MAYER SIMON Vs. ADVOCATE GENERAL KERALA
LAWS(KER)-1974-7-33
HIGH COURT OF KERALA
Decided on July 15,1974

MAYER SIMON Appellant
VERSUS
ADVOCATE GENERAL, KERALA Respondents

JUDGEMENT

- (1.) The question is whether the order Ext. P3 passed by the Advocate General of Kerala, the first respondent, refusing "consent in writing" as envisaged by S.92(1) of the Code of Civil Procedure to the petitioner for instituting a suit along with another for the reliefs that would fall under that sub-section is amenable to be quashed, as prayed for, by the issue of a writ of certiorari. The order Ext. P3 is a brief one and reads thus: "On a consideration of all facts and circumstances of the case I do not think that there is a case for grant of sanction under S.92 of the Code of Civil Procedure. Hence I reject the petition."
(2.) The circumstances which led to the application before the Advocate General are stated in the order of reference of Isaac J., the relevant p of which we shall extract: "The petitioner and respondents 2 to 9 are members of the Jewish Synagogue, Parur. It is an ancient charitable and religious institution which owns very large extent of properties, movable and immovable, costing not less than Rs. 5 to 6 lakhs. The properties were managed by some old trustees. A suit was instituted by some of the beneficiaries of the Synagogue under S.92 C.P.C. in the Parur District Court as O.S. 37 of 1116 against those trustees for framing a scheme and for rendition of accounts. There was a preliminary decree as prayed for. An appeal was filed in this Court from that decree. During the pendency of the appeal, there was a compromise. The members of the Synagogue unanimously decided, among other things, that the Synagogue should be managed by a Board of Trustees, elected as per terms of the compromise, and that Shri. S. S. Koder, a highly respected member of that community, would manage the affairs of the Synagogue till the Board of Trustees was constituted. Accordingly, the appeal was dismissed; and the litigation ended. Shri Koder took over the management and conducted it for some time. The Board of Trustees was not constituted, nor were the terms and conditions of the compromise implemented. Then Shri Koder resigned from the management. Thereupon the second respondent and one Ezhra got into the management under the pretext that they were elected as Trustees by the Yogam of the Synagogue on 10-5-1964. The second respondent was removed from the office by the Yogam held on 9-5-1965. Then he filed O. S.45 of 1965 in the District Court, Parur, to declare that his removal from office was invalid and to restrain other persons for interfering with his management. The Trial Court granted a temporary injunction in his favour. From that order, an appeal was filed to this court as C.M.A. 104 of 1965. Raman Nayar, J. by his judgment dated 17-6-1966 held, that the proper course was to appoint a competent and independent outsider as receiver to manage the affairs of the Synagogue. In that view of the matter, he allowed the appeal and directed the Trial Court to appoint a suitable advocate as receiver. He also observed that the disputes can be settled only by a suit instituted under S.92 CPC., and that the receiver need be continued till such a suit is instituted and appropriate directions regarding the management of the Synagogue are made in that suit. The learned Judge has also recorded that the plaintiff, who is the present second respondent, stated that he would himself move for the institution of such a suit, and that, on the institution of that suit, he would withdraw his suit namely O.S. 45 of 1965. Pursuant to the direction of this Court, the Trial Court appointed an advocate as Receiver; and he assumed management. Some time later, the second respondent contrary to what he stated before this Court entered into a compromise with the defendants in that suit, by which it was agreed that the second respondent and Ezhra would be the Trustees of the Synagogue. Pursuant to that compromise, the suit was dismissed; and they took over management of the Synagogue. On 1-3-967, Ezhra resigned; and the third respondent stepped into his shoes. Thus respondents 2 and 3 have assumed the management. On the allegation that there was no scheme for the management of the Synagogue, that these respondents were mismanaging the affairs of the Synagogue and misappropriating its funds, and that they have not rendered any accounts of their management, the petitioner and respondents 4 to 9 filed a petition before the Advocate General, Kerala, the first respondent, for his consent to file a suit under S.92 C.P.C. for appropriate reliefs. The learned Advocate General, by his order Ext. P3 , dated 17-2-1969, rejected the petition. He stated the facts of the case and the contentions of the parties, and passed the following order: "On a consideration of all the facts and circumstances of the case, I do not think that there is a case for grant of sanction under S.92 of the Code of Civil Procedure. Hence I reject the petition." The learned Advocate General has not stated any reason whatsoever for his order, though this Court observed in C.M. A. 104 of 1965 that a suit under S.92 C. P. C. was the only course for settling the disputes relating to this institution, and respondent No. 2 who opposed the application before the Advocate General submitted in this Court that he himself would file such a suit. The petitioner contends that the power vested in the Advocate General under S.92 CPC. is a quasi judicial power, and that he cannot refuse his consent for institution of a suit under that section quite arbitrarily and to the detriment or ruination of the institution. This writ petition has been, therefore, filed to quash Ext. P-3, and to direct the Advocate General to dispose of the petition for consent according to law."
(3.) Isaac J. felt that the Full Bench (consisting of 3 Judges) decision of this Court in A. K. Bhaskar v. Advocate General AIR 1962 Kerala 90 required reconsideration and the case was therefore placed before the Chief Justice who directed the posting of the case before a Division Bench. The Division Bench, consisting of Govindan Nair and Sadasivan JJ. before whom the case came up, referred the case to a Full Bench for decision and the Full Bench consisting of Raghavan C. J. and Balakrishna Eradi and Namboodiripad JJ. felt that the case has to be placed before a "Fuller Bench".;


Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.