FR. VARGHESE Vs. FR. SEBASTIAN

JUDGEMENT

(1.) AFTER obtaining the consent in writing of the Advocate General, the Respondents instituted Proceedings under Section 92, Code of Civil Procedure before the Sub Court, Alleppey on 7th June 1976. The suit was numbered as O.S. 99/76. That court returned the plaint under Order 7, Rule 10 and it was re -presented before the District Court, Alleppey. The process was repeated and ultimately it was presented before the District Court, Calicut in 1979, where it was numbered as O.S. 1/79. The suit was for removal of the Defendants from trusteeship and for settlement of a scheme for the administration of the trust.

(2.) IN the meanwhile, the Code of Civil Procedure was amended by Central Act 104/76 which came into force in 1977. Section 31 of this Act amended Section 92 of the Principal Act, and the effect of the amendment was that instead of the consent of the Advocate General, leave of the court had to be obtained for instituting a suit under the section. Section 97 of the Amending Act provided for "repeal and savings" and Sub -section (2)(k) was in the following terms:

(3.) THE reasoning of the learned District Judge is this. Section 97(2)(k) of Act 104/76 speaks of "any suit, appeal or proceeding instituted or filed" before the commencement of Section 31. To file means to put among the records of the court, to deposit with the proper custodian. "Filing" is different from "entertaining", according to the Supreme Court's decision in L.E. Works v. Assistant Commissioner : A.I.R. 1968 S.C. 488. In Emperor v. Gulam Nabi, A.I.R. 1928 Pat 146, the Patna High Court has held that "a proceeding is instituted when for the first time the adjudication of a court of competent jurisdiction is sought". Therefore, the suit in the present case was "filed" or "instituted" before the Alleppey Sub Court in 1976, before the commencement of Section 31 of Act 104/76.