Section 92 CPC; SNDP Sakha Yogam Vs. Elanjithanam Devi Samajam [Kerala High Court, 22-02-2016]

Code of Civil Procedure, 1908 – Section 92 – Public Charities – An appeal against the decision in a suit under section 92 the Code instituted before the Court of the Subordinate judge would lie only before High court.


IN THE HIGH COURT OF KERALA AT ERNAKULAM

P.B.SURESH KUMAR, J.

R.S.A.No.1281 of 2013

Dated this the 22nd day of February, 2016

AGAINST THE JUDGMENT IN A.S.NO.85 OF 2006 OF DISTRICT COURT, KOTTAYAM AGAINST THE DECREE AND JUDGMENT IN O.S.NO.189 OF 1997 OF SUB COURT, PALA

APPELLANT(S)/3RD RESPONDENT/1ST DEFENDANT

SNDP SAKHA YOGAM NO.2220, REP.BY ITS SECRETARY,SNDP SAKHA, CHENNADU KARA, POONJAR THEKKEKARA VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT.

BY ADV. SRI.P.BABU KUMAR

RESPONDENT(S)/APPELLANTS/1 & 2 PLAINTIFFS

1. ELANJITHANAM DEVI SAMAJAM REG NO.K-67/94, REP.BY ITS SECRETARY, DEVI SAMAJAM OFFICE, CHENNADU KARA, POONJAR THEKKEKARA VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT.

2. C.P.SASI, AGED 38 YEARS, S/O.PADMANABHAN, CHENNAPPARA HOUSE, CHENNADU KARA, POONJAR THEKKEKARA VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT.

3. K.R.VINOD, AGED 30 YEARS, S/O.RAMAKRISHNAN, KOONANICKAL HOUSE, CHENNADU KARA, POONJAR THEKKEKARA VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT.

4. VISWAKARMA MAHA SABHA, CHENNAD, REP.BY ITS SECRETARY, VISWAKARMA SAKHA OFFICE, CHENNADU KARA, POONJAR THEKKEKARA VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT.

5. N.S.S. KARAYOGAM, CHENNAD, REPRESENTED BY ITS SECRETARY, NSS KARAYOGAM, CHENNADU KARA, POONJAR THEKKEKARA VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT.

R1 BY ADVS. SRI.M.NARENDRA KUMAR SMT.LAYA SIMON R2 BY ADV. SRI.TOM THOMAS R5 BY ADV. SRI.RAJEEV V.KURUP

J U D G M E N T

This second appeal arises from a suit instituted under

# Section 92 of the Code of Civil Procedure

(hereinafter referred to as ‘the Code’ for short). The suit which was instituted before the Subordinate Judge’s Court invoking its concurrent jurisdiction was decreed by the trial court. The fourth defendant in the suit challenged the decision of the trial court in appeal before the District Court. The District Court reversed the decision of the trial court and dismissed the suit. Even though the suit stands dismissed, the first defendant is aggrieved by the decision of the appellate court and hence this second appeal.

2. When the second appeal came up for admission, this Court entertained a doubt as to the maintainability of the appeal preferred by the fourth defendant before the District Court. Accordingly, the learned counsel for the parties were heard on the following question of law: Whether an appeal would lie before the District Court against the decision in a suit under section 92 the Code instituted before the Court of the Subordinate judge invoking its concurrent jurisdiction?

3. The learned counsel for the fourth defendant conceded that this Court in

# Gopalakrishna Pillai v. Devaswom Trust, 2010 (1) KLT 669

held that in so far as the Subordinate Judge’s court is exercising concurrent jurisdiction to entertain suits under Section 92 of the Code, an appeal challenging the decision in such a suit can be preferred only before this Court where an appeal lies from the decision of the District Court. However, it was pointed out by the learned counsel for the fourth defendant that the said decision was rendered without considering Section 13 (1) of the Civil Courts Act. According to the learned counsel, Section 13(1) of the Civil Courts Act, as it stood at the relevant time, provided that an appeal from the original decree and judgment of the Subordinate Judge’s court where the amount or value of the subject matter of the suit does not exceed rupees two lakhs would lie only before the District Court. It was contended by the learned counsel for the fourth defendant that since the value of the subject matter of the present suit is below rupees two lakhs, the appeal preferred by the fourth defendant before the District Court was perfectly in order. According to the learned counsel, the decision in Gopalakrishna Pillai v. Devaswom Trust (supra), in the circumstances, needs to be reconsidered.

4. I do not find any merit in the contention advanced by the learned counsel for the fourth defendant. Section 92(1) of the Code reads thus :

# 92. Public charities

(1) In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate-General, or two or more persons having an interest in the trust and having obtained the leave of the Court may institute a suit, whether contentious or not, in the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate to obtain a decree–

(a) removing any trustee;

(b) appointing a new trustee; ) vesting any property in a trustee;

(cc) directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property;

(d) directing accounts and inquiries;

(e) declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust;

(f) authorizing the whole or any part of the trust property to be let, sold, mortgaged or exchanged;

(g) settling a scheme; or

(h) granting such further or other relief as the nature of the case may require.”

As is evident from Section 92 of the Code, a suit under the said Section is to be instituted before the Principal Civil Court of original jurisdiction or before any other court empowered in that behalf by the State Government. It is beyond dispute that by virtue of a notification issued by the State Government on 24.10.1966, the Subordinate Judges in the State are also empowered to entertain suits under Section 92 of the Code. Section 15 of the Code provides that every suit shall be instituted in the court of the lowest grade competent to try it. In the light of the provision contained in Section 15 of the Code, an issue arose before this Court as to whether suits under Section 92 of the Code need to be instituted before the Subordinate Judge’s court. A Division Bench of this Court, in

# Pazhukkamattom Devaswom v. Lakshmikutty Amma, 1980 KLT 645

took the view that Section 15 of the Code would apply only to ordinary civil suits and the same will not apply to suits of special nature coming under Chapter V of the Code. The view taken by this Court in the said case is that since the Code draws a distinction between ordinary civil suits and suits of special nature and provides for a separate forum for institution of suits of special nature and prescribes a separate procedure for such suits, the general provisions in the Code do not apply to such suits. An analysis of the provisions in the Code, in the light of the decision of this court in Pazhukkamattom Devaswom v. Lakshmikutty Amma (supra), would indicate that the scheme of the Code is that the suits under Section 92 of the Code shall be entertained only by the Principal Civil Court of original jurisdiction or by an equivalent court empowered in that behalf by the State Government. In other words, the intention of the legislature was that such suits shall be tried by the Principal Civil Court of original jurisdiction or by an equivalent court empowered in that behalf by the State Government. If the provisions in Section 92 is understood in that fashion, it is only prudent and reasonable to hold that the intention of the legislature is that an appeal from a suit under Section 92 of the Code shall be entertained only by the court which entertains an appeal in a suit from the principal civil court of original jurisdiction. Merely for the reason that the State Government, in exercise of its powers under Section 92 of the Code, has empowered the Subordinate Judges also to entertain suits under Section 92 of the Code and appeal lies to the District Court from the decisions of the Subordinate Judges in some cases, it cannot be said that an appeal would lie before the District Court against the decision in a suit under section 92 the Code instituted before the Court of the Subordinate judge. Viewed in the said perspective, I have no hesitation to hold that an appeal against the decision in a suit under section 92 the Code instituted before the Court of the Subordinate judge would lie only before this court where the appeals from the decisions in the suits filed before the District Court lies.

5. It is seen that the decision in Gopalakrishna Pillai v. Devaswom Trust (supra) was a decision rendered by this Court following the dictum in

# Mohassan v. Poulose, 1971 KLT 550

wherein it was held that when two courts have concurrent jurisdiction to entertain a matter and when a party elects one court, the remedy is exhausted and no appeal or revision would lie against any order passed by that court before the other court. The said reasoning may not apply to all suits,for, the appealing party may not always be the party who elected the court . If the suit is decreed as in the instant case, the appealing party will not be the plaintiff and in that case, merely for the reason that the plaintiff chose to institute the suit before the Subordinate Judge’s Court, the defendant shall be compelled to institute the appeal before the District Court. As such, though I do not agree with the reason given by the learned Judge to arrive at the conclusion in Gopalakrishna Pillai v. Devaswom Trust (supra), I agree with the conclusion arrived at in the said decision for the reasons stated in paragraph 4 above. In so far as separate forum and procedure are prescribed for entertaining suits under Section 92 of the Code, the argument advanced by the learned counsel for the fourth defendant based on Section 13(1) of the Civil Courts Act also should fail. The said provision would apply only to ordinary suits.

6. In the light of the aforesaid discussion, it has to be held that the appeal preferred by the fourth defendant before the District Court was not maintainable. Since the appeal preferred by the fourth defendant before the District Court was not maintainable, the District Court ought to have returned the appeal for proper presentation before the appropriate forum. In the said view of the matter, I deem it appropriate to set aside the impugned judgment and remit the appeal to the lower appellate court so as to enable the lower appellate court to return the appeal to the fourth defendant for presentation before appropriate forum.

In the result, the appeal is allowed, the impugned judgment is set aside and A.S. No.85 of 2006 is remitted to the District Court, Kottayam to enable the court to return the said appeal to the appellant therein for presentation before proper court.

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