VIDYODAYA TRUST AND ORS.versusMR. MOHAN PRASAD R AND ORS.

A                      VIDYODA YA TRUST AND ORS.
                                   v.
                      MR. MOHAN PRASAD R AND ORS.

                               AUGUST 25, 2006

B         [ARIJIT PASAYAT AND LOKESHWAR SINGH PANTA, JJ.]


           Code of Civil Procedure, 1908--Section 115 (as amended)-Revisionary
    jurisdiction--Scope of-Held: All interlocutory Orders are not subject to
C    revision-Orders which have the effect offinality of proceedings can only be
    subjected to revision.

          The respondents filed an application under Section 92 CPC seeking
    leave of Court to institute the suit under Section 34 of the Trust Act, 1882
    in respect of Vidyodaya Trust and applied to the Court for direction for
D   management and administration of the said trust. The Court granted the
    leave to respondent to institute the suit. Appellants contested the suit on
    the ground that the suit was actuated by personal motive. The District
    Court framed preliminary issue as to whether the suit is maintainable
    under Section 92 CPC. The District Court held that the suit was
    maintainable. Aggrieved appellant filed revision in terms of Section 115
E   CPC. High Court held that the revision was not maintainable as the order
    of District Court was an interlocutory one. Thereafter appellant filed Writ
    Petition before High Court praying for writ, direction or order questioning
    the order of District Court. High Court dismissed the Writ Petition holding
    that the view taken in revision was not correct as it cannot be held that
F   the High Court had no jurisdiction. Both these orders are under challenge
    before this Court.

          In appeal to this Court, the appellants contended that they have been
    placed at a very peculiar position. One Single Judge held that the Civil
    Revision was not maintainable. Another Single Judge observed that the
G   view expressed in the Civil Revision was not correct, but since the merits
    were discussed in the order passed in the Civil Revision, the Writ
    application was not maintainable.




H                                       390
          VIDYODAYA TRUSTv. MOHAN PRASAD R[PASAYAT, J.]                 391
     Disposing of the appeals and directing High Court to hear Revision        A
 on merits, the Court

       HELD: 1. A new proviso has been inserted to Section 115 CPC by
virtue of which the revisional jurisdiction is substantially curtailed. A
 revisional jurisdiction cannot be exercised unless the requirement of the
proviso is satisfied. The proviso creates an embargo in exercise of            B
revisional power. Judged in the aforesaid background the view of the
Single Judge that the Civil Revision was not maintainable is clearly
indefensible. If it is held that the suit in terms of Section 92 CPC is not
maintainable, that would have the result of final disposal of the suit.
However, the counsel made an attempt to justify the order by stating that      C
the matter was also dealt with on merits. That would not improve the
situation. The Civil Revision was clearly maintainable. (394-H; 395-A-BI

      Surya Dev Rai v. Ram Chander Rai and Ors., (2003( 6 SCC 675, relied
on.
                                                                               D
       2. In view of the order passed in the appeal relating to Section I 15
CPC no order is necessary to be passed in respect of the judgment in the
writ petition. It may be noted that the Single Judge observed that the Civil
Revision was maintainable and, therefore, declined to entertain the writ
petition. This order was passed on the face of the order passed by Single
Judge holding that it was not maintainable. The same, therefore, is not        E
justifiable•. But it is not necessary to deal with that matter as the Civil
Revision shall be heard on merit (395-C, DI

      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3679 of2006.

     From the Judgments and Orders dated 5.2.2004 in C.R.P. No. 1260/          F
2003 and dated 20.8.2004 in W.P.(C) No. 14961/2004 (F) of the High Court
of Kerala at Emakulam.

      Harish N. Salve, U.U. Lalit, S. Udaya Kumar Sagar and Bina Madhavan
(for Lawyer's Knit & Co.) for the Appellants.
                                                                               G
      Sunil Gupta and A Raghunath for the Respondents.

      The Judgment of the Court was delivered by

      ARIJIT PASAYAT, J. Leave granted.
                                                                               H
    392                     SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.

A         While in one of the appeals challenge is to the legality of the judgment
    dated 5.2.2004 passed in CRP No.1260 of 2003 by a learned Single Judge of
    the Kerala High Court in the other appeal challenge is to the judgment passed
    on 20.8.2004 in WP(C) No.14961 of2004 by another learned Single Judge
    of the said High Court.

B         Essentially the factual position is as follows:

         Respondents as plaintiffs filed OP No.238 of 2000 before the District
  Court, Ernakulam under Section 34 of the Indian Trust Act, 1882 (in short
  the 'Trust Act') in respect of Vidyodaya Trust and applied to the Court for
C direction for management and administration of the·said trust and the school
  run by the trust. But the said Court by order dated 31.1.2000 held that the
  OP was not maintainable and dismissed the petition. Thereafter the suit No.20
  of 2000 was filed by the respondents as plaintiffs claiming several reliefs.
  The respondents filed an application (IA 349 of 2000) seeking leave of the
  Court to institute the suit under Section 92 of the Code of Civil Procedure,
D 1908 (in short the 'CPC'). According to the appellants, without notice to
  them the concerned Court granted leave to the respondents to institute the
  suit. The suit was numbered as OS 20 of 2000. Plaintiffs filed written statement
  inter alia taking the stand that suit was actuated by personal motives. The
  suit under Section 92 CPC is of a special nature which pre-supposes existence
  of a Public Trust of religious or charitable character. From the averments in
E the plaint and the reliefs sought for it is clear that the plaintiffs were not
   suing to vindicate rights of the public, and it has not been filed in the
  representative capacity. The plaintiffs four in number are trustees who instituted
  both the suits against other trustees for personal reliefs and as individuals and
   seeking vindication of alleged individual rights and not as representatives of
p the public. Therefore, the suit as framed is not maintainable under Section 92
   CPC. The defendants filed an application before the District Judge, Ernakulam
   for hearing as preliminary issue, the question of maintainability of the suit.
   On the basis of contentions raised by the plaintiffs as well as defendants, the
   Court framed preliminary issue as to whether the suit as framed is maintainable
   under Section 92 CPC. By order dated 11.4.2003 the Court held that the suit
G was maintainable.
           Questioning correctness of the order, a petition for revision in terms of
    Section 115 CPC was filed. The High Court dismissed the Civil Revision
    petition on the ground that the same was not maintainable. Though the High
H   Court made reference to some factual aspects, it ultimately came to hold that
              VIDYODAYA TRUST v. MOHAN PRASAD R [PASA YAT, J.]                  393
     the revision petition was not maintainable as order dated 4. 11.2003 was an        A
     interlocutory one. Thereafter the appellants filed writ petition before the High
    Court praying, inter alia, for writ, direction cir order, questioning the order
    dated 2003. By order dated 20.8.2004 the High Court dismissed the writ
    petition holding that the view taken in the Civil Revision apparently was not
    correct, as by no stretch of imagination it can be held that the High Court had
    no jurisdiction. It accepted the stand of the respondents herein that since         B
    there was discussion on merits, though the petition was not held to be
    maintainable subsequent proceedings initiated under Article 227 of the
    Constitution of India, 1950 (in short the 'Constitution') cannot be maintained.

         Both the orders i.e. one in the Civil Revision petition and the other in       C
    the writ petition form subject-matter of challenge in these appeals.

          Learned counsel for the appellants submitted that the appellants have
    been placed at a very peculiar position. One learned Single Judge held that
    the Civil Revision was not maintainable. Another learned Single Judge
    observed that the view expressed in the Civil Revision was not correct, but         D
    since the merits were discussed in the order passed in the Civil Revision, the
    writ application was not maintainable.

           In response, learned counsel for the respondent submitted that though
    their stand before the High Court during the hearing of the Civil Revision
    was that the same was not maintainable, that does not appear to be a correct E
    stand. Nevertheless, merits were discussed and, therefore, the writ petition
    has been rightly dismissed.

         For appreciating rival stands, the scope and ambit of Section 115 CPC
    needs to be examined.
                                                                                        F
           "115. Revision. - (I) The High Court may call for the record of any
           case which has been decided by any Court subordinate to such High

-          Court and in which no appeal lies thereto, and if such subordinate
           Court appears -
          (a) to have exercised a jurisdiction not vested in it by law, or              G
          (b) to have failed to exercise a jurisdiction so vested, or
          (c) to have acted in the exercise of its jurisdiction illegally or with
              material irregularity,·
           the High Court may make each order in the case as it thinks fit:             H
    394                     SUPREME COURT REPORTS [2006) SUPP. 5 S.C.R.

A          Provided that the High Court shall not, under this section, vary or
           reverse any order made, or any order deciding an issue, in the course
           of a suit or other proceeding, except where the order, if it had been
           made in favour of the party applying for revision, would have finally
           disposed of the suit or other proceedings.

B             (2) The High Court shall not, under this section, vary or reverse
           any decree or order against which an appeal lies either to the High
           Court or to any Court subordinate thereto.

               (3) A revision shall not operate as a stay of suit or other proceeding
           before the Court except where such suit or other proceeding is stayed
C          by the High Court.

           Explanation. - Jn this section, the expression "any case which has
           been decided" includes any order made, or any order deciding an
           issue, in the course of a suit or other proceeding."

D         The proviso to sub-section (I) of Section 115 CPC is of relevance.

           The amendment to Section 115 CPC is based on the recommendations
    made by the Malimath Committee. The said Committee was of the opinion
    that the expression employed in Section 115 CPC which enables interference
    in revision on the ground that the order if allowed to stand would occasion
E   a failure of justice or cause irreparable injury to the parties against whom it
    was made, left open wide scope for exercise of powers with all types of
    interlocutory orders and this was substantially contributing towards delay in
    the disposal of cases. The Committee did not favour denuding the High Court
    of the power of revision, but strongly felt that the powers should be suitably
F   curtailed. The effect of the erstwhile clause (b) of the proviso was deleted
    and a new proviso has been inserted so that the revisional jurisdiction is
    substantially curtailed. A revisional jurisdiction cannot be exercised unless
    the requirement of the proviso is satisfied. It is thus clear that the proviso
    creates an embargo in exercise of revisional power.

G        These aspects have been highlighted in Surya Dev Rai v. Ram Chander
    Rai and Ors., [2003] 6 SCC 675.

          Judged in the aforesaid background the view of the learned Single
    Judge that the Civil Revision was not maintainable is clearly indefensible;.
    Learned counsel for the respondent has fairly conceded to this position. If it
H   is beld that the suit in terms of Section 92 CPC is not maintainable, that
          VIDYODAYA TRUSTv. MOHAN PRASAD R [PASAYAT, J.)                      395
would have the result of final disposal of the suit. However, the learned             A
counsel made an attempt to justify the order by stating that the matter was
also dealt with on merits. That would not improve the situation. The Civil
Revision was clearly maintainable. Therefore, we allow the appeal so far as
it relates to Civil Revision Petition No.1260/2003 disposed of by judgment
dated 5.2.2004 by the High Court. The said order is set aside.
                                                                                      B
      The High Court shall now to hear the Civil Revision on merits and
dispose of the same as expeditiously as practicable preferably within four
months from the date of receipt of our order. The time period is being fixed
considering the pendency of the matter for a considerable length of time.

       In view of the order passed in the appeal relating to Section 115 CPC          C
 no order is necessary to be passed in respect of the judgment in the writ
petition. It may be noted that the learned Single Judge observed that the Civil
Revision was maintainable and, therefore, declined to entertain the writ petition.
This order was passed on the face of the order passed by learned Single
Judge holding that it was not maintainable. The same, therefore, is not               D
justifiable. But it is not necessary to deal with that matter as the Civil Revision
shall be heard on merit.

       The appeals are accordingly disposed of with no order as to costs.

D.G.                                                       Appeals disposed of.