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Annai Teresa Educsation & Social Welfare Charitable Trust, Represented by its Secretary P. Mahalingam v/s P. Gunasekar & Others

    CRP.(PD).No. 124 of 2017 & CMP. No. 559 of 2017

    Decided On, 23 July 2018

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE P. VELMURUGAN

    For the Petitioner: A.V. Arun, Advocate. For the Respondents: R5, C.D. Sugumar, Advocate, No appearance.



Judgment Text

(Prayer: Civil Revision Petition is filed under Article 227 of the Constitution of India to set aside the fair and decreetal order dated 21.11.2015 made in IA.No.630 of 2013 in OS.No.44 of 2013 on the file of the III Additional District Judge, Salem.)

1. The relief sought for in the revision petition is to set aside the fair and decreetal order dated 21.11.2015 made in IA.No.630 of 2013 in OS.No.44 of 2013 on the file of the III Additional District Judge, Salem.

2. The revision petitioner is the first defendant in the suit. The respondents are the plaintiffs in the suit.

3. The respondents/plaintiffs filed the suit along with an interlocutory application in IA.No.158 of 2013 to grant leave under Sections 91 and 92 of the Code. The trial Court granted leave and the plaint was number

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ed as OS.No.44 of 2013 on the file of the III Additional District Judge, Salem. Subsequently, the revision petitioner/first defendant filed an interlocutory application in IA.No.630 of 2013 to revoke the permission or the leave granted to the plaintiffs and to dismiss the suit. After due enquiry, the said application was dismissed by the III Additional District Judge, Salem. Feeling aggrieved against the said order the revision petitioner/first defendant is before this Court.

4. The learned counsel for the revision petitioner would submit that while granting leave under Section 92 of CPC. The Court has to see whether it is a public trust of religious and charitable endowment. Two or more persons interested have filed the application for any one of the reasons mentioned under Section 92(1)(a to h). If the suit not falls under any one of the grounds then the suit is not maintainable, without looking into the applicability of Section 92 and without giving notice to the revision petitioner/first defendant and other defendants granted exparte leave. Therefore, the revision petitioner filed an application before the trial Court, to revoke the leave granted to the plaintiffs, the trial Court without considering the above aspects granted leave is not maintainable under Section 92 of the Code and also placed reliance on the following decisions (i)(1974) 2 SCC 695 Swami Paramatmanand Saraswati and another v. Ramji Tripathi and another (ii)(2008) 4 SCC 115 Vidyodaya Trust v. Mohan Prasad R and others and (iii)2007 (4) CTC 583 P.Subramanian v. K.L.Lakshmanan and another stating that suit for vindication of private right are not maintainable, even if all the other ingredients of a suit under Section 92 are made out, if it is clear that the plaintiffs are not suing to vindicative 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, therefore the leave granted can be revoked and the learned counsel prays to set aside the order of leave granted and to reject the suit.

5. Though, notice was duly served on the respondents none appeared on behalf of Respondents 1 to 4 & 6 to 8. No appearance on behalf of the fifth respondent either in person or through the counsel on record. Heard the learned counsel for the petitioner and perused the available materials on record.

6. It is settled proposition of law, the order passed under Section 92 of the Code, when the plaint is filed granting leave to sue is an administrative in nature and there is no need to pass detailed order while granting leave, being an administrative order no notice to be given to the defendants before granting leave. At the time of granting leave, the Court has to see as to whether it is a public or charitable trust or charitable endowment. On a perusal of entire records viz., Deed of Trust and Supplement Deeds to the Original Trust Deed, the name itself shows that Annai Teresa Educational and Social Welfare Charitable Trust, on reading of the Trust deed no doubt it is a Charitable Trust.

7. As per the provisions, two or more person those who are interested in the Trust can file the suit with leave of the Court against the Trust and persons who are acting against the Trust or conditions against the breach of Trust. Admittedly, in this case, in paragraphs 8, 9, 12, 13, 14, 15, 21, 26 and 27 of the plaint speaks about the allegations levelled against the defendants 2 to 4 are illegally, unlawfully, mismanaging the Trust and acting against the Trust deed dated 21.10.2009. The defendants 2 to 4 did not maintain the minute book which has to be maintained periodically in the Trust. There are allegations levelled against the defendants regarding the mismanagement and unlawful act against the Trust deed.

8. The plaintiffs filed the suit for declaration that the plaintiffs are the Founders/Trustees of the Annai Terasa Educational and Social Welfare Charitable Trust registered under the Document No.1470/2009 dated 21.10.2009 of the Sub Registrar Office, Thiruchengode and to pass decree of permanent injunction against the defendants and their men, agents, representatives of the Trust from in any way expelling the plaintiffs from the suit Trust permanently and other reliefs. The plaintiffs filed application in IA.No.158 of 2013 seeking leave to file the suit, after considering the facts elaborately the trial Court granted leave. Thereafter, the revision petitioner filed the application in IA.No.630 of 2013 to revoke the leave, since there are allegations raised against the defendants 2 to 4 and they are acting against the Trust deed, therefore, the contention of the learned counsel for the revision petitioner that the suit does not falls under any one of the clause under Section 92(1)(a to h) is not sustainable. The reading of Section 92(1)(h) clearly shows that granting such further or other reliefs as the nature of the case may require. Therefore, the contention raised by the learned counsel for the petitioner that none of the relief sought for in the suit is not covered under Section 92(1)(a to h) is not acceptable one. The suit is filed under Sections 91 and 92 of the Code, as per section 91 of the code it is the case of public nuisance filed by two or more persons. Section 91(1)(b) reads as follows :- with the leave of the Court, by two or more persons, even though no special damage has been caused to such person by reason of such public nuisance or other wrongful act . Therefore, the arguments advanced by the learned counsel for the petitioner is not legally tenable, the trial Court rightly dismissed the application of the first defendant, the revision petitioner/first defendant can raise all his contentions at the time of trial. It is settled proposition of law that the essential requirement for granting permission to file the suit under Section 92 are (i)the person applying for permission must have interest in the trust and (ii)the Trust must be for a public purpose of a charitable or religious nature. At the time of granting leave, the above essential requirements has to be looked into. The Court while dealing with the application for granting leave to sue under Sections 91 and 92 CPC, the averments made in the plaint has to be looked into and not the defence taken by the defendants.

9. While referring to the decisions referred to by the learned counsel for the petitioner, this Court has no quarrel with the legal proposition laid down in the decisions cited above and the same are not applicable to the facts and circumstances of the present case on hand. In the present case on hand, a bare reading of the plaint, Trust deed and the allegations levelled against the defendants 2 to 4 in the suit, this Court finds prima facie there are materials available to grant leave. Therefore, the veracity and truthfulness of the allegations raised in the plaint can be decided only after full fledged trial and not at the time of granting leave. This Court finds there is no illegality or perversity in the order passed by the trial Court and finds no merits in the revision filed by the revision petitioner/first respondent.

10. In the result, the revision petition stands dismissed. No costs. Consequently, connected miscellaneous petitions is closed.
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