CHURCH OF SOUTH INDIA Vs. JOHN

JUDGEMENT

(1.) Challenge in the Original Petition is against Ext. P4 order passed by the learned District Judge, Ernakulam granting leave to institute a suit under S. 92 of the Code of Civil Procedure, for short, the 'Code' against the petitioners, the first among whom is a trust created for public purposes of charitable and religious nature and the second, its trustee. The respondents, two in number, who claimed to be persons having interest in the 1st defendant, moved Ext. P1 application seeking leave to sue the petitioners under S.92 of the Code producing a draft copy of the plaint, in which, alleging breach of trust, removal of the trustee, preparation of a scheme for administration of the trust, settlement of accounts etc., were canvassed as reliefs. The application for leave was opposed by filing of a counter affidavit (Ext. P2) by the General Secretary of the 1st petitioner, who also claimed to be the Secretary of the second petitioner. An additional objection was also later filed by the counsel for the petitioners as Ext. P3. The learned District Judge, after hearing both sides, granted leave to institute the suit under S. 92 of the Code holding that a prima facie case has been made out to do so, vide Ext. P4 order. That order is challenged invoking the visitorial jurisdiction of this Court under Art. 227 of the Constitution of India.

(2.) Ext. P4 order is impeached by the learned counsel appearing for the petitioners contending that it suffers from material irregularity and illegality by erroneous exercise of jurisdiction. The respondents, who applied for leave, have not even mentioned their interest in the trust and the learned District Judge without having any enquiry thereto and also whether there is any bona fides on their part in filing the application has granted leave, is the submission of the counsel. Contentions raised to oppose the grant of leave that the court below has no territorial jurisdiction over the subject matter placing reliance on the Constitution of the 1st petitioner trust, and also the breach of trust imputed is without any basis or foundation, is also canvassed by the counsel to assail Ext. P4 order. Per contra, the learned counsel for the respondents contending that the order granting leave is not justiciable submitted that the challenge against Ext. P4 order passed by the learned District Judge is devoid of any merit. By grant of leave, the court is not deciding any right of the parties and so much so, at that stage, the allegations stated in the plaint alone need be looked into and even notice to the opposite parties, who are sought to be proceeded against as defendants in the suit, is not necessary and can be dispensed with, is the submission of the counsel. Reliance is placed on A.K. Bhaskar v. Advocate General,1961 1 KerLT 986. Association of Radhaswami Dera Baba Bagga Singh & Anr. v. Gurnam Singh & O Rs., 1972 AIR(Raj) 263, Swami Paramatmanand Saraswati & Anr. v. Ramji Tripathi & Anr., 1974 2 SCC 695 and Ambrish Kumar Singh v. Raja Abhushan Bran Bramhshah & O Rs., 1989 AIR(All) 194 to buttress the submissions made as above that the challenge against Ext. P4 order granting leave is only to be turned down.

(3.) After going through Ext. P4 order with reference to the submissions made by the counsel on both sides and also the other materials tendered with the Original Petition including the draft plaint produced with Ext. Pl application for grant of leave, what is noticed is that the learned District Judge has focused the enquiry on grant of leave precisely on the challenges mooted by the respondents in Ext. Pl application, without having regard to the broad principles to be taken note of when leave is applied for to institute a suit against any trust created for public purposes of charitable and religious nature. The very object of S. 92 of the Code is quite clear, that is, to give protection to public trust created for purposes of charitable and religious nature from being subjected to harassment by suits being filed against it. Essential conditions as covered under that Section have to be satisfied for institution of a suit against such a public trust. The Apex Court in Vidyodaya Trust v. Mohan Prasad R & O Rs., 2008 2 KerLT 68 has pointed out the nature of enquiry that is expected from the court from which leave is applied for, to institute a suit against a trust created for public purposes of charitable and religious nature as under S. 92 of the Code. The Apex Court in the aforesaid decision reiterating what has been stated in Swami Paramatmanand Saraswati's case (cited supra), has observed that to find out whether the suit was for vindicating public rights, the court has to go beyond the relief and to focus on the purpose for which the suit was filed. In examining that question, it has been stated that it is the object and purpose and not essentially the relief which is of paramount importance. Dilating on the above aspects, the Apex Court has observed thus: