IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 30TH OCTOBER 2009 / 8TH KARTHIKA 1931 CRP.No. 530 of 2009() --------------------- OP(SCH).6/2006 of SUB COURT, THIRUVALLA .................... REVN. PETITIONERS/RESPONDENTS 1 & 3: --------------------- 1. BISHOP ABRAHAM MEMORIAL TRUST ASSOCIATION, AT MANJADI, THIRUVALLA, REPRESENTED BY ITS SECRETARY,ISRAEL THOMAS S/O.LATE V.I.THOMAS, HOMEO DOCTOR RESIDING AT VENPARAMBIL HOUSE, NIRANAM,THIRUVALLA. 2. ISRAEL THOMAS S/O.LATE V.I.THOMAS, HOMEO DOCTOR RESIDING AT VENPARAMBIL HOUSE, NIRANAM,THIRUVALLA. BY ADV. SRI.M.NARENDRA KUMAR SRI.JOICE GEORGE RESPONDENTS/PETITIONERS & RESPONDENTS 4 TO 22: ------------------------------------------------------------------------------ 1. A.S.THOMAS ,AGED 73 YEARS S/O.SKARIAH, APPAKOTTUMURIYIL HOUSE THURUTHICADU KARA, KALLOOPARA VILLAGE MALLAPPALLY TALUK, PATHANAMTHITTA DISTRICT. 2. P.M.GEORGE, AGED 74 YEARS S/O.MATHEW, KAITHAKUZHY MANNIL KEEKOZHOOR PO, CHERUKOL VILLAGE, RANNY TALUK. 3. C.J.MATHEW, AGED 70 YEARS S/O.JOHN, CHALLACKAL HOUSE, PRAMADOM VILLAGE KONNI P.O. 4. DR.SAMUEL KRISHNAMOORTHY AGED 81 YEARS, DOCTOR, RESIDING AT GRACE BHAVAN, CHANGANASSERRY. 5. MAMMEN MATHAI, RTD.ENGINEER PLOT NO.200, NGEF. LAYOUT, SACHINANDA NAGAR, BANGLORE-94. CRP 530/09 6. M.M.JOHN, AGED 66 YEARS CHARTERED ACCOUNT, PLOT 154, NGEF,LAYOUT BANGLORE-94. 7. A.J.GEORGE, MARETTY MADOM, MANJADI PO, THIRUVALLA. 8. P.K.MATHEW, AGED 71 YEARS RESIDING AT PULIVELIL KOLLKA KARUNAGAPPALLY, KOLLAM DISTRICT. 9. PROF.C.C.JOSEPH, AGED 78 YEARS RTD.PRINCIPAL, CALLOLIL HOUSE KUTTAPUZHA P.O.,THIRUVALLA. 10. ANNA MAMMAN MATHAI, RESIDING AT PLOT 200 NGF LAYOUT SACHIDANANDA NAGAR,BANGALORE-94 11. LEELA JOHN,CHRISTIAN, RESIDING AT PLOT 154,LAYOUT, SACHIDANANDA NAGAR BANGLORE-94. 12. P.P.MATHEW, CHRISTIAN, AGED 53 YEARS RESIDING AT VILANGUPARACKAL THURUTHICADU PO, KALLOOPARA, PATHANAMTHITTA DISTRICT. 13. OMANA MATHEW, CHRISTIAN, AGED 50 YEARS RESIDINGA VILANGUPARACKAL THURUTHICADU PO, KALLOOPPARA, PATHANAMTHITTA DISTRICT. 14. K.M.KURIAN, AGED 52 YEARS, RESIDING AT KOCHUPARAMBIL, THURUTHICADU PO,KALLOOPPARA. 15. K.M.MATHEW, AGED 40 YEARS KOCHUPARAMBIL, THURUTHICADU PO KALLOOPPARA. 16. KURUVILLA THOMAS, AGED 44 YEARS RESIDING AT VILANGUPARACKAL HOUSE THURUTHICADU PO, KALLOOPPARA, MALLAPPALLY TLAUK. 17. SAJI PHILIP,JOY VILLA THURUTHICADU PO,KALLOOPPARA VILLAGE. 18. ST.THOMAS EVANGELICAL CHURCH OF INDIA REP BY TRUSTEE, ST.THOMAS EVANGELICAL CHURCH OF INDIA, MANJADI, THIRUVALLA, ADDRESS FOR SERVICE REV THOMAS ABRAHAM,TRUSTEE ST.THOMAS EVANGELICAL CHURCH OF INDIA, MANJADI PO, THIRUVALLA. CRP 530/09 19. THE PRESIDING BISHOP, ST.THOMAS EVANGELICAL CHURCH OF INDIA MANJADI PO, THIRUVALLA. 20. SABHA SECRETARY, ST. THOMAS EVANGELICAL CHURCH OF INDIA MANJADI PO, THIRUVALLA . 21. BISHOP ABRAHAM MEMORIAL TRUST REP. BY PRESIDENT,TRUSTEE, ST.THOMAS EVANGELICAL CHURCH OF INDIA, MANJADI, THIRUVALLA, ADDRESS FOR SERVICE REV THOMAS ABRAHAM, TRUSTEE,ST.THOMAS EVANGELICAL CHURCH OF INDIA, MANJADI PO, THIRUVALLA. 22. M.G.UNIVERSITY, ATHIRAMPUZHA,KOTTAYAM REP BY THE REGISTRAR M.G.UNIVERSITY PRIYADARSHINI HILLS, ATHIRAMPUZHA PO,KOTTAYAM. ADV. SRI.M.C.SEN (SR.) FOR R1-3 SRI.K.BALACHANDRAN (PN) FOR R2&3 SRI.LIJI.J.VADAKEDOM FOR R4,5,6,8,9,10 SRI.LIJI.J.VADAKEDOM FOR R11 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - C.R.P. No.530 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 30th October, 2009 ORDER The revision is directed against an order passed by the learned Sub Judge, Thiruvalla in O.P.No.6 of 2006 granting leave to the respondents 1 to 3 to institute the suit under Section 92 of the Code of Civil Procedure. Revision petitioners are the first and third respondents. The learned Sub Judge has granted leave to respondents 1 to 3 being satisfied from the allegations raised in the petition that the reliefs claimed related to a public trust and it comes under Section 92 of the Code of Civil Procedure. Learned counsel for the petitioners submits the first petitioner which is shown as the trust in the O.P. through its President has filed objections against the leave sought for to institute the suit under Section 92 of the Code of Civil Procedure. According to the learned counsel for the petitioners, the very existence of the trust was disputed contending it was only a society which is having management and control over a college. However, this is disputed by the learned counsel for the respondents 1 to 3/the petitioners in the O.P. contending that the existence of the trust was not disputed in their objections filed before the court below. CRP No.530/09 - 2 - Whatever that be, perusing the impugned order, I find despite objections being raised by the first respondent in the O.P. challenging permission to sue under Section 92 of the Code of Civil Procedure without adverting to the objections solely looking into the allegations into the petition alone, the learned Sub Judge has granted leave. Granting leave to institute the suit is not an empty formality. Needless to point out that though there is no statutory requirement to give notice, it is always desirable to hear the opposite parties before granting leave so that, at a later stage, if at all, the suit is found to be coming within the ambit of Section 92 of the Code of Civil Procedure, such questions may not deter the trial. The apex court in Vidyodaya Trust v. Mohan Prasad (2008(2) KLT 68) has held that as a rule of caution, court should normally give notice to the defendant before granting leave under Section 92 though the court is not bound to do so. That being so, when the opposite party is given notice and they raise some objections challenging the permission to sue in relation to the trust, contending that the suit would not come under Section 92 of the Code of Civil Procedure, the court is expected to take note of that objections also in deciding the question of leave. Without adverting to the objections, granting leave solely on CRP No.530/09 - 3 - the basis of the allegations raised in the petition, that too after giving notice to the opposite parties, is not at all proper and correct. Setting aside the impugned order, the court below is directed to examine the matter afresh taking note of the observations made above and in accordance with law. It is further directed that the question of leave sought for by the respondents 1 to 3 for instituting the suit shall be considered as expeditiously as possible, at any rate, within a period of two months from the date of production/receipt of a copy of the order. Revision is disposed as indicated above. srd S.S. SATHEESACHANDRAN, JUDGE