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PETITIONER: R.M. NARAYANA CHETTIAR AND ANOTHER

       Vs.

RESPONDENT: N. LAKSHMANAN CHETFIAR AND OTHERS

DATE OF JUDGMENT11/10/1990

BENCH: KANIA, M.H. BENCH: KANIA, M.H. SHARMA, L.M. (J)

CITATION:  1991 AIR  221            1990 SCR  Supl. (2) 266  1991 SCC  (1)  48        JT 1991 (5)   408  1990 SCALE  (2)803

ACT:     Code  of  Civil Procedure, 1908:  Section  92--Leave  to institute, suit--Grant of--Whether opportunity to show cause to be given to respondents.

HEADNOTE:     The  appellants instituted a representative suit in  the court of the learned Subordinate Judge against the  respond- ents  inter alia praying for framing a scheme for  a  public charitable  trust. On the same day, an application was  made in  the  court praying for leave to institute the  suit,  as required  under section 92 of the Civil Procedure Cede.  The Court  granted leave without issuing any notice to  the  re- spondents.  Thereupon,  the  respondents  filed  an  interim application before the Court for revoking the leave  granted inter  alia on the ground that the respondents had not  been given any opportunity to be heard before leave was  granted. The learned Subordinate Judge dismissed the said application on the ground that the grant of leave was an  administrative act  of the Court and no notice to the respondents  was  re- quired before the grant of such leave.     The  respondents preferred a Civil Revision Petition  in the  High Court which was allowed. The learned Single  Judge took the view that as the leave had been granted without any notice to the respondents, it was void and liable to be  set aside.     Before  this  Court it was contended on  behalf  of  the appellants  that  if  tile court were required  to  give  an opportunity  to the defendants to be heard  before  granting leave  under section 92, the grant of leave would  entail  a great  deal  of delay and might defeat the ends  of  justice where  some  urgent relief was required. It was  also  urged that at the time when the court considered whether to  grant leave, it was only the averments in the plaint which had  to be  examined and hence, the presence of the  defendant   was not necessary. It was further submitted that if a  defendant had a grievance against the grant of leave, he could  always make  an  application to revoke the same  and  no  prejudice would be caused to the defendant by the grant of leave. 267      On behalf of the respondents it was submitted that  the

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court  could not decide whether leave should be  granted  or not  without  giving an opportunity to  the  defendants  who could point out the reasons why leave should not be granted.      Allowing  the appeals and directing the Trial Court  to dispose of the application for revocation of leave on merits and in accordance with law, this Court,      HELD:  (1) A plain reading of section 92 of  the  Civil Procedure Code indicates that leaves of the court is a  pre- condition 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 institut- ing the suit; if such a suit is instituted without leave  it would not be maintainable at all. [275B-C]     (2) Having in mind the objectives underlying section  92 and  the  language thereof, it appears that, as  a  rule  of caution, the court should normally, unless it is impractica- ble or inconvenient to do so, give a notice to the  proposed defendants before granting leave under section 92 to  insti- tute a suit. The desirability of such notice being given  to the  defendants, however, cannot be regarded as a  statutory requirement  to be complied with before leave under  section 92  can be granted as that would lead to unnecessary  delay, and  in a given case, could cause considerable loss  to  the public trust. [275C-E]     (3)  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. [275G]     T.N.  Shanmugam and Others v. The Periyar  Self  Respect Propaganda  Institution and Others, [1984] II MLJ  440;  AIR 1985  Mad. 93; Swami Parmatmanand Saraswati & Anr. v.  Ramji Tripathi & Anr., [1975] 1 SCR 790, 795; Charan Singh &  Anr. v. Darshan Singh and Ors., [1975] 3 SCR 48; Mahant Pragdasji Guru  Bhagwandasji  v. Patel Ishwarlal  Bhai  Narsibhai  and Others,  [1952] SCR 513; Prithipal Singh v. Magh  Singh  and Others,  AIR 1982 Punjab & Haryana 137; Lachhman Dass  Udasi (deceased by L. RS.) and Others v. Ranjit Singh and  Others. AIR 1987 Punjab and Haryana 108; I. V. Mathew v. K.V. 268 Thomas.  AIR 1983 Kerala 5; Mayer Simon Perur  v.  Advocate- General  of Kerala, AIR 1975 Kerala 57; Ambrish Kumar  Singh v. Raja Abhushan Bran Bramhshan and Others, AIR 1989 All 194 and  Gurdwara  Prabandhak Committee,  Delhi  Cantonment  and Others v. Amarjit Singh Sabharwal and Others, AIR 1984 Delhi 39, referred to.     (4) Although clause (ffa) of section 104(1) of the  Code of Civil Procedure 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 notice to the proposed defendants before granting leave because an appeal lies only against the refusal and not  the grant of leave. [275H; 276A]

JUDGMENT:     CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.  4890-91 of 1990.     From  the  Judgment and Order dated  17.10.1989  of  the Madras High Court in C.R.P. Nos. 517 & 5 18 of 1989.     S.  Padmanabhan, P.N. Ramalingam and A.T.M. Sampath  for

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the Appellants.     K.  Parasaran,  S. Balakrishnan and Ms. Revati  for  the Respondents. The Judgment of the Court was delivered by KANIA, J. Special Leave granted. Counsel heard.     These two appeals are filed by Special leave against the judgment  of the High Court of Madras in Revision  Petitions Nos. 5 17 and 5 18 of 1989. These appeals raise an interest- ing  question as to whether it is obligatory on  the  Court, before granting leave to institute a suit as required  under section 92 of the Code of Civil Procedure, 1908, to give  an opportunity  to  the respondents to show cause  against  the grant of such leave, and whether leave granted without  such opportunity having been given is void.     The  appellants instituted suit No. O.S. 55 of  1987  in the  court of the learned subordinate Judge of Sivaganga  in Tamil  Nadu against the respondents as a  representive  suit inter  alia praying for framing a scheme for a public  char- itable  trust. It is common ground that the  reliefs  prayed for in the suit were such that leave under section 92 of 269 the  Civil Procedure Code was required for  instituting  the suit. On the same day on which the suit was filed by lodging the  plaint  in court an application was  made  praying  for leave  to institute the suit under section 92 of  the  Code. Without  issuing  any notice to the  respondents,  the  said court granted leave by passing an order reading  "permitted" and  issued summons to the respondents. In March,  1988  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  any opportunity  to  be  heard before  leave  was  granted.  The learned Subordinate Judge dismissed the said application  on the ground that the grant of leave was an administrative act of  the court and no notice to the respondents was  required before  such  leave was granted. The respondents  then  pre- ferred  a Civil Revision Petition in the Madras  High  Court which  has been allowed by a judgment delivered  by  learned Single  Judge.  He  took the view that an  analysis  of  the provisions of section 92 of the Code shows that in order  to institute a representative suit as contemplated in the  said section  two  or more persons must have an interest  in  the trust  and they should have obtained the leave of the  court before  they  institute the suit. The learned  Single  Judge held that while the said section enables persons  interested in a public trust to file a suit to secure the proper admin- istration and management of the trust and its properties  by its trustees, it also imposes a check on the institution  of such  suits by the imposition of certain conditions,-one  of which is the obtaining of leave from the court. It was  held that  it is the grant of leave which confers on  the  person concerned  a right to institute a suit under section  92  of the Code. If there were any facts which might disentitle the applicants for leave from obtaining the leave of the  court, these  could be best brought to the notice of the  court  by the  party arrayed on the opposite side. The  learned  Judge also  referred to the provisions of section 104(1) (ffa)  of the  Code  whereby an order under section 91 or  section  92 refusing leave to institute a suit of the nature referred to in section 91 is made appealable. The learned Judge followed the  decision of the High Court of Madras in T.M.  Shanmugam and  Others v. The Periyar Self Respect Propaganda  Institu- tion  and Others, [1984] II MLJ 440; AIR 1985 Madras 93  and held  that as the leave had been granted without any  notice to the respondents, it was void and liable to be set  aside.

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The learned Judge allowed the-revision petitions, set  aside the  leave and held that the suit could not  be  entertained and was liable to be dismissed. It is against this  decision that these appeals have been peferred to. Learned  counsel  for the appellants submitted that  if  the court 270 were  required to give opportunity to the defendants  to  be heard  before granting leave to under section 92, the  grant of leave would entail a great deal of delay and might defeat the  ends of justice where some urgent relief was  required. He pointed out that, if a defendant had a grievance  against the  grant of leave he could always made an  application  to revoke the leave and no serious prejudice would be caused to the defendant by the grant of leave.     Learned counsel for the respondents contended that leave under  section  92  of the Code to institute a  suit  was  a material  requirement  for  maintenance of  a  suit.  Before granting leave the court was called upon to consider various aspects of the matter, namely, whether the suit was such  as contemplated under section 92, whether the persons  applying for  such leave were fit persons to institute a  representa- tive suit and so on. It was submitted by him that the  court could  not  decide whether leave should be  granted  without giving  an  opportunity  to the  defendants  to  show  cause against the grant of leave. It was submitted by him that the grant  of leave was a pre-condition for instituting a  ’suit under section 92. Leave granted without giving any  opportu- nity  to  the defendant to show cause was void  and  a  suit instituted on the basis of such void leave was not maintain- able  at all. It was submitted by him that at the  stage  of grant of leave what the court is called upon to consider  is the plaint and whether, prima facie, the suit proposed to be instituted was of the kind contemplated under section 92  of the Code, that is, whether the reliefs prayed for were  such as  were  set  out in section 92 and whether  the  suit  was against a public trust. It was also necessary for the  court to consider whether, the proposed plaintiffs had an interest in  the  public trust and were fit persons for  leave  being granted  to  them. The Court could  also  consider  whether, prima facie, the allegations in the plaint were baseless  or frivolous.  At  that  stage, it was necessary  to  give  any notice  to  the  defendant because he could  point  out  the reasons why leave should not be granted.     Before  considering the merits of the aforesaid  conten- tions, it would not be out of place to refer to the relevant provisions of the Code of Civil Procedure. The relevant part of sub section (1) of section runs as follows: "92. Public Charities (1)  In  the case of any alleged breach of  any  express  or constructive trust created for public purposes of a charita- ble or religious nature, or where the direction of the Court 271 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  Gov- ernment  within the local limits of whose  jurisdiction  the whole  or  any part of the subject matter of  the  trust  is situate to obtain a decree-- (a) removing any trustee; (b) appointing a new trustee;

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(c) vesting any property in a trustee; (cc)  directing a trustee who has been removed or  a  person who has ceased to be a trustee, to deliver possession of any trust  property in his possession to the person entitled  to the possession of such property; (d) directing accounts and enquiries; (e)  declaring what proportion of the trust property  or  of the  interest therein shall be allocated to  any  particular object of the trust; (f) authorising the whole or any part of the trust  property to be let, sold, mortgaged or exchanged; (g) settling a scheme; or (h)  granting such further or other relief as the nature  of the case may require.     Section 104 provides for appeals against certain  orders unless otherwise provided in the body of the Code or by  any other  law  in force. Clause (ffa) of that section  runs  as follows: "(ffa)  an  order under section 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." 272     We  may  mention that prior to its  amendment  in  1976, section 92 of the Code provided that leave of the  Advocate- General had to be obtained for the institution of a suit  of the kind described in that section and not the leave of  the court.     We  may  now  discuss the main cases relied  on  by  the learned Counsel for the respective parties. Coming first  to the cases relied upon by learned Counsel for the appellants, we  find that the first decision cited by him was the  deci- sion of this Court in Swami Parmatmanand Saraswati & Anr. v. Ramji  Tripathi & Anr., [1975] 1 SCR 790 at p. 796. In  that case  it was held that to see whether the suit falls  within the ambit of section 92, only the allegations in the  plaint should be looked into in the first instance. But, if,  after the evidence is taken, it is found that the breach of  trust alleged has not been made out and that the prayer for direc- tion  of ’the court is vague and is not based on  any  solid foundation of fact or reason but is made only with a view to bring  the suit under the section then such a suit  must  be dismissed.  Learned Counsel next drew our attention  to  the decision  of  this Court in Charan Singh & Anr.  v.  Darshan Singh & Ors., [1975] 3 SCR 48. Section 92 of the Code before its amendment in 1976 was applicable to the case. The  court cited  with approval the observations of Mukherjea, J.,  (as he then was), in Mahant Pragdasji Guru Bhagwandasji v. Patel Ishwarlalbhai Narsibhai and Others, reported in [1952] SCR 5 13 which runs as follows: "A suit under section 92, Civil Procedure Code, is a suit of a special nature which presupposes the existence of a public trust of a religious or charitable character. Such suit  can proceed  only  on the allegation that there is a  breach  of such trust or that directions of the court are necessary. It is  only when these conditions are fulfilled that  the  suit has  got to be brought in conformity with the provisions  of section 92, Civil Procedure Code  ......  " Neither  of the aforesaid decisions of this Court deal  with the question as to whether, before granting leave to  insti- tute a suit under section 92, Advocate-General, or later the Court,  was required to give an opportunity to the  proposed defendants  to show cause why leave should not  be  granted. What learned counsel for the appellants urged, however,  was that  these decisions show that at the time when  the  Advo- cate-General or the Court is required to consider whether to

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grant  leave to institute a suit as contemplated under  sec- tion  92, it is only the averments in the plaint which  have to be examined and hence, 273 the  presence of the defendant is not necessary. We may  now consider  the High Court decisions relied on by the  learned counsel for the appellants.     In  Prithipal Singh v. Magh Singh and Others,  AIR  1982 Punjab and Haryana 137 a learned Single Judge of the  Punjab and Haryana High Court held that the grant of leave to  file a suit is not a mere irregularity which can be cured but  is a  condition  precedent. The provisions of  section  92  are mandatory in nature in that respect. He further held that in granting leave under section 92 of the Code, the court  does not have to write a reasoned order. It does not even have to give  a notice to the defendant of an application for  leave to file a suit as the order granting leave is of an adminis- trative nature. The same view was taken by a Division  Bench of the Punjab and Haryana High Court in Lachhman Dass  Udasi (deceased by L.R. ’s) and Others v. Ranjit Singh and Others, AIR 1987 Punjab and Haryana 108 wherein it was held that  no notice is necessary to be issued to the defendants prior  to the  granting or refusing of leave under section 92  of  the Code as at that stage it is only the subjective satisfaction of  the  court that is required and, thus, the order  is  an order of administrative nature.     A Division Bench of the Kerala High Court also took  the same view in P.V. Mathew and Others v. K.V. Thomas and  Oth- ers, AIR 1983 Kerala 5. In that case it was held that  along with  the  petition  for  leave  the  plaintiffs-petitioners should  produce in court the plaint for the court’s  perusal to  enable  it to pass a proper order under  section  92(1). This does not preclude the court from requiring the  produc- tion  of any other record necessary for a  proper  decision. The court, if it is so satisfied, may grant the leave  with- out issuing notice to the respondents-defendants or  hearing them.  In  coming  to this conclusion,  the  Division  Bench relied  upon the earlier decision of the Full Bench  of  the Kerala High Court in Mayer Simon, Perur v.  Advocate-General of Kerala and Others, AIR 1975 Kerala 57 which was  rendered before the amendment of Section 92 of the Code in 1976.     Learned  Counsel referred to the judgment of  a  learned Single Judge of Allahabad High Court in Ambrish Kumar  Singh v. Raja Abhushan Bran Bramhshan and Others, AIR 1989 Allaha- bad  194.  In that case the learned Judge  held  that  while granting  leave the court does not decide the rights of  the parties.  No right is adjudicated at this stage.  The  court has  merely to see whether there is a prima facie  case  for granting  leave to file a suit. This order does not  in  any way affect the final decision which will be given on  merits after the parties have 274 led  evidence in the suit. Section 92 of the Code  does  not contemplate giving of any notice to the proposed  defendants before granting leave.     Learned counsel for the respondent.,;. on the other hand drew  our attention to the afore-mentioned decision  of  the Madras  High  Court  in T.M. Shanmugham and  Others  v.  The Periyar Self Respect Propaganda Institution and Others,  AIR 1985  Madras 93 which has been relied upon in  the  impugned judgment.  In  that case a learned Judge of  the  said  High Court held that leave granted to the plaintiffs to institute a  suit under section 92 of the Code without notice  to  the defendants  is void in law and the logical consequence  will be that the institution and the numbering of the suit cannot

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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 fresh proceedings in accordance  with law under section 92 of the Code.     In  the  case of Gurdwara  Prabandhak  Committee.  Delhi Cantonment and Others v. Amarjit Singh Sabharwal and Others. AIR  1984 Delhi 39 a learned Single Judge of the Delhi  High Court  has  taken the view that an order of  District  Judge granting  or  refusing leave must be a reasoned  order.  The public  trust  concerned has right to be  heard  before  the grant  or refusal of leave. It was held by him that  if  the trust  is not given an opportunity of being heard, it  would be a material irregularity. To pass a non-speaking order  in a  judicial proceeding is also a material  irregularity  and revision would lie against such an irregularity. The  grant- ing  or refusing leave is a judicial order subject to  revi- sion  or appeal and it must be supported by reasons.  Before such an order is passed both sides must have had an opportu- nity of being heard.     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 under section  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 legislative 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 impractic- 275 able  for all the beneficiaries to join in 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  trus- tees 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 pre-condition or a condition  prece- dent  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 caution, the court should normally. unless it is impractica- ble or inconvenient to do so, give a notice to the  proposed defendants before granting leave under section 92 to  insti- tute 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  under section 92 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 under section 92 can be granted  as  that

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would lead to unnecessary delay and, in a given case.  cause considerable  loss to the public trust. Such a  construction of the provisions of section 92 of the Code would render  it difficult for the beneficiaries of a public trust to  obtain urgent interim orders from the court even though the circum- stances 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 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.     We  may mention that although clause (ffa) of a  section 104(1) of the Code provides that an appeal shall lie against the refusal of grant of 276 leave, that cannot lead to the conclusion that it is obliga- tory on the part of the court to give notice 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  aforestated. 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.     On  the facts and circumstances of the case, there  will be no order as to cost incurred so far. R.S.   S.                                            Appeals allowed. 277