Trust & Ors Vs. Mr. Mohan Prasad R & Ors  Insc 536 (25 August 2006)
Pasayat & Lokeshwar Singh Panta
out of SLP (C) Nos. 24382-24383 of 2004) ARIJIT PASAYAT, J.
in one of the appeals challenge is to the legality of the judgment dated
5.2.2004 passed in CRP No.1260 of 2003 by a learned Single Judge of the Kerala
High Court, in the other appeal challenge is to the judgment passed on
20.8.2004 in WP(C) No.14961 of 2004 by another learned Single Judge of the said
the factual position is as follows:
as plaintiffs filed OP No.238 of 2000 before the District Court, Ernakulam
under Section 34 of the Indian Trust Act, 1882 (in short the 'Trust Act') in
respect of Vidyodaya Trust and applied to the Court for direction for
management and administration of the said trust and the school run by the
trust. But the said Court by order dated 31.1.2000 held that the OP was not
maintainable and dismissed the petition. Thereafter the suit No.20 of 2000 was
filed by the respondents as plaintiffs claiming several reliefs.
respondents filed an application (IA 349 of 2000) seeking leave of the Court to
institute the suit under Section 92 of the Code of Civil Procedure, 1908 (in
short the 'CPC'). According to the appellants, without notice to them the
concerned Court granted leave to the respondents to institute the suit. The
suit was numbered as OS 20 of 2000. Plaintiffs filed written statement inter
alia taking the stand that suit was actuated by personal motives. The suit
under Section 92 CPC is of a special nature which pre-supposes existence of a
Public Trust of religious or charitable character. From the averments in the
plaint and the reliefs sought for it is clear that the plaintiffs were not
suing to vindicate rights of the public, and it has not been filed in the
representative capacity. The plaintiffs four in number are trustees who
instituted both the suits against other trustees for personal reliefs and as
individuals and seeking vindication of alleged individual rights and not as
representatives of the public. Therefore, the suit as framed is not
maintainable under Section 92 CPC. The defendants filed an application before
the District Judge, Ernakulam for hearing as preliminary issue, the question of
maintainability of the suit. On the basis of contentions raised by the
plaintiffs as well as defendants, the Court framed preliminary issue as to
whether the suit as framed is maintainable under Section 92 CPC. By order dated
11.4.2003 the Court held that the suit was maintainable.
correctness of the order, a petition for revision in terms of Section 115 CPC
was filed. The High Court dismissed the Civil Revision petition on the ground
that the same was not maintainable. Though the High Court made reference to
some factual aspects, it ultimately came to hold that the revision petition was
not maintainable as order dated 4.11.2003 was an interlocutory one. Thereafter
the appellants filed writ petition before the High Court praying, inter alia,
for writ, direction or order, questioning the order dated 2003. By order dated
20.8.2004 the High Court dismissed the writ petition holding that the view
taken in the Civil Revision apparently was not correct, as by no stretch of imagination
it can be held that the High Court had no jurisdiction. It accepted the stand
of the respondents herein that since there was discussion on merits, though the
petition was not held to be maintainable subsequent proceedings initiated under
Article 227 of the Constitution of India, 1950 (in short the 'Constitution')
cannot be maintained.
the orders i.e. one in the Civil Revision petition and the other in the writ
petition form subject-matter of challenge in these appeals.
counsel for the appellants submitted that the appellants have been placed at a
very peculiar position. One learned Single Judge held that the Civil Revision
was not maintainable. Another learned Single Judge observed that the view
expressed in the Civil Revision was not correct, but since the merits were
discussed in the order passed in the Civil Revision, the writ application was
response, learned counsel for the respondent submitted that though their stand
before the High Court during the hearing of the Civil Revision was that the
same was not maintainable, that does not appear to be a correct stand.
merits were discussed and, therefore, the writ petition has been rightly
appreciating rival stands, the scope and ambit of Section 115 CPC needs to be
The High Court
may call for the record of any case which has been decided by any Court
subordinate to such High Court and in which no appeal lies thereto, and if such
subordinate Court appears
exercised a jurisdiction not vested in it by law, or
to have failed
to exercise a jurisdiction so vested, or
to have acted in
the exercise of its jurisdiction illegally or with material irregularity, the
High Court may make each order in the case as in thinks fit:
that the High Court shall not, under this section, vary or reverse any order
made, or any order deciding an issue, in the course of a suit or other
proceeding, except where the order, if it had been made in favour of the party
applying for revision, would have finally disposed of the suit or other
The High Court
shall not, under this section, vary of reverse any decree or order against
which an appeal lies either to the High Court or to any Court subordinate
A revision shall
not operate as a stay of suit or other proceeding before the Court except where
such suit or other proceeding is stayed by the High Court.
Explanation.In this section, the expression
"any case which has been decided" includes any order made, or any
order deciding an issue, in the course of a suit or other proceeding." The
proviso to sub-section (1) of Section 115 CPC is of relevance.
amendment to Section 115 CPC is based on the recommendations made by the
Malimath Committee. The said Committee was of the opinion that the expression
employed in Section 115 CPC which enables interference in revision on the
ground that the order if allowed to stand would occasion a failure of justice
or cause irreparable injury to the parties against whom it was made, left open
wide scope for exercise of powers with all types of interlocutory orders and
this was substantially contributing towards delay in the disposal of cases. The
Committee did not favour denuding the High Court of the power of revision, but
strongly felt that the powers should be suitably curtailed. The effect of the
erstwhile clause (b) of the proviso was deleted and a new proviso has been
inserted so that the revisional jurisdiction is substantially curtailed. A
revisional jurisdiction cannot be exercised unless the requirement of the
proviso is satisfied. It is thus clear that the proviso creates an embargo in
exercise of revisional power.
aspects have been highlighted in Surya Dev Rai v. Ram Chander Rai and Ors.
(2003 (6) SCC 675).
in the aforesaid background the view of the learned Single Judge that the Civil
Revision was not maintainable is clearly indefensible. Learned counsel for the
respondent has fairly conceded to this position. If it is held that the suit in
terms of Section 92 CPC is not maintainable, that would have the result of
final disposal of the suit.
the learned counsel made an attempt to justify the order by stating that the
matter was also dealt with on merits.
would not improve the situation. The Civil Revision was clearly maintainable.
Therefore, we allow the appeal so far as it relates to Civil Revision Petition
No.1260/2003 disposed of by judgment dated 5.2.2004 by the High Court. The said
order is set aside.
High Court shall now to hear the Civil Revision on merits and dispose of the
same as expeditiously as practicable preferably within four months from the
date of receipt of our order. The time period is being fixed considering the
pendency of the matter for a considerable length of time.
view of the order passed in the appeal relating to Section 115 CPC no order is
necessary to be passed in respect of the judgment in the writ petition. It may
be noted that the learned Single Judge observed that the Civil Revision was
maintainable and, therefore, declined to entertain the writ petition. This
order was passed on the face of the order passed by learned Single Judge
holding that it was not maintainable.
same, therefore, is not justifiable. But it is not necessary to deal with that
matter as the Civil Revision shall be heard on merit.
appeals are accordingly disposed of with no order as to costs.