IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 180 of 2009()
1. NEENDAKARA SREESAKTHI SWATHANTHRA NAIR
... Petitioner
2. HARIHARAN PILLAI, S/O.NARAYANAN PILLAI,
3. SASIDHARAN PILLAI, AGED 51 YEARS,
4. SASIDHARAN PILLAI, AGED 56 YEARS,
5. KRISHNANKUTTY KURUP, AGED 53 YEARS,
6. VISWAMBARAN PILLAI, AGED 46 YEARS,
7. MANMADHAN PILLAI, AGED 43 YEARS,
8. SANTHOSH KUMAR, AGED 39 YEARS,
9. KRISHNAKUMAR, AGED 35 YEARS,
10. SIVANKUTTY PILLAI, AGED 36 YEARS,
11. UDAYAKUMAR, AGED 37 YEARS,
12. BABYKUTTAN PILLAI, AGED 43 YEARS,
Vs
1. VISHNUBHAKTHAN PILLAI, AGED 59 YEARS,
... Respondent
2. VIJAYAKUMAR, AGED 50 YEARS,
3. RAJAN PILLAI, AGED 58 YEARS,
4. SREEKANDAN PILLAI, AGED 48 YEARS,
5. SASIDHARAN PILLAI, AGED 57 YEARS,
6. HRISIKESAN NAIR, AGED 58 YEARS,
7. BABURAJAN PILLAI, AGED 51 YEARS,
8. SURENDRAN PILLAI, S/O.NARAYANA PILLAI,
9. VIKRAMAN PILLAI, AGED 48 YEARS,
10. VENUGOPAL, AGED 43 YEARS,
11. LATHESAN PILLAI, S/O.KRISHNA PILLAI,
12. N.RADHAKRISHNAN PILLAI, AGED 67 YEARS,
13. V.DAMODHARAN PILLAI, AGED 66 YEARS,
For Petitioner :SRI.P.B.SURESH KUMAR
For Respondent :SRI.V.V.RAJA
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :30/11/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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C.R.P.NO.180 OF 2009 (E)
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Dated this the 30th day of November, 2009
O R D E R
Leave granted to the respondents to institute a suit
under Section 92 of the Code of Civil Procedure in respect of
the 1st petitioner, which is claimed to be a public trust, is
challenged by the petitioners contending that it is not a public
trust but a private trust. The 1st revision petitioner/1st
respondent in the original petition, namely Neendakara
Sreesakthi Swathanthra Nair Karayogam is functioning at
Neendakara and carrying out various activities in accordance
with a registered bye-law constituted in the year 1105.
Whereas, the petitioners in the original petition have a case
that even before the constitution of the registered
bye-laws, a public trust was in existence and to regulate its
activities, a bye-law had been constituted in the year 1092 and
later in 1105, and at present, the provisions thereof are
ineffective and also that there is malfeasance and misfeasance
CRP.180/09 2
by those in management of the Karayogam, necessitating the
intervention of the court to frame a scheme and other allied
reliefs, the respondents in the petition dispute even the status
of the Karayogam as a public trust. The learned District
Judge, after going through the allegations in the plaint and
taking note of the objections raised by the respondents/
petitioners herein, came to the conclusion that at the stage of
granting leave for permission to institute the suit, only the
plaint allegations need be gone into and a meticulous scrutiny
and consideration on disputed questions is not at all
necessary. It was also observed that in the grant of leave,
notice to the respondents is also not essential, and the
question of leave need be looked into on the allegations raised
in the plaint. In that view of the matter and after satisfied
from the allegations canvassed by the respondents in their
copy of the plaint produced with the original petition, leave
was granted for instituting the suit under Section 92 of the
CPC. Propriety and correctness of that decision is challenged
in the revision.
CRP.180/09 3
2. The learned counsel for the petitioners/respondents 1,
2, 4 to 11 and 13 and 14, inviting my attention to the
registered bye-laws of the 1st petitioner contended that the
provisions made thereunder clearly and demonstrably disclose
beyond doubt that the members of the trust are ascertainable
and limited. In a case where members are ascertainable the
trust constituted can never be considered as a public trust, but
only a private trust, submits the counsel. My attention has
also been invited to the allegations raised in the plaint
wherein also the provisions of the bye-laws have been
reproduced in extenso stating that such provisions are binding
on the trust, but they have become ineffective over efflux of
time. Without examining the bye-laws, which alone was
produced with the petition, the court below had jumped into
the conclusion that the allegations made out in the petition
make out a case that the reliefs are claimed in respect of a
public trust, according to the counsel. In fact the allegations
set out in the plaint militate against the case canvassed by the
petitioners in the original petition, according to the counsel
for the respondents, as to the character of the 1st respondent
CRP.180/09 4
as a public trust. So much so, the matter requires a
reconsideration, after setting aside the impugned order, is the
submission of the counsel. On the other hand, the learned
counsel appearing for the respondents submitted that even in
the objections raised by the respondents, no case was
canvassed disputing the character of the 1st respondent as a
public trust, which was specifically alleged in the original
petition and also in the copy of the plaint. The case of the
respondents/petitioners in the original petition, according to
the counsel is that even before the registration of the bye-laws
in 1092 and 1105, the 1st respondent trust was in existence
and by registration of the bye-laws, only guidelines have been
formulated for its governance and that will no way change the
character of that body as a public trust. So much so, it is the
submission of the counsel that no interference with the order
passed by the learned District Judge is called for in exercise of
the revisional jurisdiction vested with this Court.
3. Perusing the impugned order with reference to the
submissions made by the counsel on both sides, I find it may
CRP.180/09 5
be inappropriate for this Court in exercise of the revisional
jurisdiction to determine the character of the 1st respondent as
a public trust or not on the basis of the registered bye-laws of
1105, which is banked upon by the learned counsel for the
petitioners to contend that it discloses that the 1st respondent
is a private trust. By grant of leave, no question is finally
adjudicated and whatever challenges the petitioners
(respondents in the original petition) have against the case
advanced by the respondents (petitioners in the original
petition) including a challenge as to whether the 1st
respondent is a public trust or not is open for adjudication in
the suit. So much so, no prejudice or injury is caused to the
respondents at this stage by the grant of leave accorded by
the court on its prima facie satisfaction that the 1st respondent
is a public trust. The respondents in their objections have also
not raised specifically a dispute challenging the character of
the 1st respondent as a public trust has also got some decisive
effect in the decision rendered by the court, which of course,
I make it clear will not preclude them from canvassing that
challenge in the trial of the suit. On the facts and
CRP.180/09 6
circumstances presented, I find no interference with the
impugned order passed by the learned District Judge is called
for, and the revision is accordingly dismissed.
S.S.SATHEESACHANDRAN
JUDGE
prp