B K N PILLAI Vs. GEORGE MENDEZ

JUDGEMENT

(1.) Two persons filed a suit for restraining the appellant (defendant) from conducting retreading business in a place situated close to the residence of the plaintiffs, as the conduct of the business amounts to public nuisance. The suit was resisted, among other contentions, on the ground that it is bad for want of valid leave under S.91 of the Code of Civil Procedure (for short 'the Code'). The Trial Court upheld the aforesaid contention and dismissed the suit. The District Court, in appeal, reversed the finding and held that the plaintiffs bad obtained leave, though ex parte, on the date of filing of the suit which is valid under law. Accordingly the Trial Court was directed to restore the suit and proceed to dispose it of in accordance with law. The said judgment of the District Court is assailed in this appeal filed by the defendant.

(2.) Facts necessary for this appeal are the following: The suit is for declaration that the retreading business carried on by the defendant causes public nuisance and for restraining the defendant by a perpetual injunction from carrying on the said business in the present premises. The suit was filed on 24-10-1984. Along with the plaint, two interlocutory applications were also filed, one for leave under S.91 of the Code and the other for a temporary injunction. Leave was granted on 24-10-1984 itself, but it was done without notice to the defendant. On the next day defendant entered appearance and filed counter in which the point regarding validity of leave was raised. The lower court upheld the contention of the defendant and the suit was dismissed as not maintainable, The District Court in appeal found that the leave granted by the court is in accordance with law and hence the suit is not liable to be dismissed for want of leave.

(3.) Learned counsel for the appellant contended that inasmuch as the institution of the suit was completed by presentation of the plaint in the Trial Court, the suit remains defective and leave obtained subsequently, though on the same day, will not cure the defect. He also contended that leave granted without affording an opportunity to the defendant is not binding on him and is hence invalid. In support thereof, reference was made to the decision of a single Judge of the Madras High Court in Shanmugham v. PSRP Institution (1984 (97 L.W. 480). The decision relates to a suit filed under S.92 of the Code for removal of a party from the secretaryship of a Public Trust. Leave was obtained to institute the suit without taking notice to the defendants. It was held that such a leave granted to the plaintiffs to institute the suit under S.92, CPC, without notice to the defendants is void in law. The aforesaid view of the single Judge of the Madras High Court does not help the appellant in view of the legal principle laid down by a Division Bench of this Court in Mathew v. Thomas ( 1982 KLT 493 ). In paragraph nine of the decision, procedure for the grant of leave under S.92(1) of the Code, has been formulated thus: ''The Court can, if it is so satisfied grant the leave without issuing notice to the respondents defendants or bearing them. S.92(1) does not provide for the grant of interim leave to the plaintiffs. What it contemplates is only the grant of leave and as a corollary the refusal of leave".