Baburaj and 4 Others Vs. Devarajan and 10 Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/1133096
CourtKerala High Court
Decided OnFeb-11-2014
JudgeHONOURABLE MR.JUSTICE K.HARILAL
AppellantBaburaj and 4 Others
RespondentDevarajan and 10 Others
Excerpt:
in the high court of kerala at ernakulam present: the honourable mr.justice k.harilal tuesday, the11h day of february201422nd magha, 1935 crp.no. 515 of 2011 ( ) ------------------------ i.a. no.3090/2008 in o.p.no.11/2007 in os. no.485/2008 of principal sub court, kollam. ........ revision petitioners/petitioners/defendants: ------------------------------------------------------------------------------- 1. baburaj, aged73years, s/o.kunjiraman, ilampazhikathu veedu, meenadu cherry, paravoor village, kollam - 691 001.2. raj mohanan, aged35years, s/o.rajendra pillai, s.r. bhavan, karimpalur konath cherry, parippallyvillage, kollam - 691 001.3. sudharmini, d/o.narayanan, ilampazhikathu veedu, meenadu cherry, paravoor village, kollam - 691 001.4. manikandan pillai, aged34years, s/o.kunjiraman pillai, thekkekumittiyil, kottapuram village, kollam taluk - 691 001.5. shaji, aged35years, s/o.rajan, muttanvila veedu, kurumandel cherry, kottapuram village, kollam - 691 001. by advs.sri.c.s.manu, sri.s.k.premraj.respondents/respondents/plaintiffs: ------------------------------------------------------------------ 1. devarajan, aged62years, s/o.kunjiraman, sunil land, puthenkulam cherry, poothakulam village, kollam - 691 001.2. lakshmanan hari, aged51years, sreevilasom karimpalur cherry, parippallyvillage, now residing at inchakkel vaikundam veedu, palkulangara, thiruvananthapuram- 695 001.3. lakshmanan sreekumar, sreevilasom veedu, meenambalam, karimpalur cherry, parippally village, kollam - 691 001. crp.no. 515 of 2011 4. sajeev,aged40years, s/o.vidhyadharan, ezhumkuttivila puthen veedu, naduvilakkara, kottiyam, mayyanadu village, kollam - 691 001.5. kunjiraman bharathan, aged66years, karthikayil puthen kulam, poothakulam village, kollam - 691 001.6. kunjiraman sadasivan, aged64years, sini building, puthenkulam, poothakulam village, kollam - 691 001.7. sujan, aged25years, s/o.sasidharan, sujan nivas, parippally cherry, poothakulam village, kollam - 691 001.8. sejin, aged24years, s/o.sasidharan, sreevilasom paluvally, nedumangad, nandhiyodu village, nedumangad, thiruvananthapuram - 695 001.9. sreejith, aged22years, s/o.sasidharan, paluvally sreevilasom, nandhiyodu village, poothakulam village, kollam - 691 001.10. ani, aged34years, s/o.lakshmanan, lakshmanavilasom, puthenkulam cherry, poothakulam village, kollam - 691 001.11. radhakrishnan, aged46years, s/o.jinarajan, kannimel veedu, ozhukupara, paravur village, kollam - 691 001. r1 by adv. sri.p.krishna kumar (alappuzha). r2 to r11 by adv. sri.r.suraj kumar. this civil revision petition having been finally heard on1102-2014, the court on the same day passed the following: rs. crp.no. 515 of 2011 appendix petitioner's annexures:- annexure a1 copy of the statement of objections filed by the petitioners in i.a. no.3443/2006/ o.p.no. 11/2007 on the files of the sub court, kollam. annexure a2 copy of the order dated1407/2008 in i.a.no.3443/2006 in os. no.485/2008 (o.p.no. 11/2007) on the file of the sub court, kollam. annexure a3 copy of the review petition (i.a. no.3090/2008 in o.p.no. 11/2007 on the file of the sub court, kollam. annexure a4 copy of the plaint in o.s no.483/2006 on the file of the sub court, kollam. respondent's annexures:- nil. //true copy// p.a. to judge rs. k. harilal, j.---------------------- c.r.p. no.515 of 2011 --------------------------- dated this the 11th day of february, 2014 order this revision is directed against the impugned order dated 14/07/2008 passed in i.a.no.3443 of 2006 in o.s.no. 485 of 2008 on the files of principal sub court, kollam. the revision petitioners are the defendant nos.2, 4, 8, 9 and 13 in o.p.no.11 of 2007 on the files of principal sub court. the above i.a. no.3090 of 2008 was filed for reviewing the order dated 14/07/2008 in i.a.no. 3443 of 2006 granting leave of the court to file a suit under section 92 of the code of civil procedure (for short the 'cpc'). the respondents filed the above suit numbered as o.s.no.485 of 2008 before the sub court under section 92 of the cpc, seeking a decree to settle the scheme for ozhukupara ponkanvila devi temple situated in paravur village and also for declaration, cancellation of document and also for other ancillary reliefs. the suit was filed on 17/11/2006 and along with c.r.p. no.515 of 2011 2 suit i.a.no.3443 of 2006 was filed seeking leave under section 92(g) of the cpc for institution of the suit. after hearing both parties, trial court allowed the o.p. on 14/07/2008 and the suit was numbered as o.s.no.485 of 2008. the petitioners had raised several objections against granting leave; but trial court didn't consider any of the grounds but only passed a non speaking order.2. aggrieved by the order granting leave, the petitioner filed i.a.no.3090 of 2008 seeking review of the order. but the trial court did not consider any of the valid grounds; but only considered a minor and less important ground very conveniently and dismissed the application for review of the order granting leave. the trial court has taken the view that the ground on which the application for review was filed is that the order granting leave was passed again on i.a. which was non existing. as a matter of fact, the revision petitioners had urged several other grounds on merits of the matter; but the same were not considered by the trial court. the trial court ought to have decided the matter on merits by a c.r.p. no.515 of 2011 3 reasoned order, particularly when defendants entered appearance and filed a very strong objection.3. in short, the argument advanced by the learned counsel for the petitioner is that without considering the aim and object of granting leave provided under section 92 (1) of the cpc, the court below granted leave. though, aggrieved by the order granting leave, the petitioner had preferred a review petition, the same was also dismissed without adverting to the grounds raised in the review petition also. in view of the above submission, i am of the view that the real challenge is against the basic order passed under section 92 (1) of cpc granting leave.4. going by the above order, passed in i.a.no. 3443/2006, i find that the said order is a one line non speaking order passed without the application of mind. here, emerges the question, what are the matters to be looked into while granting leave under section 92 (1) of the cpc. to grant leave under section 92(1), of cpc, (1) there must exist a trust for public purposes of c.r.p. no.515 of 2011 4 charitable or religious nature. (2) the plaintiff must alleged that there is a breach of trust or that direction of the court is necessary for the administration of the trust. (3) the suit must be a representative one, on behalf of the public and not an impudent for his own interest. if the petitioner prima facie satisfies the above requirement, leave can be granted. needless to say, if the petitioner fails to make a prima facie satisfaction as regards the above requirements, no leave can be granted under section 92(1). in short, there must have an application of mind on the averments in the plaint to decide the question whether the averments in the plaint prima facie satisfy the requirements stated above.5. but, the basic order in i.a. no.3443 of 2006, is one passed without considering the above questions, in view of the averments in the plaint. it is to borne in mind that reasoning is the sole of a judicial order and the order without reasoning is not a judicial order in the eye of law. the aim and object of the leave to file suit is to avoid unnecessary frivolous and vexations suit against public c.r.p. no.515 of 2011 5 trusts. consequently, i set aside the order dated 14/07/2008 passed in i.a.no.3443 of 2006 and also subsequent order dated 22/09/2011 in i.a. no.3090 of 2008 and the matter is remitted back to the trial court to pass order afresh. the court below shall pass order afresh after hearing both parties in view of the observations made above. however, fresh order shall be passed within a period of three months from today. sd/-k.harilal judge mjl
Judgment:

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL TUESDAY, THE11H DAY OF FEBRUARY201422ND MAGHA, 1935 CRP.No. 515 of 2011 ( ) ------------------------ I.A. NO.3090/2008 IN O.P.NO.11/2007 IN OS. NO.485/2008 OF PRINCIPAL SUB COURT, KOLLAM. ........ REVISION PETITIONERS/PETITIONERS/DEFENDANTS: ------------------------------------------------------------------------------- 1. BABURAJ, AGED73YEARS, S/O.KUNJIRAMAN, ILAMPAZHIKATHU VEEDU, MEENADU CHERRY, PARAVOOR VILLAGE, KOLLAM - 691 001.

2. RAJ MOHANAN, AGED35YEARS, S/O.RAJENDRA PILLAI, S.R. BHAVAN, KARIMPALUR KONATH CHERRY, PARIPPALLYVILLAGE, KOLLAM - 691 001.

3. SUDHARMINI, D/O.NARAYANAN, ILAMPAZHIKATHU VEEDU, MEENADU CHERRY, PARAVOOR VILLAGE, KOLLAM - 691 001.

4. MANIKANDAN PILLAI, AGED34YEARS, S/O.KUNJIRAMAN PILLAI, THEKKEKUMITTIYIL, KOTTAPURAM VILLAGE, KOLLAM TALUK - 691 001.

5. SHAJI, AGED35YEARS, S/O.RAJAN, MUTTANVILA VEEDU, KURUMANDEL CHERRY, KOTTAPURAM VILLAGE, KOLLAM - 691 001. BY ADVS.SRI.C.S.MANU, SRI.S.K.PREMRAJ.

RESPONDENTS/RESPONDENTS/PLAINTIFFS: ------------------------------------------------------------------ 1. DEVARAJAN, AGED62YEARS, S/O.KUNJIRAMAN, SUNIL LAND, PUTHENKULAM CHERRY, POOTHAKULAM VILLAGE, KOLLAM - 691 001.

2. LAKSHMANAN HARI, AGED51YEARS, SREEVILASOM KARIMPALUR CHERRY, PARIPPALLYVILLAGE, NOW RESIDING AT INCHAKKEL VAIKUNDAM VEEDU, PALKULANGARA, THIRUVANANTHAPURAM- 695 001.

3. LAKSHMANAN SREEKUMAR, SREEVILASOM VEEDU, MEENAMBALAM, KARIMPALUR CHERRY, PARIPPALLY VILLAGE, KOLLAM - 691 001. CRP.No. 515 of 2011 4. SAJEEV,AGED40YEARS, S/O.VIDHYADHARAN, EZHUMKUTTIVILA PUTHEN VEEDU, NADUVILAKKARA, KOTTIYAM, MAYYANADU VILLAGE, KOLLAM - 691 001.

5. KUNJIRAMAN BHARATHAN, AGED66YEARS, KARTHIKAYIL PUTHEN KULAM, POOTHAKULAM VILLAGE, KOLLAM - 691 001.

6. KUNJIRAMAN SADASIVAN, AGED64YEARS, SINI BUILDING, PUTHENKULAM, POOTHAKULAM VILLAGE, KOLLAM - 691 001.

7. SUJAN, AGED25YEARS, S/O.SASIDHARAN, SUJAN NIVAS, PARIPPALLY CHERRY, POOTHAKULAM VILLAGE, KOLLAM - 691 001.

8. SEJIN, AGED24YEARS, S/O.SASIDHARAN, SREEVILASOM PALUVALLY, NEDUMANGAD, NANDHIYODU VILLAGE, NEDUMANGAD, THIRUVANANTHAPURAM - 695 001.

9. SREEJITH, AGED22YEARS, S/O.SASIDHARAN, PALUVALLY SREEVILASOM, NANDHIYODU VILLAGE, POOTHAKULAM VILLAGE, KOLLAM - 691 001.

10. ANI, AGED34YEARS, S/O.LAKSHMANAN, LAKSHMANAVILASOM, PUTHENKULAM CHERRY, POOTHAKULAM VILLAGE, KOLLAM - 691 001.

11. RADHAKRISHNAN, AGED46YEARS, S/O.JINARAJAN, KANNIMEL VEEDU, OZHUKUPARA, PARAVUR VILLAGE, KOLLAM - 691 001. R1 BY ADV. SRI.P.KRISHNA KUMAR (ALAPPUZHA). R2 TO R11 BY ADV. SRI.R.SURAJ KUMAR. THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON1102-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. CRP.No. 515 of 2011 APPENDIX PETITIONER'S ANNEXURES:- ANNEXURE A1 COPY OF THE STATEMENT OF OBJECTIONS FILED BY THE PETITIONERS IN I.A. NO.3443/2006/ O.P.NO. 11/2007 ON THE FILES OF THE SUB COURT, KOLLAM. ANNEXURE A2 COPY OF THE ORDER

DATED1407/2008 IN I.A.NO.3443/2006 IN OS. NO.485/2008 (O.P.NO. 11/2007) ON THE FILE OF THE SUB COURT, KOLLAM. ANNEXURE A3 COPY OF THE REVIEW PETITION (I.A. NO.3090/2008 IN O.P.NO. 11/2007 ON THE FILE OF THE SUB COURT, KOLLAM. ANNEXURE A4 COPY OF THE PLAINT IN O.S NO.483/2006 ON THE FILE OF THE SUB COURT, KOLLAM. RESPONDENT'S ANNEXURES:- NIL. //TRUE COPY// P.A. TO JUDGE rs. K. HARILAL, J.

---------------------- C.R.P. No.515 of 2011 --------------------------- Dated this the 11th day of February, 2014 ORDER

This revision is directed against the impugned order dated 14/07/2008 passed in I.A.No.3443 of 2006 in O.S.No. 485 of 2008 on the files of Principal Sub Court, Kollam. The revision petitioners are the defendant Nos.2, 4, 8, 9 and 13 in O.P.No.11 of 2007 on the files of Principal Sub Court. The above I.A. No.3090 of 2008 was filed for reviewing the order dated 14/07/2008 in I.A.No. 3443 of 2006 granting leave of the court to file a suit under Section 92 of the Code of Civil Procedure (for short the 'CPC'). The respondents filed the above suit numbered as O.S.No.485 of 2008 before the Sub Court under Section 92 of the CPC, seeking a decree to settle the scheme for Ozhukupara Ponkanvila Devi Temple situated in Paravur village and also for declaration, cancellation of document and also for other ancillary reliefs. The Suit was filed on 17/11/2006 and along with C.R.P. No.515 of 2011 2 suit I.A.No.3443 of 2006 was filed seeking leave under Section 92(g) of the CPC for institution of the suit. After hearing both parties, trial court allowed the O.P. on 14/07/2008 and the suit was numbered as O.S.No.485 of 2008. The petitioners had raised several objections against granting leave; but trial court didn't consider any of the grounds but only passed a non speaking order.

2. Aggrieved by the order granting leave, the petitioner filed I.A.No.3090 of 2008 seeking review of the order. But the trial court did not consider any of the valid grounds; but only considered a minor and less important ground very conveniently and dismissed the application for review of the order granting leave. The trial court has taken the view that the ground on which the application for review was filed is that the order granting leave was passed again on I.A. which was non existing. As a matter of fact, the revision petitioners had urged several other grounds on merits of the matter; but the same were not considered by the trial court. The trial court ought to have decided the matter on merits by a C.R.P. No.515 of 2011 3 reasoned order, particularly when defendants entered appearance and filed a very strong objection.

3. In short, the argument advanced by the learned counsel for the petitioner is that without considering the aim and object of granting leave provided under Section 92 (1) of the CPC, the court below granted leave. Though, aggrieved by the order granting leave, the petitioner had preferred a review petition, the same was also dismissed without adverting to the grounds raised in the review petition also. In view of the above submission, I am of the view that the real challenge is against the basic order passed under Section 92 (1) of CPC granting leave.

4. Going by the above order, passed in I.A.No. 3443/2006, I find that the said order is a one line non speaking order passed without the application of mind. Here, emerges the question, what are the matters to be looked into while granting leave under Section 92 (1) of the CPC. To grant leave under Section 92(1), of CPC, (1) There must exist a trust for public purposes of C.R.P. No.515 of 2011 4 charitable or religious nature. (2) The plaintiff must alleged that there is a breach of trust or that direction of the court is necessary for the administration of the trust. (3) The suit must be a representative one, on behalf of the public and not an impudent for his own interest. If the petitioner prima facie satisfies the above requirement, leave can be granted. Needless to say, if the petitioner fails to make a prima facie satisfaction as regards the above requirements, no leave can be granted under Section 92(1). In short, there must have an application of mind on the averments in the plaint to decide the question whether the averments in the plaint prima facie satisfy the requirements stated above.

5. But, the basic order in I.A. No.3443 of 2006, is one passed without considering the above questions, in view of the averments in the plaint. It is to borne in mind that reasoning is the sole of a judicial order and the order without reasoning is not a judicial order in the eye of law. The aim and object of the leave to file suit is to avoid unnecessary frivolous and vexations suit against public C.R.P. No.515 of 2011 5 trusts. Consequently, I set aside the order dated 14/07/2008 passed in I.A.No.3443 of 2006 and also subsequent order dated 22/09/2011 in I.A. No.3090 of 2008 and the matter is remitted back to the trial court to pass order afresh. The court below shall pass order afresh after hearing both parties in view of the observations made above. However, fresh order shall be passed within a period of three months from today. Sd/-K.HARILAL JUDGE MJL