G VASANTHA PAI AND A N JAGANNATHA RAO Vs. GANDHINAGAR CO-OPERATIVE HOUSE CONSTRUCTION SOCIETY LIMITED AND GANDHINAGAR EDUCATION SOCIETY

JUDGEMENT

(1.) The appellants filed the Application No.1684 of 1987 seeking leave of the court under Section 92 C.P.C to file a suit against the respondents herein. The grievance of the appellants is that certain lands were allotted for the running of the school and though originally the residents of Gandhi Nagar were running the school, the same was handed over to the Gandhi Nagar Education Society for proper running and management. The Gandhi Nagar Cricket and Sports Club was also allotted certain lands for the purpose of construction of a pavilion. The place allotted for the play ground is being used for the construction of the school building by the second respondent and since the same is contrary to the condition of allotment as well as the undertaking given by the second respondent, they are not entitled to continue their occupation. Virtually the second respondent also encroached upon a portion of the site allotted to the Gandhi Nagar Cricket and Sports Club and built a thatched shed and converted the same in the year 1985 into a pucca asbestos shed. Since the place allotted for the park having been occupied by the second respondent, the residents of Gandhi Nagar Colony were deprived of the facility of fun and further since the action of the second respondent is contrary to the conditions imposed by the Trust, the suit was laid for the following reliefs:

(2.) The learned single Judge by his order dated 6.11.1996, after hearing the first appellant, as party in person, has granted the leave regarding the question as to whether the construction, if any, on the area abutting the road which is mentioned as park area in the schedule to the sale deed in favour of the Education Society, is required to be removed. So far as the removal of the school building constructed in the play ground is concerned, leave has been rejected. As against the same the present appeal has been filed.

(3.) Mr. Vasantha Pai, the first appellant appeared in person and contended that it is not open to the court to restrict the leave in an application under Section 92 C.P.C. When once the court finds that the applicants are entitled for the leave, the same should be in an absolute manner and whether the plaintiffs are entitled for the relief sought for in the plaint or not can be gone into only after the trial. It is not open to the court to restrict the leave to such relief while disposing of the application for the grant of leave. Hence the order of the learned single Judge cannot be sustained and is liable to be set aside. The learned counsel appearing for the second appellant adopted the argument of the first appellant.