
order and not an administrative order and that it is amenable to revisional
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jurisdiction. I have not chosen to make a reference for constitution of a
larger bench only for the reason that the view I have taken is supported
by the approach of the Hon'ble Supreme Court. I also derive strength
from the fact that when G.R.Govindarajulu was decided, the judgment in
the appeal against R.Kannan Adityan had not been rendered. Secondly,
the test laid down in SBP & Co Vs Patel Engineering had not been
applied by any of my esteemed colleague Judges.
16.The order impugned in this Civil Revision Petition is set aside.
This Civil Revision Petition is allowed accordingly. Consequently,
connected miscellaneous petition is closed.
19.10.2024
Index : Yes/No
Internet : Yes/No
NCC : Yes/No
PMU/MGA
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G.R.SWAMINATHAN,J.
PMU/MGA
To
The Principal District Judge,
Thanjavur.
C.R.P.(MD).No.808 of 2021 and
19.10.2024
https://www.mhc.tn.gov.in/judis
