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Section 92 CPC - Court of Additional District Judge Cannot Grant Leave To Institute Suit Against Public Charities : Kerala HC [Read Judgment]

S Nikhil Sankar
9 Sep 2020 11:57 AM GMT
Section 92 CPC - Court of  Additional District Judge Cannot Grant Leave To Institute Suit Against Public Charities : Kerala HC [Read Judgment]
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The High Court of Kerala speaking through Justice Devan Ramachandran has ruled that the Court of an Additional District Judge cannot grant leave under S.92 Civil Procedure Code,to institute suit against pubic charities.

The basic facts presented would be as follows:-

The respondents before the High Court claiming themselves to be beneficiaries of a 'Public Trust' had earlier approached the Principal District Court seeking 'leave' to sue the 'Public Trust' thereto accompanied by the 'plaint for the proposed suit' in this regard.The District Court instead of considering the same, made the over it to the Additional District Court. The Additional District Court on considering the same, granted leave to the parties and a Plaint under S.92 C.P.C came to be instituted , which was accordingly numbered.

The Petitioners who came to know about the aforesaid development and are presently in Civil Revision Petition before the High Court, then approached the Court concerned (Additional District Court) seeking that the 'leave to sue' thus granted be revoked.The same was declined by the Additional District Court which upheld its order. Impugning the said order of the Court of Additional District Judge, the petitioners inter alia seek a direction through a separate Original Petition(Civil) seeking a direction against the Court of Principal District Judge to call back the records of the case forthwith from the Court of Additional District Judge.

Justice Devan after a granular analysis of the entire gamut of the issue, with relevance to Statutory prescriptions under C.P.C ,Civil Courts Act , and General Clauses Act ruled that 'Principal Court of Original Jurisdiction' with specific reference to S.92 C.P.C can only mean to Court of 'District Judge' alone and not that of 'Additional District Judge'.

Coming to the other issue whether a District Judge can assign a petition for consideration by Additional District Judge , and whether later is competent to try the same, the court negatived the same holding that as per 'Civil Courts Act' there is only one District Judge , called the 'District Court' with the 'Additional District Judges' being appointed to that court.The Judical Wisdom of the court in this regard was explained on the following lines:- "the Civil Courts Act refers to only one District Judge, called the 'District Court', with Additional District Judges being appointed to 'that court'. Hence, technically, there is no 'Additional District Court' in the frame work of the Act, but only Additional District Judges appointed to a District Court. Further, theAct does not contain the nomenclature 'Principal District Court' or 'Principal District Judge' and any such usage is only to identify the District Judge in contra distinction to an Additional District Judge, as a method in convenience and nothing more. There can be no two ways on this because the Civil Courts Act, when it refers to the Subordinate Court and Munsiff's Court, provides - through Section 6 thereof – for their designation as 'Principal' Subordinate Judge/Munsiff and 'Additional Subordinate Judges/Munsiffs. Hence, wherever the word District Court is employed in this Act, it can mean only the District Judge and not the Additional District Judges, though they are certainly appointed to the said court."

The court further ruled that even as per Government Notification Only the District Court and Subordinate Courts have been empowered to try suits u/s 92 C.P.C and only the District Court as per Section 24(1) C.P.C, can transfer the same to be considered by a 'Subordinate Court'since it is competent to try such matters, and not any other court.

Justice Ramachandran concluded his judicial reasoning on the following lines:- "it is irrefragable from the above discussion of law that a suit under Section 92 of the CPC can, at the District Court level, only be instituted before the District Judge; and further that such a suit can, however, be instituted only after obtaining leave of the court and not otherwise. Since grant of leave is an imperative condition precedent to the institution of the suit, the District Judge can permit such institution only if he is subjectively satisfied that the plaint averments disclose the essential ingredients required under Section 92 of the CPC. When the statutory mandate, strengthened by the afore case laws, emphasise subjective satisfaction to be arrived at by the court before grant of leave - which alone would then permit consequent institution of the suit - it becomes irresistible that only that court, before which a suit can be instituted, would obtain the jurisdiction to consider grant of leave and no other."

The court further added:-"Any other interpretation, in my firm view, would certainly cause violence to the intent and purpose of Section 92 of the CPC; since, even if it is accepted that an Additional District Judge can grant leave under this Section, it is conceded that he would not obtain jurisdiction to grant permission to institute the suit, which only the District Judge can do."

The Court hence allowed the Civil Revision Petition's filed challenging the grant of leave by Additional District Judge ,setting aside the same interalia also allowing the Original Petition(Civil) directing the Court of District Judge to recall back the files of the aforementioned case and to consider the same.

Click Here To Download Judgment

[Read Judgment]



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