IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRP.No. 803 of 2007()


1. ST. PETERS AND ST. PAULS' SYRIAN
... Petitioner
2. FR.JACOB KURIAN, S/O KURIAN,

Vs



1. K.S.VARGHESE, S/O SCARIA, AGED 61,
... Respondent

2. V.M.GEORGE, S/O MATHAI, AGED 40,

3. C.K.THAMPI, S/O KURIAKOSE, AGED 42,

4. REV. FR.VARGHESE EDUMARY,

5. P.M.GEORGE, AGED ABOUT 72,

6. K.A.THAMPI, S/O ABRAHAM, AGED ABOUT 63,

7. T.V.PURAVATHU, S/O VARKEY, AGED ABOUT 85

8. C.V.PAILY, AGED 100, S/O VARKEY,

9. P.P.THOMAS, AGED ABOUT 68,

10. A.V.PATHROSE, AGED ABOUT 75,

11. THOMAS M.ALIAS, AGED ABOUT 35,

12. JOGI GEORGE, AGED ABOUT 33,

13. BABU PAUL, S/O LATE SRI.P.M.PAILY PILLA,

For Petitioner :SRI.S.SREEKUMAR

For Respondent :SRI.N.SUKUMARAN

The Hon'ble MR. Justice THOMAS P.JOSEPH

Dated :15/07/2010

O R D E R
"C.R."


THOMAS P. JOSEPH, J.
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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

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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

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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

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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

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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

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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

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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

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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

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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

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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.




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