Brief Facts of the case
The Plaintiffs filed a suit under Order 7 Rule 1 read with Section 92 of CPC for settling a scheme for administration of the Madha Trust. Since leave must be obtained for taking such a suit on file, they filed an Interlocutory application and the same was allowed. Questioning the same, this Civil Revision Petition was filed under Article 227 of Constitution of India.
Discussion
Onbehalf of the revision Petitioners two vital grounds were raised
- Madha Trust had not been impleaded as one of the party in the leave application.
- Except making a bare averment in the plaint as well as in the supporting affidavit that they are beneficiaries of the Trust, the applicants have not shown as to how they are interested in the Trust.
Onbehalf of the respondent the maintainability of the revision petition was questioned by contending that the Madras High Court has repeatedly laid down that an order granting leave under Section 92 of CPC is merely an administrative order and not a judicial order and therefore it is not amenable to challenge in exercise of jurisdiction either under Section 115 CPC or Article 227 of the Constitution of India.
G.R.Govindarajulu & Sons Charities Case : G.R.Govindarajulu & Sons Charities, Coimbatore & 2 others Vs. V.R.Sethurao and 12 Others (1998 (2) CTC 65), has held that granting of leave, though being exercised by the Court, it is not by a Court of law, in the sense that the Court is discharging its administrative function and not a judicial or quasi judicial one. Section 151 of CPC also may not have any application. Hence a revision is not maintainable against the order granting leave. The case was based on the ratio laid down by the Hon’ble Division Bench of the Madras High Court in R.Kannan Adityan Vs. B.S.Adityan ((1996) 2 LW 364).
Justice GR Swaminathan observed that the Division Bench Judgment in R.Kannan Adityan case as stated supra was put to challenge before the Hon’ble Supreme Court. Leave was granted and judgment was pronounced in Civil Appeal. The Hon’ble Supreme Court did not endorse the ratio laid down in R.Kannan Adityan case as stated supra, that the order granting leave is administrative in character. Applying the doctrine of merger, it may not be appropriate to rely on the ratio laid down in the Division Bench judgment when the Hon’ble Supreme Court did not approve the same.
The Hon’ble Judge relied on Swami Shivshankargiri Chella Swami Vs. Satya Gyan Niketan (2017) 4 SCC 771 and observed that the Supreme Court impliedly endorsed the maintainability of Civil Revision Petition
“A careful study of this decision leads me to the irresistible conclusion that the Supreme Court impliedly endorsed the maintainability of Civil Revision Petition against an order granting leave under Section 92 of CPC. This is evident from the fact that the order of the High Court setting aside the order granting leave was not interfered with.”
The Hon’ble Judge further relied on the judgments of the various High Courts which took contrary view by dissenting the G.R.Govindrajulu case stated above.
- 2012 (2) KHC 502 Church of South India Vs. John (Kerala High Court,
- Srimad Ujjaini Saddharma Vs. Sri S S Patil (C.R.P.No.400 of 2021) (Karnataka High Court),
- 2023 (I) ILR-CUT 497 (Kalinga Institute of Mining Engineering and Technology Trust (KIMET), Chhendipada, Angul and Ors. Vs. Bipin Bihari Behera and Ors.) (Orisa High Court)
The Hon’ble Judge also noted the 7-judge bench of the Supreme Court in the case of SBP & Co Vs Patel Engineering Limited (2005) 8 SCC 218 to distinguish between an administrative order and a judicial order
“An administrative order would be one which is directed to the regulation or supervision of matters as distinguished from an order which decides the rights of parties or confers or refuses to confer rights to property which are the subject of adjudication before the Court. It was categorically held that in the case of an administrative order, the discretion would involve purely subjective consideration. If the discretion has to be exercised based on objective considerations, it would be a judicial decision”
The Hon’ble Judge further relied on Church of South India Trust Association Vs. Rev.D.I Ananda ((1980) SCC OnLine Kar 218) which held that
“an order refusing leave to two or more persons is appealable to the Court to which an appeal would lie from that Court (Vide Section 104(1)(ffa). But, an order granting leave, though not appealable, is revisable by this Court under Section 115 of the Code.”
Verdict
With which the Madras High Court has held that order granting leave under Section 92 of CPC is a judicial order and not an administrative order and is amenable to revisional jurisdiction.
Party
Case No: C.R.P.(MD) No.808 of 2021; Case Title: Rev.Fr.Savarimuthu and Others v V.S.Jeyapandi; Coram : Justice G.R.Swaminathan; Madras High Court (Madurai Bench)
