Marimallappa Education Trust and Others vs Sri M. Guruswamy B.E. and Others

Subhash B. Adi, J.—This unfortunate Writ Petition is directed against the order dated 05.04.2008 in Misc.83/2002 on the file of District Judge, Mysore.

The brief facts leading to this case are:

The scheme suit stated was filed in Suit No. 4/1879 by one Mallamma and Muthanna against one C. Rangacharalu. It appears that, the said suit has been disposed of. In the said suit, an application u/s 92 read with Section 151 of Code of Civil Procedure, 1908 was filed for entertaining two I.As., I.A. No. 1 and I.A. No. 2. Since the application was filed u/s 92 of CPC, the Court blindly treated the same as miscellaneous proceedings u/s 92 without even verifying as to whether the said Misc. application is for institution of a suit for framing of a scheme in terms of Section 92 read with Order 1 Rule 8(2) read with Section 151 of CPC. In turn, in the said Misc. application, notice was issued, on service of notice, the respondents/petitioners herein filed objections and the matter adjourned from time to time for hearing on the Miscellaneous application. On 05.04.2008, the Court realized that, what is sought for by the applicant in miscellaneous application is for adjudication of I.A. Nos. 1 and 2 filed in suit No. 4/1879 disposed of on 22.07.1879 and not a suit u/s 92 of the CPC and accordingly held that the miscellaneous proceedings are redundant.

It is against the said order, the respondents in the Misc. application have filed this writ petition.

Sri. M.R. Rajagopal, learned Counsel appearing for the petitioner submitted that the Misc. application is admittedly filed u/s 92 of CPC and if notice is issued to the respondents, after hearing, the Court should have passed an order on Section 92 application granting leave or not granting any leave. When such an application is filed, without disposing the Misc. application has now ordered for treating I.A. Nos. 1 and 2 as filed in Suit No. 4/1879 and submitted that I.As. ought to have been treated as original suit instituted by the applicant in Misc proceedings. He also submitted that the order impugned is wholly erroneous and contrary to the provisions of Section 92 of CPC. In this regard, he relied on a Judgment of the Apex Court reported in R.M. Narayana Chettiar and another Vs. N. Lakshmanan Chettiar and others, and he submitted that the Apex Court on interpretation of provisions of Section 92 has held that "sanction of leave to institute the suit is a pre-condition and no suit without the sanction of leave is maintainable and submitted that I.A. Nos. 1 and 2 which are filed are in the nature of the suit and they could not have been ordered to be heard without granting leave u/s 92".

On the other hand, Sri. M. Sivappa, learned Counsel appearing for the respondents submitted that, there is no suit instituted by the applicants. In Misc. application No. 83/2002 applicant sought for adjudication of I.As. filed in a disposed of suit and the Court after noticing that no suit u/s 92 CPC is filed, found that, there is no leave required to be granted and as such held that the Misc. proceedings have become redundant.

Section 92 of CPC confers power on the Court to grant leave or not to institute a suit in the case of any alleged breach of express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary. The Court u/s 92 can grant leave to file a suit. Suits against the charitable institution or religious institutions could not be filed without the leave of the Court, in order to avoid the frivolous suits being filed against such institutions the Legislation has made it compulsory to seek leave before filing of the suit. In this context, the leave of the Court is necessary to institute a suit against the public charitable institution.

In this case, Annexure - ''B'' is the Misc. application No. 83/2002 u/s 92 of CPC and applicants in the said Misc. application is filed along with I.A. Nos. 1 and 2. Admittedly, both the I.As. are filed in Suit No. 4/1879 for certain rights. There is no prayer by the applicant in the Misc. application for institution of a separate suit for framing of a scheme or for a direction by the Court. Applications are filed in a disposed of matter for certain relief. When the Court notices that the Misc. application is not for institution of the suit and is only for consideration of the I.As. filed in suit No. 4/1879, it observed that the misc. proceedings are redundant.

Admittedly, no leave is sought for filing of suit and the applicants are undisputedly having been filed application in a disposed of matter for further direction. There is no requirement to seek leave u/s 92 to pursue an application filed in a disposed of matter. At Para 17 of the Judgment of the Apex Court in R.M. Narayana Chettiar matter has categorically observed that Section 92 indicates that leave of the Court is a pre-condition or a condition precedent for the institution of a suit against a public trust for the reliefs set out in the said section; unless all the beneficiaries join in instituting the suit, if such a suit is instituted without leave, it would not be maintainable at all.

As this Misc. application is not for institution of the suit nor for seeking a fresh direction but it is only an interlocutory application filed in a disposed of matter where the scheme is already framed. There is no question of seeking further leave for filing an application in the disposed of matter. As stated above, the Trial Court after hearing marathon arguments for nearly Six years had ultimately held that the Misc. proceedings are redundant. It has observed nothing on merits as regards to the relief sought for in the said applications. It has only said that the (As filed in suit No. 4/1879 which have to be considered in the said suit. If it so, there is no order against the respondents nor the respondents could not have been aggrieved by the order impugned. If the respondent has any grievance against any relief sought for in the applications, it is open for the petitioner to take such steps as permissible in law. Applications are maintainable in disposed of suit in which scheme is framed u/s 92 of CPC. Parties could file application for further direction. Hence, I do not find any merit in this case. Accordingly, petition fails and the same is dismissed.