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CASE NO.: Appeal (civil)  3679 of 2006

PETITIONER: Vidyodaya Trust and Ors.

RESPONDENT: Mr. Mohan Prasad R and Ors.

DATE OF JUDGMENT: 25/08/2006

BENCH: ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T (Arising out of SLP (C) Nos. 24382-24383 of 2004)

ARIJIT PASAYAT, J.

Leave granted.

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 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 High Court. 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  31.1.2000 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.  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  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

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CPC. By order dated 11.4.2003 the Court held that the suit  was maintainable.   

Questioning 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.   

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. 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.

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.   

For appreciating rival stands, the scope and ambit of  Section 115 CPC needs to be examined.

"115. Revision. \027 (1) 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\027

(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

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order, if it had been made in favour of the  party applying for revision, 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 proceeding before the Court  except where such suit or other proceeding is  stayed by the High Court.

Explanation.\027In 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.

The 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. These aspects have been highlighted in Surya Dev Rai v.  Ram Chander Rai and Ors. (2003 (6) SCC 675).

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 was also dealt with on merits.   That 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.   

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.   

In view of the order passed in the appeal relating to  Section 115 CPC no order is necessary to be passed in respect

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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.  

The appeals are accordingly disposed of with no order as  to costs.