Sant Lal vs Sudakar and Others

Arun B. Saharya, C.J.—Petitioner-defendant has challenged order dated 14-1-1993 passed by Sub Judge First Class, Mohindergarh, granting leave at the fag end of proceedings in the suit filed by the plaintiffs contesting respondents Nos. 1 to 15 u/s 92 of the CPC in this Civil Revision u/s 115 of the CPC 1908 (hereinafter referred to as CPC).

Plaintiffs had filed the suit on 9-3-1988, for removal of the defendant as trustee/Manager and for rendition of account etc. on the ground that he was misusing the trust property.

In his written statement, petitioner-defendant raised the preliminary objection that the plaintiffs had filed the suit without obtaining leave of the Court u/s 92, CPC. On merits, he denied all the allegations levelled against him. He also pleaded that the suit filed by the plaintiffs was mis-conceived and mala fide, and that their conduct was not in the interest and welfare of the trust. Plaintiffs filed replication, controverting the pleas taken in the written statement and reiterating the case set up in the plaint.

On the pleadings of the parties, by order dated 4-10-1988, following issues were framed : --

Whether the disputed property is the property of a charitable Trust and the parties are the trustees, if so, to what effect ? OPP

Whether the plaintiffs have no locus standi to file the present suit ? OPD

Whether the suit is not maintainable in the present form ? OPD

Whether, the plaintiffs are estopped from filing the present suit by their own act and conduct ? OPD

Whether the defendants are entitled to special cost ? OPD

Relief.

On the above issues, parties proceeded to lead evidence. It was only at the fag end of the proceedings, when the suit was fixed for rebuttal evidence, plaintiffs moved the application seeking leave of the Court of the plea that formal order granting permission to institute the suit was not passed as the application for that purpose, somehow, was not filed earlier. Defendant opposed the application, inter alia, on the ground that grant of leave was a condition precedent, and in the absence of the same having been obtained, the suit was not maintainable, and it was liable to be dismissed. The application has been allowed by the impunged order dated 14-1-1993.

Relevant portion contained in paragraphs 5, 6 and 7 of the impunged order dated 14-1-1993, is reproduced below :--

"5. Admittedly, the suit was filed in the Court of learned District Judge, Narnaul, which is the principal civil Court of original jurisdiction as provided u/s 24 of the Punjab Courts Act. It is also true that at the time of institution of the suit, no application, as required u/s 92 of the CPC seeking permission of the Court/leave of the Court , was filed. The suit, is however, being resisted by the defendant throughout and both the parties have concluded their evidence and today the case is at the final stage and has been fixed for rebuttal evidence of the plaintiff. Arguing on behalf of the applicant/plaintiff Sh. M.S. Yadav has placed reliance upon Prithipal Singh Vs. Magh Singh and Others, . Wherein, it has been laid down by the Hon''ble High Court that at the time of institution of the suit, the Court does not have to write a reasoned order. It is further held that the Court does not even have to give a notice to the defendant of an application as the order granting leave is an order of administrative nature. In support of his contention that the grant of leave of the Court is condition precedent, without which the suit cannot proceed, Sh. K.L. Yadav, has placed his reliance upon Ram Parkash Vs. Dayal Chand and Others, and Mahant Harnam Singh, Chela of Bhai Narain Singh Vs. Gurdial Singh and Another, .

After hearing both the parties at length and going through the case law referred to above and relied upon by learned counsel for the parties and in the facts and circumstances of the case, I am of the considered opinion that the contention raised by Sh. M.S. Yadav, Advocate is full pf merits whereas that of Sh. K.L. Yadav, is without any force, so, the application in hand stands allowed. Consequently the permission as provided u/s 92 of the CPC is hereby granted to the plaintiffs accordingly.

However, observations made above shall not be taken as expression of opinion at the time of final decision of suit on merits."

Mr. S.K. Mittal, learned counsel appearing on behalf of the petitioner has challenged the impunged order on two grounds. He contends, firstly, that the trial Court has acted in the exercise of its jurisdiction illegally, and with material irregullarity in passing the impugned order without giving any reason. Secondly, that the requirement of obtaining leave of the Court is a condition precedent to institution of a suit and the leave having not been obtained prior to filing of the suit, the suit was not maintainable and the same should be dismissed.

On the other hand, Mr. R.K. Gupta, learned counsel appearing on behalf of the contesting respondents has contended that leave of the Court is a procedural requirement for institution of a suit u/s 92, CPC which should be construed liberally so as to advance the cause of justice. He has urged further that all the possible pleas available in defence have already been taken in the written statement and put into issue for trial and decision in the suit, that the impugned order, if allowed to stand, would not occasion failure of justice or cause irrespective injury to the opposite party; and, therefore, the impunged order granting leave of the Court must not be reversed in revision, in view of the proviso under Sub-section (1) of Section 115, CPC.

With a view of properly appreciate rival contentions of the parties, it would be appropriate to read relevant portions of the statutory provisions made in Section 92, Section 104(1)(ffa). Section 105(1), Order VII, Rule 11, Order 14 Rule 2 (1) and (2), Order 43, Rule 1A and finally Section 115, CPC, which are reproduced with emphasis added below :--

Section 92 Public charities. -- (1) In the 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 an interest in the trust and having obtained the leave of the Court may institute a suit, whether contentious or not, in the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subject matter of the trust is situate, to obtain in a decree.

(a) removing any trustee ;

(b) appointing a new trustee;

(c) xx xx xx xx xx xx;

(cc) xx xx xx xx xx;

(d) directing accounts and inquiries;

(e) to (g) xx xx xx xx xx;

(h) granting such further or other relief as the nature of the case may require.

(2) and (3) xxxxxxxxxxxxxxx .

Section 104, Orders from which appeal lies -- (1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders;

xx xx xx xx xx xx xx xx xx xx xx xx

(ff-a) an order u/s 91 or Section 92 refusing leave to institute a suit of the nature referred to in Section 91 or Section 92, as the case may be;"

xx xx xx xx xx xx

XX XX XX XX XX XX

Section 105. Other orders. --(1) Save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction but, where a decree is appealed from, any erro defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal.

(2) xx xx xx xx xx xx

Order VII. Rule 11. Rejection of plaint. The plaint shall be rejected in the following case :--

(a) Where it does not disclose a cause of action:

(b) and (c) xx xx xx xx xx (d) where the suit appears from the statement in the plaint to be barred by any law. Order XIV, Rule 2. Court to pronounce judgment on all issues. -- (1) Notwithstanding that a case may be disposed of on a preliminary issue the Court shall, subject to the provisions of Sub-rule (2), pronounce judgment on all issue.

(2) Where issue both of law and of fact arises in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only; it may try that issue first if that issue relates to-

(a) the jurisdiction of the Court, or

(b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue."

Order XLIII.

Appeals from Orders. -- An appeal shall lie from the following orders under the provisions of Section 104, namely :--

(a) to (w) xx xx xx xx xx xx xx xx xx xx xx xx

A. Right to challenge non-appealable orders in appeal against decrees. -- (1) Where any order is made under this Code against a party and thereupon any Judgment is pronounced against such party and a decree is drawn up, such party may, in, an appeal against the decree, contend that such order should not have been made and the judgment should not have been pronounced.

(2) xx xx xx xx xx xx Section 115 Revision. -- (1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears -

(a) to have exercised a jurisdiction not vested in it by law, or

(b) to have failed to exercise a jurisdiction so vested, or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit.

Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where -

(a) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings, or

(b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.

(2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto.

Explanation. -- xx xx xx xx xx

Before proceeding to deal with various judgments cited at the Bar, at the out set, it would be appropriate to point out that the two decisions cited on behalf of the defendant before the trial Court and noticed in the impugned order, are wholly inapplicable to the questions raised in order of revision petition. In Mahant Harnam Singh, Chela of Bhai Narain Singh Vs. Gurdial Singh and Another, , the suit was brought by the plaintiffs after obtaining permission from the Advocate General in terms of the provision made in Section 92, CPC prior to its amendment by Act No. 104 of 1976. The question (hat arose for consideration before the Supreme Court was whether the plaintiffs had such interest in the public trust as would entitle them to institute the suit u/s 92, CPC. Similarly in Ram Parkash Vs. Dayal Chand and Others, , the High Court was concerned with the controversy whether the trust in question was a public trust and whether the plaintiffs had interest in the trust so as to justify permission granted for institution of the suit u/s 92, IPC. These two decisions are wholly irrelevant for the purpose of determination of the questions raised in the present case. Indeed, it must be noted, in all fairness. Mr. Mittal, learned counsel appearing on behalf of t he defendant (petitioner) did not even cite them at the time of hearing of the case.

Discussion on the propositions urged on both sides would revolve around judgments in S.S. Bhagat v. N.S. Ahluwalia AIR 1978 Delhi 14, Prithipal Singh Vs. Magh Singh and Others, , Gurudwara Prabandhak Committee, Delhi Cantonment v. Amarjit Singh Sabharwal AIR 1984 Delhi 39. T.M. Shanmugham and Others Vs. The Periyar Self-respect Propaganda Institution and Others, , Ram Parkash Vs. Dayal Chand and Others, , Lachhman Dass Udasi and Others Vs. Ranjit Singh and Others, , Kintali China Jaganadham and Others Vs. K. Laxmi Naidu and Others, and R.M. Narayana Chettiar and another Vs. N. Lakshmanan Chettiar and others, .

In Sub-section (1) of Section 92, CPC, it may be noted, the words leave of the Court" were substituted for the words "consent in writing of the Advocate General" by Section 30 of the amendment Act No. 104 of 1976. Discussion in all the aforesaid judgments emanates out of this amendment on the question whether an order u/s 92, CPC granting leave of the Court is of administrative nature or otherwise, which paved the way to further questions as to the need for giving notice to the defendant and the requirement of a reasoned order for grant of leave of the Court u/s 92, CPC. There was no occasion for dispute on these matters prior to the said amendment for the simple reason that requirement of consent in writing of the Advocate General for institution of a suit subject to fulfilment of all other conditions u/s 92, CPC, was undoubtedly of an administrative nature. Suffice it to notice for this purpose, judgment of the Delhi High Court in S.S. Bhagat'' case (AIR 1978 Delhi 14) (supra).

After the said amendment, however, the questions about nature of such an order, requirement of notice to the defendant and reasons for grant of leave of the Court u/s 92, CPC, arose for decision in various cases in different High Courts including those in Prithipal Singh Vs. Magh Singh and Others, , Gurudwara Prabandhak''s case (AIR 1984 Delhi 39) (supra), T.M. Shanmugham and Others Vs. The Periyar Self-respect Propaganda Institution and Others, , Ram Parkash Vs. Dayal Chand and Others, , Lachhman Dass Udasi and Others Vs. Ranjit Singh and Others, , Kintali China Jaganadham and Others Vs. K. Laxmi Naidu and Others, , and also in the Supreme Court in R.M. Narayana Chettiar and another Vs. N. Lakshmanan Chettiar and others, .

In Prithipal Singh Vs. Magh Singh and Others, , a Single Judge of this Court held that the Court does not have to write a reasoned order. It does not even have to give notice to the defendant of the application seeking leave of the Court, as the order granting leave is of an administrative nature. Relying upon this authority, the trial Court has passed the impunged order. This is sought to be challenged by learned counsel for the petitioner on the basis of a contrary view taken by a single Judge of the Delhi High Court in Gurudwara Prabhandhak Committee''s case (AIR 1984 Delhi 39) (supra), and the Madras High Court in T.M. Shanmugham and Others Vs. The Periyar Self-respect Propaganda Institution and Others, .

Delhi High Court has taken the view in Gurudwara Prabhandak Committee''s case (supra) that an order of the Court, granting or refusing leave, must be a reasoned order. The public trust concerned has a right to be heard before grant or refusal of leave. If the defendant is not given an opportunity of being heard, it would be a material irregularity. To pass a non-speaking order in judicial proceedings, is also a material irregularity and revision would lie against such an irregularity. In T.M. Shanmugham''s case (supra), a learned single Judge of the Madras High Court held that leave granted to the plaintiffs to institute a suit u/s 92 of the Code, without notice to the defendants, is void in law and the logical consequence will be that the institution and numbering of the suit cannot be validly sustained in law. And, therefore, the suit was liable to be dismissed on that technical ground. However, this will not stand in the way of the plaintiffs, if so desired, to institute afresh proceedings, in accordance with with law u/s 92, CPC.

In Ram Parkash Vs. Dayal Chand and Others, , another learned single Judge of this Court noticed that two of the essential requirements of the provision made in Section 92, CPC are that the person applying for permission to institute the suit must have interest in the trust and that the trust must be for public purpose of a charitable or religious nature. On this basis, it was held that an order granting permission to institute a suit, without fulfilling the essential requirements of Section 92, CPC, is not rendered immune from challenge in revision merely on ground that such an order is an administrative order, which does not finally decide the rights of the parties. An order of this type would be covered by Clause (c) of Sub-section (1) of Section 115, CPC read with proviso (a) thereto. It follows, therefore, that revision would lie against an order granting permission u/s 92 of the Code to institute a suit which does not comply with the provisions thereof.

In Lachhman Dass Udasi and Others Vs. Ranjit Singh and Others, , in view of the divergent opinion of a learned single Judge of this Court in Prithipal Singh Vs. Magh Singh and Others, and that in the judgments of this High Court and Madras High Court in Gurudwara Prabhandak''s case (AIR 1984 Delhi 39) (supra) and T.M. Shanmugham and Others Vs. The Periyar Self-respect Propaganda Institution and Others, respectively, the case was referred to a two Judges Division Bench of this Court.

After noticing the above mentioned judgments of single Judges of this High Court and those of the Delhi High Court and the Madras High Court, the Division Bench in its judgment written by J.V. Gupta, J. clarified the position in law on all the three questions, namely, whether the order of the Court allowing leave or refusing leavel u/s 92, CPC should be a reasoned order; whether notice must be issued before such a leave is granted, and also regarding the nature of such an order granting or refusing leave u/s 92, CPC, in paragraphs 5, 7, and 8 of the judgment, which reads as follows :--

"5. As to whether the order should be reasoned one or not there may not be much dispute. Of course, when the leave is refused the Court must give reasons for not allowing the leave so that the aggrieved party may know the reasons for which the leave has been refused, but at the same time if the leave is granted then in that situation when the defendant is called upon to defend the suit all possible pleas are open to him and, therefore, no prejudice whatsoever is caused in not issuing a notice prior to the granting of the leave. Moreover, the maintainability of the suit u/s 92 of the Code depends upon the allegations in the plaint and does not call for decision with reference to the averments in the written statement as held by the Supreme Court in Charan Singh and Another Vs. Darshan Singh and Others, . That being so, it is for the Court to satisfy as to whether a case is made out by the two or more persons seeking leave of the Court u/s 92, of the Code or not. Of course, the Court will not grant the leave or refuse the leave arbitrarily without applying its mind. It is after the application of the mind that the Court will either grant leave or refuse the same.

Section 92 of the Code nowhere provides that notice must be issued before such a leave is granted. No judgment has been cited on behalf of the petitioners that such a notice was necessary when the leave was to be granted by the Advocate General prior to the amendment of the Code. However, one, of this Court to the contrary is there dealing with the amended provisions of the Code. In any case, we are of the considered view that no notice is necessary to be issued to the defendants prior to the granting or refusing of the leave u/s 92 of the Code as at that stage it is the subjective satisfaction of the Court only and thus the order is an order of administrative nature.

There is another reason also why no notice is necessary to the defendants prior to the granting of the leave u/s 92 of the Code because that will amount to trying the suit twice first at the time of granting the leave and secondly, after the leave is granted. As a matter of fact it is the satisfaction of the Court as to whether the leave should be granted or not keeping in view the provisions of Section 92 of the Code. Suppose, the leave is granted, in that situation the defendants can take all available pleas in the written statement and the matter would be decided at the trial of the suit without any prejudice to them, if no notice is issued to them prior to the granting of the leave. Moreover, as observed earlier, the leave is to be granted on the allegations made in the plaint to be filed in the Court and not on seeking the averments made in the written statement. Obviously, thus the Court does not need presence of the defendants at the time of the granting of the leave and, therefore, no notice to them at that stage is necessary."

In Kintali China Jaganadham and Others Vs. K. Laxmi Naidu and Others, , a learned single Judge of the Orissa High Court was confronted with the problem, which arose in the case where the plaintiffs instituted the suit and 4 months thereafter, filed the application for leave , which had been granted by the trial Court u/s 92, CPC. Among the cases referred for discussion, learned single Judge''s decision of this Court in Prithipal Singh Vs. Magh Singh and Others, was also cited. But, it appears that the other decisions, discussed above including the Division Bench judgment of this Court in Lachhman Dass Udasi and Others Vs. Ranjit Singh and Others, , were not cited for discussion. Having regard to the intent and purpose of the provisions made in Section 92, CPC the learned Single Judge held that grant of leave by Court is a condition precedent, and it is mandatory. The problem that arose, out of the institution of the suit prior to the grant of leave, was resolved in paragraph 8 of the judgment in the following terms :--

"8. The next question is : In the face of the settled legal position that grant of leave is condition precedent to the institution of the suit, what is the effect of grant of leave during the pendency of the suit after its institution ? An application u/s 92 was filed before the Court. The Court was prima facie satisfied that having regard to the allegations leave ought to be granted and did grant leave. The proper course should have been for the plaintiffs to seek leave u/s 92 and append to their application a draft copy of the plaint of the proposed suit to satisfy the Court that the proposed suit came within the purview of Section 92. The consensus of opinion amongst the High Courts is that the jurisdiction of the Court u/s 92(1) while granting leave is administrative in nature and notice on the other side need not be issued. But, the Court, must give reasons for its decision either granting or refusing leave. In this case, the plaintiffs have reversed the process. They instituted the suit and months thereafter filed the application for leave which have been granted. What is the answer to the problem. In my opinion, the institution of the suit prior to the grant of leave was without jurisdiction and, therefore, non est. Inasmuch as the plaintiffs can institute the suit immediately after the grant of leave, there is nothing wrong in treating the suit to have been instituted on the date on which leave was obtained. I get support from the reasonings of the Supreme Court in Bansidhar Shankarlal Vs. Mohd. Ibrahim and Another, where it was contended that institution of a proceeding in execution of a decree against a Company without obtaining the leave was incompetent. Their Lordships observed :

"......... The suit or proceeding instituted without leave of the Court may, in our judgment, be regarded as ineffective until leave is obtained, but once leave is obtained the proceeding will be deemed to be instituted on the date granting leave."

And approved the decision of the Calcutta High Court in (1950) 54 GWN 832 (Suresh Chandra Khannabish v. Bank of Calcutta (FB) holding as follows :

"..... The proceedings may at best be regarded as instituted on the date on which the leave was obtained from the High Court."

The reason can be applied to the suit u/s 92 also. In AIR 1982 Punj & Har 137 (supra), leave which is a condition precedent, had not been obtained. Therein, Tewatia, J. observed :

".......... While deciding the two issues it observed that the plaintiffs have its permission to file the suit and it is from that stage that the trial of the suit would proceed I, therefore, hold that leave u/s 92 is a mandatory condition precedent. The proper procedure is for the plaintiff petitioners to file an application for leave and to append thereto a copy of the draft plaint of the suit proposed to be filed by them in order to enable the Court to grant leave, since leave is to be strictly construed. The suit instituted should be substantially in accordance with the leave granted. Since grant of leave is condition precedent, there cannot be validly instituted suit prior to the grant of leave. Generally, a plaint seeking relief or relief coming within the purview of Section 92, without grant of leave should be refused. But, where a suit has been registered or interim orders have been passed prior to the grant of leave, the same shall be held to be incompetent, invalid and non est. Where leave is granted m a pending suit, the plaintiff may either ask for renturn of the plaint for representation of the same in conformity with the leave granted, or may ask the Court to treat the plaint as instituted on and from the date leave is granted, if the plaint is substantially in conformity with the leave. Where reliefs sought do not come within the purview of Section 92, the Court may either require the plaintiffs to amend the plaint or reserve its holding until the final decision ."

In R.M. Narayana Chettiar and another Vs. N. Lakshmanan Chettiar and others, , ultimately, the specific question arose before the Apex Court as to whether it is obligatory on the Court before granting leave to institute a suit as required u/s 92, CPC, to give an opportunity to the respondents to show cause against the grant of such leave, and whether leave granted without such an opportunity having been given, is void ? The appeal in this case had arisen out of judgment of the High Court of Madras in two revision petitions following the decision of the same High Court in T.M. Shanmugham and Others Vs. The Periyar Self-respect Propaganda Institution and Others, , holding that as the leave had been granted, without any notice to the respondents, it was void and liable to be set aside. The learned single Judge of the Madras High Court allowed the revision petitions, set aside the leave and held that the suit could not be entertained, and was liable to be dismissed. The Apex Court reviewed the law on the subject including the above mentioned judgments of this High Court, the Delhi High Court and the Madras High Court as well as certain other judgments on the subject rendered by the Kerala High Court and the Allahabad High Court also. Besides, certain decisions of the Supreme Court on different proposition arising out of Section 92, CPC, are also discussed. In that case, on the same day on which the suit was filed by lodging the plaint in Court, an application was made praying leave to institute the suit u/s 92, CPC. Without issuing any notice to the respondents, the Court granted leave by passing an order reading "permitted" and issued summons to the respondents. Later, the respondents filed an interim application before the learned Subordinate Judge for revoking the leave granted, inter alia, on the ground that the respondents had not been given an opportunity to be heard before leave was granted. The learned Subordinate Judge dismissed the said application on the ground that the grant of leave is an administrative act of the Court and notice was required before such a leave was granted. This was the order, which was set aside in revision following the decision of the High Court in T.M. Shanmugham and Others Vs. The Periyar Self-respect Propaganda Institution and Others, . The verdict of the Apex Court, is expressed in paragraphs 16, 17, 18 and 19 of the judgment, which are quoted below :--

As far as the decisions of this Court which have been pointed out to us are concerned, the question as to whether before granting leave to institute a suit u/s 92 of the Code, the Court is required to give an opportunity of being heard to the proposed defendants did not arise for determination at all in those cases. As far as the High Courts are concerned, they have taken different views on this question. The legislature history of Section 92 of the Code indicates that one of the objects which led to the enactment of the said section was to enable two or more persons interested in any trust created for a public purpose of a charitable or religious nature should be enabled to file a suit for the reliefs set out in the said section without having to join all the beneficiaries since it would be highly inconvenient and impracticable for all the beneficiaries to join the suit; hence any two or more of them were given the right to institute a suit for the reliefs mentioned in the said Section 92 of the Code. However, it was considered desirable to prevent a public trust from being harassed or put to legal expenses by reckless or frivolous suits being brought against the trustees and hence, a provision was made for leave of the Court having to be obtained before the suit is instituted.

A plain reading of Section 92 of the Code indicates that leave of the Court, is a precondition or a condition precedent for the institution of a suit against a public trust for the reliefs set out in the said section, unless all the beneficiaries join in instituting the suit, if such a suit is instituted without leave, it would not be maintainable at all. Having in mind, the objectives underlying Section 92 and the language thereof, it appears to us that as a rule of caution, the Court should normally, unless it is impracticable or inconvenient to do so, give a notice to the proposed defendants before granting leave u/s 92 to institute a suit. The defendants could bring to the notice of the Court for instance that the allegations made in the plaint are frivolous or reckless. Apart from this, they could, in a given case, point out that the persons who are applying for leave u/s 92 are doing so merely with a view to harass the trust or have such antecedents that it would be undesiable to grant leave to such persons. The desirablility of such notice being given to the defendants, however, cannot be regarded as a statutory requirement to be complied with before leave u/s 92 can be granted as that would lead to unnecessary delay and, in a given case, cause considerable lose to the public trust. Such a construction of the provisions of Section 92 of the Code would render it difficult for the beneficiares of a public trust to obtain urgent interim orders from the Court even though the circumstances might warrant such relief being granted. Keeping in mind these considerations, in our opinion, 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 defendant, the suit would not thereby be rendered bad in law or non-maintainable. The 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 of revocation of the leave which can be considered on merits and according to law.

We may mention that although Clause (ffa) of Section 104(1) of the Code provides that an appeal shall lie against the refusal of grant of leave, that cannot lead to the conclusion that it is obligatory on the part of the Court to give to the proposed defendants before granting leave because an appeal lies only against the refusal of leave and not against the grant of leave. Before refusing leave the proposed plaintiffs are bound to be heard and it is the plaintiffs and not the defendants who could be prejudiced by refusal to grant such leave.

In the result, the appeals are allowed as aforesaid. The impugned judgment of the High Court is set aside. The trial Court is directed to dispose of the application for revocation of leave on merits and in accordance with law."

It appears, on the basis of the foregoing discussion that the previously prevailing controversy on the question whether an order of the Court, granting or refusing leave, u/s 92, CPC is of administrative nature or otherwise, is of no consequence. Indeed, no opinion on this question, is expressed by the Supreme Court in R.M. Narayana Chettiar and another Vs. N. Lakshmanan Chettiar and others, . A plain reading of Section 92, CPC indicates that leave of the Court is a principal condition or a condition precedent for the institution of a suit against a public trust for relief, set out in the said section, but, having in mind the underlying objective and the language used in Section 92, CPC, the Supreme Court has held in clear terms as a rule of caution, the Court should normally unless it is impracticable or inconvenient to do so, give a notice to the proposed defendants before granting leave u/s 92, CPC to institute a suit. The defendants could bring to the notice of the Court for instance that the allegations made in the plaint are frivolous or reckless. Apart from this, they could, in a given case, point out that the persons who are applying for leave u/s 92, CPC are doing so merely with a view to harass the trust or have such antecedents that it would be undesirable to grant leave to such persons. The desirability of such notice being given to the defendants, however, cannot be regarded as a statutory requirement to be complied with before leave u/s 92, CPC can be granted as that would lead to unnecessary delay and, in a given case, cause considerable loss to the public trust. Further, reservation was expressed in clear terms thus; "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. The 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. In other words, indication on plain reading of Section 92, CPC that leave of the Court is a principal condition or a condition precedent for the institution of a suit against a public trust for the reliefs set out in that section, has been considerably diluted and judicial focus shifted from the nature and character of such an order to the pith and substance of prejudice, if any, caused by such an order; and the remedy thereof, for effective determination of the questions of substance, so as to avoid unnecessary delay and achieve final disposal of such suits expeditiously.

Order granting or refusing leave u/s 92, CPC, must be a reasoned order. This is now well established on the basis of principles laid down in Gurudwara Prabandhak''s case (AIR 1984 Delhi 39) (supra) decided by the Delhi High Court, and Lachhman Dass Udasi and Others Vs. Ranjit Singh and Others, decided by the Division Bench of this High Court, which have won approval of the Apex Court in R.M. Narayana Chettiar and another Vs. N. Lakshmanan Chettiar and others, . It must be so. In a given case, where leave is refused, it would be appealable u/s 104, CPC. Where leave is granted, it may be challenged in revision u/s 115, CPC. It may also be taken as a ground of challenge in appeal if the defendant is aggrieved by the final decree in the suit, by virtue of the express provision made for this purpose in Section 105 read with Order 43, Rule 1-A, CPC. Besides, such an order would be consistent with reasonable, fair and just procedure that must be followed in all proceedings in Court.

Now, keeping in view the above discussion, I would take up the merits of the case for examination of the impunged order, from point of view of ultimate decision and suitable order that should be made in the facts and circumstances of the present case.

In the impugned order, the Subordinate Court has merely noticed the submission of the parties in paragraph 5, and, without any discussion, abruptly recorded decision in paragraph 6, granting permission and allowing the application for that purpose u/s 92, CPC. The terse statement of "considered opinion" betrays proper consideration and logical discussion of the matter necessary for a judicial decision. This order cannot be said to be a reasoned order. It would, therefore, be squarely hit by the vice of material irregularity in the exercise of its jurisdiction under Clause (c) of Sub-section (1) of Section 115, CPC. But, decision of the case does not rest on this finding alone. Proviso to Sub-section (1) of Section 115, CPC, added by Section 43 of the Amendment Act No. 104 of 1976, interdicts the High Court from proceeding, under this section, to vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order fulfills the litmus test prescribed by the Legislature under Clause (a) or Clause (b) thereof. Unless either of these two clauses of the proviso, is fulfilled, the High Court shall not vary or reverse the impugned order in revision u/s 115, CPC.

Matters of prejudice and proper remedy arising out of appealable or non appealable orders, like the one u/s 92, CPC, have to be considered in the context of earlier mentioned statutory provisions made in the CPC and also the amendment thereto made by the Legislature by Amending Act No. 104 of 1976. It is pertinent to note in this context, intention of the Legislature as also the necessity for the ends of justice to prevent abuse of dilatory process of Court and ensure final disposal of all questions involved in the suit or other proceedings expeditiously. For achieving this purpose, prolongation of litigation and spliting up issues for trial in a suit, must be avoided. Aggrieved parties must get speedy remedy by conclusive and decisive redressal of their grievance by way of appeal or revision.

Provision is made for rejection of a plant, on grounds specified in Order VII, Rule 11, CPC. Relevant to the present discussion would be Clause (a) where the plaint does not disclose a cause of action and Clause (d) where the suit appears from the statement in the plaint, to be barred by any law. If a suit sought to be framed u/s 92, CPC, suffers from such defects as envisaged under Clause (a) or Clause (d), plaint must be rejected straightway at the threshold.

Where a cause of action exists, in a case falling within the ambit and scope of Section 92, CPC, keeping in view the special nature of the remedy, in such a suit, provision is made for obtaining leave of the Court to institute the suit. Sanctity of this condition precedent for institution of such a suit has been already discussed above. Grant or refusal of leave of the Court and fulfilment or non-fulfilment of conditions u/s 92, CPC would not be hit by Clause (a) or Clause (d) and result in rejection of the plaint under Rule 11 of Order VII, CPC. None of the judgments cited at the Bar touch this point. It is not even the plea taken by either party that the plaint is liable to be rejected in the present case under Order VII, Rule 11, CPC.

Now, coming to an order, like the one refusing leave or granting leave. For obvious reasons, since the order refusing leave would rule out institution of a suit u/s 92, provision is made for appeal u/s 104(1)(ffa), CPC. No provision is made for appeal against the order granting leave. The reason for it is simple. Grant of leave would enable institution of the suit and therein trial of all questions u/s 92, CPC. All concerned parties, thus, would get ample opportunity for adjudication of their respective rights and obligations. In the case of such orders, namely, orders which are not made expressly appealable, adequate provision is made for the aggrieved party to seek remedy in appeal against the final decree u/s 105(1) and Order 43, Rule 1-A, CPC. These provisions have vital bearing upon the proviso to Section 115, CPC which by itself also makes a clear provision for interference in revision only if the error, defect or irregularity in any order would affect final decision of the suit, or occasion a failure of justice or cause irrespective injury to the party against whom it is made. Here, it is pertinent to note that the provision for remedy in appeal against final decree in the form of Rule 1A has been added in Order 43, while inserting the proviso to restrict interference in revision to Sub-section (1) of Section 115, CPC, and certain other related amendments were made all together at the same time by the Amending Act No. 104 of 1976.

A comparative reading of Order 14, Rule 2, as it existed earlier to the amendment and the one after amendment would clearly indicate that the consideration of an issue and its disposal as preliminary issue has after 1976 amendment, been made permissible only in limited cases. In the un amended Code, the categorisation was only between issues of law and of fact and it was mandatory for the Court to try the issues of law in the first instance and to postpone the settlement of the issues of fact until after the issues of law had been determined. On the other hand, in the amended provision, there is a mandate to the Court that notwithstanding that the case may be disposed of on a preliminary issue, the Court has to pronounce judgment on all the issues. This sub-rule relaxes the mandate to a limited extent by conferring a discretion upon the Court that if it is of the opinion that the case or any part thereof may be disposed of "on an issue of law only," it may try that issue first. The exercise of this discretion is further limited to the contingency that the issue to be so tried, must relate to the jurisdiction of the Court or a bar to the suit ordered by law in force. The effect of this amendment is so explained in Hardwari Lal Vs. Pohkar Mal and Others, . This provision also has been made by the same amendment in order to secure final disposal of all issues together in a suit, expeditiously.

These provisions discussed above, focus upon the question of prejudice to the defendant by order of the Court granting leave u/s 92, CPC from the point of view of testing it on the touchstone of the proviso under Sub-section (1) of Section 115, CPC. Here, it is pertinent to recall the observations made by the Division Bench of this Court in paragraph 5 and paragraph 8 of the judgment in Lachhman Dass Udasi and Others Vs. Ranjit Singh and Others, as well as those made by the Apex Court in paragraphs 17 of its judgment in R.M. Narayana Chettiar and another Vs. N. Lakshmanan Chettiar and others, regarding availability of all possible pleas to the defendant in his defence and no prejudice whatsoever caused to the defendant by order granting leave u/s 92, CPC.

For the limited purpose of application of the proviso under Sub-section (1) of Section 115, CPC, reference may again be made to decision of the learned single Judge of this Court in Ram Parkash Vs. Dayal Chand and Others, . In that case, Clause (a) was found to be applicable as the plaintiffs failed to show even, prima facie, what interest, if any, they had in the trust in question as mentioned in Section 92, CPC. In this peculiar situation, it was held that the grant of permission to the respondents to institute a suit against the petitioner, was contrary to law and the requirement of proviso (a) was also fulfilled so as to warranting interference in revision u/s 115, CPC. This is not the situation in the present case.

On pleading of parties, especially the pleading in defence taken by the defendant in the written statement, and issue No. 2 and issue No. 4 having yet to be decided, it cannot said that the impunged order granting leave, if reversed, would have finally disposed of the suit u/s 92. CPC. Thus, Clause (a) of the proviso is ruled out. So far as Clause (b) is concerned, in the light of the detailed discussion regarding availability of all pleas in defence and no prejudice caused to the defendant, at this stage, it cannot be said that the impugned order, if allowed to stand, would occasion a failure of Justice or cause irreparable injury to the petitioner-defendant. Therefore, in the facts and circumstances of the present case, neither Clause (a) nor Clause (b) of the proviso would be attracted, so as to warrant any interference with the impugned order in revision u/s 115, CPC.

It is no doubt true that the application for leave was moved at a very late stage in the suit. Irrespective of the fault of one or the other party in taking suitable steps at the appropriate stage in the suit, judicial conscience of the Court does not permit resort to the course of action adopted by the Orissa High Court in Kintali China Jaganadham and Others Vs. K. Laxmi Naidu and Others, . In that case, the suit was still at the preliminary stage. Trial could undoubtedly be held de novo. In the present case, however, the position is different. After a decade has been spent by the parties litigating in Court, it would be traversal of justice to set at naught all proceedings, including a lot of evidence, taken in the suit. Such a course of action would defeat the paramont requirement of reasonable, fair and just paramount requirement of reasonable, fair and just procedure in the proper administration of justice.

Keeping in view the ends of Justice, the trial Court is directed to give to the defendant opportunity to raise additional pleas, if any, by amendment of the written statement, within a period of two weeks, and let the plaintiff file replication within two weeks thereafter, and also give to the defendant an opportunity to lead additional evidence, if any, within a further period of two months, with opportunity to the plaintiff to lead evidence in rebuttal in another two months time, and ensure final disposal of the suit as expeditiously as possible in accordance with law.

Order dated 22-1-1993 for stay of proceedings in the suit, is hereby vacated. Parties are directed to appear before the trial Court for further directions on 14-2-2000.

Accordingly, in view of the provision made in the proviso to Sub-section (1) of Section 115, CPC, without prejudice to the right of the petitioner to challenge it in appeal against the decree, if necessary, u/s 105 read with Order XLIII, Rule 1-A, CPC, subject, to further opportunity being given to the parties to plead and prove their case on merits as mentioned above, the impunged order granting leave of the Court u/s 92, CPC is hereby mainained. The revision petition is disposed of in the aforesaid terms. Parties shall hear their own costs.