Order Granting Leave Under Section 92 CPC Is Judicial Order And Amenable To Revisional Jurisdiction: Madras High Court

“I have respectfully taken a contra stand and hold that the order granting leave under Section 92 of CPC is a judicial order and not an administrative order and that it is amenable to revisional jurisdiction,” the court said.

Justice GR Swaminathan observed that the power of the court to grant leave under Section 92 was judicial as it was wielded by a Civil Court and the court had to exercise its discretion on objective grounds as the matter involved rights of parties.

“One can easily conclude that the power under Section 92 of CPC is judicial and not administrative. Firstly, the power is wielded by the civil Court. Obviously, there is a lis involved. Secondly, the civil Court has to exercise its discretion on objective grounds as the matter involves the rights of parties,” the court said.

As per Section 92 CPC, in case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the court is deemed necessary for the administration of any such trust, the Advocate General or two or more persons having interest in the trust and having obtained the leave of court may institute a suit.

In the present case, the court was hearing a civil revision petition challenging an order passed by the Principal District Judge, Thanjavur in an interlocutory application granting leave to persons to institute a suit for settling a scheme for administration of the Madha Trust.

The revision petitioners submitted that the IA could not have been allowed without impleading the Madha Trust and secondly, except from making averments, the applicants had failed to show how they were interest in the Trust.

The respondents (original applicants) however, argued that the civil revision petition was not maintainable and hence the court could not interfere in the same. It was pointed out that in a catena of judgments the Madras High Court had held that an order granting leave under Section 92 of CPC was merely an administrative order and not a judicial order and therefore it was not amenable to challenge in exercise of jurisdiction under Section 115 CPC or Article 227 of the Constitution.

The court noted that in the case of GR Govindarajulu & Sons Charities, & 2 others Vs. V.R.Sethurao and 12 Others, the Madras High Court had held that the order of granting leave, though was exercised by the court, it was not by a court of law as the court was discharging its administrative functions and not a judicial or quasi-judicial function. The court further noted that this view had been followed by the Madras High Court in its later judgments.

The court, however, also noted that three other High Courts had taken a different view than what was held in Govindrajulu's case. The court noted that in the case of Church of South India Vs. John, the Kerala High Court had observed that to say the order allowing or declining leave under Section 92 is an administrative order, not amenable to judicial review was per se wrong. Further the Karnataka High Court, in the case of Srimad Ujjaini Saddharma Vs.Sri S S Patil also dissented from the Govindrajulu case and held that the revision was maintainable. Similarly, in Kalinga Institute of Mining Engineering and Technology Trust (KIMET), Chhendipada, Angul and Ors. Vs. Bipin Bihari Behera and Ors, the Orissa High Court had held that an order passed under Section 92(1) of the CPC was a judicial order.

The court also noted that a 7-judge bench of the Supreme Court in the case of SBP & Co Vs Patel EngineeringLimited (2005) had distinguished between an administrative order and a judicial order. The court noted that when the discretion of the court would involve purely subjective consideration, it was an administrative order and when the discretion was objective, it was 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 court noted.

Applying this approach, the court concluded that an order under Section 92 is also a judicial order as the court exercises its discretion on objective ground on a lis between parties. The court also noted that unless an aggrieved person was allowed to challenge the order of granting leave by a revision petition, the fundamental error that may be committed by the court could not be corrected.

The court thus concluded that the Trust was a necessary party in the proceedings and in the present case, Madha trust was not impleaded. The court also noted that the District Judge had failed to note that the affidavit filed in support of the IA seeking leave was bald and did not set out the interest of the persons to maintain the suit.

Noting that the power of the court under Article 227 was to correct egregious errors committed by courts below, the court allowed the revision petition and set aside the order of the District Judge.

Counsel for the Petitioner: Mr.T.A.Ebenezer

Counsel for the Respondent: Mr.G.Karnan

Citation: 2024 LiveLaw (Mad) 401

Case Title: Rev.Fr.Savarimuthu and Others v V.S.Jeyapandi

Case No: C.R.P.(MD) No.808 of 2021