ORDER
1. This Revision is filed by the respondents 1 to 4 and 7 in I.A. No. 156 of 1989 in unnumbered O.S. of 1989. The said I.A. was filed by the respondents herein, seeking permission to institute the suit under Section 92 of the Code of Civil Procedure.
2. The reliefs prayed for in the proposed suit are :(1) For permission to the plaintiffs to institute and prosecute the suit in a representative capacity; (2) that a scheme to framed for proper management of the properties and the affairs of the plaintiffs’ community; (3) for a direction to the defendants to deliver possession of the suit property to the plaintiffs’ community represenled by its office bearers appointed under the Scheme or represented by the plaintiffs themselves; (4) for a direction to the defendants 1 to 3 to render a true and correct account of their management of the properties and affairs of the plaintiffs’ community, to the community respresented by its office-bearers appointed under a Scheme or represented by the plaintiffs; and (5) for other consequential reliefs.
3. In the proposed suit to be filed, the plaintiffs have sought for permission under Section 92 of the Code of Civil Procedure, which is a condition precedent for instituting the suit. The petitioners herein objected to the same.
4. By the impugned Order, the Court below allowed the Application. The Revision is filed under Section 115 of the Code of Civil Procedure, against the said Order.
5. Even though the Revision was numbered, and the respondents have entered appearance, when the Revision came up for final arguments, the Maintainability of the Revision under Section 115 of the Code of Civil Procedure was doubted, and arguments were heard regarding the same.
6. A Revision is maintainable to this Court only against any case which is decided by a Court Subordinate to this Court, against which no Appeal lies. Further, the Order of the Court must also be of the nature mentioned in sub-clauses (a), (b) and (c) of clause (1) of that Section. A reading of that Section makes it clear that, to exercise the power under Section 115 of the Code of Civil Procedure, the Court subordinate to it must be exercising the judicial power and it must be in respect of a case decided. There must be a decision, affecting rights of parties.
7. The question to be decided is, whether the grant of leave by the Court below will come under any of the provisions of Section 115 of the Code of Civil Procedure.
8. Originally, under Section 92 of the Code of Civil Procedure, the leave has to be given by the Advocate-General. As per Section 92, C.P.C., the Advocate-General himself may file a suit or be may grant permission to two or more persons having interest in the Trust, to institute a suit. In the place of ‘Advocate-General’, by virtue of Amendment in 1976, ‘Leave of the Court’ is substituted. The function of the Advocate-General, at the time of granting leave is neither judicial nor quasi-judicial, as has been held in so many cases. It is that function of the Advocate-General which is now given to Court by virtue of the Amendment.
9. In AIR 1966 SC 878 : (1966) 1 SCR 151 (Madappa v. Mahathadevaru), their Lord-ships held :–
“The main purpose of Section 92(1) is to give protection to public trusts of a charitable or religious nature from being subjected to harassment by suits being filed against them. That is why it provides that suits under that Section can only be filed either by the Advocate General or two or more persons having an interest in the trust with the consent in writing of the Advocate-General. The objection is that before the Advocate General files a suit or gives his consent for filing a suit, he would satisfy himself that there is a prima facie case either of breach of trust or of the necessity for obtaining directions of the Court.”
Their Lorships of the Apex Court decided the object of Section 92(1), C.P.C., and the reason why the Advocate-General’s permission is to be granted.
10. Even before the Supreme Court decided the case in AIR 1966 SC 878 : (1966) 2 SCR 151 (supra), in AIR 1955 All 372 (Shantanand v. Advocate-General), the question as to the duties of the Advocate-General and whether he is action as ajudicial or quasi-judicial authority, was considered. The Bench of the Allahabad High Court held that ‘The Act of the Advocate-General in giving his consent to the institution of a suit under Section 92, C.P.C. cannot be called a quasi-judicial act. It is merely an administrative or executive act’. While deciding that case, their Lordships held thus :
“Section 92, or any other provision, of the Civil Procedure Code does not require the Advocate-General to hold any enquiry or to give an opportunity to the party to be affected of being heard. The rules framed for the guidance of the Advocate-General which are contained in the Legal Rememrancer’s Manual, even if they are treated as statutory rules, do not make it incumbent upon the Advocate-General in all cases to give an opportunity to the party concerned of being heard. Further, the Advocate-General is not bound by the rules to act upon the report of the District Officer or to give his consent
only on the basis of the facts and circum
stances as determined upon the enquiry. He is
at liberty to act upon his own pure discretion
in spite of the report of the District Officer.
Where an officer or other authority is not
bound by any rule of law to hold an enquiry
and to act strictly in accordance with the facts
and circumstances of the case as they appear
upon the enquiry, he cannot be said to be
acting judicially or quasi-judically. Even
where he is directed to hold an enquiry — but
where he is not bound to act in accordance
with the facts and circumstances of the case
–he merely acts in an executive or administrative manner (Para 9)
Again, a judicial or quasi-judicial act must involve a decision as to the rights of the parties and must affect the interests of one or the other of the parties. In giving his consent under Section 92, C.P.C., the Advocate-General is not expected to decide the rights of the contending parties. Even if he has to hold an enquiry, he is merely to see whether there is a ‘prima facie’ case that should be allowed to go to a Court of law. When he gives his consent to the institution of a suit, he does nothing more than this. By the consent which he gives for the institution of the suit, he does not affect the rights of the person against whom the suit is filed. That person has full opportunity to present his case before the Court in which the suit is filed. The Court is not to be influenced in deciding the case by the fact that the Advocate-General has given his consent to the institution of the suit. It is, therefore, not a case in which there is any decision about a dispute or a claim. (Para 10)
It may be that the Advocate-General will always be all advised to hold an enquiry either himself or through the District Officer as required by the rules after giving notice to the proposed defendants to the suit and to give his consent only when he finds a ‘prama facie’ case made out for the institution of the proposed suit. But this is merely a directive which can be said to be desirable and cannot be said to be binding as matter of law…..
(Para 11)”
11. In AIR 1955 Raj 166 : ILR (1955) 5 Raj 324 (Shrimali Lal v. Advocate-General),
the question that came up for consideration was, whether a writ can be issued under Article 226 or 227 of the Constitution of India against an Order of the Advocate-General while acting under Section 92. C.P.C. Wan-choo, C. J. (as he then was), held thus :
“….. this function of the Advocate-General cannot be called a Judicial or quasi-judicial function under the circumstances, and there is no question of revising it under Art. 227, or issuing a writ under Art. 226 compelling him to do this, that or the other.”
In this connection, it is worthwhile to note that there the Advocate-General himself instituted the suit. Permission is required only when two or more persons interested in the Trust file a suit. So, really the Advocate-General, by virtue of the sanction, only delegates his authority for instituting the suit. It is a suit by the Advocate-General himself.
12. In AIR 1961 Madras 244 : ILR (1961) Mad 493 (K. M. Abdul Kasim v. P. M. N. Mohamed Dawood), the question was, whether, under the Muslim Wakfs Act 1954, the decision of the Wakf Board as to filing of suit itself or granting consent to another to file suit, is a judicial or quasi-judicial function. While holding that the Wakf Board is execising only an administrative power, this Court held thus :–
“The decision of the Board to file or not to file a suit itself, that is, to exercise or not to exercise a statutory right given to it by Section 55(1) of the Act or to sanction or withhold sanction under Section 55(2) to another person to file a suit is not equivalent to a judicial or quasi-judicial decision affecting the rights of parties. The decision to permit another to file a suit is an administrative act and is outside the purvies of correction by the issue of a writ of certiorari…..”
13. In AIR 1962 Madras 320 : ILR (1962) Mad 722 (Raju v. Advocate-General, H. C. Buildings, Madras) also, the question arose whether a writ will lie against the Order of the Advocate-General, and it was held that no writ will lie. It was further held thus:
“The Advocate-General is a limb of the Executive qua his official capacity. The power to give or withhold consent to actions in regard to public nuisance and in regard to public trust under Sections 91 and 92 of the C.P. Code is a statutory power.”
The learned Judge further held, “The exercise of the power or the discharge of a duty as a guardian of the trust to promote its interests or to shield it from vexatious actions, which is all that is called for under Section 92, C.P. Code, cannot amount to the performance of a judicial function’. The Learned Judge further held as follows :
“The granting or refusing consent by the Advocate-General under Section 92, C.P.C. is no Judicial determination of any legal rights of the parties to the intended action. All the questions in controversy between the parties to such an action have to be decided only by the Court which entertains the suit. The relators who approach the Advocate-General for sanction to institute a suit under Section 92 have no right to institute the suit without the consent of the Advocate-General. The Advocate-General himself may institute the suit claiming the reliefs provided for under Section 92, C.P.C. When the relators get his sanction and file the suit it is virtually the suit instituted by the Advocate-General himself. The nature and character of the suit is the same, whether the Advocate-General is eo nomine a party tot he suit or permits other persons interested in the trust to file the suit. This is purely a matter of procedure. That being so it is impossible to hold that the act of the Advocate-General permitting two or more interested persons to launch a suit against the trust or refusing such consent to them can amount to discharge of a judicial function.”
14. In AIR 1975 Kerala 57 : ILR (1976) 1 Ker 130 (Mayer Simon v. Advocate-General, Kerala), give judges of that Court held that the Advocate-General dose not act as a quasi-judicial authority in granting or refusing consent under Section 92(1), C.P.C. It was further held in that case that the satisfaction of the Advocate-General cannot be characterised as purely subjective satisfaction. The Advocate-General is given the power either to
institute the suit or to grant permission to institute a suit, in order to safeguard the public trust. According to their Lordships, it is the duty of the State to protect the interest of the Trusts.
15. An argument was taken before that Court that while granting permission, all the persons who are likely to be impleaded in the suit as defendants, are likely to be affected, and they will be prejudiced by granting the sanction. The said contention was also repelled by their Lordships, holding that no one has a right to say that no suit should be filed against him. It was further held that if the Advocate-General does not seek any sanction, when he delegates certain functions to persons interested in the Trust, a sanction by itself will not be affecting any one’s rights. It was further held that the Advocate-General does not determine any question that will affect the rights of parties. It will be open to the defendants to raise all contentions that they have raised before the Advocate-General, or even all the contentions that are available to them in the action. None of their rights is affected by the consent granted by the Advocate-General. The inconvenience and temporary expenses caused by a suit being filed against such persons cannot be said to be such a prejudice which will enable those who opposed the grant of consent to sustain a petition under Article 226 of the Constitution. It is after the abovesaid decision, the Civil Procedure Code was amended, and the functions of the Advocate-General have now been given to the Court, The reason for the amendement and entrusting the power to Court, has not changed the character of the Order. The function that has been given now to the Court is also only a delegation of the power of the Advocate-General to the persons interested in the Trust.
16. Mulla on the Code of Civil Procedure 14th Edition, at page 534, has stated thus:–
“….. The mere fact that the amended section now requires leave of the Court in place of consent by the Advocate-General does not seem to change the nature of the order of leave made by the Court. In making such an order the Court, like the Advocate-General earlier, would no doubt have to apply its mind but that is only to satisfy itself whether the persons asking leave have interest in the trust, whether the trust is a public trust specified in the section and whether there are prima facie grounds for thinking that there has been a breach of the trust. At that stage the Court would not have before it all the parties to the proposed suit nor the evidence from which it would be called up on to adjudicate any issue. All that it would have to see is whether it is in the interest of the trust to file the suit for which leave is sought.”
17. After the Amendment also, all the Courts have held that the function of the Court, while exercising the power under Section 92, C.P.C., is not a decision affecting the rights of parties.
18. In AIR 1983 Kerala 5 : 1982 KLT 493 (Mathew v. Thomas), a Bench of that Court held thus :
“While exercising its power under Section 92(1) the Court will be guided by the principles laid down by judicial decisions to regulate the power of the Advocate-General under the sub-section…..”
It was further held in that case thus :
“…..The Court can, if it is so satisfied,
grant the leave without issuing notice to the respondent-defendants or bearing them. Section 92(1) does not provide for the grant of interim leave to the plaintiffs. What it contemplates is only the grant of leave and as a corollary the refusal of leave. On the terms of Section 92(1) the leave is to precede the institution of the suit as the relevant words are “two or more persons…. having obtained the
leave of the court may institute a suit.”
Their Lordships held in that case that the principles enunciated in AIR 1975 Kerala 57 : ILR (1975) 1 Ker 130 (supra) will apply even after the amendment of the Civil Procedure Code.
19. In AIR 1987 Punjab and Haryana 108 : ILR (1987) 2 P & H 192 Lachhman Dass Udasi v. Ranjit Singh), a Bench of that Court held that notice is not necessary to the
defendants before granting leave, and the Order passed by the Court is purely administrative in nature. It is only the satisfaction of the Court that is required for passing an Order. The leave is to be granted on the allegations made in the plaint to be filed in Court and not on seeking the averments made in written statement. Even the presence of the defendants is not needed at the time of the granting of the leave, and. therefore, no notice to them was necessary at that stage.
20. In AIR 1989 All 194 : 1988 All-LJ 758 (Ambrish kumar Singh v. Raja Abhushan Bran Bramhshah), the learned Judge of that High Court also concurred with the opinion slated above. The learned Judge held that the function of the Court at the time of granting or refusing to grant leave, is purely administrative.
21. In AIR 1991 SC 221 : 1990 (2) L. W 468 (R. M. Narayana Chettiar v. N. Laksh-manan Chettiar), the Apex Court had the occasion to consider the question whether a leave granted without notice to the defendants is a nullity, and what is the effect of the said Order.
22. While considering the question, their Lordships took note of various decisions of several High Courts and came to the following conclusion :–
“The legislative history of S. 92 of the Code indicates that one of the objects which led to the enactment of the said section was to enable two or more persons interested in any trust created for a public purpose of a charitable or religious nature should be enabled to file a suit for the reliefs set out in the said section without having to join all the beneficiaries since it would be highly inconvenient and impracticable for alt the beneficiaries to join in the suit; hence any two or more of them were given the right to institute a suit for the reliefs mentioned in the said S. 92 of the Code. However, it was considered desirable to prevent a public trust from being harassed or put to legal expenses by reckless or frivolous suits being brought against the trustees and hence, a provision was made for leave of the court having to be obtained before the suit is instituted.”
Paragraphs 13 and 14 of the said decision read as follows:
“A plain reading of S. 92 of the Code indicates that leave of the Court is a precondition or a condition, precedent for the institution of a suit against a public trust for the reliefs set out in the said section; unless all the beneficiaries join in instituting the suit, if such a suit is instituted without leave, it would not be maintainable at all. Having in mind, the objective underlying S. 92 and the language thereof, it appears to us that, as a rule of caution, the court should normally, unless it is impracticable or inconvenient to do so, give a notice to the proposed defendants before granting leave under S. 92 to institute a suit. The defendants could bring to the notice of the court for instance that the allegations made in the plaint are frivolous or reckless. Apart from this, they could, in a given case, point out that the persons who are applying for leave under S. 92 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. The desirability of such notice being given to the defendants, however, cannot be regarded as a statutory requirement to be complied with before leave under S. 92 can be granted as that would lead to unnecessary delay and, in a given case, cause considerable loss to the public trust. Such a construction of the provisions of S. 92 of the Code would render it difficult for the beneficiaries of a public trust to obtain urgent interim orders from the court even though the circumstances might warrant such relief being granted. Keeping in mind these considerations, in our opinion, although, as a rule of caution, the 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. The grant of leave cannot be regarded as defeating or even seriously prejudicing any right of the pro-
posed 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.
We may mention that although clause (ffa) of S. 104(1) of the Code provides that an appeal shall lie against the refusal of grant :”f leave, that cannot lead to the conclusion that it is obligatory on the part of the court to give notice to the proposed defendants before granting leave because an appeal lies only against the refusal of leave and not against the grant of leave. Before refusing leave the proposed plaintiffs are bound to be heard and it is the plaintiffs and not to the defendants who could be prejudiced by refusal to grant such leave.”
23. From the decision of the Apex Court, it is clear that no notice to the proposed defendants is necessary and that the same will not invalidate the Order. So, the power is given to the Court even without notice to the counter-petitioner. The function of a court, as already stated, is to decide the rights of the parties after hearing them. But, when the Court is given the power to pass an Order without notice to the defendant, it follows that it is not exercising the power of a Court as ordinarily understood, but only that power which was exercised by the Advocate-General before 1976.
24. In this connection, it is worthwhile to note that their Lordships have considered the correctness of the decision reported in AIR 1984 Delhi 39 (Gurdwara Prabhandhak Committee, Delhi Cantonment v. Amarjit Singh Sabharwal). In paragraph 11 of the Judgment in 1990 (2) L W 469 : AIR 1991 SC 221 (supra), the Apex Court has held that an Order passed by a Court need not be a speaking Order with reasons. In the case of Gurdwara Prabhandhak Committee (referred to supra), the learned single Judge of the Delhi High Court has taken the view that ‘to pass a non-speaking order in a judicial proceeding is also a material irregularity and revision would lie against such an irregularity. The granting or refusing leave is a judicial order subject to revision or appeal and it must be supported by reasons’. It was, after taking into consideration the Delhi High Court’s Judgment (supra), the Apex Court has held that no notice to the proposed defendants is required, though it is desirable. An Order passed without notice to them is not invalid. In fact, the Apex Court was considering the correctness of the decision of this Court in Revision Petitions Nos. 517 and 518 of 1989 where this Court had held that an Order passed without notice to the proposed defendants is invalid. That decision was reversed by the Apex Court in that case.
25. Taking into consideration the law enunciated by the Apex Court and various High Courts, it is cleat that while refusing to grant sanction to institute a suit or otherwise, the Court is not deciding the rights of parties and that the function which was being done by the Advocate-General till 1976 is being vested with the Court now. The effect is, though it is an Order of the Court, it is not discharging a judicial or quasi-judicial function. It only authorises a party to institute a suit in the place of the Advocate-General. The effect is, whether the Advocate-General instituted the suit, or the authorised persons institute the suit, the rights of the proposed defendants are not affected the rights of the parties are also not determined. If no rights of the parties are affected, and there is no decision rendered by the Court, it follows that it is not a case decided, and hence a revision under S. 115 of the Code of Civil Procedure is not maintainable.
26. The learned counsel for the petitioners brought to my notice the decision reported in 1993 TLNJ 341 (M. Anandan v. Ayyanna Gounder Memorial Trust). A Division Bench of this Court (in L.P.A. No. 93 of 1993) was considering the scope whether any interim order could be passed before granting leave under S. 92, C.P.C. This Court held that before granting leave, the Court cannot proceed to pass interim order, except in cases of appointment of receivers, because there is no suit in the eye of law. The said decision also supports the inference stated above. Before grant of leave, there cannot be any suit. Only in the suit, the rights of parties can be determined. The decision in the said appeal
also does not support the case of the petitioners in any way.
27. I will be failing in ray duty if I do not make mention in a few words about Mr. R. Subramaniam, learned counsel for the petitioners who analysed the entire case-law on the point and assisted the Court ably.
28. The Court below has found that sufficient reasons have been made out by the respondents herein for the grant of leave. In either way, no interference is called for. Hence the civil revision petition is dismissed. No costs.
29. Revision dismissed.