MAHESH TULSWAN Vs. RAJENDRA KUMAR BANKA

JUDGEMENT

(1.) The above application has been taken out by the 1st, 2nd and 3rd Defendants for rejection and/or taking the plaint off the file and/or dismissal of the suit as being not maintainable or barred by law for not disclosing any cause of action. Alternatively and/or in any event the name of the Plaintiff No. 1 be deleted and/or expunged and/or struck off from the records and the suit at the instance of the Plaintiff No. 1 be dismissed and/or be rejected. Leave, if any, to file the suit under Section 92 of the Code of Civil Procedure be revoked and/or cancelled and the suit also be dismissed on that ground and/or the plaint be taken off the file or be rejected. This application is opposed by the Defendants by filing affidavit. However, it is well settled that a demurer action is always examined reading the plaint and plaint alone, and No. affidavit for this purpose is required.

(2.) Mr. Das learned Senior Counsel while supporting this application submits that on reading the plaint as a whole together with the prayer portion it will appear the suit is not really intended to get relief as required under Section 92 of the Code of Civil Procedure (hereinafter Code) as the suit is filed basically for vindication of individual right with little element of public grievance. It is settled that unless the suit is filed to obtain relief for the redressal of the public grievance, in other words if it is not representative character the same cannot be viewed under Section 92 of the Code. The suit under Section 92 of the Code is legally accepted as a representative character so leave of the Court under Order 1 Rule 8 is also required to be obtained. If the suit is not within the purview of Section 92 leave obtained there under, is unnecessary. Hence leave granted under the provision of the said section of this Code shall be revoked, the suit should not be allowed to be proceeded with as it would be a case as if there is No. disclosure of cause of action as such. In support of his contention he has relied on the following decisions:

(3.) Mr. Jishnu Saha learned Advocate appearing for the Plaintiff while opposing this application submits that the leave granted under Section 92 should not be revoked as there is No. ground made out in the application for such relief nor any ground could be found for rejecting the plaint. He contends that granting relief under Section 92 is an administrative nature and tacit permission satisfies the requirement of filing of the suit under above provision. In this context he seeks reliance on a judgment of Punjab and Haryana High Court PRITHIPAL SINGH v. MAGH SINGH, 1982 AIR(P&H) 137.