ITHACK Vs. KURIVILLA

JUDGEMENT

(1.) By this revision petition the 2nd defendant in O.S. No. 31 of 1118 on the file of the District Court of Parur has invoked the revisional jurisdiction of this court for quashing the order passed by the District Court that the suit is maintainable even without the sanction as required by S.7 of the Travancore Civil Procedure Code which was in force at the time of the institution of the present suit. Plaintiffs have instituted the suit on behalf of the Vadakara Jacobite Christain Church at Koothattukulam in Muvattupuzha Taluk. The main reliefs claimed are that defendants 1 to 3 who are in charge of the management of the affairs of the Church as its Kaikars may be removed from office, that they may be called upon to render accounts for the period of their management and that plaintiffs may be appointed as the Kaikars to manage the affairs of the church and that a scheme may be prepared for its proper management. Among the several contentions raised by the 2nd defendant one is about the maintainability of the suit. According to him the plaint church is a public trust and therefore a suit instituted without obtaining the sanction contemplated by S.72 of the Travancore Civil Procedure Code is not maintainable. The plaintiffs maintained that the trust is only a private trust and that as such the sanction contemplated by S.72 of the Travancore Civil Procedure Code is not necessary. After taking some evidence on the question as to the nature of the trust the lower court considered the question of the maintainability of the suit as a preliminary issue and recorded a finding that the plaint trust is a public trust. At the same time it was held that the suit is maintainable even without the sanction as required by S.72 of the Travancore Civil Procedure Code. The revision petition is directed against this order. The plaintiffs respondents have filed an objection memorandum challenging the correctness of the lower court's finding that the plaint trust is a public trust.

(2.) We can interfere with the order of the lower court at this stage only if it is found that the order is one which attracts the revisional jurisdiction conferred on this Court. Now that the Travancore Civil Procedure Code has been replaced by the Indian Civil Procedure Code the revisional jurisdiction that this Court can exercise at the present day is subject to the limitations imposed by S.115 of the Indian Civil Procedure Code. That section runs as follows:-

(3.) In passing the impugned order the lower court cannot be said to have exercised a jurisdiction not vested in it by law or to have failed to exercise a jurisdiction so vested. The objection that the suit is not maintainable without the sanction as required by S.72 of the Travancore Civil Procedure Code was specifically raised before the lower court and it is obvious that such an objection was raised on the strength of S.73 which stated that no suit claiming any of the reliefs specified in S.72 shall be instituted except in conformity with the provisions of that section. This objection was duly considered and overruled by the lower court. It cannot therefore be said that in passing such an order the lower court has overlooked the provision contained in S.73. It may be that the conclusion arrived at by the lower court is wrong and unsustainable. But that will not mean that in passing such an order the lower court has acted illegally or with material irregularity in the exercise of its jurisdiction so as to bring the matter under clause (c) of S.115 of the Civil Procedure Code. Where the subordinate court has passed a wrong order, which does not come within the clauses (a), (b) or (c) of S.115 the normal remedy of the aggrieved party is to challenge that order in an appeal that may be preferred against the order where it is an appealable order and in ether cases in the regular appeal that may be preferred against the ultimate decree passed in the case.