C. CHETAN Vs. SOWKAR KABBAHALLI CHANNABASAPPA

JUDGEMENT

(1.) This appeal is filed by the appellants/petitioners challenging the order passed by the Principal District & Sessions Judge, Mysore in Misc.No.26/2008 whereby the application filed by the petitioners under Sec. 92 of Civil Procedure Code, seeking leave of the court for institution of the suit against the respondents has been rejected.

(2.) The appellants/petitioners claims to be the trustees of 'Sowkar Chenabasappa's Veerashiva Ashram'. Their case is that the other trustees are trying to lease out the trust property for a lesser sum. To protect the interest of the trust, they have filed a suit. Along with the plaint, they have filed an application under Sec. 92 of the Civil Procedure Code seeking leave of the court for institution of the suit. The said application has been dismissed. Being aggrieved by the same, they are before this Court.

(3.) Sri H.N.Shashidhara, the learned Senior Counsel appearing for the appellants has contended that under Sec. 92 of the Civil Procedure Code, while granting leave, the court has to examine the averments made in the plaint and the petitioners have to establish that they are interested parties to the trust and trust would be public trust and there should be prima facie materials to show that there is misappropriation of the trust property. Instead of considering these aspects of the matter, the trial court has decided the matter on merits and contrary to Sec. 92 of Civil Procedure Code, dismissed the Misc.Petition. In support of his contention, he has relied on the judgment of the Hon'ble Apex Court in the case of R.M.NARAYANA CHETTIAR AND ANOTHER vs. N.LAKSHMANAN CHETTIAR AND OTHERS reported in AIR 1991 SC 221.