w w w . L a w y e r S e r v i c e s . i n

G.R.Govindarajulu & Sons Charities, Coimbatore & others v/s R. Sethurao and others

    C.R.P.No.160 of 1988 and C.M.P.No.771 of 1998
    Decided On, 30 March 1998
    At, High Court of Judicature at Madras
    Mr.A.L. Somayaji, Senior Counsel for M/S Aiyar & Dolia for Petitioners. Mr.T.R. Rajasekaran and Mr.R. Subramanian for Respondents.

Judgment Text
1. This revision is filed under Article 227 of the Constitution of India by the proposed defendants in a suit which is proposed to be filed by the respondents herein under Section 92(1) of the Code of Civil Procedure. The respondents herein obtained leave for the institution of the suit under Section 92(1) of the Code of Civil Procedure against the petitioner.

2. I do not want to give a detailed history of the litigation except for the statement that the respondents herein alleged various acts of mismanagement of the public trust.

3. The petitioners herein opposed the grant of consent and the main reason for the same is that there is already a suit pending before the Court and therefore a second suit for the very same relief is unnecessary. It is also contended that in an earlier suit, the plaintiffs therein moved for some interim relief and the same was not granted as sought for by them and the proposed suit is only an another attempt to get the very same relief by filing a separate suit.

4. It is the further case that the proposed suit to be filed is not bona fide and intended only to harass the public trust. It is also said that there is no proper application of mind while passing the impugned order and it is also stated that the various objections raised by the petitioner were not taken into consideration by the Courts below. According to the Senior counsel, it is fit case to invoke Article 227 of the Constitution of India.

5. In substance, the contention is that the proposed suit, if allowed to be filed, it would amount to abuse of Court. The Court should not lend it support for institution of the same.

6. When the matter came for admission, I ordered notice of motion and subsequent proceedings pursuant to the order of sanction was also stayed. On receipt of notice, the respondents entered appearance and sought for an earlier disposal of the revision.

7. Learned counsel for the respondents submitted that the revision itself is not maintainable. It is also contended by the counsel that there is no decision of a Court affecting the rights of the petitioners. It is also submitted that the petitioner cannot contend that no person can file a suit against them and if grounds are made out for granting leave, the petitioners can very well defend a suit. The discretion at the time of granting leave, exercised by the Court is purely administrative and it is neither judicial nor quasi judicial decision. A condition precedent for the institution of the suit is complied with and it is the only effect of granting leave. Mere inconvenience in defending a suit by itself is not a ground for interference either under Section 115 of the Code of Civil Procedure or under Article 227 of the Constitution of India. The impugned order, though is challenged invoking Article 227 of the Constitution of India, the same is not exercise of judicial power nor it is quasi judicial one. In either way, the revision is not maintainable. The petitioners cannot be stated to be aggrieved persons.

8. As against the said contentions, learned senior counsel submitted that that is already the duty of the Court to prevent an abuse of process of Court. If there is already a suit pending for the Same relief, the second suit is not maintainable. A suit under Section 92 of the Code of Civil Procedure is a representative suit and therefore the respondents herein can get themselves impleaded in the suit and put forward the contentions in the suit which is already pending.

9. It is submitted that if the arguments of the respondents are accepted the very purpose of Section 92 of the Code of Civil Procedure will be defeated. If a litigation could be filed against the trust, the trust will have no time to manage its own affairs, but only to wait at the corners of the Court. The pendency of the earlier suit is a material consideration to consider whether leave should be granted or not. If the Court, while granting leave has not applied its mind in regard to the vital factor, the leave could be revoked. The proposed suit will amount only to harassment of a public trust which is well-governed and well-administered. The Court must atleast exercise its duties under inherent powers, i.e. to prevent the abuse of process of law.

10. I heard the counsel in detail and I feel that this Court as well as the Supreme Court have come to a definite conclusion that a revision is not maintainable either under Section 115 of the Code of Civil Procedure or under Article 227 of the Constitution of India, against the order of granting leave.

11. In a Bench decision of this Court in R.Kannan Adityan and Four others v. B.S.Adityan and Six others, 1996 (2) L.W. 364, the scope of an order under Section 92 of the Code of Civil Procedure was considered in detail. In para 10 of the judgment their Lordships held thus:

"A proceedings under Section 92, C.P.C. is administrative in character and neither judicial not quasi-judicial. An order granting leave does not affect the rights of any party, though an order refusing to grant leave may affect the rights of persons who seek such leave. In any event, the nature of the proceedings is only administrative."

Their Lordships observed that originally, before 1976 it was the view of the Court that with the permission of Advocate General a suit could be instituted. It is the duty of Advocate General that has now been delegated to the Court for the reason that the Advocate General will have no sufficient time to enquire into such allegations and therefore, it is better that that portion of their duties as Advocate General be delegated to Court. The effect of such a relief is that instead of Advocate General filing a suit, two or more persons took the responsibility of the Advocate General and filed a suit against the public trust.

12. The Advocate General is given this responsibility since it is the duty of the State to direct and safeguard all public trusts. The Advocate General, being an expert in the peculiar situations by his experience to view things objectively was given that duty to protect the trust and therefore he was given the power to institute a suit by himself, but if he is not in a position to do it himself, with his consent, two or more persons can institute a suit. It is only that power which the Advocate General could exercise under the original section before 1976, is now taken by Court. It is not disputed that while Advocate General exercised his power, he was only discharging an administrative function. If that power has been delegated to Court, any order passed by Court can only be treated as administrative and not judicial or quasi judicial.

13. The Division Bench of this Court, after making reference to Mulla's Code of Civil Procedure, 15th Edition, Volume I at pages 634 and 635, at the relevant passage in the decision in Kannan Aditya's case, 1996 (2) LW 364 said that they are entirely in agreement with the view expressed by the learned author that the amendment of the Code in 1976 requiring leave of the Court in place of consent by the Advocate-General does not change the nature of the order.

14. Thereafter, the Division Bench considered various decisions of various High Courts and also Supreme Court and held that even the provision under Section 141 of the Code of Civil Procedure will have no application in such cases. The Division Bench has considered the order passed by the learned single Judge of this Court which directed the rejection of the leave application. The learned Judge has held that the application for leave is not maintainable and directed to reject the same. The same was challenged by the respondents in that case. The Division Bench held that Order 7, Rule 11 of the Code of Civil Procedure will also have no application in such cases. Reading of the Bench decision makes it clear that even though the proceedings are before the Court, it is purely administrative in character i.e. it only considers whether the leave should be granted for instituting the suit or not. The Code of Civil Procedure will apply only when a suit is properly instituted. To grant leave is a step or a condition precedent for filing a properly instituted suit.

15. In a recent decision of our High Court in Tirupattur Nagarathu Vysiyargal Sangam v. Tirupattur Periyakulam Nandavanam Inam Land Tenants Association, 1998 (1) M.L.J.303, their Lordships held that the leave granted even without hearing the proposed defendant is not justiciable under Section 115 of the Code of Civil Procedure.

16. I also had an occasion to consider a similar question in Raju Pillai & 4 others v. V.P.Paramasivam & 7 others, 1995 (1) L.W. 518, wherein I have held that a revision under Section 115 of the Code of Civil Procedure or a revision under Article 227 of the Constitution of India is not maintainable.

17. In this connection, it is worthwhile to note that in all these decisions reference is made to the decision of Supreme Court in R.M.Narayana Chettiar v. N.Lakshmana Chettiar, A.I.R. 1991 S.C. 221. Their Lordships, in para 17 of the judgment have held that the grant of leave is a condition precedent against a public trust. Their Lordships further said that merely because notices were not given to the proposed defendants before the grant of leave, the leave granted will not become invalid or void. Likewise if we reason in the order is given, that will not make the leave invalid and there is remedy in such cases. Their Lordships also held that grant of leave cannot be regarded as defeating or even seriously prejudicing any right of the proposed defendants because it is always open to them to file an application for revocation of the leave which can be considered on merits and according to law.

18. Considering this case law, it cannot be doubted that this revision is not maintainable. The petitioner submitted that they have already filed an objection before Court and contested the application that the same should not be granted. Learned counsel apprehended that if there is already an order against them, it would prevent them from filing an application for revoking the leave.

19. I do not think that such a submission is in any way correct. Learned Senior Counsel for the petitioner is invoking the principle of res judicata in the case. Once it is declared by the Supreme Court as well as by this Court that the order is administrative in character and same does not affect the rights of the parties, nor there is prejudice to the proposed defendant, there is no scope for application of res judicata in such cases. If any specific decision is required in that regard I would only refer to the decision in Simon v. Advocate General, 1975 K.L.T. 78, corresponding to A.I.R. 1975 Kerala 38 which is followed in Kanna Aditya's case, 1996 (2) LW 364.

20. In the said decision, the Division Bench of Kerala High Court has held thus:

"If the petitioner before us has been prejudicially affected by the conclusion reached by the Advocate General, he would be entitled to move this Court under Article 226 by the Constitution. This leads us to the question when a person can be said to be prejudicially affected as a result of the grant or refusal of the consent by the Advocate-General. The grant of the consent cannot of-course prejudicially affect the grantee. It is urged that it would prejudicially affect the rights of those who opposed the grant of consent and who are likely to be impleaded in a suit as defendants and who would then be called upon to spend time and money and energy in defending the action. We do not think it would be open to the persons who are likely to be made defendants in the action to contend that they would be prejudicially affected by the grant of the consent. It is well established that the Advocate General does not determine any question that will affect the rights of parties. It will be open to the defendants to raise the contentions that are available to them in the action. None of their rights is affected by the consent granted by the Advocate-General. The inconvenience and temporary expenses caused by a suit being filed against such persons cannot be said to be such a prejudice which will enable those who opposed the grant of consent to sustain a petition under Article 226 of the Constitution. After all no one has the right to say that no suit should be filed against him."(Italics supplied)

20. Learned counsel for the petitioner submitted that if there is not application of mind, remedy is open under Article 227 of the Constitution. In my view, if that principle is applied to the applications for a leave to institute a suit. I feel that the non-application of mind will be a ground to invoke Article 226 of the Constitution only if the leave to institute the suit is refused. Now, it is governed by Section 104 of the Code of Civil Procedure whether such order are made appealable.

21. Learned counsel further submitted that that is the duty of the Court to see that a public trust is not harassed and the serving attitude of the trust is brought to a standstill by filing a suit. It is the duty of the Court to prevent the abuse of the process of

22. The contention is that in the present case, the respondents herein filed a suit only at the instance of the plaintiffs in the earlier litigation after having failed to get an interim order in their suit. Learned counsel wanted to elaborate the arguments on the basis of various documents filed along with the leave application. In fact, he has contended that the copies of certain documents filed in the earlier suit are obtained and filed along with the leave application. Again, copies of certain documents which could be obtained from the parties of the earlier litigation, were also filed along with this application. The substance of the contention is that the present respondents are only name lenders of the plaintiffs in the earlier suit and therefore, it is an abuse of process of Court.

23. As against the said contention, learned counsel for the respondents submitted that certain material facts which should have governed the earlier litigation had not been taken into consideration. It is also submitted that a reading of the plaint in the earlier litigation would show that they only wanted certain persons to be removed from the Board and they never wanted a scheme to be prepared. Certain disqualifications which are also made known to the plaintiffs in the earlier cases are not stated and that has compelled the respondents herein to file a suit. It is also contended that there is a reservation in their mind of a possible settlement between them and if so, it is a public trust that is going to be affected. According to them, it is a collusive litigation. All these contentions are seriously opposed and disputed by learned senior counsel.

24. I do not think that I should take into consideration any of these contentions at this stage, in view of my finding that the revision is not maintainable. Even in the cases invoking Section 151 of the Code of Civil Procedure to prevent the abuse of process of Court, I feel that the Court which exercises judicial function can do it. The inherent power is given to the Court to make such orders as may be necessary so as to meet the ends of justice or to prevent abuse of the process of the Court.

25. Granting of leave, though being exercised by the Court, it is not by a Court of law, in the sense that the Court is discharging its administrative function and not the judicial or quasi judicial one. Section 151 of the Code of Civil Procedure also may not have any application. Learned counsel submitted that if that section will also not apply, then their grievance can never be redressed and they have no alternative remedy. I do not think that such a contention could also be accepted.

26. In view of the declaration of law by this Court and the Supreme Court, leave alone is granted. After granting of leave, a suit is instituted. Thereafter the Courts functions as a Court of law. At that time, the petitioners or any persons, who are also likely to be impleaded can very well bring to the notice of the Court that the leave was granted without taking into consideration the relevant materials or that the principles settled for granting leave was not followed

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etc. and apply to have the leave revoked. That power is given to the Court of law. 27. Further, if the petitioners is prejudiced by the institution of any other suit, they can apply under section 10 of the code of Civil Procedure to have the matter stayed or they can also have an application that the proposed suit has also to be tried along with the earlier instituted suit, so that, at one stroke, the entire litigation could be brought to an end. The reasoning given by the Court at the time of granting leave, will not bar, in agitating the matter for revoking the leave. 28. It is held by this Court in Haji K.M. Abdul Kasim and others v. P.M.N.Mohammed Dawood and others, AIR 1964 Mad. 247 thus:@BT-1S = "It may be that as in the case of Section 92, C.P.C. the condition is imposed to prevent impecunious persons coming forward to fight out public rights on whom the award of costs if in case the suit were to fail, will have no effect. But, nevertheless the obtaining of a consent is only a preliminary requisite to be satisfied before a plaintiff can launch a suit. Such a sanction or consent is not for investigating any right, but only whether an investigation into the right should be made by appropriate authority, namely, the Court. There is undoubtedly a manifest distinction between the two." 29. I make it clear that the impugned order is only for the purpose as stated in Abdul Kasim's case, AIR 1964 Mad. 247 and the right of the petitioners or if those persons who are likely to be impleaded in the representative suit is not going to be affected in any way, if the petitioner intends to file any application for revoking the leave already granted. 30. In the result, the civil revision petition is dismissed. No costs. Consequently, the connected C.M.P. is also dismissed.