CRESCENT EDUCATIONAL TRUST Vs. T O ABDULLAH

JUDGEMENT

(1.) Part V of the Code of Civil Procedure, 1908 deals with special proceedings. The issue presented here arises in situations so contemplated. Generally, Section 89 pertains to arbitration and other conciliatory procedures. Section 90 provides that where any persons agree in writing to state a case for the opinion of the Court, then the Court shall try and determine the same in the manner prescribed. Section 91, which deals with suits highlighting public nuisances and other wrongful acts affecting the public, requires that the suit is to be instituted by the Advocate General. Of course, with the leave of the court, even though no special damage has been caused to them, two persons are empowered to join together and seek for redressal of the wrongful acts. Likewise, section 92 deals with suits, which are instituted in respect of public charities. Where an intervention of the court is found required in respect of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate General is authorised to institute a suit. Two or more persons having any interest in the trust are also empowered to institute suits, whether contentious or not. The nominated court is the principal Civil Court of original jurisdiction. A decree could be sought for and obtained for removing any trustee; appointing a new trustee; vesting any property in a trust; directing a trustee who has been removed or a person who has ceased to be a trustee to deliver possession of any trust property in his possession to the person entitled to the possession of such property; directing accounts and inquiries and the like. The said provision gives wide powers to the court for framing schemes and altering them. However, the condition precedent is that for such steps, the leave of the court is essential. The scope of the word 'leave', as appearing in Section 92 of the Code has come to be examined here.

(2.) The appellants herein however failed to obtain leave for moving the District Court, Ernakulam notwithstanding that they were interested persons, and the suit pertained to a Trust created for a charitable purpose. Leave had been applied for by the Crescent Educational Trust, Thottumughom, Aluva, represented by its Secretary along with 30 other office bearers of the Trust before the District Court. Appellants 18 & 19 have later on withdrawn themselves from the proceedings. According to the appellants, the 11 respondents, named in the suit, were acting against the canon of the trust deed and consequential reliefs therefore required to be granted. It had been alleged that by a resolution dated 15-05-2005, the plaintiffs/petitioners had been elected as office bearers of the Trust and by virtue of the same they were entitled to assume office, but the defendants were continuing in office without authority. Consequential orders, according to them, required to be issued. Respondents contended that a suit under section 92 of the CPC would not have been maintainable, and the only remedy, if at all, would have been a suit before the Subordinate Court at Paravur, which alone had jurisdiction to deal with the issue. Accepting the objections, by order dated 28-03-2006, in I.A.No.3809 of 2005 in the unnumbered O.S, the District Court refused leave. The suit was thereby to be returned for presentation before the proper court. This order is under challenge in the present appeal. We had heard Sri.T.H.Abdul Azeez appearing for the appellants and Sri.V.Giri on behalf of the respondents.

(3.) The appellants submit that the learned District Judge erred in adopting a restricted view of the matter in appreciating the basic issue which had been involved. It was a case where persons without authority had been continuing in office and lawfully elected office bearers were prevented access. The Secretary, representing the trust and thirty other members had therefore come up to vindicate their rights. Intervention of the principal civil court of the district was essential. Referring to the provisions in the Code, Mr.Azeez submits that to a great extent, the bona fides of the parties who approached the court should have been subjectively examined. If this was to be the guiding factor, according to the learned counsel, the District Judge had erred in declining grant. Counsel submits that the decision relied on by the District Judge, namely St.John's Jac obite Syrian Church v. Fr.John Moolamattom [2005 (1) KLT 307] could not have been adopted as the guideline, since essentially the claims put in by the plaintiffs stood on a totally different footing. Likewise, the decision in Amrithakumari v. Ramanathan [1998 (2) KLT 305] had no relevance or application, since what had been held there was that there was a duty on the part of the court to ensure that suit was to be entertained only after formal leave is granted.