MARIMALLAPPA EDUCATION TRUST, REPRESENTED BY ITS HONORARY SECRETARY, SRI. K.N. PANCHAKSHARASWAMY AND OTHERS Vs. SRI M. GURUSWAMY B.E. S/O LATE MAHADEVAPPA RETIRED EXECUTIVE ENGINEER AND OTHERS

JUDGEMENT

(1.) THIS unfortunate Writ Petition is directed against the order dated 05.04.2008 in Misc.83/2002 on the file of District Judge, Mysore.

(2.) THE brief facts leading to this case are: The scheme suit stated was filed in Suit No. 4/1879 by one Mallamma and Muthanna against one C. Rangacharalu. It appears that, the said suit has been disposed of. In the said suit, an application under Section 92 read with Section 151 of Code of Civil Procedure, 1908 was filed for entertaining two I.As., I.A. No. 1 and I.A. No. 2. Since the application was filed under Section 92 of CPC, the Court blindly treated the same as miscellaneous proceedings under Section 92 without even verifying as to whether the said Misc. application is for institution of a suit for framing of a scheme in terms of Section 92 read with Order 1 Rule 8(2) read with Section 151 of CPC. In turn, in the said Misc. application, notice was issued, on service of notice, the respondents/petitioners herein filed objections and the matter adjourned from time to time for hearing on the Miscellaneous application. On 05.04.2008, the Court realized that, what is sought for by the applicant in miscellaneous application is for adjudication of I.A. Nos. 1 and 2 filed in suit No. 4/1879 disposed of on 22.07.1879 and not a suit under Section 92 of the CPC and accordingly held that the miscellaneous proceedings are redundant.

(3.) SRI . M.R. Rajagopal, learned Counsel appearing for the petitioner submitted that the Misc. application is admittedly filed under Section 92 of CPC and if notice is issued to the respondents, after hearing, the Court should have passed an order on Section 92 application granting leave or not granting any leave. When such an application is filed, without disposing the Misc. application has now ordered for treating I.A. Nos. 1 and 2 as filed in Suit No. 4/1879 and submitted that I.As. ought to have been treated as original suit instituted by the applicant in Misc proceedings. He also submitted that the order impugned is wholly erroneous and contrary to the provisions of Section 92 of CPC. In this regard, he relied on a Judgment of the Apex Court reported in R.M. Narayana Chettiar and another Vs. N. Lakshmanan Chettiar and others, AIR 1991 SC 221 and he submitted that the Apex Court on interpretation of provisions of Section 92 has held that "sanction of leave to institute the suit is a pre -condition and no suit without the sanction of leave is maintainable and submitted that I.A. Nos. 1 and 2 which are filed are in the nature of the suit and they could not have been ordered to be heard without granting leave under Section 92".