IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 15TH JULY 2010 / 24TH ASHADHA 1932 CRP.No. 803 of 2007() --------------------- AGAINST THE ORDER DATED 24/08/2007 IN IA 3208/2007 IN OS.........../2007 (UNNUMBERED) of I ADDL.DISTRICT COURT, ERNAKULAM .................... REVN. PETITIONER(S): RESPONDENTS 1 & 2 - DEFENDANTS 1 & 3 --------------------------------------------------------- 1. ST. PETERS AND ST. PAULS' SYRIAN ORTHODOX CHURCH, KOLENCHERRY, KOLENCHERRY KARA, AIKKARANADU SOUTH VILLAGE, KUNNATHUNADU TALUK REPRESENTED BY ITS VICAR REV. FR. JACOB KURIAN, AGED 44, VICAR, PETER'S PAUL'S SYRIAN ORTHODOX CHURCH, KOLENCHERRY. 2. FR.JACOB KURIAN, S/O KURIAN, AGED 44, VICAR, PETER'S PAUL'S SYRIAN ORTHODOX CHURCH, KOLENCHERRY. BY ADV. SRI.S.SREEKUMAR RESPONDENT(S): PETITIONERS/PLAINTIFFS & RESPONDENTS 2 & 4 TO 12 --------------------------------------------------------------- 1. K.S.VARGHESE, S/O SCARIA, AGED 61, KAVANACHOTTIL HOUSE, PALACKAMATTOM KARA, IKKARANADU NORTH VILLAGE, KUNNATHUNADU TALUK. 2. V.M.GEORGE, S/O MATHAI, AGED 40, VEDANKULANGARA HOUSE, MANGATTOOR KARA, IKKARANADU NORTH VILLAGE, KUNNATHUNADU TALUK. 3. C.K.THAMPI, S/O KURIAKOSE, AGED 42, CHUNDATHADATHIL HOUSE, VADAYAMPADI KARA, AIKKARANADU SOUTH VILLAGE, KUNNATHUNADU TALUK. 4. REV. FR.VARGHESE EDUMARY, AGED ABOUT 58, S/O PAILY, VICAR, ST.PETERS' AND ST.PAULS' SYRIAN ORTHODOX CHURCH, KOLENCHERRY KARA, AIKKARANADU SOUTH VILLAGE, KUNNATHUNADU TALUK. 5. P.M.GEORGE, AGED ABOUT 72, S/O LATE SRI.MATHULLA, ELOOR PANNIKUZHIYIL HOUSE, ELAMKULAM KARA, AIKKARANADU SOUTH VILLAGE, KUNNATHUNADU TALUK. CRTP NO.803/2007 2 6. K.A.THAMPI, S/O ABRAHAM, AGED ABOUT 63, KUNNATHUKULATHUKATTIL HOUSE, KINGINIMATTOM KARA, AIKKARANADU SOUTH VILLAGE, KUNNATHUNADU TALUK. 7. T.V.PURAVATHU, S/O VARKEY, AGED ABOUT 85 THAMARACHALIL HOUSE, ELAMKULAM KARA, AIKKARANADU SOUTH VILLAGE, KUNNATHUNADU TALUK. 8. C.V.PAILY, AGED 100, S/O VARKEY, KOCHIPUTHENPURAYIL, KARUKAPPILLY KARA, AIKKARANADU SOUTH VILLAGE, KUNNATHUNADU TALUK. 9. P.P.THOMAS, AGED ABOUT 68, FATHER'S NAME NOT KNOWN TO THE PLAINTIFFS, POOKKOLAYIL HOUSE, KOLENCHERRY KARA, AIKKARANADU SOUTH VILLAGE, KUNNATHUNADU TALUK. 10. A.V.PATHROSE, AGED ABOUT 75, S/O VARKEY, ATHIKKUZHIYIL HOUSE, MANGATTOOR KARA,AIKKARANADU SOUTH VILLAGE, KUNNATHUNADU TALUK. 11. THOMAS M.ALIAS, AGED ABOUT 35, S/O ALIAS, MUNDAYIL HOUSE, PERINGOLA KARA, AIKKARANADU SOUTH VILLAGE, KOLENCHERRY, KUNNATHUNADU TALUK. 12. JOGI GEORGE, AGED ABOUT 33, S/O C.M.GEORGE, CHOLATTU HOUSE, PUTHENCRUZ KARA, AIKKARANADU SOUTH VILLAGE, VADAYAMPADY P.O., KUNNATHUNADU TALUK. 13. BABU PAUL, S/O LATE SRI.P.M.PAILY PILLA, AGED ABOUT 52, PERUMPILLIL HOUSE, ELAMKULAM KARA, AIKKARANADU SOUTH VILLAGE, KOLENCHERRY P.O., KUNNATHUNADU TALUK. ADV. SRI.N.SUKUMARAN FOR R1 TO 3 SRI.S.SHYAM FOR R1 TO 3 SRI.SAJI VARGHESE KAKKATTUMATTATHIL FOR R1 TO 3 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: “C.R.” THOMAS P. JOSEPH, J. -------------------------------------- C.R.P.No.803 of 2007 -------------------------------------- Dated this the 15th day of July, 2010. ORDER This revision is in challenge of order dated August 24, 2007 on I.A.No.3208 of 2007 in an unnumbered suit granting leave to respondent Nos.1 to 3 to sue petitioners and respondent Nos.4 to 13 under Section 92 of the Code of Civil Procedure (for short, “the Code”). Learned counsel for petitioners raised the following points for a decision: i. Leave was not applied for in the form of an original petition but in the form of an interlocutory application and hence the application is not maintainable. ii. Affidavit in support of the application for leave does not contain requisite particulars and hence leave ought not have been granted. iii. On the materials on record, court below was not correct in granting leave to respondent Nos.1 to 3. 2. Short facts necessary for a decision of the above points are: Petitioner No.1, it is not disputed is a parish church established centuries ago at Kolenchery. It is a public trust of a religious nature. Respondent Nos.1 to 3 are parishioners and claimed to have a direct interest in that church. They sought CRP No.803/2007 2 reliefs in the nature of a declaration that petitioner No.1/defendant No.1 (church) and its assets including educational institutions are liable to be administered only in accordance with the terms of Udamapady dated 13.12.1088 ME, alternatively to settle a scheme for administration of petitioner No.1, its assets and institutions, a direction to conduct election to the managing committee of petitioner No.1 and the governing body of its institutions and for other reliefs. Respondent Nos.1 to 3 sought leave of the court under Section 92 of the Code by filing an application supported by affidavit in the suit itself. The suit was not numbered but the application for leave was numbered as I.A.No. 3208 of 2007. In the affidavit in support of the application it is stated that petitioner No.1 is a public trust of religious nature and there is no proper administration of its assets and affairs, administration is to be made in accordance with terms and conditions of Udampady dated 13.12.1088 ME., no election has been conducted for the last several years and except respondent Nos.4 to 9/defendant Nos.4 to 9 who were in the elected committee all others in that committee have left their terrestrial abode and that in such circumstances intervention of the court is required. It is stated in the affidavit that further details necessitating filing of the suit for reliefs claimed are narrated in the plaint which may be read as part of the affidavit. Learned Additional District Judge considered the claim of respondent Nos.1 to 3 and the objection raised by petitioners and vide the impugned order granted leave to respondent Nos.1 to 3 to institute the suit. That order is under challenge in this revision petition. Learned counsel for petitioners placing reliance on the decision in Musaliyarakath Abdul CRP No.803/2007 3 Azeez v. Liwa Educational and Charitable Society, Kottappuram (2010 (3) KLT 158) has contended that application for leave is not to be filed in the suit since grant of leave is to precede institution of the suit and hence the application should have been in the form of an original petition as held by this Court. Learned counsel contends that in the present case leave has been applied for and obtained on an interlocutory application as if it is an application filed in a pending suit and hence the application is not maintainable. Further contention is that for the purpose of granting of leave only the averments in the application are to be looked into, averments made in the affidavit in support of I.A.No.3208 of 2007 are not sufficient to grant leave under Section 92 of the Code and in the circumstances averments in the plaint should not have been looked into. Learned counsel for respondent Nos.1 to 3 contend that what is required to be considered is the substance of the averments and not the form in which the request is made and that there is no law which prohibited filing of an Interlocutory application seeking leave under Section 92 of the Code. It is contended that the averments in the plaint can also be looked into to decide whether leave is to be granted under Section 92 of the Code. 3. This Court in paragraph No.4 of the decision referred supra after referring to the decisions in Saraswathi Pillai Mahvir v. Gopala Pillay (1987 (2) KLT 471) and Amrithakumari and another v. Ramanathan and others (1998 (2) KLT 305) held that grant of leave has to precede institution of the suit and that until leave is granted there is CRP No.803/2007 4 no valid institution of the suit. Mere presentation of plaint does not amount to a valid institution of the suit though for a valid institution of the suit, a valid presentation of plaint is necessary. This Court stated that grant of leave being a sine qua non for institution of the suit it has to precede institution of the suit. It was also observed that the 'proper procedure' is to seek leave by way of an original petition as provided in Rule 56 of the Civil Rules of Practice in the form prescribed for original petition paying court fee as provided under Schedule II Article 11(1)(2)(ii) of the Court Fees and Suits valuation Act as in the case of an original petition not otherwise provided for and filed in the Sub Court/District Court. Such petition is to be numbered as an original petition and the suit is to be registered and numbered only when it is validly instituted after leave is granted. In the reported case the suit was numbered tentatively and the application for leave was numbered as an interlocutory application as if made in the suit. The procedure adopted on facts of that case was found to be 'irregular'. Observations in paragraph No.4 of the decision in Abdul Azeez's case did not mean that a pending request for leave made in the form of an interlocutory application is not maintainable for that reason alone and liable to be dismissed. That decision also did not say that no reference could be made to the averments in plaint under any circumstance. This Court pointed out the proper procedure which subordinate courts are to follow when a request for leave is made under Section 92 of the Code. The order challenged in Abdul Azeez's case was set aside not for the reason of irregular procedure adopted, but because on the facts and circumstances pleaded grant of leave under CRP No.803/2007 5 Section 92 of the Code was not warranted. Hence the contention of learned counsel that leave was requested for in the present case by way of interlocutory application, it did not contain all necessary details, averments in the plaint cannot be looked into and hence the application should fail cannot be accepted. The observations in paragraph No.4 of Musaliyarakath Abdul Azeez v. Liwa Educational and Charitable Society, Kottappuram would stand clarified as above. 4. Next question is whether learned Additional District Judge was correct in granting leave. Section 92 of the Code deals with suits concerning public charities and states that two or more persons having an interest in the trust and having obtained the leave of the court may institute a suit to obtain a decree for any of the reliefs referred to in Clauses (a) to (h) of that Section. It is not disputed that petitioner No.1 is a public religious trust. I stated that in the affidavit in support of I.A.No.3208 of 2007 there is reference to petitioner No.1 being a public religious trust and there being no proper administration of assets and affairs of petitioner No.1 and the institutions under it for the last so many years, that administration is to be done in accordance with the terms and conditions of the Udampady dated 13.12.1088 ME. and that of elected members the committee, except respondent Nos.4 to 9 none of other members are alive. It is stated in the affidavit that the truncated committee is not functioning. In paragraph No.3 of the plaint it is stated that from the very beginning (of the establishment of the church - petitioner No.1) its assets were CRP No.803/2007 6 being administered by a committee consisting of its priests and parishioners and in the year, 1908 AD an Udampady was executed regarding the manner in which its affairs were to be administered. That Udampady was superseded by another Udampady dated 13.12.1088 and as per that Udampady to which five priests and 16 lay trustees were parties, specific provisions were made for priests to render services in turns and the trustees to administer assets of petitioner No.1. In paragraph No.4 it is stated that when the committee elected as per the Udampady was in administration factional fights occurred resulting in closure of church. While so one faction instituted O.S.No.19 of 1980 to which members of the then committee in administration were parties. That suit was purported to be filed under Section 92 of the Code. In that suit a Receiver was appointed to administer assets and affairs of petitioner No.1 and one set of keys of the office is still in the custody of respondent No.1. In paragraph No.7 of plaint it is stated that during the pendency of O.S.No.19 of 1980 and thereafter services in the church were conducted in turns by priests of the two factions. In paragraph No.8 it is stated that church was remaining closed from 1988. In paragraph No.10 it is stated that as per direction of this Court in W.P.(C) No.20938 of 2005 Sub Divisional Magistrate was to return key of the church to one Fr.M.V.Abraham. In paragraph No.13 of the plaint it is stated that assets and affairs of petitioner No.1 (church) is to be administered in accordance with the terms and conditions of Udampady dated 13.12.1088 ME., there was no fresh election to managing committee of church for the past several years and of the committee which was elected, except respondent Nos.4 to 9 no other CRP No.803/2007 7 member is alive. It is stated that there was faction fight even among members of the elected committee, hence it could not function and as such there was practically no administration of assets and affairs of petitioner No.1 (church) and that income of church is not properly collected, preserved and utilised. It is stated in the concluding portion of paragraph No.13 that a new governing body for the educational institutions in plaint B schedule is to be elected and respondent No.12/defendant No.12 is advancing false claims that he is chairman of the school board entitled to be approved as manager of the school while he had no such right. In paragraph No.16 it is stated that since petitioner No.1 is to be governed as per terms and conditions of the Udampady dated 13.12.1088 ME. a scheme may be settled by the court in accordance with the basic foundations in the said Udampady in case it is found that such a scheme is necessary for administration of petitioner No.1. In the circumstances relief of declaration that petitioner No.1 is to be administered in accordance with the terms and conditions of Udampady dated 13.12.1088 ME is sought for. Alternatively, there is a prayer (relief - B) to settle a scheme for administration of petitioner No.1 (church) for its assets and institutions. Relief - D sought for is to conduct elections to the managing committee of petitioner No.1 and governing body of its various institutions through a Receiver to be appointed (by the court) after preparing proper voters list of all the parishioners of petitioner No.1. It is argued by learned counsel for petitioners that the suit is only for a declaration that petitioner No.1 (church) is to be administered in accordance with terms and conditions of Udampady dated 13.12.1088 and CRP No.803/2007 8 other reliefs are only consequential or alternative to the main relief of declaration and hence court below was not justified in granting leave under Section 92 of the Code. 5. I am afraid, that contention cannot be accepted. For, the mere fact that a declaration in the nature stated above is prayed for by itself cannot take the suit outside the purview of Section 92 of the Code if otherwise it comes within the scope of that Section. I referred to the various averments in plaint and reliefs sought for which includes alternatively settlement of a scheme for proper administration of assets and affairs of petitioner No.1 and its institutions. There is also a prayer that since the committee which was elected several years back has become truncated due to its members except respondent Nos.4 to 9 not being alive, assistance of the court is required to conduct new election to the various bodies of petitioner No.1 and its other institutions though according to respondent Nos.1 to 3, such election is to be held in accordance with terms and conditions of Udampady dated 13.12.1088 ME. Learned counsel for petitioners contend that Udampady dated 13.12.1088 ME has no relevance and that petitioner No.1 is to be governed by the Constitution of 1934 as held by the Supreme Court in P.M.A.Metropolitan v. Moran Mar Marthoma (AIR 1995 SC 2001). In deciding whether leave under Section 92 of the Code is to be granted or not what is to be considered is the case set up by the person seeking leave. Therefore question whether petitioner No.1 is to be governed by the Constitution of 1934 or not is not a matter which is required to CRP No.803/2007 9 be considered at the stage of deciding whether grant of leave under Section 92 of the Code is correct or not. Averments in the affidavit and plaint relate to lack of proper administration of affairs of petitioner No.1, institutions under it and lack of proper utilization of its assets and funds. Though alternatively, reliefs prayed for includes settling a scheme for proper administration of petitioner No.1 and its institutions. There is also a prayer to conduct election to the various committees of petitioner No.1 and its institutions. In effect it means that administration and assets of petitioner No.1 are to be vested in the new committee to be formed by election. It also means that present form of administration is to be put an end to and the administration and management of petitioner No.1 and its institutions is to be put in the hands of the committee to be elected by intervention of court. That in my view came within the purview of Clauses (a), (b), (c) and (g) of Section 92 of the Code relating to removing any trustee (here, the existing truncated committee), appointing a new trustee (here, by fresh election of committee), vesting any property in a trustee (here, handing over administration and affairs of petitioner No.1 to the committee to be elected as per order of court) and settling a scheme (alternatively prayed) for administration of affairs and assets of petitioner No.1. In Jambulinga Pathan v. Akilanda Asari (AIR 1927 Madras 886) plaintiffs did not specifically seek for reliefs coming under Clauses (a) to (h) of Section 92(1) of the Code but did so by implication. Allegation was that since the existing trustees were mismanaging affairs of the trust they were removed by the plaintiffs, and new trustees were CRP No.803/2007 10 appointed. Relief prayed for was that new trustees may be permitted to administer affairs of the trust concerned. It was contended that the suit did not come within the purview of Section 92 of the Code. It was held that though there was no specific prayer, by implication plaintiffs wanted to handover properties of trust to the trustees newly appointed after removing the existing trustees. Hence when it is prayed that new committee may be elected, it impliedly meant that the existing committee, according to respondent Nos.1 to 3 in truncated form is to be removed from administration and the newly elected committee is to be put in administration. Reliefs prayed for therefore, comes under Clauses (a), (b), (c) and (g) of Section 92 (1) of the Code. 6. Having regard to the averments in the affidavit and plaint and the nature of reliefs prayed for which I have referred to above I hold that learned Additional District Judge was correct in granting leave to respondent Nos.1 to 3 to institute the suit under Section 92 of the Code. I find no reason to interfere. Revision Petition is dismissed. I.A.Nos.2186 and 2293 of 2007 and 775 of 2008 will stand dismissed. THOMAS P.JOSEPH, Judge. cks