In the High Court of Judicature at Madras Dated 03.11.2010 Coram The Honourable Mr.Justice R.SUBBIAH Civil Miscellaneous Appeal No.2737 of 2010 1. A.G.Syed Mohideen 2. A.Haseena Begum ..Appellants ..vs.. 1. Sri Jayaram Educational Trust, rep.by J.Sekar, Managing Trustee of Sri Jayaram Educational Trust of Cuddalore 2.J.Sekar 3.S.Chithra 4.S.Jegan ..Respondents Civil Miscellaneous Appeal filed under section 104(1)(ffa) of C.P.C., against the order and decree dated 23.07.2010 made in I.A.No.146 of 2006 in O.S.No.13 of 2006 on the file of Principal District Judge, Cuddalore. For Appellants : Mr.G.R.Swaminathan for Mr.R.Thiagarajan For Respondents: Mr.T.R.Rajagopalan, Senior Counsel for Mr.D.Ravichander JUDGMENT This appeal has been preferred by the plaintiffs aggrieved over the order dated 23.07.2010 made in I.A.No.146 of 2006 in O.S.No.13 of 2006 passed by the learned Principal District Judge, Cuddalore, whereby the leave granted in I.A.No.20 of 2006 on 04.04.2006 to file a suit under section 92 C.P.C. was revoked. 2. The short facts of the case are as follows: The appellants are the plaintiffs, who are the husband and wife and the respondents are defendants 1 and 2 in O.S.No.13 of 2006. Originally, the plaintiffs filed an application in I.A.No.20 https://hcservices.ecourts.gov.in/hcservices/ of 2006 seeking permission of the Court to institute a suit under section 92 C.P.C. against the defendants stating that the 2nd defendant is acting against the interest of the 1st defendant Trust and misappropriating the funds of the Trust and is not permitting the 1st plaintiff to discharge his duties as the Trustee. In the said application, notice was ordered to the defendants and on receipt of the same, a counter was filed by the 2nd defendant adopted by defendants 1, 3 and 5 raising objection for granting leave to the plaintiffs. After hearing both sides, the trial court granted leave to institute a suit as prayed for. Hence, the plaintiffs filed O.S.No.13 of 2006 against the defendants numbering 7 for the following reliefs: "to pass a decree for mandatory injunction directing the 2nd defendant to repay all the amount spent by him after 20.6.2005 contrary to the terms of the supplementary deed; to direct him by a decree of mandatory injunction to convene the trust board meeting for approval of monthly income and expenditure plan; to restrain the 2nd defendant by a decree of injunction from taking any money which belongs to the trust and the institution collected from the student either by cheque or by cash; to restrain the 2nd defendant from spending any amount of the college and the trust without the approval of the three signatory authorities who are entitled to operate the account; to restrain the defendants from paying salaries and increments to the staff and employees without unanimous approval of the board; to restrain him from securing new employees or dismissing any employees without unanimous approval of the board; to restrain the 2nd defendant from bringing in any new trustee; and to restrain the defendants 2 to 5 from interfering with the 1st plaintiff's functioning as Treasurer and the Principal of the Trust and college; 3. Against the order dated 04.04.2006, defendants 1 to 3 filed C.R.P.No.710 of 2006 before this Court and by its order dated 11.10.2006, liberty was given to the defendants to approach the trial court to take out appropriate application in accordance with law. Pursuant to which, defendants 1 to 3 and 5 filed I.A.No.146 of 2006 before the trial court for revocation of the leave granted to the plaintiffs in I.A.No.20 of 2006 on 04.04.2006, stating that though the 1st plaintiff is the trustee, the 2nd plaintiff has no interest whatsoever in the trust and she is not a person interested in the trust. Moreover, the prayers sought in the plaint are not within the scope of section 92 C.P.C.and as such, no permission https://hcservices.ecourts.gov.in/hcservices/ could be granted. The said application was objected to by the plaintiffs by filing a counter to the same. After hearing both sides, by order dated 23.07.2010, the trial court revoked the leave already granted. Challenging the same, the present appeal is filed. 4. Learned counsel for the appellants/plaintiffs submitted that the leave granted by the court below was only after hearing both sides and it was not an ex parte order. Therefore, the question of revoking the leave does not arise. Though in C.R.P.No.710 of 2006, liberty was given to the respondents to approach the trial court to take out an appropriate application, the present application filed by the respondents to revoke the leave, cannot be construed as an appropriate application since the leave was granted on merits. The learned counsel further submitted that the trial court had revoked the leave on an erroneous conclusion that the 1st respondent is not a public trust. The point which was not taken by the respondents is now raised against the appellants. Moreover, the trust is running an engineering college and it has been recognised as the Public Trust by the Income Tax Department and the income tax exemption was given to the 1st respondent trust and under such circumstances, the finding arrived at by the trial court that the 1st respondent is not a public trust, is patently illegal. Hence, the order dated 23.07.2010 is liable to be set aside and in support of his contentions, the learned counsel has relied on the decisions reported in AIR 1964 SC 1372 (M/s.THUNGABHADRA INDUSTRIES LTD., .vs.. GOVT.OF A.P.,) and AIR 1991 SC 221 (R.M.NARAYANA CHETTIAR v. N.LAKSHMANAN CHETTIAR. 5. Per contra, the learned Senior Counsel appearing for the respondents/defendants 1 and 2 submitted that granting leave in an unnumbered suit is only an administrative order and not a judicial order, determining the rights of the parties. Under such circumstances, there is no bar in filing the application to revoke the leave granted in favour of the appellants after hearing both sides. In this regard, the learned senior counsel invited the attention of this Court to the order passed by this Court in C.R.P.No.710 of 2006 and submitted that in the said order, this Court has specifically observed that the order passed under section 92 C.P.C.granting leave is not a judicial order, but it is only an administrative function and thereby granted liberty to the appellants to file necessary application before the trial court. Further, the learned senior counsel for the respondents submitted that though several issues have been raised in the application filed by the respondents for revocation of leave, the trial court, by dealing only with the aspect of nature of the Trust, has revoked the leave and under such circumstances, no interference is called for in the order passed by the trial court. 6. Heard the learned counsel for the parties and perused the https://hcservices.ecourts.gov.in/hcservices/ materials available on record. 7. The main contention of the learned counsel for the appellants/plaintiffs is that the trial court, having granted the leave under section 92 C.P.C. after hearing both sides, ought to have dismissed the subsequent application filed by the respondents for revocation of the leave already granted. In this regard, it may be worthwhile to rely on the judgment reported in AIR 1964 SC 1372 (supra) relied upon by the learned counsel for the appellant, wherein it has been stated as follows: "6.Before dealing with the arguments addressed to us on behalf of the appellant it is necessary to advert to an objection raised by learned counsel for the respondent urging that the special leave granted to the appellant should be revoked. We declined to permit the respondent to urge any such argument, in this case primarily for two reasons. In the first place, the special leave was granted after notice to the respondent and therefore after hearing the respondent as to any objection to the maintainability of the appeal or to the granting of special leave. In the circumstances, any ground in relation to these matters should have been urged at that stage and except possibly in some extraordinary cases where the ground urged happens to arise subsequent to the grant of the special leave or where it could not be ascertained by the respondent at that date notwithstanding the exercise of due care; except in such circumstances this Court will not permit the respondent to urge any argument regarding the correctness of the order of the Court granting special leave. Indeed, the very object of issuing notice to the respondent before the grant of leave is to ensure that the latter is afforded an opportunity to bring to the notice of the Court any grounds upon which leave should be refused and the purpose of the rule would be frustrated if the respondent were permitted to urge at a later stage — at the stage of the hearing of the appeal and long after the appellant has incurred all the costs — that the leave granted after notice to him should be revoked on a ground which was available to him when the application for special leave was heard. This apart, even the statement of the case filed on behalf of the respondent does not disclose any ground upon which the leave granted should be revoked; nor, of course, does it make any prayer seeking such relief". 8. In AIR 1991 SC 221 (supra), it has been stated as follows: "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 https://hcservices.ecourts.gov.in/hcservices/ 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. 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 S.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 S.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 S.92 of the Code would render it difficult for the beneficiaries of a public trust to obtain urgent interim orders from the court even though the circumstances might warrant such relief being granted". 9. On going through the principles laid down in the abovesaid decisions, I am of the view that the same cannot be made applicable to the issue involved in this case. Here, the question to be decided is as to whether the leave granted by the trial court, after hearing both sides, can be construed as a bar for filing an application for revocation of the leave already granted. As contended by the learned senior counsel for the respondents, the leave granted to file a suit under section section 92 C.P.C.is an administrative order and it is not a judicial order, deciding the rights of the parties. Under such circumstances, there cannot be any bar for the respondents in filing an application for revocation of the leave. In fact, in the dictum laid down in the judgments relied upon by the learned counsel for the appellants, the aspect of granting liberty under section 92 C.P.C.has not been dealt with. Therefore, the judgments could not be taken into consideration to decide the said issue. 10. In fact, while passing an order granting liberty to the respondents to approach the trial court to file necessary application, this Court has made some observations, which are as follows: "4. Before going into the merits of the case, I am of the opinion that the CR.P.is to be dismissed as not maintainable. https://hcservices.ecourts.gov.in/hcservices/ 5. An order passed under Sec.92 C.P.C.granting leave is neither a judicial nor a quasi-judicial function of a court. In fact is it purely an administrative function. If that being so, no revision under Sec.115 C.P.C. nor a revision under Article 227 of the Constitution of India is maintainable against an order granting leave to institute the suit. 6. In 1996-2-L.W.364 (R.Kannan Adityan and four others v. B.S.Adityanand six others) a Division Bench of this Court held that a proceeding under Sec.92 C.P.C.is administrative in character and an order granting leave does not affect the rights of any party. 7. In 1998-1-M.L.J.303 (Tirupattur Nagarathu Vysiyargal Sangam v. Tirupattur Periyakulam Nandavanam Inam Land Tenants Association), this court held that the leave granted even without hearing the proposed applicant is not justifiable under Sec.115 C.P.C. 8. In 1995-1-L.W.518 (Raju Pillai and 4 others vs. V.P.Paramasivam and 7 others), this court held that a revision under sec.115 of C.P.C.or a revision under Article 227 of the Constitution of India is not maintainable againt an order granting leave to institutute the suit. 9. In 1998-2-L.W.773 (Govindarajulu,G.R.and Sons, etc. v. R.Sethurao & 12 others), this Court reiterated the same proposition that a revision under Article 227 of the Constitution of India is not maintainable against an order granting leave to institute the suit. Therefore I will have to necessarily hold that this revision under Article 227 of the Constitution of India against the order granting leave is not at all maintainable. 10. Now it is informed by the learned counsel on either side that pursuant to the order passed in I.A.No.20/2006, the suit was numbered as O.S.No.13/2006 and the same is pending. Therefore it is open to the revision petitioners to approach the trial court to take out appropriate application in accordance with law in O.S.No.13/2006, if they are aggrieved by the order passed in I.A.No.20/2006". From the above, I am of the view that the application filed by the respondents in I.A.No.146 of 2006 is maintainable in law. Therefore, I am not inclined to set aside the order passed in I.A.No.146 of 2006 on the mere question of maintainability. 11. With regard to the submission made by the learned senior counsel for the respondents that the trial court has revoked the leave on an erroneous finding that the 1st respondent trust is not a public trust, this Court is of the opinion that when the 1st respondent is running the engineering college and when the Income Tax Department has granted exemption treating the 1st respondent as https://hcservices.ecourts.gov.in/hcservices/ a public trust, the finding arrived at by the trial court that the trust is not a public trust is not sustainable; but at the same time, I find that the trial court has not dealt with the question as to whether the reliefs sought in the plaint will fall within the purview of section 92 C.P.C.. Therefore, without expressing any opinion, I am of the view that it would be appropriate to remit the matter to decide the interlocutory application afresh with regard to the maintainability of the suit under section 92 C.P.C. In view of the above reasonings, the impugned order is set aside and the matter is remitted to the trial court and the trial court is directed to take the matter afresh and decide the issue, by affording an opportunity to both sides, as to whether the prayer made in the plaint will fall within the purview of section 92 C.P.C., as expeditiously as possible, on merits and in accordance with law, without being influenced by any of the observations made above. Civil miscellaneous appeal is disposed of accordingly. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar gl To The Principal District Judge, Cuddalore. +1cc to Mr.D.Ravichander, Advocate Sr 79425 +1cc to Mr.R.Thiagarajan, Advocate Sr 79370 TS(CO) km/19.11. C.M.A.No.2737 of 2010 https://hcservices.ecourts.gov.in/hcservices/