IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 15TH DECEMBER 2006 / 24TH AGRAHAYANA 1928 CRP.No. 1260 of 2003() ---------------------- AGAINST THE ORDER DATED 11/04/2003 IN IA.2636/2001 IN OS.20/2000 of II ADDL.DISTRICT COURT,ERNAKULAM .............................................................. REVN. PETITIONER: PETITIONER/DEFENDANTS 1 TO 3 AND 6, 8 & 10 ------------------------------------------------------------ 1. VIDYODAYA TRUST, REPRESENTED BY THE PRESENT EXECUTIVE TRUSTEE DR.P.SREEKUMAR, 'SABARIGIRI', CHITTOOR ROAD, ERNAKULAM. 2. JUSTICE SRI.P.K.SHAMSUDIN, (RETD), CHAIRMAN, VIDYODAYA TRUST, MASJID ROAD, OFF.S.R.M.ROAD, COCHIN - 682 018. 3. SRI.M.G.C.NAIR, EXECUTIVE TRUSTEE, VIDYODAYA TRUST, 'ABHILASH', XXX/152, HOTEL RENAISSANCE, (OPP) PALARIVATTOM, COCHIN - 682 025. 4. SRI.GEORGE PAUL, TRUSTEE, VIDYODAYA TRUST, 39/1100, BANERJI ROAD, COCHIN - 682 018. 5. SRI.E.K.JOHNY, TRUSTEE, VIDYODAYA TRUST, K.V.15, PANAMPILLY NAGAR, COCHIN - 36. 6. DR.P.SREEKUMAR, TRUSTEE, VIDYODAYA TRUST, SABARIGIRI, CHITTOOR ROAD, COCHIN - 18. BY ADV. SRI.P.N.RAMAKRISHNAN NAIR SRI.P.VISWANATHAN RESPONDENTS: PLAINTIFFS & DEFENDANTS 4, 5, 7, 9, 11 ------------------------------------------------------------------------- 1. MR.MOHAN PRASAD R., VICE CHAIRMAN, TRUSTEE, VIDYODAYA TRUST, ATULYA, B.T.S.ROAD, EDAPPALLY, COCHIN - 682 024. 2. MR.KRISHNABALAN PALLATH, TRUSTEE, VIDYODAYA TRUST, "KAVIKKAL", PALAYA PARAMBU ROAD, COHIN - 682 026. 3. B.GOVINDA RAO, TRUSTEE, VIDYODAYA TRUST, "MANNKOTTATHIL", DIWANSROAD, ERNAKULAM, COCHIN - 682 016. (2) 4. MR.BALAN M.NAIR, TRUSTEE, VIDYODAYA TRUST, "PRATHEEKSHA", RAJAJI ROAD, COCHIN - 682 035. 5. DR.K.G.NAIR, TRUSTEE, VIDYODAYA TRUST, ERNAKULAM. 6. ARUN VARMA, TREASURER TRUSTEE, VIDYODAYA TRUST, 38/854, DURBAR HALL ROAD, COCHIN - 682 017. 7. SRI.ALEXANDER FRANCIS, TRUSTEE, VIDYODAYA TRUST, H-27, PANAMPILLY NAGAR, COCHIN - 35. 8. SMT.USHA UNNIKRISHNAN, TRUSTEE, VIDYODAYA TRUST, B2, BLOCK 1, V.B.ROYAL, EDAPPALLY, COCHIN - 682 024. 9. JOSEPH THOMAS, I.P.S., VICE CHAIRMAN, VIDYODAYA TRUST, 40/1521 A, SHENOY ROAD, KALOOR, COCHIN - 682 017. BY ADV. GEORGE VARGHESE PERUMPALLYKUTTIYIL SRI.VPK.PANICKER SRI.AJU MATHEW SRI.T.KRISHNAN UNNI THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15/12/2006, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT.J ------------------------------------------------------------ C.R.P No. 1260 OF 2003 ------------------------------------------------------------- Dated this the 15th day of December 2006 ORDER Did the court below go wrong on facts in granting leave and in holding that the suit under Section 92 of the C.P.C is maintainable? Should the courts insist invariably that Order 1 Rule 8 publication is taken out in all suits under Section 92 of the C.P.C ? Can the Co-trustees be granted leave to institute a suit under Section 92 of the C.P.C ? Is there any conflict between the decision of the Single Bench in Amrithakumari Vs.Ramanathan (1998 (2) KLT 305 ) and the decision of the Division Bench in P.V.Mathew and others Vs.K.V.Thomas and others AIR (1983 Kerala 5 ) ? These questions are raised in this Revision Petition. 2. Against the finding on the preliminary issue that the suit under Section 92 of the Code of Civil Procedure is maintainable, defendants 1 to 3 , 6, 8 and 10 have come to this Court with this C.R.P . The learned. District Judge had taken the view that the suit is maintainable and is perfectly justified under Section 92 of the Code. 3. Certain crucial facts are not in dispute and I shall advert to them first. The first defendant is a public Trust of charitable nature. The C.R.P 1260/2003 -2- reliefs claimed in the suit do certainly fall within the reliefs enumerated in section 92 of the Code. There are allegations that there is breach of the stipulations of the trust deed and that directions of the Court is necessary for the proper administration of such Trust. 4. To avoid any possibility of confusion on this aspect I shall extract paragraph 23 of the plaint where the relief is claimed “23. Hence, it is most respectfully prayed that this Honourable Court be pleased to pass a judgment and decree (a) declaring that the defendants 2 , 3 and 10 are disqualified to hold/act as the office bearers/ Trustees as the case may be of the Trust, in the larger interests of the Trustees (b) directing the defendants 3 and 10 to deliver all Trust documents and properties in their possession to the Trust or to any person as directed by this Honourable Court (c) directing the production of accounts by the defendants 3 and 10 and other enquiries as to the loss created to the Trust and quantify the damages and order recovery from the assets of the tort-faesor trustees. (d) setting a scheme for the proper and most wholesome administration of the Trust and it constituent institution viz.Vidyodaya School (e) directing the removal of defendants 2, 3, 6, 9, and 10 and supplementing the School Management Committee with plaintiffs 1,2,3, and 4 and the 4th defendant who stood as sureties for the loans taken for the school (f) and such other reliefs are just and necessary in these C.R.P 1260/2003 -3- interest of justice in the facts and circumstances of the case. 5. It will also be apposite straight away to refer to paragraph 9 of the plaint where the crucial allegations are raised about the alleged breach of the Trust and the need for directions for the proper administration of the trust. Paragraph 9 of the plaint reads as follows :- “9.The defendants 2,3, and 10 are guilty of grave acts and omissions which have the effect of breach of trust, causing loss to the Trust,its properties, improper and illegal applications of Trust property, mismanagement and maladministration of Trust, making their removal by order of Court, taking penal action for recovery and damages for the loss caused to the Trust, direct delivery of Trust property, direct inquiry into their actions/ inactions, resulting in loss to the Trust, ordering the settlement of a scheme etc in the interest of justice. 6. Before the learned District Judge ,the plaint in the proposed suit was filed. An interim application was filed in the proposed suit for grant of leave under Section 92. The learned District Judge considered the application for leave which was numbered as I.A. 349/2000 in the unnumbered suit and granted leave ex-parte. Thereafter the suit was numbered. In the suit a written statement was filed by the defendants. Interalia it was contended that the suit is not maintainable in as much as it does not fall within the purview of section 92 of the Code. A preliminary issue regarding maintainability of the suit was raised for consideration. C.R.P 1260/2003 -4- 7. To be precise the contention, which is relevant for the purpose of this C.R.P., raised by the contesting defendants to resist the suit under Section 92 of the Code was that the plaintiffs who were co- trustees along with the other defendants were not suing to vindicate the rights in respect of the Trust in any representative capacity. It was contended that they, the co-trustees, were vindicating only private and personal grievances in the suit filed under Section 92. 8. The learned District Judge held that the suit was maintainable under Section 92 and answered the preliminary issue in favour of the plaintiffs. Challenge was raised against that order by filing this C.R.P. A learned judge of this Court held earlier that on merits the decision was not liable to interfered with, But it was observed in the closing lines of the order that a revision petition is not maintainable against the impugned order under the amended Section 115 of the Code. 9. The contesting defendants, undaunted by the order passed, repeated the challenge before this Court by filing writ petition No. W.P.C No.14961/2004. Another bench of this Court considered the challenge raised against the impugned order in that writ petition also on merits. It was C.R.P 1260/2003 -5- held that the order does not warrant interference. However the writ petition was dismissed on the ground that the revision petition was perfectly maintainable. 10. The contesting defendants took the matter to the Supreme Court. They seem to have challenged the orders in the C.R.P as also in the writ petition. The Supreme Court by the order dated 25-8-2006 took the view that the revision petition was certainly maintainable. The Supreme Court thereafter set aside the earlier order passed in this revision petition by this Court. It was brought to the notice of the Supreme Court that there was an order passed on merits also by this court on both occasions. However the Supreme Court sent the matter back to this Court for fresh disposal holding “However the learned counsel made attempt to justify the order by stating that the matter was also dealt with on merits. That would not improve the situation” 11. It is accordingly that the C.R.P is back before this court for fresh disposal 12. I have heard the learned counsel for the revision petitioners as also the supporting fourth and 11th defendants. I have also heard the learned C.R.P 1260/2003 -6- counsel for the plaintiffs. 13. As already stated there is no dispute on the question that the first defendant Trust is a Public Trust for charitable (Educational and other) purposes. The averments in the plaint clearly show that there is an allegation of breach of trust and of the need for the court issuing directions regarding administration/ management of the Trust. There is also no dispute that the nature of the reliefs claimed in the suit do squarely come within the sweep of the permissible reliefs that can be claimed under Section 92. 14. What then is the dispute? The short and specific contention that is raised is that though all other specific stipulations insisted by Section 92 of the Code are satisfied, it must further be shown, though there is no specific insistence by the language of the section, that the plaintiffs are suing to vindicate public rights in a representative capacity for all the beneficiaries and not for the enforcement of personal or private proprietory rights of the plaintiffs. . The plaintiffs who are co-trustees along with the defendants have not satisfied that requirement, it is urged. This is the short plea. C.R.P 1260/2003 -7- 15. There is no dispute between the counsel on the question of law that the plaintiffs in a suit under Section 92 cannot vindicate purely private and personal disputes. It is actually unnecessary to advert to precedents as there is no dispute between the counsel on this proposition of law. However it will be apposite to refer to the decision of the Supreme Court in Sugra Bibi Vs Hazi Kummu Mia AIR 1969 SCC 884 In paragraph 8 of the said decision this undisputed principle is clearly stated in the following words. “It is true that the facts that a suit relates to public trust of a religious or charitable nature and the reliefs claimed fall within Clauses (a) to (h) of sub-section (1) of Section 92, Civil Procedure Code would not by themselves attract the operation of the section unless the suit is of a representative character instituted in the interests of the public and not merely for vindication of the individual or personal rights of the plaintiff.” (emphasis applied) 16. The same principle has been reiterated, and I shall stop with this decision in Swami Parmatmanand Saraswati and another Vs.Ramji Tripathi AIR 1974 SCC 2141 where the Supreme Court stated the principle in the following words :- “A suit whose primary object or purpose is to remedy the infringement of an individual right or to vindicate a private right does not fall under the C.R.P 1260/2003 -8- section. It is not every suit claiming the reliefs specified in the section that can be brought under the section but only the suits which, besides claiming any of the reliefs are brought by individuals as representatives of the public for vindication of public rights and in deciding whether a suit falls within section 92 the Court must go beyond the reliefs and have regard to the capacity in which the plaintiffs are suing and to the purpose for which the suit was brought. “ 17. I must assume that the same requirement is insisted by the language of Section 92 when it insists that there must be “alleged breach of any express or constructive trust created for public purpose of charitable or religious nature or where a direction of the Court is deemed necessary for the administration of any such trust.” The requirement is not only that the trust must be a public trust of charitable or religious nature and that the relief claimed must fall within clauses a to h of Section 92 (1) . It is the inescapable primary requisite that there must be allegation of breach of trust or that direction of the Court must be deemed necessary for administration of any such trust. If there is bonafide allegations of breach of trust or of the necessity for directions for the administration of any such trust, normally it must be assumed that the plaintiffs are coming before court in representative capacity. Of course in an exceptional case it is possible that even if all the ingredients specifically insisted by Section 92 were satisfied, the plaintiffs' real intention could be not the vindication of C.R.P 1260/2003 -9- public rights but to settle private scores and to claim personal and private reliefs. The Supreme Court was certainly cautioning the courts of this possibility and attempting to eliminate such possibility-that is of a suit being laid against the public trust under Section 92 by persons whose motivations were not the protection of the interest of the public Trust. Leave cannot be granted when the plaintiffs seek to file the suit - not for the protection of the interests of the public trust, but to claim and enforce private or personal rights. 18. The question then is whether the plaintiffs in this case can be said to be laying the suit on behalf of the beneficiaries and members of the public to protect the interests of the public Trust or whether they were airing only private and personal grievances 19. I have extracted the reliefs claimed in the plaint as also the crucial and vital averments which appear in paragraph 9. I have extracted only paragraph 9 as the said paragraph gives the rationalisation of the various other facutal allegations made in the other paragraphs in the plaint. The only personal relief, judged from the prayer portion, is that plaintiffs 1,2,3, and 4 along with the fourth defendant who stood as sureties for loans taken for the School, a constituent institution of the Public Trust, should C.R.P 1260/2003 -10- be made members of the school managing committee. Except this there is no personal relief whatsoever claimed in the plaint. 20. It is certainly not the law, and no principle or precedent in support of such a proposition has been brought to my notice, that the plaintiffs must in the plaint specifically, aver that they are suing on behalf of other persons in representative capacity. The insistence of law is only that the discretionary leave under Section 92 shall not be granted when the plaintiffs have no genuine interest or intention to protect the public right of the beneficiaries but are only using the forum provided by Section 92 to air private and personal grievances. 21. Law gives persons the right to seek the leave of the Court to represent the beneficiaries of the Trust in a suit under Section 92. It is not necessary to specifically aver that the plaintiffs are suing in any such representative capacity. But it must be ensured that they do so and they do not ventilate private and personal grievances under the guise of a suit under Section 92. The absence of specific pleadings of the fact that the plaintiffs are suing in representative capacity may not in these circumstances clinch the issue at all. The crucial question is whether the nature of the rights which are sought to be vindicated are public rights in which all the beneficiaries are interested or only rights relevant personally and C.R.P 1260/2003 -11- privately to the plaintiffs as individuals. The mere fact that the removal of some of the members of the Managing committee of the school and filling up those vacancies by inducting the plaintiffs and the fourth respondent similarly situated is sought, cannot reduce or bring down the nature of the claim made in the suit to one of ventilating private and personal grievances of the plaintiffs. The plaint read as a whole and the nature of the rights claimed and asserted as also the nature of the reliefs claimed in the suit can leave no semblance of doubt in this case. The plaintiffs are certainly suing in representative capacity in the interests of the trust and its beneficiaries and not for the vindication of any private or personal rights. 22. When the C.R.P and the writ petition were earlier disposed of by other benches, those benches had also dealt with the question on merits and their finding is consistent with the finding which I have already entered above. In the earlier order in this C.R.P. dated 5-2-2004 the learned sigle judge had observed thus. Therefore the contention of the respondent that the suit is instituted to vindicate the property right of the parties cannot be accepted. The suit is filed for protecting the trust and trust properties which are created for the benefit of the public. C.R.P 1260/2003 -12- 23 In the order in writ petition 14961/2004 dated 20-8-2004 the learned Judge had observed thus in para 13 and 14 “ 13. Now I shall also consider whether the petitioners have made out a case warranting interference under Article 226 or 227 of the Constitution of India. Admittedly the first defendant in the suit is a public trust, running educational institutions. The reliefs sought for in the plaint are to declare that defendants 2, 3, and 10 are disqualified to hold/act as the office bearers/ trustees, to direct them to deliver all trust documents and properties in the possession to the Trust or to any person as directed by the Court, to direct defendants 3 and 10 to produce the accounts and also for setting a scheme for the proper administration of the Trust. Of course, there is also a prayer to supplement the plaintiffs, 1,2,3 and 4 and also the 4th defendant in the School Management Committee by removing defendants 2,3,6,9 and 10. The relief of setting scheme, rendering accounts and removal of trustees are not for enforcement of any personal rights. 14.The averments in the plaint which is produced as Exhibit R1(b) in the writ petition shows that the specific case put forward by the plaintiffs in the plaint is that the first defendant is a public charitable trust and it was formed with the contributions from the trustees and public and it is running an education institution. So, it is a public trust established for the benefit of the general public. It is well settled position of law that while granting leave the Court need look only the averments in the plaint and consider whether there are sufficient averments to hold that the suit is one which will come within the purview of Section 92 of the Code of Civil Procedure. So ,merely because the plaintiffs also sought for a declaration they shall be appointed as the members of the Managing Committee will not take away the nature and character of the suit. So the decisions reported in Appanna Vs. Narsinga (AIR 1922 Madras 17), Parmatmanand Saraswati Vs.R.Tripathi (AIR 1974 SC 2141) Sugra Bibi Vs Haji Kummu Mia (AIR 1969 SC 884) Amrithakumari Vs.Ramanathan (1998 (2) KLT 305) St.Mary's Church Vs.Saju 2001 (2) KLT SN 6 (Case No.6) C.R.P 1260/2003 -13- and Govindan Vs.Koovalasseri S.M.K.Trust (2001 (2) KLT 907) can have no application to the facts of the case. 24. These orders passed in C.R.P and in the writ petition have been set aside by the Supreme Court and that is why without relying on those observations I have chosen initially to consider the challenge on merits myself. I have only noted that on both earlier occasions also identical conclusion was reached by benches of this court, after specifically adverting to this aspect. I say so because I find that the learned District Judge does not appear to have considered this question specifically in this perspective in the order impugned. Parties knew their contentions and they have by now advanced arguments four times in the matter before courts and therefore the fact that the learned District Judge did not consider the question specifically is according to me, not a sufficient reason to send the matter back to the District Judge for consideration of that question specifically. 25. A contention has been raised as to whether the course followed in this case - of the plaintiffs filing the plaint in the proposed suit and the I.A in such proposed suit for grant of leave is proper or correct. Different practices appear to prevail in different parts of the state on this aspect. I find an earlier division Bench Ruling of this Court in P.V.Mathew and others Vs.K.V.Thomas and others AIR 1983 Kerala 5 on this aspect. There in paragraph 9 as proposition 2 the learned judges C.R.P 1260/2003 -14- have held as follows:- 9.With this background we might thus formulate the procedure for the grant of leave by the Court. (ii) Along with the petition for leave the plaintiffs- petitioners should produce in Court the plaint for the Court”s perusal to enable it to pass a proper order under Section 92 (1). This does not preclude the Court from requisiring the production of any other record necessary for a proper decision. (emphasis applied) only proposition ii is reproduced 26. Long later, without specifically adverting to this decision of the Division Bench a learned single Judge of this Court in Amrithakumari Vs Ramanathan 1998 (2) KLT 305 has observed thus in paragraph 7 The next contention is that there was irregularity in the proceedings. Learned counsel for the petitioners brought to my notice that what has been done in this case is that the plaint was filed along with the I.A. for grant of leave. The leave petition does not say the entire facts. The suit was also numbered as O.S. No.7/96 before the leave was granted. I am also of the view that the leave petition has to be considered independently. Leave petition should contain all facts just as a petition filed for prosecuting a suit as an indigent person. It should contain the statement of facts, grounds on which the plaintiff relies and also the relief sought for in the plaint. Suit can be instituted only after the leave is granted. Hence, the lower Courts should take care to see that leave petitions alone are filed at the initial stage and it should contain all facts. Regarding irregularity I don't think that any prejudice was caused to the petitioners to any extrent. But I make it clear that it is the duty on the part of the Court to see that suit is numbered only after C.R.P 1260/2003 -15- leave is granted. (emphasis applied) 27. In the instant case the plaintiffs appear to have followed the decision in P.V.Mathew and others Vs.K.V.Thomas and others AIR 1983 Kerala 5. They filed the plaint as also an I.A. in the said plaint. An interlocutory application conceptually cannot have existence without a main proceedings. If that be so, the propriety of filing an I.A. for leave when no suit has been filed has to be doubted. The leave application has to precede the suit. Of course, following the decision in P.V. Mathew (Supra) the application must be accompanied by the proposed plaint Therein, their Lordships did not hold that the petition should be an interlocutory application in the suit. All that was insisted in proposition (ii) extracted above is that the plaint ( or a copy thereof obviously) must be produced along with the application for leave. There is nothing to indicate that their Lordships intended that leave must be sought in the interlocutory application in the suit proposed to be filed. In that view of the matter I