SARASWATHI PILLAI MAHVIR Vs. GOPALA PILLAY

JUDGEMENT

(1.) 1. Revision petitioners challenge the order of the Second Additional District Judge, Trivandrum in OP (Trust) 116 of 1984. Respondents 1 to 3 filed the OP under S. 92 of the CPC for setting up a scheme for management of Swayam Prakash Ashramam, Kulathoor, temple and its properties. The petition was allowed and permission was granted for filing the suit.

(2.) REVISION petitioners contended that the petition is not maintainable as the plaint was not filed along with it. They relied on Mathew v. Thomas (1982 KLT 493) and urged that the failure to produce the plaint is fatal to the petition under S. 92 of the CPC In the above decision there is an observation that along with the petition for leave the plaintiff should produce in the court the plaint for the court's perusal to enable it to pass proper order under S. 92 (1) CPC. In that case this Court considered whether a court can pass interim orders in a suit before granting leave under S. 92. As that was the only matter considered the observation is merely obiter dicta.

(3.) ANOTHER ground of attack on the impugned order is that there is no finding by the Court below that the respondents (petitioners before that Court) have any interest in the trust to enable them to file the application under S. 92 (1) CPC. The impugned order has considered only the interest of the first respondent in the Trust. Learned Judge obviously overlooked the most salient aspect as to whether the respondents have any interest in the trust. Mandate of S. 92 (1) CPC is that two or more persons having an interest in the trust can approach the Court for leave to institute the suit. As there is no ouch finding it has to be held that the order cannot be sustained. A finding whether the respondents other than the 1st respondent have any interest in the trust is really necessary. The finding of the Court below that the 1st respondent has interest in the trust is confirmed. The impugned order is hereby set aside except the finding regarding 1st respondent's interest in the Trust and the case is remitted to the Court below for consideration afresh in accordance with law and the observations made in this order. The Civil Revision Petition is allowed as stated above with no order as to costs. .