N. Lakshmanan Chettiar and Others vs P.L. Ekappa Chettiar and Others

Ratnam, J.—These Civil Revision Petitions, at the instance of defendants 1 to 4 in C.S. No. 55 of 1987, Sub Court, Sivaganga, have been

preferred against the order passed by the Sub Court, Sivaganga, dismissing I.A.Nos.125 and 126 of 1988 praying for the reliefs of revoking the

order passed in I.A. No. 358 of 1987 and for the dismissal of the suit in O.S. No. 55 of 1987 in limine.

On 11.9.1987, the respondents herein filed before the Sub Court, Sivaganga, I.A. No. 358 of 1987 praying for leave to file a suit u/s 92,

C.P.C. and also presented oh the same day a plaint in which they prayed for the settling of a scheme for the administration of Pillayarpatti Sri

Karpaka Nagartharal trust and for an account of the management of petitioners 1 and 2 herein from 1986 onwards and to make them liable for

their acts of mal-feasance, mis-feasance, nonfeasance and negligence. ''A'' schedule to the plaint so presented detailed immovable properties while

in the ''B'' schedule the movables and Vahanams are catalogued. On the presentation of I.A. No. 358 of 1987 on 11.9.1987, the learned

Subordinate Judge passed an order ""permitted"" on that day itself. Likwise on the plaint presented on 11.9.1987, the Sheristadar made an

endorsement that it had been presented in time and stamped aright and may be filed. Thereupon, the learned Subordinate Judge, Sivaganga, on

11.9.1987 itself passed an order to the effect ""Issue summons to defendant for issues/final disposal 13.10.1987"". In the plaint presented before

Court, there was no reference whatever to the filing of the application in I.A. No. 358 of 1987 or the obtaining of leave by the respondents to

institute the suit u/s 92, C.P.C. After the service of summons on the petitioners along with a copy of the plaint, a written statement was also filed on

behalf of the petitioners disputing the case of the respondents and in particular, in paragraphs 2 and 19 of the written statement, the petitioners

questioned the maintainability of the suit on the ground that leave of Court as contemplated u/s 92, C.P.C. had not been obtained and the suit was

liable to be dismissed. While matters stood thus, when issues were sought to be framed on 2.3.1988, the petitioners, realising that the plaint was

totally silent about the filing of an application seeking leave from Court u/s 92, C.P.C. for the institution of the suit, wanted to raise an issue relating

to that question and it was then pointed out by the respondents that I.A. No. 358 of 1987 had already been filed and leave had also been

obtained. It is thereafter the petitioners filed I.A. No. 125 of 1988 purporting to be under Order 9, Rule 9 and Section 151, C.P.C. praying for the

revocation of the order passed in I.A. No. 358 of 1987 on the ground that, that order had been passed without notice to the petitioners as if such

an order was an administrative order without any enquiry and that merely on the strength of the order in I.A. No. 358 of 1987 without even an

order for registering the suit, the suit had been numbered along with the interlocutory application and the procedure followed was thus irregular and

the leave stated to have been granted in I.A. No. 358 of 1987 was void and deserved revocation. This was followed up by the petitioners by

another application in I.A. No. 126 of 1988 where they had prayed for the dismissal of the suit in limine owing to the irregularities adverted to

earlier.

These applications were registered by the respondents herein on the ground that prior to the obtaining of leave from Court for instituting a suit

u/s 92, C.P.C., it is not necessary to issue notice to the petitioners and that the Court was satisfied that a prima facie case had been made out for

proceeding u/s 92, C.P.C. and that would suffice and that all such objections could be taken in the written statement and decided in the course of

the trial of the suit. The respondents also stated that there was nothing irregular in the procedure followed by the Court below and that the issue of

a notice to the petitioners even at the stage of granting leave for instituting a suit u/s 92, C.P.C. would amount to trying the suit twice. Thus, the

respondents maintained that leave granted earlier by Court in I.A. No. 358 of 1987 was quite in order and that there was also no necessity or

justification for the dismissal of the suit in limine as prayed for by the petitioners.

Both the applications were heard together and the Court below held that no case was made out to revoke the order passed earlier in I.A. No.

358 of 1987, that the question could be gone into in the course of the trial of the suit on the issues framed in that regard and that the application

had been filed only for the purpose of prolonging the proceedings. On these conclusions, the application filed by the petitioners in I.A. Nos.125

and 126 of 1988 were dismissed, the correctness of which is questioned in these Civil Revision Petitions.

Mr. V. Krishnan, learned Counsel for the petitioners, submitted that after the amendment of Section 92, C.P.C. by Act 104 of 1976, the grant

of leave to institute a suit praying for the reliefs falling u/s 92, C.P.C. was a judicial function, which should be performed by the Court after issuing

notice to the other party whose interests are likely to be affected by such a suit and that was not merely an administrative function, which, prior to

the amendment of Section 92, C.P.C., had been performed by the Advocate-General. In support of this, the learned Counsel relied strongly upon

the decisions in A.L. Ramanathan and Anr. v. Asoka Charitable Trust and Ors. C.S. No. 394 of 1978, decided on 9.8.1983, T.M. Shanmugham

and Others Vs. The Periyar Self-respect Propaganda Institution and Others, as affirmed in T.R. Shanmugham and Anr. v. Krishnaswami and Ors.

O.S A. No. 172 of 1985, decided on 18.3.1986, and Sri Chennapuri De-vanga Sangam represented by its Executive Committee Members G.

Krishnamoorthy and Ors. v. Chella Lakshmamma and Ors. O.S. No. 442 of 1980, decided on 3.12.1985. Learned Counsel also drew attention

to Section 104 (ffa), C.P.C. which provides for an appeal from an order refusing leave to institute a suit of the nature referred to in Section 92,

C.P.C. to contend that the fact that an order refusing leave has been made an appealable order indicates that what is contemplated is the passing

of a considered order by the Court after hearing both sides. On the other hand, Mr. M.R. Narayanaswami, appearing for the respondents,

submitted that despite the amendment in Section 92, C.P.C. by Act 104 of 1976, the function of the Court while considering the application for

grant of leave remained an administrative one and, therefore, it was not necessary for the Court at that stage to issue notice to the proposed

defendants inviting their objections against the grant of leave. It was also sought to be established by relying upon the decisions in K.M. Abdul

Kasim and Others Vs. P.M.N. Mohamed Dawood and Others, , Raju v. Advocate General, High Court, Madras 75 L.W. 240 and Abdul Kasim

Mohammed Dawood (1963)1 M.L.J. 281, that the function of the Court while dealing with an application for leave to institute a suit u/s 92,

C.P.C. was merely administrative and that at that stage there was no question of adjudication of any right between the person who makes an

application and the opponent and that the grant of leave is merely a recognition of the right of that person who agitated the matter in vindication of

the rights of the trust and no more.

Before proceeding to consider the aforesaid submission, it would be necessary very briefly to notice the underlying purpose of making a

provision for the institution of suits u/s 92, C.P.C. Section 92, C.P.C. occurs in Part V under the head ""Special Proceedings"" and that by itself is an

indication that they are different from the other provisions. While by resorting to Section 92, C.P.C. the proper management and administration of

a public religious or charitable trust could be ensured, such resort, however, is hedged by the requirement of sanction from the Advocate-General

previously and leave of Court now. The object of the requirement as to sanction of the Advocate-General or leave of Court is to protect the

properties belonging to the trust as well as the trustees from an indefinite number of reckless and harassing suits brought against the trust and the

trustees as well. A suit of the nature specified in Section 92, C.P.C. cannot, therefore, be instituted except in conformity with the requirements of

that section. Prior to the amendment of Section 92, C.P.C. by Act 104 of 1976, sanction for instituting a suit as provided u/s 92, C.P.C. had to be

accorded by the Advocate General. That requirement had since been replaced by leave of the Court. It maybe that prior to the amendment of

Section 92, C.P.C. by Act 104 of 1976, the function of the Advocate General either in according or in declining to accord sanction was

considered to the administrative. It is on this basis that the decisions in K.M. Abdul Kasim and Others Vs. P.M.N. Mohamed Dawood and

Others, and Raju v. Advocate General, High Court Madras 75 L.W. 240 had proceeded. However, as the question of grant of leave is now

committed to the jurisdiction of the court for decision, the nature of the duty performed by the Court in dealing with an application for leave cannot

be any longer described as administrative. Indeed, it would be a misnomer also to describe the performance of that duty as one relating to an

administrative matter. u/s 92, C.P.C. two or more persons having an Interest in the trust and having obtained the leave of Court may institutes suit

to obtain a decree for all or any one of the reliefs mentioned in (a) to (h) in Section 92, C.P.C. The twin requirements are (1) two or more persons

should have an interest in the trust; and (2) they should have obtained the leave of the Court. It is only the second requirement that is material for

purposes of these Civil Revision Petitions. Leave is normally obtained before a Court by filing an application and by passing an order thereon. In

dealing with such an application, necessarily the Court has to consider whether sufficient grounds have been made out for granting leave or not. In

every application seeking leave, having regard to the common course of conduct of the litigants, the Court cannot find any fact or a reference to

circumstances which would disentitle the applicant from obtaining the leave. The grounds for not granting leave may not be within the knowledge of

the Court. If at all, such facts as may disentitle the applicant from obtaining the leave of Court, could be placed only by the party arrayed on the

opposite side in the application for obtaining leave. Therefore, it is the duty of the Court to consider the entirety of facts as well as the

circumstances for and against and then only it can either proceed to grant leave or decline the same. The procedure to be adopted in dealing with

an application for obtaining leave of Court is thus judicial and not administrative, especially when the obtaining of leave has been made a condition

precedent for the institution of a suit praying for the reliefs set out u/s 92, C.P.C. When matters are brought before Court to be adjudicated and

pronounced upon, the procedure adopted to secure that end is purely judicial and not administrative. It may not be out of place to make a

reference to some other provisions of the CPC where the Court has to consider the grant of leave. For instance, under Order 33, C.P.C. provision

is made for enabling a person to institute a proceeding as an indigent person with the leave of Court. It is true that elaborate provisions have been

made under the relevant rules regarding the enquiry to be made in that connection. Even so, the result bf the enquiry enable a person to avail

himself or herself of the benefit of non-payment of court-fee while prosecuting proceeding. Similarly, under the provision of Order 37, C.P.C.

leave to defend is asked for and it is only after consideration of the claim of the person who prefers the application for leave and that in opposition,

the Court decides whether to grant the leave or not. It is thus recognised even in the provisions of the CPC that the grant of leave is purely a

judicial function and not an administrative one. It may be that in regard to Section 92, C.P.C. provisions on the lines under Order 33 and Order

37, C.P.C. have not been made or indicated. But the absence of such elaborate rules and provisions cannot certainly be an excuse for labelling

the function of the Court while considering an application for leave to institute a suit u/s 92, C.P.C. as an administrative function and not a judicial

one. It would be appropriate of this stage to make a brief reference to the decision in Abdul Kasim v. Mohammed Dawood (1963)1 M.L.J. 281

relied on by learned Counsel for the respondents. The question that arose for determination in that decision was whether an order of the Wakf

Board granting permission to relators to institute a suit can be regarded as performance of quasi-Judicial act as to attract the applicability of Article

226 of the Constitution of India. Rajagopalan, J. answered that question in the negative and on appeal, the Division Bench affirmed that view. In

dealing with the question whether a condition prescribed for the institution of a suit cannot be regarded as a right created in the defendant, the

Division Bench pointed out that when an application is made either to the Advocate General or the Wakf Board for the sanction of a proposed

suit, it cannot be said that any right has to be adjudicated upon and that if only after sanction the person gets the right to institute a suit it is difficult

to see how any right could arise in favour of the defendant. The aforesaid line of reasoning has to be understood with reference to the unamended

provisions of Section 92, C.P.C. as they stood prior to the amendment by Act 104 of 1976. It would be necessary in this connection to bear in

mind that in the suit as filed, reliefs falling u/s 92(g) and (d), C.P.C. have been prayed for and necessarily the leave of Court had to be obtained for

the institution of a suit. An analysis of the requirements of Section 92, C.P.C. shows that two or more persons must have interest in the trust and

they should have obtained the leave of Court. Only subject to the fulfilment of these two conditions, they may institute a suit. Section 92, C.P.C. as

noticed earlier, is a special provision in that while it enables resort to a suit to secure a proper administration and management of the trust and its

properties by its trustees, there is also a check on such institutions by the imposition of certain conditions, one of which is the obtaining of leave

from the Court. It is this that distinguishes the institution of a suit u/s 92, C.P.C. and other suits. Consistent with Section 92, C.P.C. being a special

provision occurring in Part V of the Code of Civil Procedure, provision is also made imposing conditions upon institution of suits falling u/s 92,

C.P.C. unlike other suits. The institution of a suit u/s 92, C.P.C. is made conditional upon the obtaining of leave of Court. u/s 26, C.P.C. every suit

shall be instituted by the presentation of plaint. But in the case of a suit falling u/s 92, C.P.C,. mere presentation of the plaint would be insufficient

unless the presentation of the plaint is also preceded by leave of the Court. In other words, granting or declining to grant leave would, in a way,

decide the right of a person to institute a suit u/s 92, C.P.C. by the presentation of a plaint. Further there is also one other aspect which clearly

establishes that in the process of considering the application for granting leave, rights are touched upon and adjudicated. The conferment u/s 104

(ffa), C.P.C. introduced by Act 104 of 1976, of a right of appeal from an order refusing leave to institute a suit of the nature referred to in Section

92, C.P.C. is indicative of the scope of the adjudication in dealing with an application for grant of leave for instituting a suit u/s 92, C.P.C. It is

difficult to understand the provision for an appeal from an order refusing leave as confined to cases of refusal in limine. Such an interpretation is

also likely to lead to an incongruous and startling position of a first hearing without notice and a fair hearing at the appellate stage after notice. The

provision for a right of appeal u/s 104 (ffa) C.P.C. though confined to cases of refusal of leave should be understood as connoting an appeal

against a considered order passed by the Court after hearing both sides. It follows that such leave cannot be granted without hearing both sides. It

may be pointed out that in the light of the Special nature of the provision u/s 92, C.P.C. and the amendment introduced therein by Act 104 of 1976

and also the conferment of a right of appeal u/s 104(ffa), C.P.C. referred to earlier, the view taken in Abdul Kasim v. Mohammed Dawood

(1963)1 M.L.J. 281 that there is no right at all to be adjudicated in favour of the appellant and, therefore, no right could arise in favour of the

proposed defendant, may not be applicable.

A reference may now be made to the decisions relied on by learned Counsel for the petitioners. In Al. Ranganathan and Anr. v. Asoka

Charitable Trust and Ors. C.S. No. 394 of 1978, decided on 9.8.1983, an objection that leave had been granted to the plaintiffs to institute a suit

u/s 92, C.P.C. without notice to the defendants and that it is void rendering the suit not maintainable was upheld in part by holding that the order

granting leave was a judicial order and not an administrative one and that leave granted to the plaintiffs to institute a suit without notice to the

defendants was void in law. However, it was held that the granting of ex parte leave would not render the suit not maintainable. T.M. Shanmugham

and Others Vs. The Periyar Self-respect Propaganda Institution and Others, had to consider the validity of leave granted u/s 92, C.P.C. to institute

a suit without notice to the defendants. It was held that the granting of leave without notice to the defendants is void, the logical consequence of

which will be that the institution and numbering of the suit cannot validly be sustained in law and both have to be dismissed on that ground, though

that will not stand in the way of the plaintiffs, if they so desired, to institute a fresh proceeding in accordance with law u/s 92, C.P.C. In so holding,

the earlier decision in C.S. No. 394 of 1978 dated 9.8.1983 was referred to and it was pointed out that the question of the dismissal of the suit as

not maintainable on the ground that leave to suit granted was void had not been agitated before the Court in C.S. No. 394 of 1978. Against the

decision in T.M. Shanmugham and Others Vs. The Periyar Self-respect Propaganda Institution and Others, , O.S.A. No. 172 of 1985 T.N.

Shanmugham and Anr. v. K. Krishnaswami and Ors. decided on 18.3.1986, was preferred which was dismissed by a Division bench on

18.3.1986. The Division Bench expressed its entire agreement with the view that leave granted to institute a suit u/s 92, C.P.C. without notice to

the defendants is void and the logical conclusion that followed will be that the institution of the suit and the numbering of it also cannot be said to be

valid in law, and therefore, the suit is liable to be dismissed. Again in Sri Chennapuri Devanga Sangam, represented by its Executive Committee

Members G. Krishnamoorthy and Ors. v. Chella Lakshmamma and Ors. C.S. No. 442 of 1980, decided on 3.12.1985, an order granting leave

to institute a suit u/s 92, C.P.C. without notice to the opposite party was held to be void. Though some of the aforesaid decisions were brought to

the notice of the Court below, it had not cared to bestow any attention to these decisions, but had attempted to accept a distinction made on the

ground that these decisions related to the Original Side. Whether the decisions are rendered on the Original Side or on the Appellate Side of this

Court, if they are with reference to a particular provision of the Code of Civil Procedure, as in this case Section 92, C.P.C., it is the duty of the

Court below to consider it to ascertain, whether that would be applicable or not. It is thus found that uniformly the view has been taken that an

order granting leave to institute a suit u/s 92, C.P.C. without notice to the defendants is void. Inasmuch as in this case there is no dispute that in

I.A. No. 358 of 1987 no notice was given to the petitioners in these Civil Revision Petitions, the order passed on 11.9.1987 granting leave to the

respondents to institute the suit is void as per the decisions referred to above. It follows that the order in I.A. No. 358 of 1987 cannot be upheld.

Since the suit had been permitted to be instituted on the basis of leave granted without notice to the petitioners, which has since been found to be

void, the suit should not be entertained at all. The Civil Revision Petitions are, therefore, allowed and the Orders of the Court below dismissing I.A.

Nos. 125 and 126 of 1988 are set aside and these applications will stand allowed as prayed for with costs throughout.