Orissa High Court
Kalinga Institute Of Mining ... vs Dr. Bipin Bihari Behera And Others on 25 May, 2023
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Signed by: SASANKA SEKHAR SATAPATHY
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Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 26-May-2023 11:59:58
HIGH COURT OF ORISSA: CUTTACK
CRP No. 3 of 2019
(A revision under Section 115 of the Civil Procedure Code, 1908)
****
Kalinga Institute of Mining Engineering ... Petitioners
and Technology Trust (KIMET),
Chhendipada, Angul and another
-versus-
Dr. Bipin Bihari Behera and others ... Opp. Parties
Advocate for the parties
For the Petitioners : Mr. Amit Prasad Bose, Advocate
For Opposite Party
Nos. 1 to 6 : Mr. Banshidhar Baug, Advocate
For Opposite Party
Nos. 8 and 9 : Mr. Swayambhu Mishra, ASC
Date of Judgment : 25.05.2023
CORAM:
JUSTICE KRUSHNA RAM MOHAPATRA
JUDGMENT
KRUSHNA RAM MOHAPATRA, J.--
1. This matter is taken up in hybrid mode.
2. Judgment dated 14th March, 2019 (Annexure-4) passed in
CMA No. 25 of 2017 is called in question in this CRP, whereby
learned District Judge, Angul allowed an application under Section
92(1) of the Code of Civil Procedure, 1908 (for brevity 'CPC')
CRP No.3 of 2019
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Designation: SECRETARY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 26-May-2023 11:59:58
granting leave to Opposite Party Nos.1 to 6 to institute the suit
against the Petitioner No.1-Trust.
3. The Petitioner No.1-Trust was created by executing Trust
Deed registered on 22nd August, 1989 on the terms and conditions
more-fully described therein. The Trust was created for purpose of
establishing an educational institution at Chhendipada for
imparting education in different disciplines of Diploma in
Engineering for the betterment of the local students, who face
difficulty to pursue their study due to lack of funds and availability
of seats. Accordingly, Kalinga Institute of Mining Engineering and
Technology (KIMET) (for brevity 'Institution') was founded.
After few years of creation of such Trust as well as foundation and
establishment of Institution, dissension arose amongst the Trustees.
There were allegations of mismanagement of the Trust and
Institution. The Petitioner No.2, who is managing the Trust,
allegedly misappropriating funds of the Trust as well as institution.
He has also inducted trustee at his own will without following the
provisions of Bye-law. Hence, the villagers, namely, Opposite
Party Nos.1 to 6, who have purported interest in the Trust filed an
application under Section 92(1) C.P.C. seeking leave to file the suit
being accompanied by the proposed plaint. The Opposite Party
Nos.1 to 6 in the proposed plaint sought for the following relief:-
"(1) Let an order be passed removing the Defendant
No.2 (Petitioner No.2) from the trusteeship of Defendant No.1-
Trust i.e. Kalinga Institute of Mining Engineering and
Technology Trust;
(2) Let an order be passed declaring the appointment
of Defendant No.3 as substituted trustee of Defendant No.1-
Trust is illegal and void ab initio; or
In the alternative, let an order be passed removing the
Defendant No.3 from the trusteeship of Defendant No.1-Trust.
CRP No.3 of 2019
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(3) Let an order be passed directing the Defendant No.
No.2 to render accounts of the trust property and income
received by him at different time.
(4) Let an order be passed appointing a new Board of
Trustees for proper administration and management of
Defendant No.1-Trust and Defendant No.4-Institution.
(5) Let an order be passed setting a scheme for proper
administration and management of the KIMET Trust, its
property and KIMET Institution.
(6) Let such further or other reliefs be granted in
favour of Plaintiffs as your Hon'ble Court deems fit and proper
to do complete justice in this case."
The application under Section 92(1) of the C.P.C. was registered as
CMA No. 25 of 2017 on the board of learned District Judge,
Angul. Upon receipt of the application, notices were issued to the
Petitioners along with other Opposite Parties therein. Learned
District Judge, Angul vide judgment under Annexure4 allowed the
said application granting leave to the Opposite Party Nos.1 to 6 to
file the suit as proposed against the Petitioners and Opposite Party
Nos.7 to 9. As such, the Petitioners, who are arrayed as Defendant
Nos.1 and 2 in the suit, being aggrieved by the said order under
Annexure-4, have filed this CMP.
4. Mr. Bose, learned counsel for the Petitioners submitted
that the Institution is a private Engineering School managed by
KIMET Trust (for brevity, 'Trust'), wherein the Petitioner No.2 is
one of the founder trustees and Chairman of the Trust Board. The
said Institution has been affiliated to All India Council for
Technical Education, New Delhi (AICTE). The Institution was
established in the year 1989 at Chhendipada in the district of
Angul for imparting technical education in different branches of
Diploma in Engineering, such as Civil, Electrical, Mechanical,
Computer Science and Mining etc. There were seven trustees of
CRP No.3 of 2019
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Location: HIGH COURT OF ORISSA CUTTACK
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the Trust Board. Litigations with regard to constitution and
continuance of the Trust Board was under challenge in Civil Court.
Ultimately, it came to an end by judgment dated 18th November,
2014 passed by this Court in RSA No.47 of 2007 confirming the
judgment passed by learned trial Court as well as appellate Court.
Thus, the validity of the constitution and continuance of the Trust
Board has already been set at rest, wherein, the Petitioner No.2 is
one of the trustees. Although the judgment passed in RSA No.47
of 2007 was sought to be assailed before the Hon'ble Supreme
Court in SLP (Civil) No.35678 of 2014, but it was dismissed vide
order dated 6th January, 2015.
4.1 During pendency of the Civil Suit as well as appeal before
this Court, the Collector, Angul was appointed as receiver to
manage the affairs of the Institution, but in view of the judgment
passed by this Court in RSA No.47 of 2007, the Collector, Angul
handed over the entire management of the Institution to the
Petitioner No.2 on 15th January, 2015. As such, the Petitioner No.2
being the Managing Trustee is in management of both the Trust
and the Institution since then. One Gobinda Chandra Nayak was
also the member of the Trust Board, which is declared to be a valid
one by this Court in RSA No.47 of 2007.
4.2 Pursuant to the judgment passed by this Court in the
aforesaid appeal, the Collector, Angul issued notice to Petitioner
No.2 as well as said Gobinda Chandra Nayak to take over the
charge of management of the Institution as well as the Trust, but
said Govinda Chandra Nayak did not respond to the same.
Ultimately, Gobinda Chandra Nayak died on 26th September,
CRP No.3 of 2019
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Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 26-May-2023 11:59:58
2017 and after his death, the Petitioner No.2 being the sole
surviving trustee inducted one Somya Ranjan Pandit (Proforma
Opposite Party No.10) as one of the members of the Trust Board.
Said induction is made as per the provisions of the Bye-law of the
Trust. Thus, at present, there are two trustees in the Trust Board,
namely, the Petitioner No.2 and Proforma Opposite Party No.10.
4.3 The Governing Body of the Institution has been
constituted as per the norms of AICTE and the Petitioner No.1 has
been approved as Chairman of the said Governing Body by the
State Government, vide its order dated 31st January, 2015. When
the matter stood thus, the Opposite Party Nos.1 to 6, who are
complete strangers and have no locus standi in the management of
either the Trust or the Institution, made several communications to
different authorities, which was against the interest of both Trust
and Institution. In furtherance of their attempt to defame and
paralyze the Trust as well as the Institution, they moved learned
District Judge, Angul in CMA No. 25 of 2017 under Section 92(1)
CPC read with Section 151 CPC with a prayer to grant leave to
institute a suit against the Trust Board. A draft plaint was also
enclosed to the said petition with the afore-quoted prayers.
4.4 Upon receipt of such application, notices were issued to
the Opposite Parties therein including the Petitioners, who entered
appearance and filed their objection, questioning the
maintainability of the said CMA. It was specifically stated therein
that the CMA is not maintainable for non-compliance of the
provisions under Order I Rule 8 CPC. In view of the judgment
passed in RSA No.47 of 2007, the issue with regard to constitution
CRP No.3 of 2019
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Signed by: SASANKA SEKHAR SATAPATHY
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Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 26-May-2023 11:59:58
of the Trust Board cannot be re-opened as it has already been set at
rest. The dispute raised in the CMA does not come under the
purview of Section 92(1) CPC, as the Trust is neither charitable
nor a religious one. Rather, the Trust has been created to impart
technical education, which is a Public Trust. The case laws relied
upon by the Petitioners in the objection was not taken into
consideration by the learned District Judge. The description of the
Petitioners in the District Court was also misleading. Although the
Opposite Party Nos.1 to 6 claimed to be the representatives of the
villagers of Chhendipada but there is no consent of the villagers
before filing of the application under Section 92 (1) CPC. As such,
they have no locus standi to maintain such an application.
4.5 Learned District Judge, without taking note of such
objection raised, as aforesaid, allowed the application by order
under Annexure-4, which is not sustainable in the eye of law.
Learned District Judge, while adjudicating the petition, has not
followed the basic principles for adjudication of petition under
Section 92(1) CPC. As such, the impugned order is not sustainable
and is liable to be set aside. It is his submission that there is no
finding in the impugned order to the effect that the Trust is
charitable or religious in nature. This being the basic requirement
to entertain an application under Section 92(1) CPC, learned
District Judge has erred in law in allowing such application
granting leave to Opposite Party Nos.1 to 6 to institute a suit
against the Petitioners as well as Opposite Party No.10. He,
therefore, prayed for setting aside the order under Annexure-4,
CRP No.3 of 2019
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Signed by: SASANKA SEKHAR SATAPATHY
Designation: SECRETARY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 26-May-2023 11:59:58
reserving his right of reply to the submission to be made by
learned counsel for Opposite Party No.1 to 6.
5. Mr. Baug, learned counsel for the Opposite Parties 1 to 6
although admitted execution of the Trust Deed and initial
constitution of the Trust Board with seven Trustees, but seriously
disputed continuance of Petitioner No.2 as a Trustee of the Trust
Board and induction of Opposite Party No.10 as a Trustee. It is his
submission that the object of creation of the Trust as stated in the
Trust deed itself clearly stipulates that it is a public charitable Trust
to impart technical education in diploma engineering courses to the
poor students of Chhendipada as most of the students due to lack
of funds and non-availability of seats are not able to prosecute
diploma engineering course in different disciplines. He further
submitted that the Petitioner No.2 was one of the members of the
Trust, but due to his highhandedness not only founder of the Trust
late Purna Chandra Pradhan but also some other Trustees resigned
from the Trust. Few of them also expired in the meantime. The
Petitioner No.2 has inducted Proforma Opposite Party No.10 as a
member of the Trust Board, who is none other than his driver. As
the public of Chhendipada donated funds and their lands for
establishment of the institution they have interest in the
functioning of the Trust as well as the Institution. As such, the
Opposite Party Nos.1 to 6 have locus standi to institute a suit
against the Trust. Learned District Judge, while adjudicating the
matter, has taken note of the averments and relief sought for in the
proposed plaint, trust deed, Bye-laws, petition under Section 92
CPC as well as objection filed by the Petitioner No.2. Learned
CRP No.3 of 2019
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Designation: SECRETARY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 26-May-2023 11:59:58
District Judge also took note of the fact that due to action of
Petitioner No.2, the Institution has been put in 'no admission
category', which has seriously affected the people of Chhendipada,
more particularly the poor students who were intending to pursue
their studies.
5.1 It is his submission that the impugned order under
Annexure-4 being an administrative order no revision under
Section 115 CPC is maintainable. The impugned order cannot be
placed in the category of 'case decided'. Thus, Section 115 CPC is
not attracted in the instant case. No prejudice has been caused to
the Petitioners, more particularly the Petitioner No.2, in view of
leave granted to institute the suit. In support of his submission to
the effect that the order impugned herein is an administrative one,
Mr. Baug, learned counsel for Opposite Party Nos.1 to 6 relied
upon the decision in the case of Kintali China Jaganadham and
others Vs. K. Laxmi Naidu and others, reported AIR 1988 Orissa
100, in para-8 of which it has been held as under:-
"8. ....... The consensus of opinion amongst the High Courts is
that the jurisdiction of the Court under S. 92(1) while granting
leave is administrative in nature and notice on the other side
need not be issued. But, the Court must give reasons for its
decision either granting or refusing leave....."
In the case of R. M. Narayana Chettiar and Anr. Vs.
N.Lakshmanan Chettiar and others, reported in (1991) 1 SCC 48,
at para-11 of which it has been held as under;-
"11. In Prithipal Singh v. Magh Singh [AIR 1982 P & H
137 : 1982 Rev LR 48] a learned Single Judge of the Punjab
and Haryana High Court held that the grant of leave to file a
suit is not a mere irregularity which can be cured but is a
condition precedent. The provisions of Section 92 are
mandatory in nature in that respect. He further held that in
CRP No.3 of 2019
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Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 26-May-2023 11:59:58
granting leave under Section 92 of the Code, the court does not
have to write a reasoned order. It does not even have to give a
notice to the defendant of an application for leave to file a suit
as the order granting leave is of an administrative nature. The
same view was taken by a Division Bench of the Punjab and
Haryana High Court in Lachhman Dass Udasi v. Ranjit
Singh [AIR 1987 P & H 108 : (1986) 2 Rent LR 505 : (1986) 2
HLR 364] wherein it was held that no notice is necessary to be
issued to the defendants prior to the granting or refusing of
leave under Section 92 of the Code as at that stage it is only the
subjective satisfaction of the court that is required and, thus, the
order is an order of administrative nature."
It is categorically stated that the order under section 92 being
administrative in nature, no civil revision is maintainable against
the said order.
5.2 He, therefore, submitted that Civil Revision under Section
115 CPC is not maintainable.
5.3 He also raises an objection to maintainability of the Civil
Revision submitting that the impugned order does not come under
the category of the 'case decided'. Section 115 CPC (as amended)
provides that the District Judge or the High Court, as the case may
be, may call for the record of any case, which has been decided by
any Court subordinate to it in which no appeal lies subject to
satisfaction of other requirements of the said Section. In the instant
case, Sub-Clause (a) and (b) of Sub-section (1) of Section 115
CPC are not at all attracted since learned District Judge has
jurisdiction to entertain an application under Section 92 (1) CPC
and to decide the same. Sub-clause (c) of Sub-section (1) provides
that a revision may be maintainable, if the Court subordinate while
passing the impugned order has exercised its jurisdiction illegally
or with material irregularity. Thus, in all events, the revision
Petitioner must satisfy the Court that the impugned order has
CRP No.3 of 2019
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Designation: SECRETARY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 26-May-2023 11:59:58
decided a case. As decided by various High Courts as well as
Hon'ble Supreme Court that while granting leave to institute a suit
under Section 92 CPC, the District Judge does not adjudicate the
right of the parties. Learned District Judge only records a prima
facie finding as to its satisfaction for granting or refusing to grant
leave to file a suit. In the case of Baldevdas Shivlal and another
Vs. Filmistan Distributors (India) P. Ltd. And others , reported in
(1969) 2 SCC 201, Hon'ble Supreme Court has explained the 'case
decided' as follows:-
"11. ...The expression "case" is not limited in its import to the
entirety of the matter in dispute in an action. This Court
observed in Major S.S. Khanna v. Brig. F.J. Dillon [(1964) 4
SCR 409] that the expression "case" is a word of
comprehensive import: it includes a civil proceeding and is not
restricted by anything contained in Section 115 of the Code to
the entirety of the proceeding in a civil Court. To interpret the
expression "case" as an entire proceeding only and not a part
of the proceeding imposes an unwarranted restriction on the
exercise of powers of superintendence and may result in certain
cases in denying relief to the aggrieved litigant where it is most
needed and may result in the perpetration of gross injustice. But
it was not decided in Major S.S. Khanna case [(1964) 4 SCR
409] that every order of the Court in the course of a suit
amounts to a case decided. A case may be said to be decided, if
the Court adjudicates for the purposes of the suit some right or
obligation of the parties in controversy; every order in the suit
cannot be regarded as a case decided within the meaning of
Section 115 of the Code of Civil Procedure."
(emphasis supplied)
In the case of Ambrish Kumar Singh Vs. Raja the Abhushan
Bran Bramhsah and others, reported in AIR 1989 Allahabad 194,
it is held as under:-
"10. Section 92, C.P.C. was amended by the Code of
Civil Procedure (Amendment) Act, 1976. Before this amendment
suit could be filed either by the Advocate-General or two or
more persons having interest in the trust and having obtained
consent in writing of the Advocate-General. After the
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Location: HIGH COURT OF ORISSA CUTTACK
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amendment the words "the consent in writing of the Advocate-
General" were substituted by the words "leave of the court."
While granting leave the court does not decide the rights of the
parties. No right is adjudicated at this stage. The Court has
merely to see whether there is a prima facie case for granting
leave to file a suit. This order does not in any way affect the
final decision which will be given on merit after the parties have
led evidence in the suit."
The Karnataka High Court, in the case of Ranganatha Swamy and
others Vs. K. V. Ramesh kumar and others, reported in 2000
AIHC 3834, discussing the case law in Charan Singh Vs.
Darshan Singh, reported in AIR 1975 SC 371, Pragdasji Vs.
Ishwarlala Bhai, AIR 1952 SC 143 and 55 Indian Appeals 96
(Privy Council), observed as under:-
"13. ........So if prima facie plaint allegations show the case to
be covered by Section 92 CPC the Court can grant the
permission. The plea of the defence is not to be looked and
considered at that stage. It means that no right of the parties
which right is lawfully pleaded in the suit or agitated or in
contested in the suit is decided by the granting of the leave,
those questions are yet open to be decided and, as such order
granting the leave cannot be said to decide the rights of the
parties inter se and when no rights of the parties inter se have
been decided, order also cannot be said to amounts to a case
decided."
Mr. Baug, learned Counsel also relied upon the decision of the
Madras High Court in the case of Raju Pillai and others Vs. V. P.
Paramasivan and others reported in AIR 1995 Madras 253, which
lays down the ratio as under;-
"25. ........ 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
CRP No.3 of 2019
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Signed by: SASANKA SEKHAR SATAPATHY
Designation: SECRETARY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 26-May-2023 11:59:58
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."
He, therefore, submits that on a conspectus of the aforesaid case
laws, it can be safely held that while granting the application under
Section 92 (1) CPC, the Court need not go into the details of the
contentions of the parties. It has to see, on application of mind, and
record a prima facie finding that the ingredients of Section 92 (1)
CPC are satisfied. Thus, the Court entertaining an application
under Section 92(1) CPC does not delve into the issue of rights of
the parties involved in the proposed suit. Thus, an order granting
leave to file a suit under Section 92 CPC does not decide a case.
As such, the Civil Revision assailing the impugned order under
Annexure-4 is not maintainable and is liable to be decided.
6. Replying to the submissions made by Mr. Baug, learned
counsel for Opposite Party Nos.1 to 6, Mr. Bose, learned counsel
for the Petitioners submitted that the case law in the case of Raju
Pilai (supra) does not state that a revision would not be
maintainable against an order passed under Section 92 (1) CPC. At
para-25 of the said case law, it has only been held that if rights of
the parties are not affected, no revision would be maintainable, as
it is not a 'case decided'. He also submitted that other case laws
relied upon by learned counsel for Opposite Parties 1 to 6 do not
specifically lay down that a revision would not be maintainable
against an order passed under Section 92(1) CPC.
6.1 The contention of learned counsel for the Petitioners that
no notice is required to be issued to the Opposite Parties while
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Signed by: SASANKA SEKHAR SATAPATHY
Designation: SECRETARY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 26-May-2023 11:59:58
adjudicating a petition under Section 92(1) CPC is not sustainable,
inasmuch as no leave is required if a Trustee sues against the trust,
but persons interested intending to file a suit against a Trust have
to seek leave under Section 92(1) CPC to sue the Trust. Although
the Opposite Parties claimed that the Trust to be a public charitable
one, but no satisfactory material was placed on record in support of
the same. The word 'charitable' means a trust created for the
benefit of certain section from whom nothing is taken in return.
Neither the trust deed nor the Bye-law reflects that Trust is
charitable one and the purpose of creation of a trust would be
achieved without receiving anything in return. Neither the Trust
deed nor the Bye-law states that the students will be imparted
education free of cost. Thus, the Trust being not a charitable one,
Section 92 CPC is not attracted.
6.2 Mr. Bose, learned counsel for the Petitioners further
submitted that in order to opine prima facie that leave should be
granted the Court must specifically state that the Trust is created
for public charitable purpose. Merely observing that the Trust was
created for noble purpose, i.e., for poor students and there is in-
fight among the Trust members putting the institution in no
admission category will not suffice the requirements of Section 92
CPC. Thus, leave could not have been granted. While granting
leave under Section 92 (1) CPC, the Trust and its Trustees have a
right to be heard. Thus, by no stretch of imagination, it can be held
that the revision would not be maintainable. A party should not go
remediless, if he is aggrieved by any order of a Court subordinate.
Thus, revision under Section 115 CPC is maintainable, more
CRP No.3 of 2019
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Signed by: SASANKA SEKHAR SATAPATHY
Designation: SECRETARY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 26-May-2023 11:59:58
particularly when the order impugned is not appealable one and it
would have disposed of the entire proceeding, had the impugned
order been passed in favour of the revision petitioners. As such, the
Court should exercise the power under Section 115 CPC to
examine as to whether the impugned order is an outcome of
flagrant miscarriage of justice or the Court has exceeded its
jurisdiction or has failed to exercise its jurisdiction while
entertaining the application under Section 92(1) CPC. As such, the
impugned order is liable to be set aside.
7. Upon hearing learned counsel for the parties at length and
on a close scrutiny of materials on record, this Court frames the
following points for its adjudication.
i) Whether the revision in its present form is
maintainable? and
ii) If so, whether the impugned order is
sustainable in the eye of law?
8. In order to answer the point (i), this Court went through
the ratios decided in the case of Kintali Chinna Jagannathm
(supra) in which it is held that an order granting leave under
Section 92(1) CPC is administrative in nature and notice on the
other side need not be issued. In the case of Ambarish Kumar
Singh (supra), Allahabad High Court at Para-10 observing that
while granting leave no right of the parties is decided proceeded to
hold at Para-11 that proceeding under Section 92 CPC are judicial
proceedings and the order of the District Judge is a judicial order.
Thus, the Court should pass the order after hearing the Defendants.
The issue as to whether leave granted under Section 92(1) CPC is
an administrative or judicial order, has significance for answering
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Signed by: SASANKA SEKHAR SATAPATHY
Designation: SECRETARY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 26-May-2023 11:59:58
this point. Admittedly, learned District Judge, Angul was moved
under Section 92 (1) CPC for grant of leave for institution of the
suit. The moment an application under Section 92(1) is filed, a
judicial proceeding is set in motion before the District Judge. In
course of adjudication, learned District Judge examines by
application of mind as to whether the ingredients of Section 92 (1)
CPC is satisfied in the petition or not. Although Rule 431 of
GRCO (Civil), which provides list of miscellaneous judicial cases,
does not include an application under Section 92(1) CPC, but the
provision is inclusive in nature in view of the language used
therein to the extent that '...... and it is intended that such other
case, only as required a judicial enquiry or order should be
included.......'. In the case of R. M. Narayana Chettiar (supra),
Hon'ble Supreme Court at para-18 observed as under:-
"17. ..... Having in mind the objectives underlying
Section 92 and the language thereof, it appears to us that,
as a rule of caution, the court should normally, unless it is
impracticable or inconvenient to do so, give a notice to the
proposed defendants before granting leave under Section
92 to institute a suit. The defendants could bring to the
notice of the court for instance that the allegations made
in the plaint are frivolous or reckless. Apart from this, they
could, in a given case, point out that the persons who are
applying for leave under Section 92 are doing so merely
with a view to harass the trust or have such antecedents
that it would be undesirable to grant leave to such
persons. The desirability of such notice being given to the
defendants, however, cannot be regarded as a statutory
requirement to be complied with before leave under
Section 92 can be granted as that would lead to
unnecessary delay and, in a given case, cause
considerable loss to the public trust. Such a construction
of the provisions of Section 92 of the Code would render it
difficult for the beneficiaries of a public trust to obtain
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Signed by: SASANKA SEKHAR SATAPATHY
Designation: SECRETARY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 26-May-2023 11:59:58
urgent interim orders from the court even though the
circumstances might warrant such relief being granted.
Keeping in mind these considerations, in our opinion,
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. The
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."
(emphasis supplied)
In this case, the question as to whether the Petitioners should have
been given an opportunity or not before granting leave under
Section 92(1) CPC is not in issue as notices have been issued to the
Petitioners and they have contested the petition for grant of leave.
8.1 A close reading of Section 92 CPC also does not suggest
that a proceeding under Section 92(1) will be an administrative
one. Though a proceeding under Section 92(1) CPC is not strictly
an adversarial one, but the language of R. M. Narayana Chettiar
(supra) makes it obligatory on the Court to issue notice to the
proposed Defendants to avoid frivolous and reckless litigation
against a Trust. Thus, as held in Ambarish Kumar Singh (supra),
a proceeding under Section 92(1) CPC is a judicial proceeding and
the order passed on such an application is a judicial order. Further,
by way of amendment of CPC, Clause (ff-a) has been inserted in
Section 104 (1) CPC providing an appeal against an order refusing
to grant leave under Section 92(1) CPC. This Court, in the case of
Kintali China Jagatham (supra), while holding that the leave
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Designation: SECRETARY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 26-May-2023 11:59:58
granted under Section 92(1) CPC is administrative in nature, did
not assign any reason thereto. It only observed that the consensus
of opinion of the High Courts is that jurisdiction of the Court under
Section 92(1) is administrative in nature. Hence, it cannot be
treated to be a precedent. Hon'ble Supreme Court in
R. M. Narayana Chettiar (supra), although referred to the case of
Prithipal Singh v. Magh Singh (AIR 1982 P & H 137), wherein,
it is held an order under Section 92(1) to be administrative in
nature, but did not record any finding on the same and opined that
it is obligatory on the part of the Court entertaining such
application to issue notice to the proposed Defendants. Hence, the
proposed Defendants including the present Petitioners are required
to be heard in the matter before taking a decision on the petition
filed under Section 92(1) CPC and thus an order passed under
Section 92(1) of CPC is a judicial order.
9. The next question that arises as to whether a revision lies
against an order passed under Section 92(1) CPC.
9.1. It is contented by Mr. Baug, learned counsel for Opposite
Party Nos.1 to 6 that by granting leave to file a suit, no right of the
parties, is decided. Thus, it cannot be said to be a 'case decided'.
As such, a revision under Section 115 CPC will not be
maintainable. In the case of Major S.S. Khanna v. Brig. F.J.
Dillon, reported in AIR 1964 SC 497, it has been held as under:-
"6. The section consists of two parts, the first prescribes the
conditions in which jurisdiction of the High Court arises i.e.
there is a case decided by a subordinate Court in which no
appeal lies to the High Court, the second sets out the
circumstances in which the jurisdiction maybe exercised. But
the power of the High Court is exercisable in respect of "any
case which has been decided". The expression "case" is not
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Designation: SECRETARY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 26-May-2023 11:59:58
defined in, the Code, nor in the General Clauses Act. It is
undoubtedly not restricted to a litigation in the nature of a suit
in a civil court: Balakrishna Udayar v. Vasudeva Aiyar [LR 44
IA 261]; it includes a proceeding in a civil court in which the
jurisdiction of the Court is invoked for the determination of
some claim or right legally enforceable."
In the case of Baldevdas Shivlal (supra), Hon'ble Supreme Court
discussing the ratio in the case of Major S.S. Khanna (supra),
held that 'to interpret the expression "case" as an entire
proceeding only and not a part of the proceeding, imposes an
unwarranted restriction on the exercise of power of
superintendence and may result in certain cases in denying a relief
to the aggrieved litigant, where it is most needed and may result in
perpetration of gross injustice'. Thus, the 'case decided' must not
be looked through a narrow compass. It should be given a broader
meaning. In the instant case, a right of the parties, i.e., Opposite
Party Nos.1 to 6 to institute a suit was being considered by learned
District Judge. Thus, the impugned order squarely falls within the
definition of 'case decided'. Sub-section (2) of Section 115 CPC
clearly provides that 'the High Court or the District Court, as the
case may be, shall not under this section, vary or reverse any
order, including an order deciding an issue, made in the course of
a suit or other proceedings, except where the order, if it had been
made in favour of the party applying for revision, would have
finally disposed of the suit or other proceedings'. Rejection of an
application under Section 92(1) CPC would have resulted in
disposal of the said proceeding itself. Thus, the case of the
Opposite Party Nos.1 to 6 squarely falls under Section 115 (2)
CPC. Section 104 (1) (ff-a) CPC provides an appeal shall lie
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Signed by: SASANKA SEKHAR SATAPATHY
Designation: SECRETARY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 26-May-2023 11:59:58
against an order under Section 91 or 92 CPC refusing to institute a
suit. When the party seeking leave of the Court to file a suit has a
remedy of appeal under Clause (ffa) of Section 104(1) CPC, there
is no justification in denying a remedy to a party, who is aggrieved
by grant of leave under Section 92(1) CPC. Of course, the
Petitioners had a remedy to seek for revocation of the impugned
order. But, that does not preclude the Petitioners to file a revision
under Section 115 CPC. Thus, a revision against an order granting
leave to file an appeal, is maintainable.
9.2. Accordingly, the point (i), as framed by this Court, is
answered in favour of the Petitioners.
10. The next vital point is to be adjudicated as to whether
impugned order under Annexure-4 is sustainable. On perusal of the
impugned order under Annexure-4, it appears that learned District
Judge has considered in detail, the rival contentions of the parties.
While adjudicating an application under Section 92(1) CPC,
learned District Judge is not required to delve into merit of the
allegations made in the petition. On perusal of the petition under
Section 92(1) CPC at Annexure-2 filed by Opposite Party Nos.1 to
6, it appears that they have made out a case to be considered for
grant of leave. Annexure-3, the reply filed by the Petitioners and
Opposite Party No.10, mainly deals with the factual averments as
narrated in the present CRP. From the submission of Mr. Bose,
learned counsel for the Petitioners, it appears that an objection to
such application was raised mainly on the ground that the Opposite
Party Nos.1 to 6 have no locus standi to file such an application; in
view of the decision rendered in RSA No.47 of 2007, the relief
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Designation: SECRETARY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 26-May-2023 11:59:58
sought for in the proposed plaint suffers from res judicata and
thirdly, the Trust though public is not a charitable one.
10.1 Mr. Bose, learned counsel for the Petitioners submits that
while adjudicating an application for grant of leave, learned
District Judge should be extremely careful so that the purpose of
special provision under Section 92 CPC is not frustrated. In
support of his submission, he relied upon the case of Swami
Paramatamanand Saraswati and another Vs. Ramji Tripathi and
another, reported in (1974) 2 SCC 695, it has been held as under;-
"10. ...... It is, therefore, clear that if the allegation of
breach of trust is not substantiated or that the plaintiff had
not made out a case for any direction by the court for proper
administration of the trust, the very foundation of a suit
under the section would fail; and, even if all the other
ingredients of a suit under Section 92 are made out, if it is
clear that the plaintiffs are not suing to vindicate the right of
the public but are seeking a declaration of their individual or
personal rights or the individual or personal rights of any
other person or persons in whom they are interested, then the
suit would be outside the scope of Section 92 (see N.
Shanmukham Chetty v. V.M. Govinda Chetty [AIR 1938 Mad
92 : 176 IC 26 : 1937 MWN 849] , Tirumalai
Devasthanams v. Udiavar Krishnayya Shanbhaga [AIR 1943
Mad 466 : (1943) 56 LW 260] , Sugra Bibi v. Hazi Kummu
Mia [AIR 1969 SC 884 : (1969) 3 SCR 83 : (1969) 2 SCJ
365] and Mulla: Civil Procedure Code (13th edn.) Vol. 1, p.
400)........."
He also relied upon the case law in the case of Vidyodaya Trust v.
Mohan Prasad R and others, reported in (2008) 4 SCC 115,
wherein, it has been held as under;-
"26. To put it differently, it is not every suit claiming reliefs
specified in Section 92 that can be brought under the section; but
only the suits which besides claiming any of the reliefs are brought
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Designation: SECRETARY
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Location: HIGH COURT OF ORISSA CUTTACK
Date: 26-May-2023 11:59:58
by individuals as representatives of the public for vindication of
public rights. As a decisive factor the Court has to go beyond the
relief and have regard to the capacity in which the plaintiff has
sued and the purpose for which the suit was brought. The courts
have to be careful to eliminate the possibility of a suit being laid
against public trusts under Section 92 by persons whose activities
were not for protection of the interests of the public trusts. In that
view of the matter the High Court was certainly wrong in holding
that the grant of leave was legal and proper. The impugned order
of the High Court is set aside. The appeal is allowed but without
any order as to costs"
10.2 He accordingly, submitted that these material aspects
were brushed aside by the learned District Judge, while
adjudicating the matter. Admittedly, the relief claimed in the
proposed suit relates to appointment of new Trustee and
defalcation of money of the public Trust. There is nothing in the
petition under Section 92(1) CPC which would suggest that the
Opposite Party Nos.1 to 6 are seeking declaration of their personal
or individual right. Opposite Party Nos.1 to 6 claim themselves to
be the villagers of Chhendipada where the institution situates.
Since the Trust has been created for imparting technical education
to the students of the locality, the Petitioners have interest in the
said Trust. Oder I Rule 8 CPC, as alleged by Mr. Bose, learned
counsel for the Petitioners is not required to be complied with, as
the Opposite Party Nos.1 to 6 have described themselves to be
persons having interest in the Trust. Thus, the suit falls within the
scope of Section 92 CPC.
11. Applicability of principles of res judicata is a mixed
question of fact and law. Since learned District Judge has only
recorded a prima facie satisfaction while adjudicating the petition
under Section 92(1) CPC, he is not required to delve into veracity
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Signed by: SASANKA SEKHAR SATAPATHY
Designation: SECRETARY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 26-May-2023 11:59:58
of the allegation at that stage. Thus, the issue of res judicata, if
raised, can be adjudicated in the suit itself.
12. It is also submitted by Mr. Bose, learned counsel for the
Petitioners that learned District Judge has not recorded any finding
that the Trust in question is charitable one. It is his submission that
neither in the Trust deed nor in the Bye-law, it has been stated that
Petitioner No.1 is a public charitable Trust. No doubt, the
Petitioner is a public Trust, but it is not charitable one as it is not
rendering any service free of cost. It only facilitates the poor
students of the locality to pursue their technical education. Thus, it
cannot be said that the Trust has been created for the charitable
purpose. As per Oxford and Chambers Dictionary, meaning of
'charity' is giving voluntarily to those in need. From the above, it
is clear that if benevolence to a less fortunate is shown by
providing goods, money or otherwise, the same will be a charity.
In the instant case, the Trust has been created for a noble purpose
for imparting technical education to the poor students. Only
because the word 'charitable' is absent in the trust deed as well as
Bye-law, it cannot be said that the Trust is not created for
charitable purpose. As discussed, the objective of creation of the
Trust is meant for charitable purpose. In the impugned order under
Annexure-4, discussion has been made about requirement of
Section 92(1) CPC. Learned District Judge has discussed the
relevant facts including the objective of the Trust and opined that
the Trust has been created for noble purpose, i.e., for imparting
technical education to the poor students of the locality. Only
because no free education is being facilitated in the said institution,
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Signed by: SASANKA SEKHAR SATAPATHY
Designation: SECRETARY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 26-May-2023 11:59:58
it cannot be said that the Trust is not created and the Institution has
not been established for charitable purpose. When any benevolence
is shown to a less fortunate, that action becomes a charitable one.
13. Thus, in my opinion, learned District Judge has
committed no error in granting leave to Opposite Party Nos.1 to 6
to file the suit as proposed. Accordingly, point No.(ii) is answered
against the Petitioner and in favour of Opposite Party Nos.1 to 6
holding that there is no infirmity in the impugned order under
Annexure-4.
14. As such, the Civil Revision petition being devoid of any
merit stands dismissed, but in the facts and circumstances, there
shall be no order as to costs.
Urgent certified copy of this judgment shall be granted on
proper application.
(KRUSHNA RAM MOHAPATRA)
JUDGE
s.s.satapathy High Court of Orissa, Cuttack
The 25th May, 2023
CRP No.3 of 2019
