SUPREME COURT OF INDIA
Vidyodaya Trust and Others
Vs
Mohan Prasad R and Others
Civil Appeal No. 3679 of 2006
(Arijit Pasayat and L. S. Panta, JJ)
25.08.2006
ARIJIT PASAYAT, J.
Leave granted.
2. While 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 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 1461 of 2004 by another learned Single Judge of the said
High Court.
3. Essentially the factual position is as follows:
Respondents 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 31-12000 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. The
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 statements inter alia taking the stand that suit was actuated by
personal motives. The suit under Sections 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 find 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.
4. Questioning correctness of the order, a petition for revision in terms of
Sec. 115 CPC was filed. The High Court dismissed the Civil Revision petition on
the ground that the same was not 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.
5. Both 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.
6. Learned 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 not maintainable.
7. In 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.
Nevertheless, merits were discussed and, therefore, the writ petition has been
rightly dismissed.
8. For appreciating rival stands, the scope and ambit of Section 115 needs to
be examined.
"115 Revision - (1) The High Court may call for the record of any case
which has been decide by any Court subordinate to such High Court and in which
no appeal lies thereto, and if such subordinate Court appears-
(a)to have exercised a jurisdiction not vested in it by law, or.
(b)to have failed to exercise a jurisdiction so vested, or
(c)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:
Provided 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
version, would have finally disposed of the suit or other proceedings.
(2)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 thereto.
(3)A revision shall not operate as a stay of suit or other proceedings before
the Court except where such suit or other proceeding is stayed by the High
Court.
Explanation:- In this Section, to 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."
9. The proviso to sub-section (1) of 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 with enables interference in revision on
the ground that the order if allowed to stand would occasion a failure of
justice of 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.
11. These aspects have been highlighted in Surya Dev Rai v. Ram Chander Rai and
others
12. Judged 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. However the learned counsel made an
attempt to justify the order by stating that the matter an attempt to justify the
order by stating that the matter was also dealt with on merits. The 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.
13. The 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.
14. In 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. The same, therefore, is not
justifiable. But it is not necessary to deal with that matter as the Civil
Revision shall be heard on merit.
15. The appeals are accordingly disposed of with no order as to costs.