Whether Subordinate Judges' Courts Have Jurisdiction To Grant Leave, Try & Dispose Of Suit Filed U/S 92 CPC? Kerala HC Refers Issue To Larger Bench

Recently, the Kerala High Court expressed its doubt as to the validity of an earlier Single Judge decision in Sree Gurudeva Charitable and Educational Trust, Kayamkulam & Others v. K. Gopalakrishnan & Others, which had held that it was only the Principal District Judge which had the jurisdiction to grant leave for institution of a suit under Section 92 of the Code of Civil Procedure (CPC). 

On noting that the above decision does not lay down the correct position of law, Justice C.S. Dias was of the considered view that the question regarding whether the Court of the Subordinate Judge is competent to grant leave to institute a suit and, thereafter, to try and dispose of the suit under Section 92 of the Code of Civil Procedure 1908, was to be decided by a Bench of two or more Judges, and thus, directed the Registry to place the same before the Chief Justice who may take the appropriate decision in this regard if deemed necessary.

The instant petition before the High Court was a civil revision petition that had been filed against the leave granted by the Subordinate Judges for institution of suits under Section 92 of the CPC in two cases. 

When the revision petition was take up for consideration, the impugned orders of the subordinate judge granting leave to institute the suit under Section 92 CPC was assailed by the counsel for the Revision Petitioner, Advocate Manoj Ramswamy, and Advocate R.T. Pradeep, the counsel for the petitioners in O.P.(C)No.2148/2019, which had been filed in O.P. No.7/2017 of the Court of the Subordinate Judge, Attingal, on the ground that the same was contrary to the High Court of Kerala's Single Judge decision in Sree Gurudeva Charitable and Educational Trust, Kayamkulam & Others v. K. Gopalakrishnan & Others (Sree Gurudeva Charitable and Educational Trust case), wherein it had been held that the Additional District Court has no jurisdiction to grant leave to institute a suit under Section 92 of the Code, and it was only the Principal District Judge who could do so, as being unsustainable in law. The impugned orders of the court below were thus, challenged. 

On the other hand, it was contended by Advocate M.R. Rajesh, the counsel for the respondents in O.P.(C)No.2148/2019, and Senior Advocate S. Sreekumar, the counsel for the respondents in the civil revision petition, that the law laid down in Sree Gurudeva Charitable and Educational Trust case was not good law, in light of the earlier Division Judge Bench decision of the Kerala High Court in St. Peter's Orthodox Syrian Church v. Fr. Abraham Mathews. It was contended that in the latter case, it had been categorically laid down that both the District Courts, as well as the Subordinate Judge's Courts would have concurrent jurisdiction to grant leave under Section 92 of the Code, in the light of the notification dated 24.10.1966 issued by the Government of Kerala. Other precedents were also relied upon to contend that Principal Civil Courts of original jurisdiction in a District would include not only the Principal District Judge but the Additional District Judges as well.

The Court in its decision, took note of the prevailing position of Section 92 (1) of CPC post the 1976 amendment, whereby it had been made clear that suit could be instituted only after obtaining leave from the Court. 

Further, the Court also placed reliance upon the Kerala Government notification dated 24.10.1966, which had been brought to its notice by the counsels for the respondents, whereunder, it had been stipulated that, "a suit under Section 92 of the Code is permitted to be instituted in the Principal Civil Court of the original jurisdiction or in the Court of the Subordinate Judge". However, it was emphasized that the Courts of the Subordinate Judges were "only empowered to try and dispose of the cases filed under Section 92 of the Code". The question regarding whether 'grant of leave' would also come within its ambit was what perplexed the Court in this regard.

Sections 3 (2) and 4(1) of the Kerala Civil Courts Act, 1957, were also perused in order to ascertain the role of the Additional District Judge. It was thereby observed that, "the Additional District Judge is empowered to discharge all or any of the functions of the District Judge under the said Act". It was further observed that the Additional District Judge is appointed to the same District Court, where the District Judge is appointed, when the court's business requires an Additional District Judge", and also has, "all the powers of the District Judge, perhaps, except for administrative superintendence".

It was in this light that the Court opined that the law laid down in Sree Gurudeva Charitable and Educational Trust case was not correct and required a revisit. Since the question of whether grant of leave also came within the ambit of the Government notification was also left open by the Court, it was in this light that the Court found it appropriate that the questions were of substantial importance and could be considered by a Bench of two or more judges. 

Case Title: Pathanapuram Taluk Samajam & Ors. v. K.K. Surendran & Ors. 

Citation: 2022 LiveLaw (Ker) 459

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