KUNJU MEETHIYAN Vs. KUNJAN MARACKAR METHER

JUDGEMENT

(1.) Defendants 5 and 8 in O.S. No. 80 of 1121 on the file of the Kottayam District Court have filed this revision petition against an order of the learned District Judge of that court disposing 2 issues of law arising in the case. The plaintiffs instituted that suit to establish a right of hereditary management of a mosque at Thazathangadi, Kottayam, in their Methar and Mossambi families, to remove the defendants who claim to be the elected kykars of the mosque from management, for recovery of the mosque properties and for rendition of accounts. Amongst other defences raised the defendants contended that the suit was not maintainable without the sanction contemplated by S.72 of the C.P.C., Travancore (S.92, C.P.C. Act V of 1908) and that the plaintiffs have not paid proper court fee on their plaint. On these contentions, the court raised issues numbered as (2) and (7) reading:-

(2.) The learned Judge held that the suit was maintainable without the sanction of the Government and that the court fee paid was sufficient. Feeling aggrieved by this decision defendants 5 and 6 have moved this court in revision to get the same reversed.

(3.) On the first question it would seem to be too late in the day to contend that S.72 has application to suits for the vindication of the rights of management claimed as hereditary rights or to disputes between such managers inter se. Two conditions have to be satisfied for the application of the section; one is that the suit should be one for the vindication of the rights of the general public in any trust created for public purposes of a charitable or religious nature and the other is, that the relief should be all or any of the reliefs enumerated in clauses (a) to (h) of S.72. The section was intended to govern representative suits brought for the benefit of the public to enforce a public right in respect of any express or constructive trust. It does not apply to suits brought by persons to remedy a particular infringement of their own individual right. The learned Judge in the court below took the above view following a Full Bench decision of the High Court of Travancore reported in Bhanu Pandarathil v. Valia Raja 1943 TLR 484. More recently a Full Bench of this Court has affirmed that view in Andaperumal Pillai v. Somasundaram Pillai (1950 TCLR 249 : 1950 KLT 86 ). One of us was a party to that decision and Simon, J. who delivered the leading judgment in the case has after exhaustively reviewing the case law bearing on the question said that to decide whether a particular suit is hit by the section or not the court must go beyond the reliefs and have regard to the capacity in which the plaintiffs are suing and to the purpose for which the suit is brought. In another part of the judgment the learned Judge again emphasised that the suit should be one on behalf of the general public if, it should come within the restrictive provisions in S.73 (S.92(2), Act V of 1908).