P.D. Jose and M.P. Porunchu vs Karmaleetha Sabha and Others

S.S. Satheesachandran, J.—The Order passed by the learned District Judge, Thrissur in O.P. No. 304/2010 declining leave applied by appellants, two in number, to institute a suit u/s 92 of the Code of Civil Procedure, for short the Code, is challenged in this appeal. Appellants sought leave to institute a suit for declaration that the parishioners of Thalore Edavaka including them are entitled to continue the Church, cemetery, community hall, kappela etc situate in the plaint property for performing their religious services in accordance with the decision taken under an agreement dated 26.6.1976 with defendants 1 and 2, and the defendants are bound to perform their obligations under that agreement. They also sought for other reliefs including revocation of an order issued by the second respondent in violation of the agreement dated 26.6.1976, and mandatory injunction directing defendants to perform ''nithyakurbana and other services'' to the parishioners in the Church situate in plaint property. Application was resisted by respondents, first respondent filing a counter affidavit separately and respondents 2 to 4 in common, both of them contending that appellants (petitioners) are not entitled to the permission sought for to institute the suit. Learned District Judge after hearing both sides dismissed the application holding that there was no material to show the existence of a trust by dedication or implication and also breach of such trust. Applicants who sought for leave failed to show any interest in the scheduled property and also make out a prima facie case for grant of leave, was the conclusion formed by the learned District Judge to decline leave to institute the suit u/s 92 of the Code.

I heard the counsel on both sides. Learned counsel for appellants adverting to the facts and circumstances covered by the case contended that the court below proceeded on the premise that there was no trust and in that view of the matter formed erroneous conclusion declining leave for instituting the suit. On the other hand, counsel for respondents contended that there is no merit in the challenge questioning the Order of the District Judge declining leave to appellants holding that they have not made out a prima facie case and also there was no trust dedicated or implied. First respondent a congregation installed a monastry and later a Church in the plaint schedule property, and, it was dedicated in favour of Thalore Parish under Ext. A1 agreement dated 26.6.1976 entered into specifying the terms for functioning of the Parish and the second defendant, Archbishop, issued a notification recognising the parish, according to applicants. Second respondent later unilaterally took a decision on 31.10.2009 to shift the Church to another place which is against the terms and conditions under the agreement dated 26.6.1976, is the case of applicants to impute breach of trust for reliefs seeking leave to institute the suit. Respondents in their objections contended that there was no trust but only extending of permission to use the premise in the plaint property for religious worship till a new church is constructed for parishioners. Further more decision of the second respondent, who is the Arch Bishop, over construction of Chapel, place of worship etc cannot be challenged by parishioners. Though submissions were made before me with reference to canon law by counsel for respondents drawing distinction between Catholic Church and other Christian churches contending that with respect to Catholic Church orders and directions given by second respondent over to place of worship, recognition of parish, chapel etc are not open to challenge by parishioners, I find consideration of those questions to examine the propriety and correctness of the order declining leave to institute the suit is not warranted in the present appeal. Learned District Judge with reference to some decisions has taken pains to examine whether there was a trust dedicated or implied with respect to the plaint schedule property, and, then, coming to the conclusions that no such trust has been prima facie shown by the applicants, and also their interest in the plaint property, declined leave. In fact an enquiry whether there is a trust with respect to plaint schedule property dedicated or implied would have relevance only where it is shown that permission has been applied to institute a suit for one or other reliefs envisaged u/s 92 of the Code. The applicants in the present case sought leave to institute a suit for a declaration and mandatory injunction. Applicants and other parishioners in Thalore Church are entitled to continue their religious services in the Church, cemetery etc in the plaint property in terms of the agreement dated 26.6.1976 and the defendants including Arch Bishop are bound to perform their obligations under that agreement was the declaration sought in the suit to be instituted with leave. That suit was also one for a decree of mandatory injunction to compel the defendants to continue the religious services being performed now in the church and Kappela, cemetery etc in the plaint property. Whether a suit proposed to be instituted with reliefs as indicated would fall within the ambit and scope of Section 92 of the Code was not considered by the court below but it proceeded with reference to decisions whether a trust had been constituted either by dedication or implication over the plaint schedule property. Even assuming that a trust dedicated or implied with respect to plaint schedule property existed, still, the reliefs which the proposed suit to be instituted with leave do not come under one or other reliefs in section 92 CPC, leave cannot be granted. By the proposed suit what the applicants wanted is a declaration of their rights to have religious services in the Church, Kappela and cemetery situate in the plaint property with corresponding direction to defendants to perform them in terms of an agreement entered and in force. A decree of mandatory injunction to compel the defendants to perform religious services to applicants and other parishioners is the other relief canvassed in the proposed suit. Such reliefs do not come under the scope and ambit of section 92 of the CPC even if a trust had been constituted, dedicated or implied, over the plaint schedule property, allegedly, comprising a church, kappela, cemetery etc. A suit u/s 92 of the Code is of a special category, foundation of which is based on existence of a trust for public purposes of a religious or charitable nature. A suit thereof can proceed only on the allegation that there is a breach of such trust or a direction from the court is necessary for the administration of the trust. Breach of such trust must be specifically alleged, or the court''s direction must be applied for administration of such trust. Suit must be one not to vindicate the interest of the applicants individually but the interest of those interested in the trust itself. In a suit u/s 92 of the Code there must be a prayer for one or other reliefs specifically mentioned in the section. Only if such a relief is asked for then alone the suit is in confirmity with section 92 of the Code. No relief covered u/s 92 of the Code has been set forth by applicants in the proposed suit to be instituted with leave of the court. In the proposed suit the applicants seek for declaration of the rights of parishioners including them and also mandatory injunction, with respect to plaint schedule property over which constitution of a trust is imputed. A suit for such reliefs is outside the ambit of section 92 of the Code. When that be so, I find the Order passed by the learned District Judge declining leave to institute the suit u/s 92 of the Code, but for different reasons, as indicated above, is only to be upheld. I do so.

Appeal is dismissed directing both sides to suffer their costs.