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2010 DIGILAW 131 (KER)

Kerala High Court Advocates' v. Babbalan

2010-02-15

HARUN-UL-RASHID

body2010
Judgment : The writ petition is filed under Article 227 of the Constitution of India challenging Ext.P22 order passed by the 1st Additional Munsiff Court, Ernakulam in I.A.No.483 of 2009. The writ petitioners are the Kerala High Court Advocates' Association, Kerala High Court Advocates' Association Chamber Society and M/s Geo Foundation & Structures (P) Ltd. They are the defendants in O.S.No.85 of 2009 pending before the Munsiff Court, Ernakulam. I.A.No.483 of 2009 is a petition filed under Section 91 of the Code of Civil Procedure seeking leave of the court to institute the suit. By the impugned order, the learned Munsiff allowed the petition and the leave initially granted on 19.1.2009 is made absolute. 2. Ext.P1 is the plaint filed along with Ext.P2 petition for leave. Suit is filed seeking the following reliefs: "i) To pass a judgment and decree, declaring that the defendants have no right to carry on with the construction work in the scheduled property more commonly known as the Ram Mohan Palace. ii) To issue an order of injunction restraining the defendants or any body under them from trespassing the scheduled property. iii) To issue a mandatory injunction to undo the wrong committed on the scheduled property by the defendants. 3. The material averments in the plaint are stated in paragraphs 3, 4, 6, 7, and 9 of the plaint. In paragraphs 3 to 6 it is averred that the plaintiffs personally saw some activities of digging the scheduled property heavily, presumably with a view to effect some construction work; that on enquiry the plaintiffs had understood that the 3rd petitioner/3rd defendant contractor is engaged by the 1st and 2nd petitioners/1st and 2nd defendants and a multi storied Chamber Complex for advocates under the 1st petitioner/1st defendant is proposed to be constructed at the site and that further enquiries made by the plaintiffs clearly revealed that the defendants had encroached the Government land. In paragraph 3 it is also pleaded that they have no right, title and permission and they have no plan and licence from the competent authorities. In paragraph 5 of the plaint it is further averred that the Secretary of the 1st petitioner/1st defendant Association had submitted an application for permission to construct a building, declaring falsely that an extent of 1 acre 10 cents of land is in the possession of the 1st petitioner/1st defendant. In paragraph 5 of the plaint it is further averred that the Secretary of the 1st petitioner/1st defendant Association had submitted an application for permission to construct a building, declaring falsely that an extent of 1 acre 10 cents of land is in the possession of the 1st petitioner/1st defendant. In paragraph 6 it is averred that the Government on its part had not sanctioned any land either on registry or on lease to the 1st petitioner/1st defendant and that the petitioners/defendants are rank trespassers over the Government land. In paragraph 7 it is stated that the Government on its part gave sanction only to effect construction of the Chamber Complex on the site where the old Advocates' Association building was located, probably as a prelude to enable the 1st petitioner/1st defendant to move appropriate applications in that behalf. In the same paragraph it is stated that with the malicious intention to grab the Government property the first defendant Association instead of complying with the statutory requirements, simply trespassed the adjoining area on its west and further stated that obviously, the present plot encroached by the defendants is not the plot earmarked for the Association by the Government of Kerala and that the 1st and 2nd petitioners/1st and 2nd defendants are rank trespassers. In paragraph 9 it is pleaded that the conduct of the defendants amount to wrongful acts affecting public property and the public is left with no other remedy to protect the wrongful act on the public property and hence the suit is filed under Section 91 of the Code of Civil Procedure with the leave of the court. 4. The material averments extracted above would show that the plaintiffs proceeded on the basis that the 1st petitioner/1st defendant Association had trespassed over a portion of the old High Court compound and started construction in the site without permission from the authorities. According to the plaintiffs the defendants are rank trespassers of the land and their intention is to grab the Government land and by force they are making constructions in the site. It is also stated that the defendants have no right, title and permission and they have no plan and licence from the competent authorities for making construction. According to the plaintiffs the defendants are rank trespassers of the land and their intention is to grab the Government land and by force they are making constructions in the site. It is also stated that the defendants have no right, title and permission and they have no plan and licence from the competent authorities for making construction. Along with the plaint, plaintiffs produced 5 documents which include photocopy of the order of the Secretary of Corporation of Cochin dated 5.11.2008, application dated 26.7.2008 filed by the 1st petitioner/1st defendant before the Corporation of Cochin seeking building permit and order of the Government of Kerala dated 2.11.2006 in G.O.(Rt).No.2519/6/Home. 5. The suit was filed on 17.1.2009. Application for leave filed as I.A.No.483 of 2009 was supported by an affidavit. The application for leave and the affidavit are marked as Ext.P2. The affidavit is a very short affidavit which does not show any averments stating any reason for leave. The only sentence pleaded which is material regarding grant of leave is `in view of the public cause involved the plaintiffs files the present suit in order to prevent the wrongful act affecting the public.' In the affidavit it is stated that various averments contained in the plaint may be read as part of the affidavit. The learned Munsiff granted permission to the plaintiffs to institute a suit under Section 91(b) of the Code of Civil Procedure. Ext.P3 is the order passed by the learned Munsiff on 19.1.2009 granting leave. Consequently, suit is numbered as O.S.No.85 of 2009. The court passed the order finding that there are prima facie materials to grant leave under Section 91 of the Code of Civil Procedure. The court issued summons. On getting summons, the defendants preferred civil revision petition before this Court as C.R.P.No.65 of 2009 challenging the order of the learned Munsiff granting leave. This Court disposed of the C.R.P.No.65 of 2009 by order dated 2.2.2009 at the admission stage without issuing notice to the respondents. This Court directed the learned Munsiff to pass appropriate orders after hearing the revision petitioners, either making the leave absolute or vacating/revoking the leave initially granted and shall proceed with the suit only in case the leave granted is made absolute. This Court directed the learned Munsiff to pass appropriate orders after hearing the revision petitioners, either making the leave absolute or vacating/revoking the leave initially granted and shall proceed with the suit only in case the leave granted is made absolute. This Court also observed that the revision petitioners shall be at liberty to file objections, if any, objecting the grant of leave under Section 91(1)(b) of the Code of Civil Procedure and further issued directions that the objections shall be filed positively within two days and that on such objections being filed, the court below shall consider the objections and pass appropriate orders. Ext.P4 is the order passed by this Court in C.R.P.No.65 of 2009. 6. In the civil revision petition this Court is called upon to examine the legality of the order passed by the learned Munsiff in granting leave to institute the suit. Pursuant to the order of this Court in the C.R.P, the writ petitioners who are the defendants in the suit filed objections within the time fixed by this Court and produced documents marked as Exts.B1 to B11. Those documents and other documents are produced before this Court as Exts.P6 to P21 in this writ petition. The learned Munsiff heard the case on 9.2.2009 and passed orders allowing the petition for leave and held that the leave granted on 19.1.2009 is made absolute. Learned Munsiff held that at this stage what the plaintiffs have only to prove is a prima facie case and that on going through the averments and documents produced by both sides it is clear that the plaintiffs had made out a prima facie case. It is also observed that "since the plaintiffs had satisfied that there is an arguable and debatable case, I am inclined to grant leave under Section 91 (1)(b) of the Code of Civil Procedure." The order is produced and marked as Ext.P22. I have examined Ext.P22 order. It is seen that neither the contentions of the defendants in their objections was considered nor there is discussion and appreciation of the documents produced by them as Exts.B1 to B11 for reference. I have examined Ext.P22 order. It is seen that neither the contentions of the defendants in their objections was considered nor there is discussion and appreciation of the documents produced by them as Exts.B1 to B11 for reference. This Court issued positive directions to the learned Munsiff in paragraphs 3 and 5 of Ext.P4 order that on such objections being filed the court below shall consider the same and pass appropriate orders by making the leave granted absolute or by vacating/revoking the leave initially granted and then proceed with the suit only if the leave is made absolute. I have examined Ext.P22 order. Ext.P22 order does not reflect consideration of the matter as directed by this Court. There is no discussion nor findings are recorded dealing with the objections raised against the grant of leave. In paragraph 4 of the order there is a single sentence which reads thus: "On going through the documents produced by the petitioners as well as the order passed by the Kochi Corporation on 18.12.2009, revoking the permission would show that the plaintiff has succeeded in proving the prima facie case." It cannot be disputed that the learned Munsiff again stick on to the position that the documents produced by the petitioners/plaintiffs shows that there is arguable and debatable case for the plaintiffs and that a prima facie case has been made out by the plaintiffs for granting leave. The extracted portion would go to show that the learned Munsiff had not taken into consideration the objections raised by the objectors nor chosen to examine the documents produced by them in support of their serious objections. In the light of the above said facts, it is clear that the order passed by the learned Munsiff granting leave is proceeded on the basis of plaint averments alone. 7. Now, I shall examine whether this is a case where leave granted is to be made absolute or not. Ext.P5 is the objection filed by the Advocates' Association as counter to the application for leave. Petitioners/defendants denied the allegation that they have encroached over any portion of the land in the High Court compound or that they are making constructions without valid permit and approved plan. According to them the property belongs to the Government of Kerala and the property is in the possession and enjoyment of the High Court of Kerala. Petitioners/defendants denied the allegation that they have encroached over any portion of the land in the High Court compound or that they are making constructions without valid permit and approved plan. According to them the property belongs to the Government of Kerala and the property is in the possession and enjoyment of the High Court of Kerala. The land wherein the 1st petitioner Association is constructing the building is a portion of the land in the occupation of the 1st petitioner Association. The 1st petitioner Association was in occupation of the old Association building and appurtenant land which was in the use of the petitioner Association for the last more than 6 decades i.e., from the date of formation of the Travancore-Cochin High Court on 7.4.1949 and thereafter till 2006 when the Kerala High Court was shifted to the new building constructed in the adjacent compound. The Government of Kerala by a cabinet decision has accorded permission to the petitioner Association to construct a multi storied Chamber Complex in the land in the High Court compound in occupation of the Association. Ext.B1 produced along with the objections is the Government Order dated 2.11.2006 (marked as Ext.P6 in the writ petition) whereby the Government accorded permission to construct a multi storied Chamber Complex in the premises of the High Court compound wherein the old High Court building is located. Ext.B2 is the letter of consent and NOC issued by the High Court stating that the High Court has no objection in putting up the multi storied chamber complex for the members of the Association in the premises of the old High Court building under its occupation. Based on Exts.B1 and B2 it is averred that the Association submitted requisite application for the issuance of a building permit and approved plan before the Corporation of Cochin. Ext.B3 is the building permit issued by the Corporation. Approved plan was also issued to the petitioner Association. Ext.B4 is the order passed by the Honourable Chief Justice based on the building permit and approved plan issued after placing the matter before the Building committee consisting of only judges. Ext.B4 order was passed by the Honourable Chief Justice after considering Exts.B1, B2 & B3 and the resolution passed by the Building Committee. Ext.B4 is the order passed by the Honourable Chief Justice based on the building permit and approved plan issued after placing the matter before the Building committee consisting of only judges. Ext.B4 order was passed by the Honourable Chief Justice after considering Exts.B1, B2 & B3 and the resolution passed by the Building Committee. Honourable Chief Justice granted sanction to the Kerala High Court Advocates Association to commence the construction of the Chamber Complex at the proposed site subject to the condition that the built up area shall be limited to 31 cents satisfying the norms given in the Building Rules. 8. In paragraph 12 of Ext.P5 objection it is stated that when the Association made all preparations to proceed with the construction based on the documents referred to above, the Secretary of the Cochin Corporation issued a show cause notice dated 5.11.2008 directing the petitioner Association to show cause as to why the building permit shall not be cancelled. The show cause notice is produced by the objectors as Ext.B5. The same document was produced by the plaintiffs along with the plaint. The 1st defendant Association had filed a statement in reply to Ext.B5 notice dated 5.11.2008. The Corporation after taking into consideration the explanation offered by the first defendant Association and after taking note of the orders referred to including the order passed by the Honourable Chief Justice and after having satisfied that the petitioners have requisite permission from the authorities to construct the Chamber Complex, passed Ext.B6 order permitting the first defendant Association to proceed with the construction. The plaintiff produced Ext.B5 show cause notice dated 5.11.2008. It is not known why they have not produced Ext.B6 communication issued by the Corporation after considering the objections to Ext.B5 show cause notice which is dated 6.11.2008. The suit was filed only on 17.1.2009. It is also stated in the objections that the work commenced on 8.11.2008 and the Honourable Chief Justice of India inaugurated the commencement of the work. It is also averred in the objection that at the instance of some persons who are inimical to the Association, with malafide intention, the Corporation issued a fresh notice on 22.11.2008 for personal hearing and subsequently passed Ext.P22 order dated 18.12.2008 revoking the permit granted to the Association. Ext.B10 produced in the suit is the order passed by the Corporation of Cochin. Ext.B10 produced in the suit is the order passed by the Corporation of Cochin. Ext.B11 is the interim order passed by this Court in W.P.(C).No.38072 of 2008 staying the order of the revocation of the permit. In the objection it is prayed that the order passed by the learned Munsiff is liable to be revoked and further prayed for dismissal of the application for leave with compensatory cost. 9. The objection filed is supported by documents marked as Exts.B1 to B11. Ext.B1 is the Government Order, B2 is the letter of consent issued by the High Court, B3 is the building permit issued by the Corporation, B4 is the order passed by the Honourable Chief Justice of the High Court of Kerala, B5 is the show cause notice, B6 is the order of the Corporation accepting the explanation offered to the show cause notice and permitting the petitioner Association to carry on with the construction. Ext.B10 order subsequently passed by the Corporation was stayed by this Court in W.P.(C).No.38072 of 2008 which was also produced and marked as Ext.B11. All these documents would ex-facie show that the defendants are not rank trespassers as alleged in the plaint, that they are not encroachers of the Government land and that they have started construction on the basis of permission granted by the authorities. The allegations that the defendants have no right, title and possession nor they have plan and licence for construction are without any basis and the allegations on the face of it are unfounded. For the purpose of taking a decision as to whether grant of leave can be granted in a given case, it is the duty of the court to examine the contentions of the defendants especially when there is a specific direction issued by this Court to pass orders on merits. The documents produced by the defendants would show that the allegations made in the plaint are baseless and are alleged without any bonafides. 10. Learned counsel for the respondents/plaintiffs submitted that for the grant of leave the court has to look into the plaint and other materials produced by the plaintiffs alone, in order to satisfy itself whether a prima facie case is made out by the plaintiff or not. 10. Learned counsel for the respondents/plaintiffs submitted that for the grant of leave the court has to look into the plaint and other materials produced by the plaintiffs alone, in order to satisfy itself whether a prima facie case is made out by the plaintiff or not. According to him Exts.P2 to P21 produced before this Court which includes the documents produced before the Munsiff Court by the defendants are irrelevant so far as the enquiry relating to leave is concerned. According to the learned counsel the averments in Ext.P1 plaint alone need be looked into. In Ext.P1 plaint it is stated that defendants have no right, title or interest over the plaint schedule property nor do they possess approved plan or licence for making any construction in the property. It is also alleged in the plaint that the scheduled land is a Government land and the defendants had trespassed over the same and by doing so the defendants have by their conduct committed wrongful acts affecting the public. The basic and important allegations in the plaint are controverted by filing a detailed objection with supporting documents to show that the construction is made in the compound of the High Court under permission from the Government, which is the paramount title holder and that the High Court is in possession and enjoyment of the property. The request of the Association was considered, considering the long cherished desire of the members of the first defendant Association to have a Chamber Complex in the High Court compound. 11. In support of the contentions that the plaint allegations and materials produced by the plaintiffs alone need be looked into, the counsel for the respondents brought to the notice of this Court decisions reported in Mulchand Basarmal v. Devigir Motigir (AIR 1936 Sind 179), Swami Paramatmanand Saraswati and Another v. Ramji Tripathi and Another (1974 (2) SCC 695), Charan Singh and Another v. Darshan Singh and Others (1975(1) SCC 298), Ambrish Kumar Singh v. Raja Abhushan Bran Bramhshah and others (AIR 1989 Allahabad 194), P.V.Mathew and Others v. K.V.Thomas and Others (AIR 1983 Kerala 5), S.S.Bhagat and Others v. N.S.Ahluwalia (AIR 1978 Delhi 14), R.M.Narayana Chettiyar and Another v. N.Lakshmanan Chettiyar and Others (AIR 1991 SC 221) and Shavax A.Lal and Others v. Syed Masood Hosain and Others (AIR 1965 AP 143). Most of the decisions cited by the learned counsel are decisions rendered by the court prior to legislative change made in the Code of Civil Procedure (Amendment Act 104 of 1976). I may first refer to the decision reported in R.M.Narayana Chettiyar and Another v. N.Lakshmanan Chettiyar and Others (AIR 1991 SC 221). In that case relying on the decision reported in Swami Paramatmanand Saraswati and Another v. Ramji Tripathi and Another (1974 (2) SCC 695) it was argued that to see whether the suit falls within the ambit of Section 92, only the allegations in the plaint should be looked into in the first instance. Learned counsel referred to the decision reported in Mulchand Basarmal v. Devigir Motigir (AIR 1936 Sind 179). At page 183 it was held that the nature of the case is to be determined by the plaint and not by the written statement. In Ambrish Kumar Singh v. Raja Abhushan Bran Bramhshah and others (AIR 1989 Allahabad 194) it was held that while granting leave the court is not to decide the rights of the parties, that no right is adjudicated at this stage and court has merely to see whether there is prima facie case for granting leave to institute the suit. In paragraph 11 it is also observed that Section 92 of the Code of Civil Procedure does not contemplate any notice to the proposed defendants before granting leave. Referring to another decision of the same court, the court held that the proceedings under Section 92 of the Code of Civil Procedure are judicial proceedings and the order of the District Judge is a judicial order. The court should pass the order after hearing the defendants. The next decision cited is S.S.Bhagat and Others v. N.S.Ahluwalia (AIR 1978 Delhi 14). In that case the provision as it stands before the amendment was considered. Act 5 of 1908 was considered in that case. The question decided mainly was as to whether the decision of the Advocate General is administrative or quasi judicial in nature. It was held that the Advocate General has merely to see whether there is or there is not a prima facie case that should be allowed to go to a court of law. The law may therefore be taken to be settled that the order of the Advocate-General is not quasi judicial. It was held that the Advocate General has merely to see whether there is or there is not a prima facie case that should be allowed to go to a court of law. The law may therefore be taken to be settled that the order of the Advocate-General is not quasi judicial. In paragraph 20 it was held: "It being firmly established that in exercising the powers vested in him under Section 92 the Advocate- General does not perform a judicial function." The above quoted decisions does not deal with the question whether a leave can be granted by the court when it was seriously objected by the defendants. The learned counsel also referred to the decision reported in Shavax A.Lal and Others v. Syed Masood Hosain and Others (AIR 1965 AP 143). In that case also the Division Bench of Andra Pradesh followed the view of the High Court of Madras and held that in exercising the powers vested in the Advocate General under Section 92, he does not perform a judicial function. It was held that all that the Advocate General has to be satisfied about before granting sanction is that there is a prima facie case and that it is worth while that the suit should be tried by a Court in the interests of a public charitable trust. In the decision cited by the learned counsel for the respondents/plaintiffs reported in P.V.Mathew and Others v. K.V.Thomas and Others (AIR 1983 Kerala 5) this Court formulated the procedure for grant of leave by the court. This court held that the court can, if it is so satisfied, grant the leave without issuing notice to the respondents-defendants or hearing them. The other decisions cited by the learned counsel for the respondents/plaintiffs is for the position that only the allegations in the plaint should be looked into for the purpose of granting leave are R.M.Narayana Chettiyar and Another v. N.Lakshmanan Chettiyar and Others (AIR 1991 SC 221), Smt.Isabella Johnson v. M.A.Susai (dead) by Lrs. (AIR 1991 SC 993), Swami Paramatmanand Saraswati and Another v. Ramji Tripathi and Another (1974 (2) SCC 695) and Charan Singh and Another v. Darshan Singh and Others (1975 (1) SCC 298). (AIR 1991 SC 993), Swami Paramatmanand Saraswati and Another v. Ramji Tripathi and Another (1974 (2) SCC 695) and Charan Singh and Another v. Darshan Singh and Others (1975 (1) SCC 298). Learned counsel brought to notice of this Court paragraph 14 of the judgment in 1974 (2) SCC 695 wherein it was held that 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 Section 92. In the said decision the Apex Court held that a suit filed under Section 92 of a subject nature which presupposes the existence of a public trust or religious or charitable character and that such a suit is proceeded only on the allegations that there was a breach of such trust or that the direction of the court is necessary for the administration of the trust. It is further made clear that if the allegation of breach of trust is not substantiated or that the plaintiff had not made out a case for any direction by the court for proper administration of the trust, the very foundation of a suit under the section would fail; and even if all the other ingredients of a suit under Section 92 are made out, if it is clear that the plaintiffs are not suing to vindicate the right of the public but are seeking a declaration of their individual or personal rights or the individual or personal rights of any other person or persons in whom they are interested, then the suit would be out side the scope of Section 92. In Charan Singh and Another v. Darshan Singh and Others (1975 (1) SCC 298) the Apex Court held that the maintainability of the suit filed under Section 92 depends upon the allegations in the plaint and does not fall for decision with reference to the averments in the written statement. The decision quoted by the learned counsel for the respondents/plaintiffs refer to the subject nature of the suit under Section 92 of the Code of Civil Procedure. The suit under Section 92 presupposes the existence of a public trust or a religious or charitable character. It was further held that the suit is instituted on the basis of leave granted without notice to the defendants the suit would not thereby be rendered bad in law or not maintainable. The suit under Section 92 presupposes the existence of a public trust or a religious or charitable character. It was further held that the suit is instituted on the basis of leave granted without notice to the defendants the suit would not thereby be rendered bad in law or not maintainable. The Apex Court held that 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. In the decision reported in Swami Paramatmanand Saraswati and Another v. Ramji Tripathi and Another (1974 (2) SCC 695) the very same principles are restated. The principles laid down by the Apex Court and various High Courts which are well settled can be summarized as follows: "The maintainability of the suit under Section 92 of the Code of Civil Procedure depends upon the allegations in the plaint and does not fall for decision with reference to the averments in the written statement. The allegations in the plaint that should be looked in to in the first instance is to see whether the suit falls within the ambit of Section 92. But, if after evidence is taken if it is of the view that breach of trust as alleged has not been made out and the prayer for direction of the court is vague and it is not based on any solid foundation of facts or reason, then the suit filed under Section 92 must be dismissed. The court can, if it is so satisfied, grant leave without issuing notice to the respondents/defendants or hearing them." I fully endorse the view taken by the Apex Court and the High Courts in the above mentioned decisions. The question now posed for consideration in this case stands on a different footing. In this case, originally leave was granted. On getting notice of summons, the defendants preferred a civil revision petition against the order granting leave. This Court directed the Munsiff Court to decide the matter afresh after considering the objections of the petitioners/defendants. The question to be considered is whether the leave originally granted can be revoked or sustained in the light of the objections and the materials produced by the defendants. 12. This Court directed the Munsiff Court to decide the matter afresh after considering the objections of the petitioners/defendants. The question to be considered is whether the leave originally granted can be revoked or sustained in the light of the objections and the materials produced by the defendants. 12. The learned counsel for the petitioners/defendants cited the decision of the Apex Court in R.M.Narayana Chettiyar and Another v. N.Lakshmanan Chettiyar and Others (AIR 1991 SC 221). It was held as follows: "Having in mind the objectives underlying Section 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 notice to the proposed defendants before granting leave under Section 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 Section 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 Section 92 can be granted as that would lead to unnecessary delay and, in a given case, cause considerable loss to the public trust." The Apex Court further held: "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." The learned counsel also cited the decision of the Apex Court in B.S.Adityan and Others v. B.Ramachandran Adityan and Others (2004 (9) SCC 720). The Apex Court followed the decision rendered in R.M.Narayana Chettiyar and Another v. N.Lakshmanan Chettiyar and Others (AIR 1991 SC 221) and held: "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 or even in the course of suit which may be established that the suit does not fall within the scope of Section 92 of the Code of Civil Procedure." 13. The Apex Court repeatedly held that it is always open to the defendants to file an application for revocation of the leave which can be considered on merits and according to law and even in the course of suit which may be established that the suit does not fall under Section 92 of the CPC. The learned counsel also relied on the recent decisions of the Apex Court in Vidyodaya Trust v. Mohan Prasad [2008 (2) KLT 68 (SC)]. In that case, the Apex Court reiterated the principles laid down in R.M.Narayana Chettiyar and Another v. N.Lakshmanan Chettiyar and Others (AIR 1991 SC 221) and B.S.Adityan and Others v. B.Ramachandran Adityan and Others (2004 (9) SCC 720) and a number of other decisions of the Supreme Court. The Apex Court in paragraph 17 reiterated the principles of law governing the situation under Section 91 of the Code of Civil Procedure. It was held as follows: "Having in mind the objectives underlying Section 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 notice to the proposed defendants before granting leave under Section 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 Section 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. Apart from this, they could, in a given case, point out that the persons who are applying for leave under Section 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. 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." 14. Going by the aforesaid principles it is open to a civil court to grant leave at the first instance after it being satisfied that a prima facie case is established by the plaintiffs. For that purpose, the plaint allegations can be examined with supporting documents. Leave granted in such a suit would not be thereby be rendered bad in law because grant of leave cannot be regarded as defeating or seriously prejudicing the right of the proposed defendants. In a case where the defendants appeared and filed objections or applied for revocation of the leave then the court is bound to consider the matter on merits and according to law. In this case the grant of leave by the court at the time of institution of the leave application was opposed by the defendants and therefore it is the duty of the court to consider the question of grant of leave on merits and to decide the same in accordance with law. That can be done only by examining not only the pleadings in the plaint but the pleading by way of objections and the supporting documents produced by both sides. I have discussed the documents produced by both sides, which would go to show that the construction was made on the basis of permission granted by the Government and the High Court. I have discussed the documents produced by both sides, which would go to show that the construction was made on the basis of permission granted by the Government and the High Court. Therefore the allegations levelled against the defendants in the plaint that they are rank trespassers, that they have no right, title and interest over the property wherein the multi storied Chamber Complex is under construction are found to be baseless. It is true that in the case of grant of leave at the initial stage, only the averments in the plaint have to be examined and the presence of the defendants or respondents, as the case may be, is not necessary. But, when the question of leave granted is sought to be revoked the matter requires consideration on merits and in accordance with law. Viewed on the basis of the above said principles, I have no hesitation to hold that the allegations in the plaint appear to be baseless and unfounded. The plaintiffs have not made out a case for grant of leave under Section 91 of the Code of Civil Procedure. In these circumstance, the impugned order Ext.P22 passed by the learned Munsiff suffers from legal infirmity and therefore liable to be set aside. 15. The writ petition was heard in detail on 1st and 2nd of Feburary, 2010. The plaint does not contain the details regarding the status and position of the plaintiffs who came forward to represent the public. It is stated in the plaint (paragraph 3) that a few days back plaintiffs saw some digging activities in the property heavily, presumably, with a view to effect some construction work and subsequently enquiry is made and convinced that it is an encroachment, grabbing of land and it is a case of unauthorized construction by persons after trespassing into the property. In the reply affidavit filed by the petitioners in this writ petition it is stated that the plaintiffs who are two old men from a remote area whose identity itself is doubtful, cannot make some averments without any basis and obtain orders from Court. In the reply affidavit filed by the petitioners in this writ petition it is stated that the plaintiffs who are two old men from a remote area whose identity itself is doubtful, cannot make some averments without any basis and obtain orders from Court. It is pleaded in the reply affidavit that in fact they are acting at the behest of some interested persons working behind the scene who are really shy of coming forward openly due to their hidden personal and political agenda to scuttle a transparent and well benefiting project which is the dream of the majority advocates, young and old who are pursuing the profession with seriousness, to have a chamber in the High Court compound to use the time profitably, unlike those who are loitering in the veranda of the Court spreading unfounded rumours. In paragraph 4 it is further averred that the motive and bonafides of the respondents/plaintiffs are suspicious. The defendants have every reason to suspect that they are mere name lenders acting at the behest of a handful of lawyers who are working against the Chamber Project envisaged by the Advocates' Association. It is also averred in the said paragraph that these lawyers formed "Advocates Chamber Action Council" of which the counsel for the respondents himself is the Vice Chairman. It is further averred that the so called action council has published a printed notice containing per se false allegations against the Chamber Project of the Association. The printed notice dated 21.11.2008 is produced along with the reply affidavit and marked as Ext.P23. 16. After hearing the counsel on both sides and taking into consideration the aforesaid discussed facts including the averments in the reply affidavit and in order to explore the possibility of settlement, this Court directed the respondents to appear before this Court on 9.2.2010. The respondents/plaintiffs appeared in person. This Court interacted with the said respondents. To the specific queries of the court they have replied that they have not made enquiry before the authorities who are competent to grant permission as to whether the construction going on was on the basis of any permission granted by any authority. The respondents/plaintiffs appeared in person. This Court interacted with the said respondents. To the specific queries of the court they have replied that they have not made enquiry before the authorities who are competent to grant permission as to whether the construction going on was on the basis of any permission granted by any authority. They spoke to the court stating that they have not met the competent authority who granted permission nor they met the officials concerned in the Government Secretariat nor the Honourable Chief Justice of the Kerala High Court or the Registrar nor the Secretary, Corporation of Cochin to ascertain whether the defendants are making construction on the basis of permission, permit and approved plan. They have also stated that while they were going to some other place they saw some activities of digging in the schedule property. These persons are residing far away from High Court premises and the construction activities are noticed by them while they were traveling to some other place. The plaintiffs are wayfarers. The answers given by them to the various queries of this Court did not inspire confidence of this Court. From the discussions with the plaintiffs I am unable to find that these two persons had any occasion earlier to vindicate public rights in a court of law. The first plaintiff is aged 78 years and the 2nd plaintiff 57. It is stated that they are agriculturists. While granting leave to sue under Section 91 or 92 of the Code of Civil Procedure, the authority giving sanction must consider the various aspects before granting sanction and one important consideration should be as regards the good faith, status and position of those who come forward to represent the community. I have already stated that without ascertaining the true facts from the authorities who had issued permission and no objection and permit and plan, the plaintiffs have filed the suit raising all sorts of reckless and unfounded allegations against the petitioner Association. Plaintiffs were called upon to attend the court to ascertain whether the suit was filed in good faith. After interaction with the plaintiffs the impression I gathered is that the plaintiffs are acting at the behest of some other persons. 17. The Secretary of the Cochin Corporation, in the proceedings dated 18.12.2008 had revoked the permit granted on 3.10.2008. Plaintiffs were called upon to attend the court to ascertain whether the suit was filed in good faith. After interaction with the plaintiffs the impression I gathered is that the plaintiffs are acting at the behest of some other persons. 17. The Secretary of the Cochin Corporation, in the proceedings dated 18.12.2008 had revoked the permit granted on 3.10.2008. Ext.P20 order is referred to in the order under challenge and that is one of the basis for finding that there is a prima facie case. The petitioner Association had preferred W.P. (C).No.38072/2008 challenging Ext.P20 proceedings of the Corporation of Cochin. All the materials produced in this case were also considered in that case in the final judgment dated 30.1.2010. This Court has held that the construction undertaken by the petitioner Association is based on the permission and NOC issued by the Government and the High Court and on the basis of permit and approved plan by the Corporation and held that the proceedings issued by the Corporation revoking the licence is illegal. In this case also the very same documents are examined. In W.P.(C).No.38072 of 2008 this Court held that the construction of the multi storied chamber Complex is in accordance with the lawful permission. 18. In the result, the writ petition is allowed. Ext.P22 order passed by the 1st Additional Munsiff is quashed. The leave application, I.A.No.483 of 2009 in O.S.No.85 of 2009 is dismissed. Respondents shall pay Rs.5,000/- as cost to the petitioners. 19. W.P.(C).No.38072 of 2008 and W.P.(C).No.4795 of 2009 were pending before this Court. Two more suits, namely, O.S.Nos.21 & 22 of 2009 were pending before the 6th Additional District Court, Ernakulam. Since the dispute and issues in all the above said cases are the same, in the interest of justice, this Court passed an order on 3.12.2009 to withdraw the two suits namely O.S.Nos.21 & 22 of 2009 pending before the 6th Additional District Court, Ernakulam to be tried and disposed of along with the above said writ petitions. When W.P.(C).No.38072 of 2008 was taken up for hearing, the counsel representing the other cases, submitted that the other cases may be heard and tried independently. Therefore, this Court heard W.P.(C). No.38072 of 2008 and disposed of the same by judgment dated 30.1.2010. W.P.(C).No.4795 of 2009 was heard on 15.2.2010 and disposed of separately. In the circumstances, the two pending suits have to be tried independently. Therefore, this Court heard W.P.(C). No.38072 of 2008 and disposed of the same by judgment dated 30.1.2010. W.P.(C).No.4795 of 2009 was heard on 15.2.2010 and disposed of separately. In the circumstances, the two pending suits have to be tried independently. Therefore the matter has to be sent back to the 6th Additional District Court (Wakf Tribunal), Ernakulam. It is ordered accordingly. Registry is directed to sent back O.S.Nos.21 & 22 of 2009 to the 6th Additional District Court, Ernakulam and O.S.No.85 of 2009 to the 1st Additional Munsiff Court, Ernakulam, forthwith.