25 Sep 2023 11:00 AM GMT
The Kerala High Court has laid down that the Subordinate Judge's Courts are vested with the jurisdiction to grant leave for institution of a suit relating to a public charitable trust, and thereafter try and dispose of the same under Section 92 of the Code of Civil Procedure (CPC). The Division Bench comprising Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen passed the order on...
The Kerala High Court has laid down that the Subordinate Judge's Courts are vested with the jurisdiction to grant leave for institution of a suit relating to a public charitable trust, and thereafter try and dispose of the same under Section 92 of the Code of Civil Procedure (CPC).
The Division Bench comprising Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen passed the order on a reference made by a Single Bench of Justice C.S. Dias, which had expressed its doubt as to whether the decision in Sree Gurudeva Charitable and Educational Trust, Kayamkulam & Others v. K. Gopalakrishnan & Others (2020), laying down that only the Principal District Judge has the jurisdiction to grant leave for institution of a suit under Section 92 CPC would hold ground.
Section 92 CPC originally stated that suit ought to be instituted with the consent in writing by the Advocate General. A notification was issued in the year 1966 conferring power on the Sub-Court to try and dispose the cases under Section 92 CPC. Thereafter, an amendment was introduced in 1976, mandating the institution of the suit with leave of the court.
As per Section 92, the Principal Civil Court of the original jurisdiction or any other court empowered in that behalf by the State Government within the local limits of the jurisdiction where the whole or any part of the subject matter of trust is situated, is empowered to try and dispose of the suits. The amendment mandating institution of suit with the leave of the court was only brought into effect from 1977.
It is at this juncture that the Court was faced with the query as to whether the Sub Court has the power to try the suits under Section 92 CPC without the issuance of a further notification, particularly in light of the view taken by another Single Bench in Sree Gurudeva Charitable and Educational Trust, Kayamkulam (Supra), laying down that the Additional District Court has no power to entertain an application to grant leave to institute a suit under the said provision.
The Division Bench thus took the view that the purpose of obtaining leave as incorporated by the amendment in 1977, was only an 'institutional formality' to be complied with in a suit of the nature under Section 92 CPC.
"That being a institutional formality, it has to be complied by the litigant and it has nothing to do with the determination of the jurisdiction of the Court to try and dispose cases under Section 92 of CPC," the Court said.
Elaborating on the object of obtaining leave under Section 92 CPC, the Bench explained that the same was to ensure that only genuine persons having bonafide interest in the matter alone are permitted to move the Court to institute such suits.
"The institutional formality obtaining leave thus ensures that only such genuine cases alone are entertained by the Civil Court, as the interest of such litigant has to be identified with the larger interest of the public trust under Section 92 of the CPC. Thus it shields such public trust from being harassed by unnecessary law suits against them. This being an institutional formality it will in no way have any consequences on jurisdiction of the Sub Court to entertain such suits and try such cases. Therefore, there is no requirement to have a separate notification authorizing the Sub Court to grant leave," the Court observed.
As regards the power of the Additional District Court in granting leave and trying a suit under Section 92 CPC, the Court left the same open, on taking the view that the said question has not arisen before the Single Judge, and thus, the Division Bench could not render an academic answer on an issue outside the lis before the Single Judge.
The reference was thus answered on this basis.
Counsel for Revision Petitioner: Senior Advocate S. Sreekumar, and Advocate Manoj Ramaswamy
Counsel for the Respondents: Advocates P.B. Saharsranaman, T.S. Harikumar, and G.N. Deepa
Citation: 2023 LiveLaw (Ker) 512
Case Title: Pathanapuram Taluk Samajam & Ors. v. K.K. Surendran & Ors.
Case Number: CRP NO. 285 OF 2020
Click Here To Read/Download The Order