Muslim Association v. Meeran Maluk Mohammed S. S/O. Syed Kannu
2017-03-21
A.M.BABU, P.N.RAVINDRAN
body2017
DigiLaw.ai
ORDER : A.M. Babu, J. The order challenged in the appeal was set aside. The case was remanded for fresh disposal. That judgment is sought to be reviewed. 2. The parties are referred to in this order as they are shown in the memorandum put in to seek review of the judgment. 3. The respondents sought leave of the principal civil court of original jurisdiction to institute a suit against the petitioners to seek reliefs within the purview of Section 92 of the Code of Civil Procedure (for short CPC). The first petitioner is an association of persons registered under Act XII of 1955. Its office bearers are the other petitioners. The respondents are life members of the association. They are at present members of its executive committee. Grant of leave was opposed by the petitioners. They contended that the first petitioner was never a trust. That contention was accepted by the district court. The original petition seeking the leave was dismissed. 4. The respondents had filed two applications before the court below. One was I.A.No.23 of 2017 to amend the original petition. The other was I.A.No.22 of 2017 for a direction to the petitioners to produce documents. The amendment was sought to have better pleadings to contend that the first petitioner was a trust of the nature specified in Section 92 (1) of CPC. It was alleged that the documents referred to in I.A.No.22 of 2017 would show the first petitioner to be such a trust. The Additional District Judge did not consider and decide those applications under the impression that no interlocutory application could be considered before the grant of leave. But that was not the law. We clarified it in our judgment. We directed the court below to consider and decide the aforesaid applications before the disposal of the original petition. The petitioners seem to have no grievance against the remand of the case and against the direction to dispose of the two interlocutory applications before the disposal of the original petition. 5. The grievance of the petitioners is against our findings that the respondents have a prima facie case and that they have a cause of action. The petitioners are aggrieved since we said that the remand was not an open remand. Our aforesaid findings are sought to be reviewed.
5. The grievance of the petitioners is against our findings that the respondents have a prima facie case and that they have a cause of action. The petitioners are aggrieved since we said that the remand was not an open remand. Our aforesaid findings are sought to be reviewed. It is requested either to review those findings or to direct the district court to consider the original petition untrammelled by the observations in paragraphs 13 and 16 of the judgment. In short, what the petitioners want is to make the remand an open remand. 6. Heard the learned senior counsel for the petitioners and the learned counsel for the respondents. 7. We said at paragraph 12 of the judgment that the original petition contained serious allegations against the petitioners herein. We also said that those allegations were not seriously denied in the statements of objections filed by them. We added that only two of the allegations were specifically met in the statements of objections. Mismanagement, misconduct and misappropriation were the allegations. We have referred to those allegations in paragraphs 11 to 15 of the judgment. Those allegations were indeed serious allegations. Those allegations were not seriously met in the statements of objections filed by petitioners 1, 2 and 4 jointly and the third petitioner separately. We had to state that fact in the judgment and therefore we stated it. We had to state it since we were considering whether the respondents had a cause of action and a prima facie case to prosecute the original petition. 8. We wrote the above paragraph since the learned senior counsel for the petitioners argued as if the allegations in the original petition were sufficiently met in the statements of objections. A copy of the statement of objections filed by petitioners 1, 2 and 4 was therefore again read in open court. That reading only confirmed what we stated in the judgment. The memorandum filed by the petitioners to seek review of the judgment would vouch our words in the judgment that serious allegations were not seriously met by them in the statements of objections. The petitioners say at paragraph 3 of their memorandum that their statements of objections were only intended to be preliminary objections to the original petition.
The memorandum filed by the petitioners to seek review of the judgment would vouch our words in the judgment that serious allegations were not seriously met by them in the statements of objections. The petitioners say at paragraph 3 of their memorandum that their statements of objections were only intended to be preliminary objections to the original petition. They say that the statements of objections were filed in a haste in order to bring out the nonest nature of the order of temporary injunction granted by the district court (vide ground-C). They state at paragraph 6 of the memorandum that they are desirous of taking various legal and factual contentions in the event the first petitioner is adjudged a public trust. The proposed contentions are also stated in the same paragraph. Paragraphs 7 and 8 of the memorandum are written to state the contentions against the allegations touching the report of the internal audit committee and its finding that there was a huge loss of Rs.148 lakhs to the association. The allegation in the original petition that new members are being inducted against the decision of the general body is met at paragraph 9 of the memorandum. A reading of the memorandum thus confirms our words in the judgment that the serious allegations in the original petition were not seriously met in the statements of objections filed by the petitioners. 9. We shall move on to the grounds, grievances, allegations, contentions and explanations of the petitioners as could be gathered from their memorandum. They state that they filed I.A.No.3166 of 2016 requesting the district court to consider and decide the maintainability of the original petition as a preliminary issue. Therefore, according to them, the statements of objections filed at the initial stage was only intended to be preliminary objections to the original petition. It is also contended that petitioners 1, 2 and 4 at paragraph 18 of their statement of objections prayed for leave to file additional statement of objections in the event it was necessary to avoid miscarriage of justice. The above contentions/explanations go together. We shall consider those contentions. 10. The contentions/explanations noted above suggest that the petitioners are under an impression that there are two stages in an enquiry to decide whether leave under Section 92 (1) CPC should be granted.
The above contentions/explanations go together. We shall consider those contentions. 10. The contentions/explanations noted above suggest that the petitioners are under an impression that there are two stages in an enquiry to decide whether leave under Section 92 (1) CPC should be granted. But there are no such initial stage and final stage to reserve any contention to the 'final stage'. When the leave sought for is opposed, all contentions shall be taken in the statement of objections filed to oppose the original petition. No party has the right to raise his contentions piecemeal. Nor can he request the court to hold the enquiry in stages and pass orders piecemeal. It is not legally possible to ask the court to decide first whether or not the respondent in a petition for leave under Section 92 is a trust and to give a further opportunity to raise other contentions if the court holds such respondent is a trust. Such a procedure is not backed by any of the provisions of the CPC. Under Section 92, two or more persons with the leave of the court may institute a suit. The court can pass only one order granting or refusing the leave. The contention of the respondents that the statements of objections filed at the 'initial stage' was only intended to be 'preliminary' objections to the original petition is meaningless. For, there is no such 'initial stage' and therefore no 'preliminary' objections can be filed. The very foundation of the review petition is therefore lost. 11. The petitioners refer to I.A No.3166 of 2016 filed by one of them in the court below. The request therein is stated to be to decide the maintainability of the original petition as a preliminary issue. It is stated at paragraph 3 of the memorandum that in the said circumstance, the statements of objections filed at the 'initial stage' was only intended to be 'preliminary' objections to the original petition. The 'circumstance' referred to at paragraph 3 appears to be the filing of I.A No.3166 of 2016. We do not know under which provision of the CPC the said application was filed. We do not find any provision under which it could be filed.
The 'circumstance' referred to at paragraph 3 appears to be the filing of I.A No.3166 of 2016. We do not know under which provision of the CPC the said application was filed. We do not find any provision under which it could be filed. Order 14, Rule 2 of CPC can have application only if the preliminary issue relates to the jurisdiction of the court or a bar to the suit created by any law for the time being in force. What the petitioners wanted the court below to decide as a preliminary issue was whether the first petitioner was a trust of the nature stated in Section 92 (1) of CPC. Whether the first petitioner is such a trust or not is purely a question of fact. Therefore even the principles of Order 14, Rule 2 could not have been imported to file I.A.No.3166 of 2016. It could not have been filed even under Section 151 CPC. For, no court has any inherent power to hold an enquiry under Section 92 (1) CPC in different stages and pass orders piecemeal. In our opinion, I.A.No.3166 of 2016 was not maintainable. Therefore, its filing cannot be considered for any purpose, much less for review of the judgment. 12. As two or more stages and piecemeal orders are not contemplated by the CPC, the petitioners could not have reserved any contention to be agitated at an imaginary second or final stage. Therefore their contention that they prayed for the leave of the court below to file additional statement of objections in the event of necessity cannot be attached any weight. 13. We have found in the judgment that the respondents herein have a prima facie case. We have also found that they have a cause of action. We had enough material to find so. We have given our reasons in the judgment to enter those findings. We carefully read the memorandum submitted by the petitioners. Nowhere in it they have stated that our afore noted findings are wrong. Nor is it stated therein that we had no material to find so. Therefore, the scope for a review of the judgment is practically less, if not nil. 14. As already said, one who opposes the grant of leave should take all his contentions in his statement of objections. The court can pass only one order granting or refusing the leave.
Therefore, the scope for a review of the judgment is practically less, if not nil. 14. As already said, one who opposes the grant of leave should take all his contentions in his statement of objections. The court can pass only one order granting or refusing the leave. The respondents did not have enough material to contend that the first petitioner was a trust of the nature mentioned in Section 92 CPC. But they had filed an application to amend the original petition to incorporate better pleadings. They had filed another application to direct production of documents which might be necessary for considering a question relevant for the disposal of the original petition. Those two applications which ought to have been disposed of before disposing of the original petition were not disposed of by the court below. Had those applications been not filed, we would have dismissed the appeal. The maximum the respondents could expect in their appeal was a remand of the case to the court below. They were not entitled to get the case remanded unless they had a cause of action and a prima facie case. We therefore had to go into those matters. That was why the learned counsel for the respondents stated at the time of hearing that he earned the remand. Yes, that was what had happened. We did not consider in the judgment anything which should not have been considered. We were not supposed to leave anything which should have been considered. Had the two statements of objections been prepared more carefully, the respondents would not have had an easy walkover on their prima facie case and cause of action. 15. The memorandum at paragraph 11 states that the district court in its order has considered only the question whether the first petitioner is a trust, without referring to the allegations in the original petition. That was the mistake committed by that court and corrected by this court. The learned senior counsel for the petitioners submitted that as the court below did not consider the cause of action and prima facie case, this court in appeal could not have gone into those matters. We do not see any prohibition in the CPC. 16. It does not appear from the order of the court below that what the court intended was to consider a preliminary point only.
We do not see any prohibition in the CPC. 16. It does not appear from the order of the court below that what the court intended was to consider a preliminary point only. The whole allegations in the original petition touching mismanagement, misconduct et cetera are narrated in the order. Not only the contention in the statements of objections that the first petitioner herein is not a trust, but other contentions are also stated in the order. The point raised by the district court was whether the petitioners (respondents herein) were entitled to get leave of the court under Section 92 of the CPC to institute the suit. The point raised was not whether the first petitioner herein was a trust of the nature specified in Section 92. The court below ought to have considered the prima facie case and cause of action under the point raised by it to decide whether leave should be granted or not. The failure to consider those matters was a mistake. The petitioners cannot take advantage of that mistake. 17. The statements of objections filed by the petitioners also do not appear to be in the nature of preliminary objections. The statements of objections were filed not just to dispute the status of the first petitioner as a trust. Other contentions were also taken. The statement of objections of petitioners 1, 2 and 4 consists of 18 paragraphs. The averment denying the statement that the first petitioner is a trust is contained only in a short paragraph, which is paragraph no.2, and in a one sentence paragraph, which is paragraph no.3. The remaining paragraphs, except the 18th paragraph which has already been referred to in this order, contain other contentions of the association and its office bearers. Such a statement of objections cannot be treated as one in the nature of preliminary objections. It appears that only when the judgment was seen, the petitioners realised that the allegations in the original petition referred to in paragraph 15 of the judgment were not specifically denied and that the denial of the allegations considered at paragraphs 13 and 14 of the judgment were quite insufficient and unsatisfactory. The contention that what was filed was only a preliminary objection would not stand. 18. The petitioners state that they are desirous of taking various contentions. Those contentions are stated in paragraphs 6 to 9 of the memorandum.
The contention that what was filed was only a preliminary objection would not stand. 18. The petitioners state that they are desirous of taking various contentions. Those contentions are stated in paragraphs 6 to 9 of the memorandum. The petitioners should have taken those contentions in the statements of objections filed by them. They refer to their right to file an additional statement of objections if I.A.No.23 of 2017 is allowed. If that application is allowed, the petitioners can certainly file an additional statement of objections to fortify their contention that the first petitioner is not a trust. But they cannot raise contentions on matters which have already been concluded. 19. It is requested in the memorandum to direct the district court to decide the original petition untrammelled by the observations in the judgment. It cannot be so directed. It is so because what the petitioners refer to as 'observations' are findings and not merely observations. The court below is bound by those findings while considering the question of grant of leave. Those findings are not binding on the court below for deciding the suit if the original petition becomes a suit. 20. The learned senior counsel for the petitioners made the following submissions at the end of his argument. What was behind the seeking of leave under Section 92 CPC was a private vengeance and not to vindicate any right of the public. In such a case leave should not be granted as held in Vidyodaya Trust v. Mohan Prasad ( AIR 2008 SC 1633 ). The real intention behind the seeking of the leave has been pleaded in the statements of objections. But the court below may not go into that question and those pleadings in view of the findings entered in the judgment of this court and since it is said therein that the remand is not an open remand. 21. There are contentions in the statements of objections to the effect that a private vengeance made the respondents to seek the leave. We did not go into those contentions for deciding the appeal. We do not propose to go into those contentions in a proceedings seeking review of the judgment. We did not prevent the district court from going into that question.
We did not go into those contentions for deciding the appeal. We do not propose to go into those contentions in a proceedings seeking review of the judgment. We did not prevent the district court from going into that question. We said that the remand was not an open remand in the sense that no question considered and concluded by us would be open for consideration and decision after the remand. We have said that the question that is available for consideration after the remand is whether the first petitioner herein is prima facie a trust, express or constructive, created for public purposes of a charitable or religious nature. While stating so, we have also stated that if anything else is to be considered other than those matters considered and concluded by us, such matters can also be considered by the court below. Therefore the district court can go into the aforementioned question. 22. We now conclude. The petitioners do not have a single ground to get any finding in the judgment dated 14.2.2017 reviewed. This court has only entered the findings which are necessary to decide an application seeking leave under Section 92 (1) of CPC. Section 114 and Order 47, Rule 1 of CPC are not at all attracted. There has been no discovery of any new and important matter or evidence. Nor has there been any mistake or error apparent on the face of the record. No other sufficient reason exists warranting a review of the judgment. The review sought for is only to be rejected. The petition for review of the judgment is liable to be dismissed. 23. Dismissed. No costs.