CHURCH OF SOUTH INDIA REP. BY ITS ACTING MODERATOR AND ORS. Vs. CHURCH OF MISSIONARY SOCIETY OF KRISHNA GODAVARI DIOCESE IN INDIAN REP. BY ITS TRUSTEES AND ORS.

JUDGEMENT

(1.) The properties of Church Missionary Society were originally administered by K.G. Diocese. At present the trust properties are managed by the Church of South India, the petitioner herein. The Church Missionary Society complains that the Church of South India was mismanaging the trust properties and the Managing Committee is guilty of acts of misfeasance and malfeasance. They filed a suit for accounts and for proper management of the trust properties., Along with the suit they filed I.A. 801/87 seeking leave of the Court under Sec. 92 of the Code of Civil Procedure. The suit was numbered as O.S.4/87. On a consideration of the allegations in the plaint and the allegations made in the affidavit filed in Support of I.A. 810/87 seeking leave, the second Additional District and Sessions Judge, granted leave and allowed the petition on 21-9-1987 observing as follows: "In view of the affidavit and the plaint averments the petitioners are permitted to institute the suit". It is the validity of this order that is challenged by the defendant-Church of South India.

(2.) The main contention of Sri S. Srinivas Reddy, learned counsel for the petitioners is that the order is null and void inasmuch as no notice was given to the petitioner-defendant before granting leave. The order is also liable to be set aside as it does not contain any reasons. This argument is countered by Sri B. Tarakam, learned counsel for the respondent-plaintiff contending that the function of the Court under Sec. 92, C.P.C. is an administrative function and no notice is contemplated to the defendant at that stage. All that the Court has to see is the averments made in the plaint and any documents, supplied, by the plaintiff and satisfy itself as to whether leave should be given or not. At that stage the defendant does not come into the picture.

(3.) This matter came up earlier before our learned brother Ramanujulu Naidu, J. Who in view of conflict of judicial opinion between the various High Courts, referred the question to Division Bench. That is how the matter is before us.