IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 8TH AUGUST 2008 / 17TH SRAVANA 1930 WP(C).No. 20291 of 2007(N) ----------------------------------------- AGAINST THE ORDER IN IA 1248/2006 IN OS.95/2005 of SUB COURT, MUVATTUPUZHA .................... PETITIONER: --------------------- FR. JOSEPH KOCHUPARAMBIL, VICAR, AYAVANA SACRED HEART CHURCH, AYAVANA, MUVATTUPUZHA. BY ADV. SRI.V.M.KURIAN SRI.MATHEW B. KURIAN SRI.K.T.THOMAS RESPONDENTS: ------------------------- 1. V.V.JOY, VADAKKUMPADATH HOUSE, ENANELLOOR VILLAGE, ENANELLOOR KARA, MUVATTUPUZHA TALUK. 2. GEORGE VARGHESE, PEEDIKAPPARAMBIL HOUSE, AYAVANA KARA, ENANELLOOR, ENANELLOOR VILLAGE. 3. RT. REV.DR.GEORGE PUNNAKKOTTIL, KOTHAMANGALAM BISHOP, BISHOP'S HOUSE, KOTHAMANGALAM. 4. RT. REV.FR.THOMAS MALEKKUDIYIL, VICAR GENERAL, KOTHAMANGALAM DIOCESE, KOTHAMANGALAM. 5. V.L.LUIS, VADAKKUMPADATH, AYAVANA KARA, ENANELLOOR VILLAGE. Kss ..2/- ...2..... WPC.NO.20291/2007 N 6. V.O.VARKEY, VETTUKALLEL HOUSE, AYAVANA KARA, ENANELLOOR VILLAGE. 7. BIJO, KIZHAKKEDATH HOUSE, AYAVANA KARA, ENANELLOOR VILLAGE. 8. MANUEL, KAKKANATTU HOUSE, AYAVANA KARA, ENANELLOOR VILLAGE. 9. SR.ELSA, MOTHER SUPERIOR, S.H.CONVENT, AYAVANA. 10. MATHEW JACOB, MALEKKUDY HOUSE, AYAVANA, ENANELLOOR VILLAGE. 11. GEORGE SEBASTIAN, THEKKARA HOUSE, AYAVANA KARA, ENANELLOOR VILLAGE. 12. K.J.MANI, KADAMKULAM HOUSE, AYAVANA KARA, ENANELLOOR VILLAGE. 13. K.V.MANUEL, KALLUMKAL HOUSE, AYAVANA KARA, ENANELLOOR VILLAGE. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA)- R1,2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.20291/2008 N APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT IN O.S.95/2005 DTD. 03/10/2005 OF SUB COURT, MUVATTUPUZHA. EXT.P2: COPY OF I.A.NO.914/2005 FOR LEAVE TO FILE THE SUIT UNDER SEC.92 C.P.C. FILED BY THE PLAINTIFFS. EXT.P3: COPY OF THE OBJECTION FILED BY THE PETITIONER IN THE I.A.NO.914/2005. EXT.P4: COPY OF THE I.A.NO.1248/2006 FILED BY THE PLAINTIFFS BEFORE THE SUB COURT, MUVATTUPUZHA. EXT.P5: COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONER IN I.A.NO.1248/2006. EXT.P6: COPY OF THE ORDER DTD. 07/11/2006 IN I.A.NO.1248/2006 OF THE SUB COURT, MUVATTUPUZHA. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss M. SASIDHARAN NAMBIAR, J. ------------------------------------------ W.P.(C) NO. 20291 OF 2007 ------------------------------------------ Dated this the 8th day of August, 2008 JUDGMENT This petition is filed under Article 227 of Constitution of India challenging Ext.P6 order passed by Sub Court, Muvattupuzha in Ext.P4 (I.A. 1248 of 2006) an application filed under Rule 17 or Order VI of Code of Civil Procedure to amend the plaint. Respondents 1 and 2 instituted O.S.95 of 2005 before Sub Court, Muvattupuzha under Section 92 of Code of Civil Procedure. Leave to institute the suit under Section 92 was sought, which was originally provisionally granted as per order in I.A.914 of 2005. Defendants appeared and contended that suit instituted is not a suit as provided under Section 92 of Code of Civil Procedure and therefore suit under Section 92 will not lie. After the objections were filed, respondents 1 and 2 filed Ext.P4 petition for amendment of the plaint. The amendment sought for is to delete the relevant recitals in the plaint that it is instituted under Section 92 of Code of Civil Procedure. Consequently, amendment was also sought for in respect of the WP(C)20291/07 2 Court fee to be paid, as Court fee payable is different in an ordinary suit and a suit instituted under Section 92 of Code of Civil Procedure. Learned Sub Judge heard both the petitions together and disposed them by separate orders on the same day. I.A. 914 of 2005 was dismissed revoking the leave originally granted without notice. I.A. 1248 of 2006 was allowed permitting respondents 1 and 2 to amend the plaint. This petition is filed challenging the leave granted to amend the plaint contending that when leave sought for under Section 92 of Code of Civil Procedure stands dismissed, there is no suit on the file and when there is no suit learned Sub Judge cannot grant permission to amend the plaint. Learned counsel appearing for the petitioner relied on the following decisions of this Court in Mathew Vs. Thomas (1982 KLT 493), Govindan Vs. Koovalasseri SMK Trust (2001 (2) KLT 907), Vidyodaya Trust Vs. Mohan Prasad (2007 (1) KLT 538), Vidyodaya Trust Vs. Mohan Prasad (2008 (2) KLT 68 (SC)) and argued that though a suit is instituted by filing a petition seeking leave under Section 92 of Code of Civil Procedure, the suit can be considered as validly instituted only when leave is granted and fact that leave was granted without notice will not WP(C)20291/07 3 thereby invalidate the suit, though the leave granted without notice could be revoked after defendants appeared and objected to the leave granted without notice and therefore Ext.P6 order is illegal and is to be set aside. 2. Learned counsel appearing for respondents 1 and 2 submitted that there is no dispute on the legal proposition suggested by the counsel appearing for petitioner, but the principle cannot be applied to the facts of the present case. It was pointed out that after the defendants filed their objections respondents 1 and 2 themselves admitted that the suit is not one coming under Section 92 of Code of Civil Procedure and sought amendment of the plaint which was allowed under Ext.P6 order while dismissing the leave sought for under Section 92, and the amendment application was not filed after revocation of the leave granted, but at the time when a valid suit was pending, as leave was granted earlier and therefore Ext.P6 order is perfectly legal and valid. 3. It is the settled law that there could be a valid suit under Section 92 of Code of Civil Procedure, only if leave is granted to the plaintiff to institute the suit as provided under Section 92 of the Code of Civil Procedure. Leave provided under WP(C)20291/07 4 Section 92 can be granted, only if the suit is in respect of a public trust and the relief sought for in the suit is for any one of the reliefs enumerated in clause (a) to (h) of Section 92(1) of Code of Civil Procedure. The leave so granted under Section 92 (1) is a condition precedent for institution of a valid suit. 4. It is also true that an application under Rule 17 of Order VI to amend the plaint would lie only if there is a properly instituted suit. If leave was not granted to respondents 1 and 2 under Section 92 of Code of Civil Procedure a subsequent application for amendment will not lie. So also is the case of the leave sought for was refused. The argument of the learned counsel appearing for petitioner is that trial Court should not have granted permission to amend the plaint as leave granted under Section 92 was refused. But, if the application under Rule 17 of Order VI of Code of Civil Procedure to amend plaint was filed subsequent to the leave granted under Section 92 of Code of Civil Procedure, eventhough that leave was granted before issuing notice to the defendants, it cannot be said that the said petition is not filed in a validly instituted suit. It is not the law that Court is not competent to grant leave under Section 92, without notice to the defendants though normally notice is to be WP(C)20291/07 5 issued before granting leave. As held by the Apex Court in R.M.Narayana Chettiar Vs. N. Lakshmanan Chettiar (AIR 1991 SC 221) as a rule of caution, Court should normally give notice to the defendants before granting leave under the said Section to institute the suit and 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 not maintainable. Grant of leave cannot be regarded as defeating or even seriously prejudicing any right of the 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. This principle was followed in the subsequent decisions including in Vidyodaya Trust’s case (Supra). Therefore, when respondents 1 and 2 were originally granted leave to institute the suit and that leave was granted without notice to defendants, it cannot be said that there is no suit pending subsequent to the leave so granted. Therefore, when the application for amendment of the plaint was filed there was a validly instituted suit. When the leave sought for and originally granted was revoked only under the final order passed in I.A. 914 of 2005 on 7.11.2006, it can be said that there is no WP(C)20291/07 6 suit under Section 92 prior to the said date. But, when a petition for amendment of the plaint was filed at a time when there existed a validly instituted suit, Court is competent to pass appropriate order in accordance with law in that application. When there is a validly instituted suit, though a suit under Section 92 of Code of Civil Procedure, and plaintiffs sought amendment of the plaint by changing the nature of the suit from Section 92 of Code of Civil Procedure, it cannot be said that Court is not competent to grant the amendment sought for. True, when the plaintiffs themselves sought an amendment of the plaint stating that the suit is not under Section 92 of Code of Civil Procedure, there was no necessity for the Court to pass a detailed order in I.A.914 of 2005 as that petition could have been dismissed recording that even according to the plaintiffs suit is not one coming under Section 92 of Code of Civil Procedure. But, when the petition under Order VI Rule 17 of Code of Civil Procedure was filed, leave was granted and when there existed a validly instituted suit it cannot be said that Court is not competent to grant the amendment sought for. The amendment sought for is only to delete the contention of the plaintiff that suit is instituted under Section 92 of Code of Civil WP(C)20291/07 7 Procedure. The other amendment sought for is only to change the details of payment of Court fee subsequent to change of the suit from Section 92 of Code of Civil Procedure to an ordinary suit. In such circumstances, I do not find any illegality or irregularity in Ext.P6 order warranting interference. Writ petition is dismissed. M. SASIDHARAN NAMBIAR, JUDGE Okb/-