Vidyodaya Trust And Ors vs Mr. Mohan Prasad R And Ors

The respondents filed an application (IA 349 of 2000) seeking leave of the Court to institute the suit under Section 92 of the Code of Civil Procedure, 1908 (in short the 'CPC'). According to the appellants, without notice to them the concerned Court granted leave to the respondents to institute the suit. The suit was numbered as OS 20 of 2000. Plaintiffs filed written statement inter alia taking the stand that suit was actuated by personal motives. The suit under Section 92 CPC is of a special nature which pre-supposes existence of a Public Trust of religious or charitable character. From the averments in the plaint and the reliefs sought for it is clear that the plaintiffs were not suing to vindicate rights of the public, and it has not been filed in the representative capacity. The plaintiffs four in number are trustees who instituted both the suits against other trustees for personal reliefs and as individuals and seeking vindication of alleged individual rights and not as representatives of the public. Therefore, the suit as framed is not maintainable under Section 92 CPC. The defendants filed an application before the District Judge, Ernakulam for hearing as preliminary issue, the question of maintainability of the suit. On the basis of contentions raised by the plaintiffs as well as defendants, the Court framed preliminary issue as to whether the suit as framed is maintainable under Section 92 CPC. By order dated 11.4.2003 the Court held that the suit was maintainable.

Questioning correctness of the order, a petition for revision in terms of Section 115 CPC was filed. The High Court dismissed the Civil Revision petition on the ground that the same was not maintainable. Though the High Court made reference to some factual aspects, it ultimately came to hold that the revision petition was not maintainable as order dated 4.11.2003 was an interlocutory one. Thereafter the appellants filed writ petition before the High Court praying, inter alia, for writ, direction or order, questioning the order dated 2003. By order dated 20.8.2004 the High Court dismissed the writ petition holding that the view taken in the Civil Revision apparently was not correct, as by no stretch of imagination it can be held that the High Court had no jurisdiction. It accepted the stand of the respondents herein that since there was discussion on merits, though the petition was not held to be maintainable subsequent proceedings initiated under Article 227 of the Constitution of India, 1950 (in short the 'Constitution') cannot be maintained.

Judged in the aforesaid background the view of the learned Single Judge that the Civil Revision was not maintainable is clearly indefensible. Learned counsel for the respondent has fairly conceded to this position. If it is held that the suit in terms of Section 92 CPC is not maintainable, that would have the result of final disposal of the suit. However, the learned counsel made an attempt to justify the order by stating that the matter was also dealt with on merits. That would not improve the situation. The Civil Revision was clearly maintainable. Therefore, we allow the appeal so far as it relates to Civil Revision Petition No.1260/2003 disposed of by judgment dated 5.2.2004 by the High Court. The said order is set aside.

The High Court shall now to hear the Civil Revision on merits and dispose of the same as expeditiously as practicable preferably within four months from the date of receipt of our order. The time period is being fixed considering the pendency of the matter for a considerable length of time.

In view of the order passed in the appeal relating to Section 115 CPC no order is necessary to be passed in respect of the judgment in the writ petition. It may be noted that the learned Single Judge observed that the Civil Revision was maintainable and, therefore, declined to entertain the writ petition. This order was passed on the face of the order passed by learned Single Judge holding that it was not maintainable. The same, therefore, is not justifiable. But it is not necessary to deal with that matter as the Civil Revision shall be heard on merit.

The appeals are accordingly disposed of with no order as to costs.