IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 18TH MARCH 2010 / 27TH PHALGUNA 1931 CRP.No. 696 of 2006() --------------------- AGAINST THE ORDER DATED 02/02/2006 IN IA 2065/2005 IN OS.39/2006 of PRL.SUB COURT,KOTTAYAM .................... REVN. PETITIONER(S)/4TH RESPONDENT: --------------------- THE PUNJAB NATIONAL BANK LTD., REPRESENTED BY ITS MANAGER, KATHRIKADAVU BRANCH, KALOOR, ERNAKULAM. BY ADV. SRI.K.P.SUDHEER RESPONDENT(S)/PETITIONERS & RESPONDENTS 1 AND 2: --------------- 1. P.N. MURALI, AGED 40 YEARS, S/O. NARAYANAN SANKARAN, PERUBILLI KIZHAKKETHIL S.H. MOUNT, KOTTAYAM. 2. V.N. RAVEENDRAN, S/O.V.A. NARAYANAN VELLACKAL HOUSE, MALLOOSSERY, KOTTAYAM. 3. SURYAKALADIMANA TEMPLE TRUST, REPRESENTED BY K. SOORYA SUBRAMANIAN BHATTATHIRIPPAD, SURYAKALADI MANA, S.H. MOUNT P.O., KOTTAYAM. 4. K. SOORYAN SUBRAHMANINAN BHATTATHIRIPPAD, SURYAKALADI MANA, S.H. MOUNT P.O., KOTTAYAM. ADV. SRI.K.JAGADEESCHANDRAN NAIR FOR R1 & 2 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN I.A.NO.2613/2006 IN CRP.NO.696/2006 DISMISSED. 18.3.2010 SD/- S.S.SATHEESACHANDRAN, JUDGE /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- C.R.P.NO.696 OF 2006 () ----------------------------------- Dated this the 18th day of March, 2010 O R D E R Revision is directed against the order passed by the learned Principal Sub Judge, Kottayam granting permission to respondents 1 and 2 to institute a suit under Section 92 of the Code of Civil Procedure. The 4th defendant in the suit, a nationalised bank, has filed this revision. 2. Respondents 1 and 2 sought permission to institute a suit under Section 92 of the CPC contending that the 1st defendant, namely, Suryakaladimana Temple Trust is a public trust and a scheme for its administration by intervention of the court is essential. The revision petitioner/4th defendant resisted the permission applied for contending that it is a collusive suit at the instance of the other defendants, among whom the 2nd defendant had availed a sum of Rs.30 lakhs from the bank CRP.NO.696/06 2 mortgaging one among the properties scheduled in the plaint. The bank further contended that on default of the 2nd defendant, proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act are now in progress. It was further stated that the 2nd defendant had even approached this Court by filing a writ petition challenging the securitisation proceedings and that petition was disposed of granting time to pay the specified amount within the time limit fixed. The 2nd defendant thereafter had moved for extension of time fixed by this Court, and time for payment was then extended. The 2nd defendant thereafter gave a cheque of Rs.10 lakhs to the bank towards the part payment of the liability outstanding on the loan. But the cheque, on presentation, was dishonoured, and his prosecution on a criminal complaint is still continuing. The 2nd defendant and also the 3rd defendant filed separate counters in which they also disputed the case of the plaintiffs that the 1st defendant is a public trust, but no serious challenge to the entertainability of the suit was put up by them. The court below, after considering the submissions made by the counsel on both sides with reference to the materials produced CRP.NO.696/06 3 for the leave applied for, passed the impugned order holding that granting of leave under Section 92 of the CPC is only an administrative order and the question whether the property mortgaged in favour of the bank was a private property or not can be considered at the time of evidence. Propriety and correctness of that order is challenged in the revision. 3. I heard the learned counsel for the petitioner bank. None appeared for the respondents at the time of hearing. The learned counsel for the petitioner bank has brought to my notice that the main relief canvassed in the suit is one for declaration that the 1st defendant is a public trust and the property scheduled are charged with public rights, with consequential relief of restraining defendants 2 to 4 from making any transfer of the plaint properties by way of mortgage, lease, license, sale deed, gift deed etc. The second relief is for a decree of injunction to restrain defendants 2 to 4 not to prevent access of the public to the 1st defendant temple and offering prayers to the deity. The third relief canvassed was one for injunction restraining the defendants 2 to 4 from committing waste in the CRP.NO.696/06 4 plaint properties. After canvassing such reliefs as 1 to 3, the plaintiffs have canvassed as the fourth relief settling of a scheme by the court for the administration and management of the 1st defendant temple and the plaint schedule properties. Regretably, the court below has not taken note of even the reliefs canvassed in the suit leave alone the objections raised by the petitioner, a nationalised bank, while considering the permission sought for by the plaintiffs to file the suit under Section 92 of the CPC. A suit in respect of a public trust under Section 92 of the CPC can be instituted only for the reliefs canvassed under (a) to (h) covered by that Section and even other reliefs covered under (h) thereunder should have some nexus with the reliefs covered by (a) to (e). No other relief can be canvassed or granted by the court in a suit filed under Section 92 of the CPC. The apex court in Pragdasji Guru Bhagwandasji v. Ishwarlalbhai Narsibhai and others (AIR 1952 SC 143) has held that in a suit framed under Section 92 of the CPC, the only reliefs which the plaintiff can claim and the Court can grant are those enumerated specifically in the CRP.NO.696/06 5 different clauses of the section. A relief praying for a declaration that the properties in suit are trust properties does not come under any of these clauses. It is further stated that when the defendant denies the existence of a trust, a declaration that the trust does exist can be made as ancillary to the main relief claimed under the section if the plaintiffs are found entitled to it. When that be so, the declaration sought for in the suit as the main relief that the 1st defendant is a public trust, with an injunction against the defendants in the manner indicated, is sufficient to hold that such a suit is outside the ambit and scope of Section 92 of the CPC. View taken by the court below that sanction or permission to sue under Section 92 of the CPC is only an administrative order and the disputed question whether the property mortgaged by the 2nd defendant in favour of the bank is a private property or not can be considered in the suit after taking evidence is patently erroneous and unsustainable under law. The apex court in Vidyodaya Trust v. Mohan Prasad R. and others ((2008) 4 SCC 115) has held that the interest of the petitioners seeking permission should be one for vindicating a public right in the trust, and so much so, while CRP.NO.696/06 6 examining the interest of the petitioners, the court has to go beyond the relief focusing the purpose for which the suit is filed. When the 4th defendant bank had contended that the suit had been filed collusively to screen the 2nd defendant and also his properties which had been secured under the loan availed and to forestall the securitisation proceedings already initiated, it was incumbent upon the court to examine whether the public interest canvassed by the petitioners over the 1st defendant temple has any basis or merit. Even on the plaint allegations, it is seen that the case of the petitioners was only to the effect they are worshipers to the 1st defendant temple, and also of offering some donation for its maintenance. Public are permitted to have access to the temple to offer prayers to the deity and some amount is collected from them as donation by way of offerings is not sufficient to hold that the temple is a public trust. The bank in the present case has produced a registered copy of the partition deed showing that the property mortgaged which has been scheduled as part of the temple property belong absolutely to the 2nd defendant. The court below, it is seen, has discarded not only that document but also the material circumstances CRP.NO.696/06 7 canvassed by the defendant bank which demonstrate that the case canvassed by the petitioners that the 1st defendant is a public trust is intended to scuttle the securitisation proceedings initiated against the property of the 2nd defendant. 4. When leave is applied for under Section 92 of the CPC, the petitioners need not show a direct interest but their interest in trust should be real, substantial and existing. A mere statement that they are well wishers and beneficiaries or worshippers making offerings in a temple is not sufficient to conclude that there is a public trust or a public temple in which the public at large are having vital indefeasible right and interest. Whether the petitioners have a real, substantial and existing right to maintain an action under Section 92 of the CPC when the very existence of the trust is disputed by the opposite party has to be scrutinised on the materials placed before grant of leave is given by the court. The court must be prima facie satisfied of the existence of a public trust, and then only the other question whether the petitioners have any interest in such trust arise for consideration. From the impugned order, it is CRP.NO.696/06 8 seen, the court below has brushed aside the challenge that the 1st defendant is not a public trust and some of the properties atleast do not belong to the temple but the individual properties of one of the defendants. Objections canvassed as above should have been looked into and examined by the court with reference to the materials produced; but the court below has discarded it holding that leave applied for under Section 92 of the CPC requires only an administrative order. View taken by the court for granting leave suffers from serious jurisdictional infirmity and it is liable to be set aside. The impugned order passed by the court below is set aside directing the court to examine the matter afresh and pass appropriate orders taking note of the observations made above and in accordance with law. S.S.SATHEESACHANDRAN JUDGE prp