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CASE NO.:

Appeal (civil) 12915-12920 of 1996

PETITIONER:

B.S. Adityan & Ors.

RESPONDENT:

B. Ramachandran Adityan & Ors.

DATE OF JUDGMENT: 16/04/2004

BENCH:

S. RAJENDRA BABU & DORAISWAMY RAJU

JUDGMENT:

J U D G M E N T

RAJENDRA BABU, J. :

A deed of declaration was executed by S.B.

Adityan consisting of himself, his elder brother S.T.

Adityan and the first respondent herein, B.

Ramachandran Adityan as Trustees on 1.3.1954.

Under a deed of resignation dated 19.5.1959 the first

respondent herein resigned as Trustee and also as

Director of Daily Thanthi. By a deed of appointment

of trustees executed on 22.5.1959 the first appellant

B.S. Adityan son of S.P. Adityan and the second

appellant were appointed as one of the new trustees

and also to be the Director of Daily Thanthi. A

supplementary deed was also executed on 28.6.1961.

On 8.11.1961 the Founder resigned. On 2.3.1962 a

decree was passed by the High Court in C.S. No.

90/1961 approving the supplementary deed dated

28.6.1961. On 27.12.1963 S.T. Adityan resigned. In

the last week of June 1978 the Founder executed

three deeds of appointments of trustees appointing

himself, his elder brother S.T. Adityan and the first

respondent as additional trustees of Thanthi Trust.

The Appellants filed applications under Section 92 Civil

Procedure Code (CPC) for leave to file suits

challenging the said appointments and leave was

granted and the said suits are numbered as C.S. Nos.

352 and 353 of 1978. On 29.8.1978 the first

respondent and his uncle S.T. Adityan filed application

under Section 92 CPC for leave to file a suit for

removing appellants Nos. 1 and 2 as trustees. On

13.9.1978 an temporary order of injunction was made

by the High Court restraining the newly appointed

trustees from interfering with the management of the

trust on the condition that the first appellant must

deposit a sum of Rs. 1 lakh per month. All the three

newly appointed trustees, that is, Founder, S.T.

Adityan and the first respondent executed resignation

deeds and withdrew the application No. 3147/1978

filed under Section 92 CPC. Inasmuch as the newly

appointed trustees resigned their trusteeship and

withdrew their application under Section 92 CPC, the

appellants proceeded on the basis that suits C.S. Nos.

352 and 353 of 1978 had become unnecessary and

withdrew the same.

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While the matter stood thus, on 20.1.1981

Kannan Adityan and Kathiresa Adityan filed an

application No. 165/1981 under Section 92 CPC for

leave to file a suit for appointing them as additional

trustees and for rendition of accounts by the first and

second appellants. The appellants filed application No.

879/1991 for permission of court to cross-examine the

applicants therein, that is, Kannan Adityan and

Kathiresa Adityan, to establish the fact that it was the

father of the petitioners therein who was supplying all

documents and materials and who was conducting the

proceedings and that they were 21 and 18 years of

age and were students then studying in the

Engineering College. The said application filed by

the appellants came to be dismissed by the learned

single Judge. On appeal filed in O.S.A. No. 152/1981

the Division Bench held that it would be in the interest

of justice to allow the appellants therein to cross-

examine Kannan Adityan and Kathiresa Adityan.

When the matter was carried to this Court, this Court

dismissed the Special Leave Petition No. 6040 of 1982

by observing that the cross-examination, however,

was confined to the question of sanction and principles

governing the same. An application had been filed

under Order XI Rule 21 CPC which having been

dismissed and on appeal having been confirmed by

the Division Bench, the same matter was carried to

this Court by way of a special leave petition. This

Court disposed of the said special leave petition and

ultimately by an order made on 18.1.1993 dismissed

it.

The trustees, namely, the first and the second

appellants, resolved to appoint Mr. Maruthai Pillai,

Mrs. Sarojini Varadappan and Mr. R. Somasundaram

as additional trustees. On 3.1.1994 respondents Nos.

1 to 4 filed an application No. 33/1994 for leave to file

a suit under Section 92 CPC for framing a scheme, for

removal of appellants No. 1 and 2 as trustees and for

accounts. An application No. 1030/1994 was filed

seeking to implead Maruthai Pillai, Mrs. Sarojini

Varadappan and R. Somasundaram as parties to

application No. 33/1994. A number of incidental

applications Nos. 214/1994, 215/1994, 1901/1994

and 153/1994 were filed for various reasons like

appointment of receiver, impleadment of parties and

for publication of the proceedings in newspapers. The

appellants also filed an application to dismiss the said

applications filed under Section 92 CPC in limini. C.S.

No. 1509/1994 was filed by Kannan Adityan and

Kathiresa Adityan for a declaration as follows :-

"The order of dismissal passed in

Application No. 165/1981 filed by the

plaintiffs herein under the provisions of

Section 92 of the CPC for grant of leave of

this Hon'ble Court and the unnumbered

suit filed along with the said application

and confirmed by the Division Bench and

by Supreme Court of India by order dated

18.1.1993 made in S.L.P. No. 3362 and

3363 of 1987 are vitiated by fraud,

without jurisdiction non est in law and

void, and consequently to set aside all the

orders made in Application No. 165 of

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1981 and the unnumbered suit filed along

with the said application including that of

the order dated 18.1.1993 passed by the

Supreme Court of India in S.L.P. No. 3362

and 3363 of 1987 and restore application

No. 165 of 1981 along with the suit

referred to above to file and to hear the

same afresh."

Application filed by the appellants for dismissal

of application No. 33/1994 filed under Section 92 CPC

was dismissed by a learned Single Judge and several

orders were made in other applications. While O.S.A.

No. 62/1996 was filed against the order dismissing

application No. 33/1994 filed under Section 92 CPC,

O.S.A. Nos. 63 and 64 of 1996 were filed in regard to

certain other incidental reliefs. The Division Bench by

an order made on 16.7.1996 allowed the appeals and

thus by allowing O.S.A. No. 62/1996 it allowed

application No. 33/1994 granting leave to the

appellants therein to file suit under Section 92 CPC

against the appellants herein. In the said order the

Division Bench also considered the scope of Section 92

CPC, impact of the amendment of the Civil Procedure

Code in 1976 requiring the Court to give permission in

place of the Advocate General to give consent thereto,

and also noticed several decisions of the Courts on the

aforesaid matters. While some of the decisions have

taken the view that an order granting such permission

is an administrative order, some other courts have

taken the view that such an order is liable to be

reviewed under Article 226 of the Constitution. The

High Court went on to hold that a notice to defendants

before leave is not necessary as a rule of law but as a

rule of caution, the court should normally give notice

to the defendants before granting permission to

institute a suit under Section 92 CPC; that the

defendants could bring to the notice of the court that

the allegations made in the plaint are frivolous or

reckless and that in a given case, they could point out

that the persons who are applying for leave are doing

so merely with a view to harass the trust or have such

antecedents that it would be undesirable to grant

leave to such persons; that Section 141 CPC is not

applicable to a proceeding which is administrative in

nature. The High Court examined the facts of the

case in the light of principles adverted to by it.

In the normal course if an appeal is filed against

an order granting permission to a party to file a suit

as falling under Section 92 CPC, we do not normally

interfere with an order made by the High Court nor do

we think of entertaining a proceeding of this nature

under Article 136 of the Constitution because the

order made thereunder will not determine the rights of

the parties, but only enable a party to initiate a

proceeding.

Shri K. Parasaran, learned senior counsel

appearing for the appellants herein, submitted that

the present case is one of the third round of litigation

in respect of the some trust property; that what is to

be considered in the present case is not trust in

relation to an immovable property but in relation to a

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newspaper "Dina Thanthi" or "Daily Thanthi" at

present being published as a daily newspaper in Tamil

language together with the goodwill thereof, the Head

Office of which being presently situated at 60,

Cutchery Road, Mylapore, Madras as a going concern

with all its assets and liabilities and all the printing

machine, printing types, furniture and accessories of

the newspaper formed part of the trust property; that

it is a running newspaper business which is the

property held under and impressed with Trust which

required great skill to run a venture of such a nature;

that immovable properties had been subsequently

acquired for the Trust where offices have been located

and business is carried out and there are also guest

houses at one or two centres. The appellants filed an

application No. 2421 of 1994 under Section 92 CPC

read with Section 151 CPC to dismiss the application

filed by respondents 1 to 4 for leave to file a suit

under Section 92 CPC for framing a scheme, for

removal of appellants Nos. 1 and 2 as trustees and for

accounts. The learned Single Judge, by an order made

on 21.12.1999, allowed application filed by the

appellant herein in application No. 2421 of 1994 to

dismiss the application filed under Section 92 read

with Section 151 CPC. On appeal, as stated earlier,

the Division Bench also in original side granted leave

to respondents Nos. 1 to 4 to file suit under Section

92 CPC against the appellants in the present case.

The learned counsel for the appellants urged that

the order that was passed under Section 92 CPC

granting permission to file a suit is whether

administrative in character or otherwise; that this

does arise when the objections of the defendants are

considered; that as to scope of the meaning of the

expressions "order, judgment, decree and

adjudication". He drew our attention to decision in

Pitchayya & Anr. v. Venkatakrishnamacharlu &

Ors., AIR 1930 Madras 129, to the effect that the

object of Section 92 CPC is to safeguard the rights of

public and of institutions under trustees. In this

regard, he specifically drew our attention to National

Sewing Thread Co. Ltd. v. James Chadwick &

Bros. Ltd., 1953 SCR 1028. He also adverted to

decision in R.M.A.R.A. Adaikappa Chettiar & Anr.

v. R. Chandrasekhara Thevar, AIR(35)1948 PC 12,

to contend that where a legal right is in dispute and

the ordinary courts of the country are seized of such

dispute the courts are governed by ordinary rules of

procedure applicable thereto and an appeal lies if

authorised by such rules, notwithstanding that the

legal right claimed arises under a special stature

which does not in terms confer a right of appeal. In

R.M. Narayana Chettiar & Anr. v. N. Lakshmanan

Chettiar & Ors. 1991 (1) SCC 48, this Court has

examined in detail the scope of Section 92 CPC and

explained the object underlying therein in granting

permission to file a suit. In this case, this Court held

that court should normally give notice to the

defendants before granting leave as a rule of caution

but court is not bound to do so in all circumstances

and non-issuance of notice would not render the suit

bad or non-maintainable and defendants can at any

time apply for revocation of the leave and provision

under Section 104(1)(ffa) for appeal against refusal of

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grant of leave does not lead to a different conclusion.

In the light of this decision, we do not consider it

necessary to advert to other decisions cited by the

learned counsel. More so, the matter was considered

by the Law Commission in its Report submitted in

April 1992 on this aspect of the matter. After noticing

various decision of different courts and the decision in

R.M. Narayana Chettiar's case (supra), the Law

Commission recommended that to expect the court to

issue notice and then to try the several points of detail

before granting leave in the light of the objections put

forth by the respective defendants, would mean that

there will be a trial before trial and this would not be

desirable. The recommendation of the Law

Commission was, therefore, to insert an Explanation

below Section 92 CPC to the effect that the court may

grant leave under this Section without issuing notice

to any other person, but this does not, of course,

mean that the court will grant leave as a matter of

course. Particular emphasis is made and heavy

reliance is placed on the decision of this Court in

Shankarlal Aggarwal & Ors. v. Shankarlal Poddar

& Ors., 1964 (1) SCR 717, to emphasise distinction

between administrative and judicial orders. It is

urged that order from which the appeal was preferred

was not a judgment within the meaning of clause 15

of the Letters Patent and so no appeal lies to the

Division Bench. Reference is made to the decision

of this Court in Institute of Chartered Accountants

v. L.K. Ratna & Ors., 1986 (3) SCR 1049, to bring

out distinction between administrative and judicial

order. Scope of Section 92 CPC was examined in

Charan Singh & Anr. v. Darshan Singh & Ors.,

1975 (3) SCR 48, where the whole case turned on the

facts arising in that particular case.

Our attention was also drawn to a decision of

this Court in T. Arivandandam v. T.V. Satyapal &

Anr., 1978 (1) SCR 742, to contend that the court has

a duty in vexatious suits to exercise appropriate

powers under Order VII Rule 11 CPC. Our attention is

also drawn to the decision in John v. Rees & Ors.,

1969 (2) All ER 274. He particularly emphasised that

it is not appropriate to give decision against a party

without affording an opportunity to him. Though

reference has been made to several other decisions,

we do not think it necessary to advert to the same.

In this background, when a specific provision has

been made in the Code of Civil Procedure in Section

104(1)(ffa) allowing an appeal to be filed against an

order refusing to grant leave to file a suit, the appeal

filed by the respondents before the Division Bench

was certainly competent to be considered by that

Bench. In this case, on an earlier occasion, when one

of the suits was filed under Section 92 CPC, when the

founder had executed a deed of appointment of

trustees and certain interim orders were passed in

that suit, the said application was withdrawn without

obtaining leave under Order XXIII Rule 1 on

19.9.1978 inasmuch as the newly appointed trustees

had resigned their trusteeship and withdrew their

application under Section 92 CPC, the two suits C.S.

No. 352 and 353 of 1978 filed by appellants were

disposed of as having become infructuous. Later on

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another application No. 165 of 1981 had been filed

under Section 92 CPC for leave to file a suit for

appointing them as additional trustees and for

rendition of accounts. In that proceeding an

application No. 879 of 1991 was filed for permission of

court to cross-examine the applicants therein R.

Kannan Adityan and R. Kathiresa Adityan in particular

to prove the fact that it was the father of those

petitioners therein who was supplying all documents

and materials and who was conducting the

proceedings. Application filed to cross-examine

applicants was dismissed by the learned Single Judge.

On further appeal, the Division Bench held that it

would be in the interest of justice to permit the

appellants to cross-examine the said parties. The

matter was carried to this Court in Special Leave

Petition No. 6040 of 1982. This Court dismissed the

said Special Leave Petition noticing that the cross-

examination "will be confined to the question of

sanction and principles governing the same", of

course, after noticing entire documents. Again,

another application No. 4738 of 1982 was brought

before the court to dismiss application No. 165 of

1991 under Order XI Rule 21 CPC which was,

however, dismissed by the learned Single Judge and

the matter was carried in appeal which was also

dismissed by the Division Bench. That matter was

brought before this Court. This Court asked the

parties to file the appropriate affidavits in regard

thereto and thereafter all papers were place before

the Court. However, this Court dismissed the Special

Leave Petition. It is in this background the learned

counsel submitted that the court ought to have

examined the matter in all necessary details before

granting permission under Section 92 CPC. In R.M.

Narayana Chettiar's case (supra), this Court

considered in detail the history of the legislation and

whether court is required to give an opportunity of

being heard to the proposed defendants before

granting leave to institute a suit under Section 92 CPC

and stated the law on the matter. Although as a rule

of caution, court should normally give notice to the

defendants before granting leave under the said

Section to institute a suit, the court is not bound to do

so. If a suit is instituted on the basis of such leave,

granted without notice to the defendants, the suit

would not thereby be rendered bad in law or non-

maintainable. Grant of leave cannot be regarded as

defeating or even seriously prejudicing any right of

the proposed defendants because it is always open to

them to file an application for revocation of the leave

which can be considered on merits and according to

law or even in the course of suit which may be

established that the suit does not fall within the scope

of Section 92 CPC. In that view of the matter, we do

not think, there is any reason for us to interfere with

the order made by the High Court.

However, we may notice one or two aspects. It

was not at all necessary for the High Court to have

examined the applicability of Section 141 CPC or

otherwise in a matter of this nature. So also

observations made by the High Court in para-28 as to

the performance of the learned counsel and general

remarks in para-41 as to events taking place in the

country are uncalled for and unwarranted in dealing

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with the appeal before it. Such stray excursion will

take the matter in dispute out of focus. The crux of

the matter was only whether in granting leave under

Section 92 CPC the proposed parties have to be heard

in the matter or not and whether the suit should have

been dismissed in limini under Order VII Rule 11 CPC,

particularly when the trustees who had filed the suit

had seized some interest in the matter and they were

not mere strangers to the suit or such persons at

whose instance the matter should not have been

heard such as insolvent or a party who does not have

sufficient interest in the matter.

In the result, we dismiss these appeals.