R M NARAYANA CHETTIAR Vs. N LAKSHMANAN CHETTIAR

JUDGEMENT

(1.) Special Leave granted. Counsel heard.

(2.) These two appeals are filed by Special leave against the judgment of the High Court of Madras in Revision Petitions Nos. 517 and 518 of 1989. These appeals raise an interesting question as to whether it is obligatory on the Court, before granting leave to institute a suit as required under S. 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.

(3.) 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 representative suit inter alia praying for framing a scheme for a public charitable trust. It is common ground that the reliefs prayed for in the suit were such that leave under S. 92 of 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 S. 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 preferred 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 S. 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 administration 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 S. 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 S. 104(1) (ffa) of the Code whereby an order under S. 91 or S. 92 refusing leave to institute a suit of the nature referred to in S. 91 is made appealable. The learned Judge followed the decision of the High Court of Madras in T. M. Shanmugam v. The Periyar Self Respect Propaganda Institution (1984) 2 Mad LJ 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. 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 preferred.