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