Skip to content


St. John's Jacobite Syrian Church Vs. Fr. John Moolamattom (03.11.2004 - KERHC) - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberC.R.P. No. 514 of 2003
Judge
Reported in2005(1)KLT307
ActsCode of Civil Procedure (CPC) , 1908 - Sections 92
AppellantSt. John's Jacobite Syrian Church
RespondentFr. John Moolamattom
Appellant Advocate K. Ramakumar,; K.C. Eldho and; Saritha David Chunkath
Respondent Advocate S. Sreekumar,; P. Jayabal Menon and; P.K. Soyuz, Adv
DispositionPetition dismissed
Cases ReferredSugra Bibi v. Haji Kummu
Excerpt:
.....section is not retrospective. all appeals filed prior to 1.7.2002 are competent. but subsequent to 1.7.2002 intro court appeals against judgment of single judge is not maintainable. provisions of section 100-a, c.p.c., will prevail over the provisions contained in the kerala high court act, 1959. - according to him, the court below failed to consider the decision of the supreme court in charan singh v. if the allegation of breach of trust is not substantiated or if the plaintiff has not made out a case for any direction by the court for proper administration of the trust, the very foundation of a suit under the section would fail. according to learned counsel, the maintainability of the suit under section 92 depends upon the allegation in the plaint and the allegations in..........under section 92 of the code of civil procedure and according to them, the first defendant is a public trust created for public purpose of religious and charitable nature and since the plaintiff did not comply with the provisions of section 92 cpc and order i rule 8 c.p.c., the suit is not legally maintainable. the maintainability of the suit was decided by the 1st additional district court or a preliminary issue by the impugned order dated 18th february, 2002 whereunder it was held that suit is not liable to be dismissed as not maintainable for want of sanction under section 92 of the code of civil procedure and that the suit is not hit by section 92 cpc. it is challenging the said decision that the present civil revision petition is filed.4. learned counsel for the petitioners sri......
Judgment:
ORDER

P.R. Raman, J.

1. Defendants are the petitioners. The suit O.S.35/2002 was instituted by the respondent herein as plaintiff for a permanent prohibitory injunction against defendants 2 to 9 or anybody else claiming under them from interfering with the plaintiffs rights to discharge the duties of parish priest of the first defendant church including conducting Holy Mass and discharging all other religious functions of the said Church and all its institutions, in pursuance of the memorandum of understanding dated 23.1.1999 and in pursuance of Kalpana No. 19 of 2002 dated 17.8.2002 of Metropolitan of Kandanadu Diocese East appointing the plaintiff as Vicar of 1st defendant church.

2. The plaintiff claimed to be the Assistant Vicar of the first defendant church. According to the plaint allegations, at the time of his appointment, the Vicar of the church was one Rev. Fr.Mary Das Stephen, that there was some dispute regarding the iatters continuance as Vicar which eventually led to a law and order situation, that the RDO interfered and mediation talks were held and a Memorandum of understanding was reached whereby the plaintiff was authorized to discharge all the religious functions and duties of the parish priest, that the dispute regarding appoint of the Vicar was to be decided in appropriate proceedings and until such time, Rev. Fr. Mary Das Stephen and Rev. Fr.Rijo were kept out of the church, that the plaintiff was being discharging all the spiritual matters of the church without any hindrance from others, that on 23.4.2000 defendants 2, 3, 5, 7 and another obstructed the Holy Mass which led to the filing of the suit, that the suit was instituted under Order I Rule 8 C.P.C. since and according to the plaintiff numerous persons may be interested in the subject matter of the suit and it was not possible to make all of them as parties.

3. The defendants raised a contention that the suit is not maintainable without obtaining leave Under Section 92 of the Code of Civil Procedure and according to them, the first defendant is a public trust created for public purpose of religious and charitable nature and since the plaintiff did not comply with the provisions of Section 92 CPC and Order I Rule 8 C.P.C., the suit is not legally maintainable. The maintainability of the suit was decided by the 1st Additional District Court or a preliminary issue by the impugned order dated 18th February, 2002 whereunder it was held that suit is not liable to be dismissed as not maintainable for want of sanction Under Section 92 of the Code of Civil Procedure and that the suit is not hit by Section 92 CPC. It is challenging the said decision that the present Civil Revision Petition is filed.

4. Learned counsel for the petitioners Sri. Ramakumar reiterated the contention as raised by the defendants in the Court below. He also contended that the Court below went wrong in holding that the suit is not hit by Section 92 CPC. According to him, the Court below failed to consider the decision of the Supreme Court in Charan Singh v. Darshan Singh, AIR 1975 SC 371, and to consider that the relief sought for in the plaint is a kin to or for the same nature as of the relief mentioned in Clause(g) of Sub-section 1 of Section 92 of the Code of Civil Procedure.

5. Before considering the rival submissions made by the parties, it will be useful to refer to Section 92(1) of the Code of Civil Procedure which inter alia provides as follows:

Public Charities.-(1)In the case 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, or two or more persons having an interest in the trust and having obtained the leave of the Court, may institute a suit, whether contentious or not, in the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate to obtain a decree-

(a) removing any trustee '

(b) appointing a new trustee

(c) vesting any property in a trustee

(cc) directing any trustee who has been removed or a person who has been 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.

(d) directing accounts and inquiries;

(e) declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust;

(f) authorizing the whole or any part of the trust property to be let, sold, mortgaged or exchanged;

(g) settling a scheme; or

(h) granting such further or other relief as the nature of the case may require'.

6. On a reading of the above provisions, it can be seen that in a case of an alleged breach of any express or constructive trust created for public purpose of a charitable or religious nature or where the direction of the Court is deemed necessary for such an administration of any such trust, then two or more persons having any interest in a trust and having obtained leave of the Court can institute the suit before a Civil Court of original jurisdiction to obtain a decree of the nature enumerated under Clause (a) to (h).

7. That the first petitioner herein first defendant, is a public trust of a charitable or religious nature is beyond dispute and also found so by the Court below. But the Court below held that on a reading of the plaint averments, there is no allegation of breach of any express or constructive trust nor any direction is sought for regarding administration of the church. On a reading of the plaint averments, the finding of the Court below that there is no allegation of any breach of trust, is correct. The plaintiff was only seeking an injunction as against defendants 2 onwards when an attempt was made to obstruct the Holly Mass conducted by the plaintiff in the capacity of the Assistant Vicar of the church. In order to attract Section 92 of the Code of Civil Procedure, not only that it should be a public trust, but also there should be an allegation of breach of any such trust either express or constructive or there should be a direction sought for from the Court for such administration. Besides the relief sought for should be one for a decree of the nature enumerated in Clause (a) to (h).

8. Going by the prayer made in the suit, obviously it does not fall under any of Clause (a) to (g) mentioned Under Section 92(1) CPC. There is not much serious dispute also regarding this. But the contention is that it will fall Under Section 92(1)(h) of the CPC namely, 'granting such further or other relief as the nature of the case may require'.

9. Construing Section 92(1)(h) of the Code of Civil Procedure, the Privy Council in Abdur Rahim v. Mahomed Barkat Ali, 1928 (55) IA 96, held that a suit for a declaration that property belongs to a wakf can be maintained by Mohammadans interested in the wakf without the sanction of the Advocate General, Section 92 of the C.P.C. 1908 makes the sanction of the Advocate General necessary only in the case of a suit claiming any of the reliefs specified in Sub-section (1) under heads (a) to (g). Upon general principles of construction the words as to further and other relief in head (h) are used in connection with the specified heads (a) to (g), not in connection with the words in the case of any alleged breach, etc., at the beginning of the sub-section. Further, the contrary, construction would cut down substantive rights which existed before the enactment of 1908, and a Code regulating procedure should not be construed as having that effect in the absence of express words. In Sugra Bibi v. Haji Kummu, AIR 1969 SC 884, the Apex Court held that the facts that a suit relates to public trust of a religious or charitable nature and the reliefs claimed fall within Clauses (a) to (h) of Sub-section (1) of Section 92 would not by themselves attract the provisions of the section, unless the suit is of a representative character instituted in the interests of the public and not merely for vindication of the individual or personal rights of the plaintiff. In Swami Parmatamanad Saraswati v. R. Tripathi, AIR 1974 SC 2141, after placing reliance on the decision in Sugra Bibis case, AIR 1969 SC 884, it was held by the Apex Court that a suit Under Section 92 is a suit of a special nature which presupposes the existence of a public trust of a religious or charitable character. Such a suit can proceed only on the allegation that there was a breach of such trust or that the direction of the Court is necessary for the administration of the trust and the plaintiff must pray for one or more of the reliefs that are mentioned in the Section. If the allegation of breach of trust is not substantiated or if the plaintiff has not made out a case for any direction by the Court for proper administration of the trust, the very foundation of a suit under the section would fail. If it is clear that the plaintiffs are not suing to vindicate the right of the public but are seeking a declaration of their individual or personal rights or the individual or personal rights of any other person or persons in whom they are interested, then the suit would be outside the scope of Section 92. It was further held that it is not every suit claiming the reliefs specified in the section that can be brought under the section but only the suits which besides claiming any of the reliefs, are brought by individuals as representatives of the public for vindication of public rights and in deciding whether a suit falls within Section 92 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 was brought. When the right to the office of a trustee is asserted or denied and relief asked for on that basis, the suit falls outside Section 92. There is no reason to think that whenever a suit is brought by two or more persons Under Section 92, the suit is to vindicate the right of the public. The Apex Court went on to say that it is no doubt true that it is only the allegations in the plaint that should be looked into in the first instance to see whether the suit falls within the ambit of Section 92. But, if after evidence is taken, it is found that the breach of trust alleged has not been made out and that the prayer for direction of the Court is vague and is not based on any solid foundation in facts or reason but is made only with a view to bring the suit under the Section, then a suit purporting to be brought Under Section 92 must be dismissed: In Chandra Warrier v. N.S.S.Karayogam, 1991 (1) KLT 387, this Court held that 'when a plaintiff is not suing to vindicate the right of the public but seeks a declaration of his individual or personal right, the suit would fall outside the scope of Section 92. A suit whose primary object or purpose is to remedy the infringement of an individual right of the plaintiff or to vindicate his private right does not fall Under Section 92'. Learned counsel for the petitioner placed reliance on the decision of the Supreme Court in Charon Singh v. Darshan Singh, AIR 1975 SC 371, and contended that a suit of the nature envisaged by Section 92(1) to obtain a decree for anyone or more of the reliefs enumerated in Clauses (a) to (h) of the Code has to be filed by the Advocate Gerieral or two or more persons having an interest in the Trust with the consent in writing of the Advocate General. According to learned counsel, the maintainability of the suit Under Section 92 depends upon the allegation in the plaint and the allegations in the plaint would show that the suit is one which ought to have been filed after sanction Under Section 92 CPC and the plaintiff having failed to obtain consent, the suit is liable to be dismissed. It is true that if the suit falls within the scope of Section 92(1) of the CPC necessarily the suit could be instituted only after obtaining leave from the Court. This proposition is well-founded. But the question as to whether the nature of the suit falls within the scope of Section 92 has also to be gathered from the averments made in the plaint and as I have already observed the plaint averments do not make out a case of breach of trust or for seeking a direction for adrninistration of trust. Learned counsel also referred to the decision of the Supreme Court in P.M.A. Metropolitan v. Moran Mar Marthoma, AIR 1995 SC 2001, Govindan v. Koovalasseri S.M.K.Trust, 2002 (2) KLT 907, and also B.K.N. Pillai v. George Mendez, 1988 (2) KLT 605 and G.Koshy v. Chacko Thomas, AIR 1963 Ker. 191. In P.M.A. Metropolitans case,(supra), it was held by the Apex Court that the plea of absence of jurisdiction can be raised and entertained at any stage. In Govindan's case, 2001 (2) KLT 907, it was held that no interlocutory order in the proceedings can be passed by the Court before granting permission to institute a suit Under Section 92(1). Such these decisions therefore have no bearing on the question posed for decision regarding the question of maintainability of the suit. It is only the correctness of the order passed by the Court below on the question of maintainability that is under challenge. In Amrithakumari v. Ramanathan, 1998 (2) KLT 305, it was held that although a suit for a declaration that a certain property appertains to a religious trust lies outside the scope of Section 92, still when the defendant denies the existence of a trust, a declaration that the trust does exist might be made as ancillary to the main relief claimed under the Section, if the plaintiff is held entitled to it. Merely because the suit contains a declaratory relief, it will not take it out of Section 92. In G.Koshy's case, AIR 1963 Ker. 191, this Court held that for Section 92 to apply all the three conditions enumerated Under Section 2(1) must co-exist; ie., there must be an express or constructive trust for public purposes of a charitable or religious nature; there must be an allegation of breach of trust or the direction of the Court should be deemed necessary for the administration of such trust, and the suit should have a prayer for anyone of the reliefs mentioned in Sub-clauses (a) to (h) in Clause (1) of Section 92. on a perusal of the above decisions, and considering the plaint allegations and relief sought for, the following conclusions are reached:

1. That the first defendant is a public trust, but there is no allegation of any breach of trust, or any direction of the Court is deemed necessary for the administration of the trust.

2 That the suit does not contain a prayer for any of the reliefs mentioned in Sub-clauses (a) to (h) of Clause (1) of Section 92.

11. In this connection as has been held by the Privy Council, the words 'further and other reliefs' under head (h) are to be construed in consonance with the specified heads (a) to (h) and not in consonance with the words 'in the case of any alleged breach' etc. The relief sought for in the present suit cannot therefore fall under head (h) as it is not in consonance with the specified heads (a) to (g). The relief prayed as rightly held by the Court below is only a vindication of an individual or personal right and as held by the Supreme Court in Sugra Bibi v. Haji Kummu, AIR 1969 SC 884, such a suit cannot fall within the ambit of Section 92 requiring any leave.

In the result, there is no merit in this Revision, and accordingly, the same is dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //