IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 9TH JANUARY 2008 / 19TH POUSHA 1929 CRP.No. 758 of 2004 --------------------- ( IA 2994/01 IN OS.404/2001 of ADDL.SUB COURT,KOTTAYAM ) REVN. PETITIONER/1ST COUNTER PETITIONER/1ST DEFENDANT: --------------------------------------------------------------------------------------------------- N.S.S. KARAYOGAM NO.4781, KALLARA NORTH, REPRESENTED BY ITS PRESIDENT. BY ADV. SRI.RAJEEV V.KURUP RESPONDENTS/ PETITIONERS & COUNTER PETITIONERS 2 TO 5/ PLAINTIFFS & DEFENDANTS : --------------------------------------------------------------------------------------------- 1. K.J.JAMES, KATTATH, KALLARA NORTH KARA, VAIKOM. 2. P.U.THANKAPPAN, KANJIRAMPARAMBU HOUSE, -DO- -DO-. 3. K.S.SANKAR, PANANGAD HOUSE, KAPPIKKADU. 4. MANICKA VILASAM JUBILEE SMARAKA GRANDASALA, KALLARA, REPRESENTED BY ITS PRESIDENT, MATHAI, KEERIKKATTIL HOUSE, KALLARA. 5. P.P. PRAKASH, KOCHUPARAMBIL HOUSE, KALLARA. 6. T.N.GOPALAKRISHNAN NAIR, JAYANIVAS, KALLARA. BY ADV. SRI.MATHEW JOHN (K) ADV. SRI.SUJESH MENON V.B. THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: C.R.P.NO. 758 OF 2004 ORDER ON I.A.NO. 1837 OF 2004 IN C.R.P.NO. 758 OF 2004 DISMISSED. 09.01.2008 SD/- K.T. SANKARAN, JUDGE. /TRUE COPY/ P.A. TO JUDGE. K.T. SANKARAN, J. ................................................................................... C.R.P. No. 758 OF 2004 ................................................................................... Dated this the 9th January, 2008 O R D E R The petitioner herein is the first respondent in I.A.No. 2994 of 2001 in O.S.No. 404 of 2001 on the file of the court of the Addl. Sub Judge, Kottayam. The application was filed by the respondent Nos. 1 and 2 for granting leave under Section 92 of the Code of Civil Procedure. By the order impugned, the court below granted leave under Section 92 of the Code of Civil Procedure to institute the suit. The case of the respondent Nos. 1 and 2 is that a public trust is created by Ext. A1 document and also by subsequent conduct of the parties. The second respondent in the application is the son of executant of Ext. A1. The second respondent in I.A.No. 2994 of 2001 transferred the property in favour of the first respondent in the application (the petitioner in the Civil Revision Petition). The contention of the petitioners before the court below is that this alienation is against the terms of Ext. A1.. 2. The court below considered the matter very elaborately in the order impugned, which runs to 17 pages. The court below also considered the various decisions rendered by this court. It was held by the court below , after referring to the recitals in Ext.A1 and the pleadings, that the contentions of the petitioners in I.A. No. 2994 of 2001 is prima facie sustainable. The contention raised by the revision petitioner (the first respondent in I.A.No. 2994 of 2001) that Ext. A1 does not reveal the intention to make a public trust was also considered by the court below with reference to Ext. A1 and the pleadings and held that it was not just and proper to arrive at a C.R.P. No. 758 OF 2004 2 conclusion at this stage that no public trust has been formed. The court below relied on the decision reported in 2001 (2) K.L.T. S.N. 6 (Case No.6) ( St. Mary's Church vs. Saju ), wherein it is held as follows: “ For granting leave to sue under S.92 of the C.P.C., the Court has to satisfy prima facie from the allegations made in the plaint, in order to decide whether leave to sue under S. 91 of the C.P.C. should be granted or not. It is also clear that the court can grant leave even without notice to the opposite parties, even though it is desirable to give notice and hear them before leave is granted. It is further clear that the leave granted by the Court to sue under S. 92 of the C.P.C. at the preliminary stage is not conclusive and the opposite parties can move the court to revoke the leave granted or the court can dismiss the suit after the parties adducing evidence, if the ingredients to grant the necessary leave to sue under S. 92 of the C.P.C. are not made out. The initial grant of leave will not affect the final decision to be taken by the Court on merit after the parties adduced evidence in the case. Therefore, the contention raised by the petitioners that the lower court should have considered the entire contentions raised by the petitioners and the respondents in detail and entered a conclusive finding as to whether the Church in question is a public trust of religious and charitable nature coming within the ambit of S. 92 of the C.P.C. or not, is not sustainable. The Court has only to satisfy prima facie on the allegations made in the plaint whether leave is to be granted or not and over and above the averments made in the petition seeking leave of the Court , the court can consider the plaint and the documents produced along with the petition seeking leave and also direct the petitioner to place additional materials before the court to arrive at a finding as to whether leave should be granted or not at the initial stage. Therefore, merely on the ground that the opposite party was given notice in the petition seeking leave the court need not consider the entire merits of the case apart from the prima facie case of the C.R.P. No. 758 OF 2004 3 petitioner to satisfy whether leave should be granted or not. “ 3. The court below also noticed that the leave granted by the court is not final and conclusive and that it can be revoked later after taking evidence. In the facts and circumstances of the case, the court below was of the view that to resolve several aspects , it is necessary to consider the evidence that may be adduced later. I concur with the conclusions and reasonings of the court below. The interests of the revision petitioner are not affected by the order impugned passed by the court below since it is made clear in the order itself that the leave granted can be revoked at any time. It is made clear that untrammeled by any of the observations contained in the order, the revision petitioner would be entitled to apply for revoking the leave granted as per the order impugned at a later stage as mentioned by the court below. No grounds are made out for interference under Section 115 of the Code of Civil Procedure. The Civil Revision Petition is therefore dismissed. No order as to costs. K.T. SANKARAN, JUDGE. lk