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2001 DIGILAW 193 (KER)

St Marys Church v. Saju

2001-03-28

K.A.MOHAMED SHAFI

body2001
ORDER 1. The Order passed by the 1st Addl. District Court, Ernakulam in O. P. No. 341/99, dated 28th November 2000 granting leave to the petitioners therein to institute the suit against the respondents under S.92(1) of the C.P.C. is under challenge in this revision petition. 2. The respondents filed the above petition seeking leave of the court to institute the suit against the petitioners contending that the 1st respondent in the O. P. is a public religious charitable trust and the petitioners being two of the parishnors and beneficiaries of the trust are filing the suit in the representative capacity under O.1 R.8 of the C.P.C. for the smooth, efficient and proper administration of the Church without its income or assets being dissipated, wasted or alienated. 3. The lower court issued notice to the respondents. They appeared and contended that the 1st respondent church is not a public trust created for public purposes having religious nature as contemplated under S.92(1) of the C.P.C. and it is only a private trust not coming within the ambit of S.92 of the C.P.C. The lower court overruled the contention raised by the respondents therein and granted the requisite leave under S.92(1) of the C.P.C. 4. Originally leave to sue under S.22 of the C.P.C. was to be obtained from the Advocate General. After the amendment of the C.P.C., by the Amending Act of 1976 leave is to be granted by the court under S.92 of the C.P.C. After the amendment of the C.P.C. in 1976 the practice had been to file the suit along with a petition for leave under S.92 of the C.P.C. before the Court. In the decision in Amrithakumari v. Ramanathan 1988 (2) KLT 305 a single Judge of this court held that leave of the court should be obtained before institution of the suit and suit can be instituted only after leave is granted. In para 7 of the Judgment the learned Judge has observed as follows: "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. 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 extent. But I make it clear that it is the duty on the part of the court to see that suit is numbered only after leave is granted." 5. In this case the respondents have filed the above O.P. seeking leave and leave is granted by the court after hearing both sides before institution of the suit. 6. The counsel for the revision petitioners submitted that the scope of enquiry for granting leave under S.92(1) of the C.P.C. after the above decision of this court is entirely different. According to him, before the pronouncement of the Judgment of this Court reported in 1998 (2) KLT 305 , it was almost a matter of course before and after the amendment of the C.P.C. in the year 1976 and it was sufficient that an application seeking leave is filed along with the plaint. But after the judgment an O.P. has to be filed seeking leave of the court with all the necessary particulars as if in a petition to sue as an indigent person and the suit can be numbered only after leave is granted by the court. Therefore, according to him, the question whether leave can be granted or denied under S.92(1) of the C.P.C. has become a contentious issue from the very inception. Therefore, according to him, the question whether leave can be granted or denied under S.92(1) of the C.P.C. has become a contentious issue from the very inception. He further submitted that even though the revision petitioners filed detailed counter to the petition filed by the respondents seeking leave to file suit contending that the Church involved in the suit is only a private trust and not a public trust coming within the ambit of S.92 of the C.P.C., without properly understanding and analysing the contentions raised by the revision petitioners, it is found that the Church involved in this case is a public trust and granted leave to institute the suit under S.92 of the C.P.C. 7. Though in England all religious trusts are public charitable trusts under the statutes of Elizebath, in India there can be private and public charitable trusts. S.92(1) of the C.P.C. mandates that leave of the court to sue is necessary in respect of trusts created for public purposes of a religious nature. The distinction between a private trust and public trust is that in private (rust the beneficiaries are persons ascertained or capable of being ascertained, whereas in public trust beneficiaries constitute a body incapable of ascertainment. 8. The counsel for the revision petitioners also submitted that the Parish Church is created for a particular geographical area determined by the Bishop for the ascertained persons in accordance with the Constitution of 1934 and the rights of parishioners are in the nature of membership and therefore, by no stretch of imagination the Church can be treated as a public trust in this case. 9. The respondents have contended that all these contentions raised by the revision petitioners are out of place in this case since in O.S. 33/97 filed by some other members belonging to the patriarch faction of the respondents, the revision petitioners have contended that the suit is bad for want of leave from the court under S.92 of the C.P.C. since the Church in question is a public charitable religious trust and challenged the maintainability of the suit. Therefore, O.P. No 341/99 is filed by the respondents seeking leave from the court under S.92(1) of the C.P.C. to sue and the petitioners turned round and filed counter contending that it is not a public trust. Therefore, O.P. No 341/99 is filed by the respondents seeking leave from the court under S.92(1) of the C.P.C. to sue and the petitioners turned round and filed counter contending that it is not a public trust. Therefore, the lower court after considering the contentions raised by both sides passed the impugned order granting leave to institute the suit and registered the suit as O.S. 40/2000 and dismissed the earlier suit for want of leave of the court to sue under S.92 of the C.P.C. Therefore, according to them, the petitioners cannot contend that the Parish Church in question is not a public trust. 10. Before adverting to these contentions raised by both sides, I shall consider what is the scope of enquiry for the grant of or refuse to grant leave under S.92 of the C.P.C. S.92 of the C.P.C. reads as follows: "92. Public charities. (1) In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the court is deemed necessary for the administration of any such trust, the Advocate General, or two or more persons having an interest in the trust and having obtained the leave of the court, may institute a suit, whether contentious or not, in the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subject matter of the trust is situate, to obtain a decree (a) removing any trustee; (b) appointing a new trustee; (c) vesting any property in a trustee; (cc) directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property; (d) directing accounts and inquiries; (e) declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust; (f) authorizing the whole or any part of the trust property to be let, sold, mortgaged or exchanged; (g) settling a scheme; or (h) granting such further or other relief as the nature of the cafe may require. * * * 11. * * * 11. The above S.92(1) of the C.P.C. with regard to the leave to be granted to institute suit pertaining to any public trust of charitable or religious nature has been interpreted by this Court as well as various High Courts and the Supreme Court prior to and after the amendment of the section in the year 1976. 12. In the decision in Parmatmanand Saraswati v. R. Tripathi AIR 1974 SC 2141 the Supreme Court has observed as follows: "14. It is, no doubt, true that it is only the allegations in the plaint that should be looked into in the first instance to see whether the suit falls within the ambit of S.92 (See Association of R.D.B. Bagga Singh v. Gurnam Singh, AIR 1972 Raj. 263 ; Sohan Singh v. Achhar Singh, AIR 1968 Punj. and Har. 463 and Radha Krishna v. Lachhmi Narain, AIR 1940 Oudh 203. But, if after evidence is taken, it is found that the breach of trust alleged has not been made out and that the prayer for direction of the court is vague and is not based on any solid foundation in facts or reason but is made only with a view to bring the suit under the section, then a suit purporting to be brought under S.92 must be dismissed." 13. In the decision in Ambrish Kumar Singh v. Raja Abhushan Bran Bramhshah, AIR 1989 Allahabad 194 the Allahabad High Court has observed as follows: "While granting leave the court does not decide the rights of the parties. No right is adjudicated at this stage. The Court has merely to see whether there is a prima facie case for granting leave to file a suit. This order does not in any way affect the final decision which will be given on merit after the parties have led evidence in the suit." 14. In the decision in Narayana Pillai v. Jyothi, 1991 (2) KLT 458 a single Judge of this Court following the Judgment of the Supreme Court in AIR 1974 S.C. 2141 noted above has observed as follows: "2. It is only the allegations in the plaint that should be looked into in the first instance to see whether the suit falls within the ambit of S.92. Of course, position would be different when evidence is taken." 15. It is only the allegations in the plaint that should be looked into in the first instance to see whether the suit falls within the ambit of S.92. Of course, position would be different when evidence is taken." 15. In the decision in R. M. Narayana Chettiar v. N. Lakshmanan Chettiar, AIR 1991 SC 221 the Supreme Court has observed as follows: "17. A plain reading of S.92 of the Code indicates that leave of the court is a precondition or a condition precedent for the institution of a suit against a public trust for the reliefs set out in the said section; unless all the beneficiaries join in instituting the suit, if such a suit is instituted without leave, it would not be maintainable at all. Having in mind, the objectives underlying S.92 and the language thereof, it appears to us that, as a rule of caution, the court should normally, unless it is impracticable or inconvenient to do so, give a notice to the proposed defendants before granting leave under S.92 to institute a suit. The defendants could bring to the notice of the court for instance that the allegations made in the plaint are frivolous or reckless. Apart from this, they could, in a given case, point out that the persons who are applying for leave under S.92 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 desirability of such notice being given to the defendants, however, cannot be regarded as a statutory requirement to be complied with before leave under S.92 can be granted as that would lead to unnecessary delay and, in a given case, cause considerable loss to the public trust. Such a construction of the provisions of S.92 of the Code would render it difficult for the beneficiaries of a public trust to obtain urgent interim orders from the court even though the circumstances might warrant such relief being granted. Keeping in mind these considerations, in our opinion, although, as a rule of caution, Court should normally give notice to the defendants before granting leave under the said section to institute a suit, the Court is not bound to do so. Keeping in mind these considerations, in our opinion, although, as a rule of caution, Court should normally give notice to the defendants before granting leave under the said section to institute a suit, the Court is not bound to do so. If a suit is instituted on the basis of such leave, granted without notice to the defendants, the suit would not thereby be rendered bad in law or non maintainable. The 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." 16. It is clear from the above judgments of this Court as well as the apex court that for granting leave to sue under S.92 of the C.P.C., the court has to satisfy prima facie from the allegations made in the plaint, in order to decide whether leave to sue under S.92 of the C.P.C. should be granted or not. It is also clear that the court can grant leave even without notice to the opposite parties, even though it is desirable to give notice and hear them before leave is granted. It is further clear that the leave granted by the court to sue under S.92 of the C.P.C. at the preliminary stage is not conclusive and the opposite parties can move the court to revoke the leave granted or the court can dismiss the suit after the parties adducing evidence, if the ingredients to grant the necessary leave to sue under S.92 of the C.P.C. are not made out. The initial grant of leave will not affect the final decision to be taken by the court on merit after the parties adduced evidence in the case. Therefore, the contention raised by the petitioners that the lower court should have considered the entire contentions raised by the petitioners and the respondents in detail and entered a conclusive finding as to whether the Church in question is a public trust of religious and charitable nature coming within the ambit of S.92 of the C.P.C. or not, is not sustainable. 17. 17. The argument advanced by the counsel for the petitioners that after the pronouncement of the Judgment reported in 1998 (2) KLT 305 the situation has been changed and the scope of enquiry thereafter is entirely different and the court is bound to decide the issue of granting leave to sue under S.92 of the C.P.C. on merits after consideration of the entire contentions raised by the parties, is not sustainable. Even though in that decision the learned Single Judge has held that grant of leave to sue by the Court is a pre-requisite for institution of the suit under S.92 of the C.P.C. and the suit can be numbered only after leave is granted, I find no observation in the Judgment making incumbent upon the court to go in depth in to the contentions raised by the parties and to enter findings before granting or refusing to grant leave under S.92 of the C.P.C. Therefore, the argument advanced by the counsel for the petitioners that even though prior to the above Judgment of this Court grant of leave was only a matter of course, thereafter grant of leave under S.92 of the C.P.C. has become a contentious issue from the very inception and the court has to decide the question of grant of leave on merits after detailed analysis of the contentions raised by both sides, is not tenable. 18. The law is now well settled that the court has only to satisfy prima facie on the allegations made in the plaint whether leave is to be granted or not and over and above the averments made in the petition seeking leave of the Court, the Court can consider the plaint and the documents produced along with the petition seeking leave and also direct the petitioner to place additional materials before the court to arrive at a finding as to whether leave should be granted or not at the initial stage. Therefore, merely on the ground that the opposite party was given notice in the petition seeking leave the court need not consider the entire merits of the case apart from the prima facie case of the petitioner to satisfy whether leave should be granted or not. 19. Therefore, merely on the ground that the opposite party was given notice in the petition seeking leave the court need not consider the entire merits of the case apart from the prima facie case of the petitioner to satisfy whether leave should be granted or not. 19. The counsel for the petitioners vehemently argued that the Parish Church of Pothanikkad is only a constituent of the Malankara Orthodox Syrian Church and it is only a private trust and not a public trust coming within the ambit of S.92 of the C.P.C. He argued that the consecration of the Church is by the Bishop alone and it is created for a particular geographical area determined by the Bishop for the ascertained persons. He argued in detail referring to the various provisions of the 1934 Constitution held applicable to this Parish Church also to contend that it is only a private trust which does not come within the ambit of S.92 of the C.P.C. 20. The counsel for the respondents submitted that the above contentions raised by the petitioners are not tenable in the petition filed by the respondents seeking leave to institute the suit and the above C. R. P. filed by the petitioners challenging the Order passed by the lower court granting leave under S.92 of the C.P.C. is not maintainable. He submitted that in O.S. 33/97 filed by some other members of patriarch faction to which the respondents also belong, it was nowhere stated in the plaint that the Church is a public trust. But the petitioners herein contended in the written statement that the suit is bad for sanction under S.92 of the C.P.C. since the plaint Church, according to the plaintiffs is a public trust. He also submitted that in para 4 of the affidavit filed in support of I.A. 989/99 in O.S. 33/97 sworn to by the 2nd defendant in that suit it is averred that the Church is a public charitable religious trust and therefore, the suit is bad for sanction under S.92 of the C.P.C. He further submitted that the petitioners herein contented in that suit that the maintainability of the suit should be decided first. Therefore, the respondents herein who are two of the parishners filed the above O.P. 341/99 seeking leave of the court to institute the suit. 21. Therefore, the respondents herein who are two of the parishners filed the above O.P. 341/99 seeking leave of the court to institute the suit. 21. But in the counter filed by the petitioners in the above O.P., it is contended that the Church in question is not a public trust. But the lower court considering the contentions raised by both sides granted leave under S.92 of the C.P.C. to sue in the above O.P., registered the suit as O.S. 40/2000 and by the common order dismissed the earlier suit O.S. 33/97 for want of leave from court. Therefore, in view of the fact that the petitioners themselves have contended in the earlier suit filed seeking the very same reliefs that the suit is bad for leave under S.92 of the C.P.C., the Church in question being a public trust, they cannot turn round and now content at this preliminary stage that the Church is only a private trust and the lower court is wrong in granting leave to sue under S.92 of the C.P.C. 22. The issue whether the Church in question is a private trust or a public trust, is to be decided in evidence. Therefore, the contention raised by the petitioners that the lower court misunderstood the various provisions in the 1934 Constitution and the documents maintained by the Vicar of the Parish Church under the Constitution such as Parish Register, Parish Assembly Register, etc., is not sustainable at this stage. 23. The very lengthy argument advanced by the counsel for the petitioners regarding the nature of public and private trusts, the nature and character of the Parish Church under the 1934 Constitution of the Malankara Churches with reference to the various provisions in the Constitution, the rights and liabilities of the members of the Parish, the Parish Priest and the Metropolitan, the establishment of the Parish Church by the Metropolitan, etc., are besides the point at this juncture while considering whether the respondents have made out a prima facie case to grant leave to sue under S.92 of the C.P.C. All those contentions raised by the counsel for the petitioners are matters to be decided at a later stage in the suit either when the petitioners seek to revoke the leave granted or at the lime of trial of the suit after adducing evidence. Therefore, I am not considering any of those arguments advanced by the counsel for the petitioners and the respondents for and against those contentions in this C.R.P. From what is stated above, it is clear that the impugned order passed by the lower court granting leave to the respondents to sue under S.92 of the C.P.C. is perfectly legal and valid and no interference is called for in this C.R.P. Hence this revision petition is dismissed.