# Ashok Kumar Awasthi & Anr. Revisionists v. Sri Morar Bhai Thakkar & Ors

- **Citation:** (2021) 11 ILRA 1297
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2018-06-20
- **Case number:** Civil Revision No. 139 of 2019
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashok-kumar-awasthi-anr-revisionists-v-sri-morar-bhai-thakkar-ors-46547
- **Pages:** 5

## Headnote

Civil Procedure Code,1908 - Sections 92 & 115
- Public Charities - Suit against public trust -
Leave to file suit - Grant of - revision u/s 115
CPC against order granting leave under Section
92 CPC - Held - an order granting leave under
Section 92 CPC is not revisable since an order
does not decide any rights of parties and is
made at the stage before the suit comes into
being - it is open to the revisionist to apply for
revocation of leave to the Court that has made
the order impugned and if that application is
made, the Trial Court would be bound to
1298 INDIAN LAW REPORTS ALLAHABAD SERIES
dispose of that application on merits before
proceeding with the suit (Para 12)

Dismissed. (E-5)

List of Cases cited:

## Text

11 All. Ashok Kumar Awasthi & Anr. Vs. Sri Morar Bhai Thakkar & Ors.
1297
have to be transferred to the Waqf Tribunal for
adjudication, but, in a case where the decree has
been passed and execution is going on before the
civil court, the question to be considered was as
to whether the Tribunal has power to execute
such decree which as stated hereinabove it does
not have, but, this aspect of the matter was not
considered. No doubt the order dated 17.02.2018
was not challenged by the respondents herein
but then the question involved herein is one of
the jurisdiction and merely because it was not, it
can not confer jurisdiction upon the Tribunal to
execute the decree dated 20.01.2001. In this
view of the matter we hold that the Tribunal was
justified and correct in transferring the records
of Execution Case No. 4 of 1981 back to the
civil court for execution by its order dated
20.06.2018, which does not suffer from any
error.

18. Whether the civil court had jurisdiction
to pass the decree dated 20.01.2001 or not was
raised an objection by the revisionist-Mutawalli
under Section 47 CPC before the civil court
when the decree was being executed by it and
the same has already been rejected, against
which a petition under Article 227 of the
Constitution of India is pending, therefore,
subject to whatever orders have been passed in
those proceedings under Article 227 of the
Constitution of India or which may be passed
hereinafter, this Court is of the opinion that there
is no jurisdictional error whatsoever in the order
dated 20.06.2018 passed by the Waqf Tribunal,
as, it is the civil court which passed the decree
which has the jurisdiction to execute it.

19. The Court asked the learned counsel as
to what is the practice for the parties in the Waqf
Tribunal whether the decisions taken by it are
executed by it or sent to the civil court learned
counsel very fairly informed the Court that they
are sent to the civil court for execution but also
sated that the civil court does not execute the
same for some reason. The Court has now
cleared the legal position, therefore, hopefully
this will be adhered.

20. Seciton 37 will not come in the way of
exectuion of decisons taken by the Waqf
Tribunal which has the force of decree of a civil
court under Sub-section (7) of Section 83 in
view of the specific stipulation contained in
Section 83(8) of the Act, 1995 which has been
discussed hereinabove and the civil court will be
obliged to execute such decisions of the Waqf
Tribunal, if they are sent for execution.

21.

The
revision
is,
accordingly,
dismissed.
----------
(2021)12ILR A1297
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.11.2021

BEFORE

THE HON'BLE J.J. MUNIR, J.

Civil Revision No. 139 of 2019

Ashok Kumar Awasthi & Anr. ...Revisionists
Versus
Sri Morar Bhai Thakkar & Ors. ...Respondents

Counsel for the Revisionists:
Sri Harsh Vikram, Sri Dharm Vir Jaiswal

Counsel for the Respondents:
Sri Hari Manish Bahadur Sinha

Civil Procedure Code,1908 - Sections 92 & 115
- Public Charities - Suit against public trust -
Leave to file suit - Grant of - revision u/s 115
CPC against order granting leave under Section
92 CPC - Held - an order granting leave under
Section 92 CPC is not revisable since an order
does not decide any rights of parties and is
made at the stage before the suit comes into
being - it is open to the revisionist to apply for
revocation of leave to the Court that has made
the order impugned and if that application is
made, the Trial Court would be bound to
1298 INDIAN LAW REPORTS ALLAHABAD SERIES
dispose of that application on merits before
proceeding with the suit (Para 12)

Dismissed. (E-5)

List of Cases cited:

1. Ghat Talab Kaulan Wala Vs Baba Gopal Dass Chela
Surti Dass (Dead) by LR Ram Niwas, (2020) 13 SCC
50

2. B.S. Adityan & ors. Vs B. Ramachandran Adityan &
ors., (2004) 9 SCC 720

3. Ambrish Kumar Singh Vs Raja Abhushan Bran
Bramhshah & ors. AIR 1989 All 194

4. G.R. Govindarajulu & Sons Charities, Coimbatore &
ors. Vs R. Sethurao & ors., 1998 SCC OnLine Mad 292

5. Mahant Sita Ram Das & anr. Vs Ram Chandra
Arora & ors., 1988 ALL. L.J. 259

6. Raju Pillai & ors. Vs P. Paramasivan & ors., AIR
1995 MAD 253

(Delivered by Hon'ble J.J. Munir, J.)

1. In this case, Mr. H.M.B. Sinha, learned
Counsel for the respondents has raised a
preliminary objection in opposition to the
motion to admit this revision to hearing. He says
that this revision is not maintainable. Mr. Sinha
submits that the order impugned is an order
granting leave under Section 92 of the Code of
Civil Procedure (for short, ''CPC'), which is
revisable. According to him, it is almost an
administrative order and a matter between the
applicant for leave and the Court. Therefore, the
revisionists, who are opposite parties nos.4 and 5
to the Application under Section 92 CPC, are not
entitled to maintain this revision. They can
contest the suit, that comes into existence upon
grant of leave by the order impugned.

2. Reliance has been placed by the learned
Counsel for the respondents upon the decision of
the Supreme Court in Ghat Talab Kaulan
Wala v. Baba Gopal Dass Chela Surti Dass
(Dead) by LR Ram Niwas, (2020) 13 SCC 50
and particularly upon the decision of their
Lordships of the Supreme Court in B.S. Adityan
and others v. B. Ramachandran Adityan and
others, (2004) 9 SCC 720.

3. Learned Counsel has also drawn the
attention of this Court to a decision of our Court
in Ambrish Kumar Singh vs. Raja Abhushan
Bran Bramhshah and others, AIR 1989 All
194. Also, relied upon by the learned Counsel
for the respondents, to say that this revision is
not maintainable is the decision of the Madras
High Court in G.R. Govindarajulu and Sons
Charities, Coimbatore and 2 others v. R.
Sethurao and 12 others, 1998 SCC OnLine
Mad 292.

4. On the other hand, learned Counsel for
the revisionists, Mr. Dharm Vir Jaiswal, has
submitted that the objection as to maintainability
is ill-founded. He submits that the general
principle that an order granting leave under
Section 92 CPC is not revisable may be true, but
not in a case, where the grant of leave would
amount to an abuse of process of Court. He
particularly submits that relating to this trust an
earlier suit being Original Suit no.8 of 1995,
under Section 92 CPC was instituted by the
revisionist, seeking to frame a scheme for the
management of the trust and to appoint him a
trustee. He has been appointed as the Chief
Trustee by virtue of the decree dated 24.12.2001
passed in O.S. no.8 of 1995, which too is a class
action with a judgment that binds all persons
holding an interest in the instant public religious
trust. The decree there has appointed the
revisionist as the Chief Trustee and the
Sarvarakar, besides Brahmadatt Mishra, Gyan
Prakash, Vimal Chandra Awasthi and B.L.
Narang as the other trustees.

5. In this background, if fresh leave under
Section 92 CPC were granted, it would amount
to a parallel invocation of the Court's
11 All. Ashok Kumar Awasthi & Anr. Vs. Sri Morar Bhai Thakkar & Ors.
1299
jurisdiction under Section 92 CPC, where it has
already been invoked and a scheme for the
management of the trust is in force. If the
respondents, who have applied for leave feel that
the revisionists or the other trustees are abusing
their office or mismanaging the affairs of the
trust, they can apply to the Court that passed the
decree dated 24.12.2001 in O.S. no.8 of 1995 to
remove them and appoint other trustees, or may
be for a modification of the scheme to manage
the trust. In no case, however, leave could be
granted afresh under Section 92 CPC in respect
of same trust, where the said jurisdiction has
been once exercised by the Court. The exercise
of powers, therefore, is an utter abuse of process
of Court and the impugned order deserves to be
set aside.

6. I have considered the rival submissions.
It is true that the power under Section 92 CPC in
respect of the same trust is exerciseable once
and is not to be invoked by a fresh suit over and
over again. A decree under Section 92 is the
result of a class action, where those who apply
for leave and become plaintiffs represent a class
of persons, all of whom are bound by the
outcome. Once the Court frames a scheme or
appoints a Board of Trustees, it is always open
to one of the represented community or class to
come forward and apply to the same Court to
remove the trustees, about whom it can be
shown that they are abusing their position or
misusing the office or mismanaging the affairs
of the trust. A modification of the scheme can
also be made by the Court that has once
exercised jurisdiction; and, depending on the
circumstances obtaining a new scheme may also
be framed. But, the question is whether a
Revision again an order granting leave, even in
the background of an existing decree relating to
the same trust passed by the Court under Section
92 CPC, is maintainable. It is true that an order
passed on an application under Section 92 CPC
is not required to be an speaking order though it
should disclose application of mind.

7. This Court in Mahant Sita Ram Das
and another vs. Ram Chandra Arora and
others, 1988 ALL. L.J. 259, held:

"4. It has now to be seen as to
whether the District Judge while granting
leave under section 92 C.P.C. has to pass a
detailed speaking order. It is true that the
order granting leave by the District Judge is a
judicial order and should indicate that the
District Judge applied his mind before
granting leave. However, as rights of the
parties are not affected, it is not necessary to
pass detailed order but it would suffice if the
order indicates that it has been passed by the
District Judge after due application of mind."

8. Of particular relevance to the issue are
the remarks of their Lordships of the Supreme
Court in B.S. Adityan and others (supra),
where it is said:

"9. ......... Although as a rule of
caution, 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. Grant
of leave cannot be regarded as defeating or even
seriously prejudicing any right of the proposed
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 or even in the course of suit
which may be established that the suit does not
fall within the scope of Section 92 CPC. In that
view of the matter, we do not think, there is any
reason for us to interfere with the order made by
the High Court."

9. In Ambrish Kumar Singh (supra), it
was held by this Court, thus:
1300 INDIAN LAW REPORTS ALLAHABAD SERIES

"11. So far as Section 92, Civil
Procedure Code is concerned it does not
contemplate of giving any notice to the proposed
defendants before granting leave. However, it
has been held by the decision of this Court
reported in 1987 All LJ 369, Mahanth Gurmukh
Das v. Bhupal Singh, that the proceedings under
S.92, C.P.C. are judicial proceedings and the
order of the District Judge is a judicial order.
The Court should pass the order after hearing the
defendants. It is not necessary to pass a detailed
order. It is sufficient if the order indicates that it
is the result of the due application of mind of the
Judge. May be that he has not written very
elaborate order which in my opinion it was
actually not needed. There is application of
mind. Moreover, I see no jurisdictional error or
illegal exercise of jurisdiction."

10. The Madras High Court in Raju Pillai
and others v. V. P. Paramasivan and others,
AIR 1995 MAD 253 after an extensive review
of authorities about the maintainability of a
revision against an order granting leave under
Section 92 CPC held:

"25. Taking into consideration the law
enunciated by the Apex Court and various High
Courts, it is clear 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."

11. Yet again, in the case of G.R.
Govindarajulu and Sons Charities (supra), it
has been held by the Madras High Court that a
revision against an order granting leave is not
maintainable. In the aforesaid decision, it has
been held:

"15. In a recent decision of our High
Court in Tirupattur Nagarathu Vysiyargal
Sangam v. Tirupattur Periyakulam Nandavanam
Inam Land tenants Association (1998 1 M.L.J.
303) Their Lordships held that the leave granted
even without hearing the proposed defendant is
not justifiable under Section 115 of the Code of
Civil Procedure.

16. I also had an occasion to consider a
similar question in Raju Pillai and 4 others v.
V.P. Paramasivam and 7 others (1995 1 L.W.
518) wherein I have held that a revision under
Section 115 of the Code of Civil Procedure or a
revision under Article 227 of the Constitution of
India is not maintainable.

17. In this connection, it is worthwhile
to note that in all these decisions cited supra
reference is made to the decision of Supreme
Court in R.M. Narayana Chettiar v. N.
Lakshmana Chettiar (A.I.R. 1991 S.C. 221 =
1990 2 L.W. 468) Their Lordships, in para 17 of
the judgment have held that the grant of leave is
a condition precedent against a public trust.
Their Lordships further said that merely because
notices were not given to the proposed
defendents before the grant of leave, the leave
granted will not become invalid or void.
Likewise if no rreason in the order is given, that
will not make the leave invalid and there is
remedy in such cases. Their Lordships also held
that grant of leave cannot be regarded as
defeating or even seriously prejudicing any right
of the proposed defendents because it is always
11 All. Smt. Anita & Ors. Vs. Iffco Tokio General Insurance Co. Ltd. & Anr.
1301
open to them to file an application for revocation
of the leave which can be considered on merits
and according to law.

18. Considering the case law, it cannot
be doubted that this revision is not maintainable.
The petitioners submitted that they have already
filed an objection before Court and contested the
application that the same should not be granted.
Learned counsel apprehended that if there is
already an order against them, it would prevent
them from filing an application for revoking the
leave.

19. "I do not think that such a
submission is in any way correct. Learned Senior
Counsel for the petitioner is invoking the principle
of res judicata in the case. Once it is declared by
the Supreme Court as well as by this Court that the
order is administrative in character and same does
not affect the rights of the parties, nor there is
prejudice to the proposed defendant, there is no
scope for application of res judicata in such cases".
If any specific decision is required in that regard I
would only refer to the decision in Simon v.
Advocate General (1975 K.L.T 78) corresponding
to A.I.R. 1975 Kerala - 38 which is followed in
Kannan Adiyta's case cited supra.

27. In view of the declaration of law by
this Court and the Supreme Court, leave alone is
granted. After granting of leave, a suit is instituted.
Thereafter the Court functions as a Court of law.
At that time, the petitioners or any persons, who
are also likely to be impleaded can very well bring
to the notice of the Court that the leave was
granted without taking into consideration the
relevantt materials or that the principles settled for
granting leave were not followed etc. and can
apply to have the leave revoked. That power is
given to the Court of law."

12. No doubt, the case here presents a
background where this Court thinks that the
decree passed in the earlier suit ought to be
taken into account to judge, whether a
subsequent suit also under Section 92 CPC
relating to the same trust is at all maintainable,
but that would not render the order granting
leave under Section 92 CPC amenable to our
revisional jurisdiction under Section 115 CPC.
The reason is far too obvious. The impugned
order does not decide any rights of parties and is
made at the stage before the suit comes into
being. Of course, it is open to the revisionist to
apply for revocation of leave to the Court that
has made the order impugned and if that
application is made, the Trial Court would be
bound to dispose of that application on merits
before proceeding with the suit. So far as this
revision goes, it is held to be not maintainable
and liable to be dismissed as such.

13.

This
revision
is,
accordingly,
dismissed as not maintainable. There shall be no
order as to costs.
----------
(2021)12ILR A1301
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 13.12.2021

BEFORE

THE HON'BLE SAURABH LAVANIA, J.

First Appeal From Order No. 182 of 2019

Smt. Anita & Ors. ...Appellants
Versus
Iffco Tokio General Insurance Co. Ltd. & Anr.
 ...Respondents

Counsel for the Appellants:
Mukesh Singh

Counsel for the Respondents:
Govind Chaturvedi, Vaibhav Raj

A. Motor Vehicles Act, 1988 - Section 173 -
Compensation - Enhancement - Income - it
was pleaded that deceased was earning Rs.
25,000/- per month by performing POP work -