IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 22.10.2008 Coram The Honourable Mr.Justice S.RAJESWARAN C.R.P.(PD)No.704 of 2008 in M.P.No.1 of 2008 1.Anikadavu Madamanai Lathekarar Kulam Sri Venkatesa Perumal Thirukovil Arakkattalai rep. by its President R.Venkudusamy 2.Anikadavu Madamanai Lathekarar Kulam Sri Venkatesa Perumal Thirukovil Arakkattalai rep. by its Secretary M.V.Natarajan 3.K.Shanmugha Sundaram ... Petitioners Vs. 1.K.Thandapani 2.M.C.Venkatachalam Chettiyar 3.Hindu Religious & Charitable Endowment Department rep. by Assistant Commissioner, Erode. 4.Hindu Religious & Charitable Endowment Department rep. by Thakkar of Eragampatty Sri Venkatesa Perumal Thirukovil Dharapuram Taluk, 5.R.Balaji Prasath 6.R.Anusuya Devi @ Thulasi ... Respondents This Civil Revision Petition has been filed under Article 227 of the Constitution of India to set aside the Order dated 06.07.2007 in I.A.No.173 of 2006 in C.F.R.No.917 of 2005 on the file of the Subordinate Judge, Dharapuram. For Petitioners : Mr.V.Nicholas For Respondents : Mr.T.Murugamanickam For R1 & R2 https://hcservices.ecourts.gov.in/hcservices/ O R D E R This Civil Revision Petition has been filed by the petitioners herein/defendants 1 to 3 in C.F.R.No.917 of 2005 to set aside the Order dated 06.07.2007 in I.A.No.173 of 2006 in C.F.R.No.917 of 2005 on the file of the Subordinate Judge, Dharapuram. 2. The respondents 1 to 3 in CFR.No.917 of 2005 are the revision petitioners before this Court. CFR.No.917 of 2005 has been filed by the respondents 1 and 2 herein under Section 92 of CPC., to grant leave to institute suit. The prayer in the suit reads as under:- a) Declaring that the item I of the suit property purchased in the name of the first and second defendant belongs to Sri Venkatesa Perumal temple Eragampatty and for delivery possession of the item I of the suit property to the 5th defendant for the benefit of the Sri Venkatesa Perumal Temple Eragampatty. b) Declaring that the Trust deed created under Document No.778 of 2004 in the name of the Anikadavu Madamanai Lathekarar Kulam Sri Venkatesa Perumal temple Thirukovil, Arakkattalai is null and void and cancel the same. c) Declaring that the titles namely (i) Mookan Chettiar (ii)Karunagi Chettiar (iii)Chinnan Chettiar (iv)Jamedarar (v) Rama Banam (vi)Kattiyakarar (vii)Arputha Dasar should be used only by the present holders of the title of the Eragampattu Sri Venkatesa Perumal temple. d) Declaring that the word 'Anikadavu Madamanai' or 'Anikadavu Madamanai Lathekarar Kulam' or 'Anikadavu Madamanai Lathekararkulam Devangar vamsam', 'Agasthia magarisi Kotram', Arupathu Annan Thambimargal belong to Sri Venkatesa Perumal temple Thirukovil, Eragampattu and that the words can be used only by the worshippers of the Eragampatty Sri Venkatesa Perumal temple Thirukovil. e) Granting a permanent injunction restraining any person from using the tiles mentioned in the relief (d) who is unconnected with Eragampatty Sri Venkatesa Perumal Temple. f) Granting a permanent injunction restraining any person or community member to use the word 'Anikadavu Madamanai Lathekarar Kulam' or word 'Anikadavu Madamanai Lathekararkulam Devangar vamsam', 'Agasthia magarisi Kotram', Arupathu Annan Thambimargal' other than the community members worshipping Sri Venkatesa Perumal temple Thirukovil, at Eragampatty. g) Granting a permanent injunction restraining the defendants 1 to 4 or their men, agents assignsm successors in interest etc. from selling or alienating the suit property which was purchased out of the funds of the Sri Venkatesa Perumal temple Eragampatty. https://hcservices.ecourts.gov.in/hcservices/ h) Directing the 3rd defendant to deliver possession of panchalokha Virgrahams of Sri Venkatesa Perumal temple Thirukovil, Sridevi, Bhudevi, Silver Jadari, Silver Kalasa Pathram Bell, Sangu, Segandi and other Pooja materials described in item 2 of the property to the 6th defendant. i) Directing the 4th defendant to deliver possession of Sembu Pattayam of the Sri Venkatesa Perumal temple Thirukovil, Eragampatty described as item 3 of suit property to 5th defendant and grant such other relief as may be just and proper in the circumstances of the case and render justice. 3. In the affidavit filed in support of CFR.No.917 of 2005, the respondents 1 & 2 herein have stated that the first respondent, as a title holder of Sri Venkatesa Samy Temple and the second respondent herein, as also a title holder namely Karungaiya Chettiar filed the suit for the various reliefs claimed in the plaint. Since, the property involved belongs to a temple and a Trust Deed has been executed purporting to act for the temple, it has become necessary to file the present suit for the various reliefs. The property purchased under the Sale deed dated 18.11.2004 belongs to the Eragampatty Sri Venkateswara Perumal Temple, as it was purchased out of the funds of the temple and it actually belongs to the temple. Since there is a dispute regarding the same, they filed CFR.No.917 of 2005 under Section 92 of CPC., to obtain leave of the court for instituting the suit. This was opposed by the first petitioner herein by filing a counter affidavit. The trial Court, by order dated 16.07.2007, allowed the application filed by the respondents 1 and 2 herein and thereby granted leave to institute the suit and consequently the suit was numbered as O.S.No.80 of 2007. Aggrieved by the order of the trial Court, dated 16.07.2007, the above civl revision petition has been filed under Article 227 of the Constitution of India. 4. This Court, on 21.02.2008, granted interim stay and posted the matter for final hearing. 5. Heard the learned counsel for the revision petitioners and the learned counsel for the respondents 1 and 2 (Caveators). I have also gone through the documents and judgments filed in support of their submissions. 6. The learned counsel for the revision petitioners submits that Courts have to be careful to eliminate the possibility of a suit being filed against a Public Trust under Section 92 of CPC., by persons whose activities were not for protection of the interest of the Public Trust. In the present case, according to the learned counsel, the respondents 1 and 2 have filed the suit not for public rights, but for the vindication of individual and personal rights. Hence, the https://hcservices.ecourts.gov.in/hcservices/ trial Court has committed an illegality in granting leave to institute the suit. In support of his contentions, the learned counsel for the petitioners relied on a decision of the Hon'ble Supreme Court reported in 2008 (2) LW 724 (Vidyodaya Trust vs. Mohan Prasad R & others). 7.Per contra, the learned counsel for the respondents 1 and 2 raised a preliminary objection as to the very maintainability of the revision itself, against an order granting leave to institute a suit against a Public Trust under Section 92 of CPC. According to the learned counsel for the respondents 1 and 2, the application under Section 92 of C.P.C., for grant of leave, is administrative in nature and therefore, it is always open to the other side to approach the trial Court itself with necessary documents, to revoke the leave and therefore, the civil revision petition filed under Article 227 of the Constitution of India is not maintainable. He relied on a decision of this Court reported in 1996 (2) LW 364 (R.Kannan Adityan & 4 others Vs. B.S.Adityan and six others) and another decision in 1993 (2) LW 773 (G.R.Govindarajulu and sons Charities, Coimbatore and 2 others Vs. R.Sethurao and 12 others). 8. I have considered the rival submissions carefully with regard to facts and citations. 9. Before deciding the issue whether the trial Court has correctly granted leave, which is under challenge, let me consider the preliminary objection raised by the learned counsel for the respondents 1 and 2 as to the maintainability of the revision petition filed under Article 227 of the Constitution of India. 10. In 1996 (2) LW 364(cited supra), a Division Bench of this Court held that a proceeding under Section 92 of CPC., is administrative in character and it is neither judicial nor quasi-judicial. The relevant portion reads as under. "Before considering the validity of the respective contentions, it is necessary for us to advert to the general principles governing an application for leave under Section 92 C.P.C.. A(i) A proceeding under Section 92, CPC. is administrative in character and neither judicial nor quasi-judicial. An order granting leave does not affect the rights of any party, though an order refusing to grant leave may affect the rights of the persons who seek such leave. In any event, the nature of the proceedings is only administrative. In Mulla's Code of Civil Procedure, 15th Edition, Volume I, at pages 634 and 635, the following passage occurs:- "Nature of the order granting leave by the https://hcservices.ecourts.gov.in/hcservices/ Court – Under the section as it stood before is recent amendment and when what was required was the consent of the Advocate General, there was some divergence of opinion on the question whether the proceedings for consent before the Advocate General were quasi-judicial in character, and if they were, whether they were open to challenge in writ proceedings under Article 226 of the Constitution. In Abu Backer V. Advocate General(AIR 1954 Travancore-Cochin 331) the High Court of Travancore Cochin held that such proceedings were quasi- judicial and that view was shared by the Pepsu High Court in Sadhu singh V Mangal Gir Mohatmin(AIR 1955 Raj 166), Allahabad in Shanthanand v. Advocate General(AIR 1955 Allahabad 372), Madras in Raju V Advocate General(AIR 1962 Madras = 75 L.W. 240) and in Abdul Kasim V. Mohd Dawood(AIR 1961 Madras 244= (1960) 73 L.W. 649), and Jammu and Kashmir in Desraj V. Dy. Commissioner, Jammu and Kashmir(AIR 1962 J & K.86). A Full Bench of the Kerala High Court later on reconsidered the position and held reversing Abu Backer's case(supra) that the proceedings before the Advocate General were only administrative (A.K.Bhaskar V. Advocate General (AIR 1962 Kerala 90 F.B.). Further, it has also been held that the function of the Advocate General not being a judicial one, notice by him to the trust or its trustees was not obligatory and that the absence of such notice did not invalidate the consent given by him. All that was required of him at that stage was to satisfy himself that it was worthwhile to institute the suit (Shav V Masood Hasain(AIR 1965 A.P. 143). Notice to the defendants before granting leave is not mandatory. The Supreme Court new so held. Although as a rule of caution, such notice should be given, leave granted without notice is not bad in law. The proposed defendants can always apply for revocation of leave already granted. (R.M.Narayan Chettiar V. Lakshmanan Chettiar (AIR 1991 SC 221 = 1990-2-LW- 468). The mere fact that the amended section now requires leave of the Court in place of consent by the Advocate General does not seem to change the nature of the order of leave made by the Court. In making such an order the Court, like the Advocate General earlier, would no doubt have to apply its mind but that is only to satisfy itself whether the persons asking leave have interest in the trust, whether the trust is a public trust specified in the section and whether there are prima facie grounds for thinking that there has been a breach of the trust. At that stage the Court would not https://hcservices.ecourts.gov.in/hcservices/ have before it all the parties to the proposed suit nor the evidence from which it would called upon to adjudicate any issue. All that it would have to see in whether it is in the interest of the trust to file the suit for which leave is sought" We are entirely in agreement with the view expressed by the learned author that the amendment of the Code in 1976 requiring leave of the Court in place of consent by the Advocate General does not change the nature of the other. (ii) In Abdhul Kasim V. Md. Dawood (AIR 1961 Madras 244(1960) 73 L.W. 6490, a learned Single Judge of this Court had to consider a similar provision in Section 55(1) and (2) of Muslim Wakfs Act(1954). After referring to the earlier ruling under Section 92, C.P.C., the learned Judge held that the decision of the Board to file or not to file a suit itself, or to sanction or withhold sanction to another person to file a suit is not equivalent to a judicial or quasi judicial decision affecting the rights of parties and the decision to permit another to file suit is an administrative act and is outside the purview of correction by the issue of a writ certiorari. (iii) Another learned Judge of this Court in Raju V. Advocate General, H.C. Buildings (AIR 1962 Madras 320=75 L.W.240) held that a writ of certiorari under Article 226 of the Constitution to quash the order of the Advocate General on a sanction application is not maintainable. He dissented from the view expressed in Abu Backer V. Advocate General(AIR 1954 Travancore-Cochin 331). The learned Judge held that the nature of the proceeding was only administrative. (iv)A Full Bench of Kerala High Court in A.K.Bashkar V. Advocate General(AIR 1962 Kerala 90) over-ruled the above decision of the Travancore Cochin High Court in Abu Backer's case (AIR 1954 Travancore-Cochin 331) and held that when the Advocate General Acts under Section 92, CPC., it is neither judicial nor a quasi judicial order as it does not decide anybody's right, though it may be proper for him to issue notice to the proposed defendants and hear their view-point also. It was held that the order passed by the Advocate General giving or refusing sanction cannot be judicially reviewed under Article 226 of the Constitution of India. (v) In Mayer Simon Parur V. Advocate General (AIR 1975 Kerala 57), a larger Bench considered the question once again and overruled the decision of the earlier Full Bench in A.K.Bhaskar's case (AIR https://hcservices.ecourts.gov.in/hcservices/ 1962 Kerala 90), in so far as in negatived the maintainability of a proceedings under Article 226 of the Constitution of India. However, the Full Bench accepted the view that the proceeding before the Advocate General was administrative in character. After considering all the relevant rulings on the question, the Full Bench negatived the contention that the Advocate General was performing a judicial or quasi judicial act. But, even as an administrative order, the Full Bench held that it was liable to be questioned under Article 226 of the Constitution, when it declined to grant leave. (vi) In New College V. Basheer Mohammed ((1979) I M.L.J.145), a Division Bench of this court held that an order granting leave under Section 92 of the Code of Civil Procedure is a judgment within the meaning of Clause 15 of the Letters patent. The Bench took the view that the order, though preliminary or interlocutory in nature, definitely determines some right or liability of the parties to the suit and once for all decides the right of the plaintiffs to get the leave under Section 92, Civil Procedure Code and negatives the contention of the opposite party that leave should not be granted and, therefore, it is a judgment. The Bench did not consider the question whether the order under Section 92, Civil Procedure Code, is administrative in nature. In our view, the decision of the Bench runs counter to the dictum of the Supreme Court in Shah Babulal Mhimji V. Jayaben (AIR 1981 S.C. 1786=94 L.W.91 S.N.), Wherein the Supreme Court held that for the purpose of clause 15 of the Letters Patent, only those orders will be judgments which decides matters of moment or affect vital and valuable rights of the parties and which work serious injustice to the party concerned. If the test prescribed by the Supreme Court is applied, the ruling of the Division Bench in New College V. Basheer Mohammed (1979) I M.L.J.145) cannot be considered to be good law. (vii) In Prithipal Sing V. Mah Singh (AIR 1982 Punjab and Haryana 137), a learned Single Judge of that Court held that order granting leave is administrative in nature and reasons need not be given in that order. The same proposition was reiterated by a Division Bench of that Court in Lachman Dass v. Ranjit Singh (AIR 1987 Punjab and Haryana 108). The Division Bench also held that no notice was necessary to the defendants before granting leave. https://hcservices.ecourts.gov.in/hcservices/ (viii) In T.M.Shanmugam v. Periyar Self Respect Propaganda Institution(AIR 1985 Madras 93= (1984) 97 L.W.480), a learned single Judge of this Court relying upon the judgment of the Division Bench in New College case(1979) I M.L.J. 145) held that if leave is granted under Section 92, CPC, without ordering notice to the defendants, the same is void in law and further action in pursuance of such order, namely, entertaining and numbering of suit, is unsustainable in law. This judgment is considered to have been impliedly overruled by the Supreme Court in R.M.Narayan Chettiar v. N.Lakshmanan Chettiar(AIR 1991 SC 221 = 1990-2- L.W.468), to which we are going to refer in detail a little later. (ix) In Ambrish Kumar Singh v. Raja Abhushan Bran Bramhisha (AIR 1989 Allahabad 194), it was held that giving notice to proposed defendants before granting leave under Section 92, C.P.C., is not contemplated, as the Court is not deciding the rights of parties but merely sees whether prima facie case for granting leave is made out. (x) While upholding the principle that notice to defendants before granting leave is not necessary as a rule of law, the Supreme Court held in S.R.M.Narayanan Chettiar v. N.Lakshmanna Chettiar (AIR 1991 SC 221 = 1990-2-L.W.468) that as a rule of caution, the Court should normally give notice to the defendants before granting leave under the said section to institute a suit. The Court observed that the defendants could bring to the notice of the Court, for instance that the allegations made in the plaint are frivolous or reckless and that in a give case, they could point out that the persons who are applying for leave 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 Court hastened to add that the desirability of the issue of such notice being given to the defendants cannot be regarded as a statutory requirement to be complied with before leave under Section 92 can be granted, as that would lead to unnecessary delay and, in a given case, cause considerable loss to the public trust." 11. In 1998 (2) LW 773 (cited supra), a learned Judge of this Court has categorically held that a revision petitioner under Article 227 of the Constitution of India against an order granting leave to institute the suit against Public Trust, under Section 92 of CPC., is not maintainable. The learned https://hcservices.ecourts.gov.in/hcservices/ Judge further held that granting of leave by a court under Section 92 CPC., is an administrative function and therefore, neither Section 151 of CPC, nor Article 227 of the Constitution of India Could be invoked against an order granting leave by a person aggrieved against that order. The learned Judge has further concluded that it is always open to the other side to approach the same court which granted the leave to revoke the same by producing necessary documents and relevant materials. The relevant portion reads as under:- "In a Bench decision of this Court in R.Kannan Adityan and four others v. B.S.Adityan and six others(1996-2 L.W.364) the scope of an order under Section 92 of the CPC, was considered in detail. In para 19 of the judgment their Lordships held thus: "A proceeding under Section 92, C.P.C. is administrative in character and neither judicial nor quasi judicial. An order granting leave does not affect the rights of any party, though on order refusing to grant leave may affect the rights of persons who seek such leave. In any event, the nature of the proceedings is only administrative." Their Lordships observed that originally, before 1976 it was the view of the Court that with the permission of Advocate General a suit could be instituted. It is the duty of Advocate General that has now been delegated to the Court for the reason that the Advocate General will have no sufficient time to enquire into such allegations and therefore, it is better that portion of their duties as Advocate General be delegated to Court. The effect of such a relief is that instead of Advocate General filing a suit, two or more persons took the responsibility of the Advocate General and filed a suit against the public trust. Thereafter, the Division Bench considered various decisions of various High Courts and also Supreme Court and held that even the provision under Section 141 of the CPC., will have no application in such cases. The Division Bench has considered the order passed by the learned single Judge of this Court which directed the rejection of the leave application. The learned Judge has held that the application for leave is not maintainable and directed to reject the same. The same was challenged by the respondents in that case. The Division Bench held that Order 7, Rule 11 of the CPC, will also have no application in such cases. Reading of the Bench decision makes it clear that even though the proceedings are before the Court, it is purely administrative in character i.e., it only considers whether the leave should be granted for instituting the suit or not. The Code https://hcservices.ecourts.gov.in/hcservices/ of Civil Procedure will apply only when a suit is properly instituted. To grant leave is a step or a condition precedent for filing a properly instituted suit. In a recent decision of our High Court in Tirupattur Nagarathu Vysiyargal Sangam v. Tirupattyr Periyakulam Nandavanam Inam Land Tenants Association (1198-1-MLJ-303), Their Lordships held that the leave granted even without hearing the proposed defendant is not justifiable under Section 115 of the Code of Civil Procedure. I also had an occasion to consider a similar question in Raju Pillai and 4 others v. V.P.Paramasivam and 7 others (1995-1.L.W.518) wherein I have held that a revision under Section 115 of the Code of Civil Procedure or a revision under Article 227 of the Constitution of India is not maintainable. In this Connection, it is worthwhile to note that in all these decisions cited supra reference is made to the decision of Supreme Court in R.M.Narayana Chettiar v. N.Lakshmana Chettiar (AIR.1991.S.C.221 = 1190-2-L.W.468). Their Lordships, in para 17 of the judgment have held that the grant of leave is a condition precedent against a public trust. Their Lordships further said that merely because notices were not given to the proposed defendants before the grant of leave, the leave granted will not become invalid or void. Likewise if no reasons in the order is given, that will not make the leave invalid and there is remedy in such cases. Their Lordships also held that 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. Considering the case law, it cannot be doubted that this revision is not maintainable. The petitioners submitted that they have already filed an objection before the Court had contested the application that the same should not be granted. Learned counsel apprehended that if there is already an order against them, it would prevent them from filing an application for revoking the leave. https://hcservices.ecourts.gov.in/hcservices/ Learned counsel for the petitioner submitted that if there is no application of mind, remedy is open under Article 227 of the Constitution. "In my view, if that principle is applied to the application for a leave to institute a suit, I feel that the non-application of mind will be a ground to invoke Article 226 of the Constitution only if the leave to institute the suit is refused. Now, it is governed by Section 104 of the CPC, where such orders are made appealable. Granting of leave, though being exercised by the Court, it is not by a Court of law in the sense that the Court is discharging its administrative function and not the judicial