Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8
PETITIONER:
R.M. NARAYANA CHETTIAR AND ANOTHER
Vs.
RESPONDENT:
N. LAKSHMANAN CHETFIAR AND OTHERS
DATE OF JUDGMENT11/10/1990
BENCH:
KANIA, M.H.
BENCH:
KANIA, M.H.
SHARMA, L.M. (J)
CITATION:
1991 AIR 221 1990 SCR Supl. (2) 266
1991 SCC (1) 48 JT 1991 (5) 408
1990 SCALE (2)803
ACT:
Code of Civil Procedure, 1908: Section 92--Leave to
institute, suit--Grant of--Whether opportunity to show cause
to be given to respondents.
HEADNOTE:
The appellants instituted a representative suit in the
court of the learned Subordinate Judge against the respond-
ents inter alia praying for framing a scheme for a public
charitable trust. On the same day, an application was made
in the court praying for leave to institute the suit, as
required under section 92 of the Civil Procedure Cede. The
Court granted leave without issuing any notice to the re-
spondents. Thereupon, the respondents filed an interim
application before the Court for revoking the leave granted
inter alia on the ground that the respondents had not been
given any opportunity to be heard before leave was granted.
The learned Subordinate Judge dismissed the said application
on the ground that the grant of leave was an administrative
act of the Court and no notice to the respondents was re-
quired before the grant of such leave.
The respondents preferred a Civil Revision Petition in
the High Court which was allowed. The learned Single Judge
took the view that as the leave had been granted without any
notice to the respondents, it was void and liable to be set
aside.
Before this Court it was contended on behalf of the
appellants that if tile court were required to give an
opportunity to the defendants to be heard before granting
leave under section 92, the grant of leave would entail a
great deal of delay and might defeat the ends of justice
where some urgent relief was required. It was also urged
that at the time when the court considered whether to grant
leave, it was only the averments in the plaint which had to
be examined and hence, the presence of the defendant was
not necessary. It was further submitted that if a defendant
had a grievance against the grant of leave, he could always
make an application to revoke the same and no prejudice
would be caused to the defendant by the grant of leave.
267
On behalf of the respondents it was submitted that the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8
court could not decide whether leave should be granted or
not without giving an opportunity to the defendants who
could point out the reasons why leave should not be granted.
Allowing the appeals and directing the Trial Court to
dispose of the application for revocation of leave on merits
and in accordance with law, this Court,
HELD: (1) A plain reading of section 92 of the Civil
Procedure Code indicates that leaves of the court is a pre-
condition or a condition precedent for the institution of a
suit against a public trust for the reliefs set out in the
said section, unless all the beneficiaries join in institut-
ing the suit; if such a suit is instituted without leave it
would not be maintainable at all. [275B-C]
(2) Having in mind the objectives underlying section 92
and the language thereof, it appears that, as a rule of
caution, the court should normally, unless it is impractica-
ble or inconvenient to do so, give a notice to the proposed
defendants before granting leave under section 92 to insti-
tute a suit. The desirability of such notice being given to
the defendants, however, cannot be regarded as a statutory
requirement to be complied with before leave under section
92 can be granted as that would lead to unnecessary delay,
and in a given case, could cause considerable loss to the
public trust. [275C-E]
(3) If a suit is instituted on the basis of such leave
granted without notice to the defendants, the suit would not
thereby be rendered bad in law or non-maintainable. The
grant of leave cannot be regarded as defeating or even
seriously prejudicing any right of the proposed defendants
because it is always open to them to file an application for
revocation of the leave which can be considered on merits
and according to law. [275G]
T.N. Shanmugam and Others v. The Periyar Self Respect
Propaganda Institution and Others, [1984] II MLJ 440; AIR
1985 Mad. 93; Swami Parmatmanand Saraswati & Anr. v. Ramji
Tripathi & Anr., [1975] 1 SCR 790, 795; Charan Singh & Anr.
v. Darshan Singh and Ors., [1975] 3 SCR 48; Mahant Pragdasji
Guru Bhagwandasji v. Patel Ishwarlal Bhai Narsibhai and
Others, [1952] SCR 513; Prithipal Singh v. Magh Singh and
Others, AIR 1982 Punjab & Haryana 137; Lachhman Dass Udasi
(deceased by L. RS.) and Others v. Ranjit Singh and Others.
AIR 1987 Punjab and Haryana 108; I. V. Mathew v. K.V.
268
Thomas. AIR 1983 Kerala 5; Mayer Simon Perur v. Advocate-
General of Kerala, AIR 1975 Kerala 57; Ambrish Kumar Singh
v. Raja Abhushan Bran Bramhshan and Others, AIR 1989 All 194
and Gurdwara Prabandhak Committee, Delhi Cantonment and
Others v. Amarjit Singh Sabharwal and Others, AIR 1984 Delhi
39, referred to.
(4) Although clause (ffa) of section 104(1) of the Code
of Civil Procedure provides that an appeal shall lie against
the refusal of grant of leave, that cannot lead to the
conclusion that it is obligatory on the part of the court to
give notice to the proposed defendants before granting leave
because an appeal lies only against the refusal and not the
grant of leave. [275H; 276A]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 4890-91
of 1990.
From the Judgment and Order dated 17.10.1989 of the
Madras High Court in C.R.P. Nos. 517 & 5 18 of 1989.
S. Padmanabhan, P.N. Ramalingam and A.T.M. Sampath for
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8
the Appellants.
K. Parasaran, S. Balakrishnan and Ms. Revati for the
Respondents.
The Judgment of the Court was delivered by
KANIA, J. Special Leave granted. Counsel heard.
These two appeals are filed by Special leave against the
judgment of the High Court of Madras in Revision Petitions
Nos. 5 17 and 5 18 of 1989. These appeals raise an interest-
ing question as to whether it is obligatory on the Court,
before granting leave to institute a suit as required under
section 92 of the Code of Civil Procedure, 1908, to give an
opportunity to the respondents to show cause against the
grant of such leave, and whether leave granted without such
opportunity having been given is void.
The appellants instituted suit No. O.S. 55 of 1987 in
the court of the learned subordinate Judge of Sivaganga in
Tamil Nadu against the respondents as a representive suit
inter alia praying for framing a scheme for a public char-
itable trust. It is common ground that the reliefs prayed
for in the suit were such that leave under section 92 of
269
the Civil Procedure Code was required for instituting the
suit. On the same day on which the suit was filed by lodging
the plaint in court an application was made praying for
leave to institute the suit under section 92 of the Code.
Without issuing any notice to the respondents, the said
court granted leave by passing an order reading "permitted"
and issued summons to the respondents. In March, 1988 the
respondents filed an interim application before the learned
Subordinate Judge for revoking the leave granted inter alia
on the ground that the respondents had not been given any
opportunity to be heard before leave was granted. The
learned Subordinate Judge dismissed the said application on
the ground that the grant of leave was an administrative act
of the court and no notice to the respondents was required
before such leave was granted. The respondents then pre-
ferred a Civil Revision Petition in the Madras High Court
which has been allowed by a judgment delivered by learned
Single Judge. He took the view that an analysis of the
provisions of section 92 of the Code shows that in order to
institute a representative suit as contemplated in the said
section two or more persons must have an interest in the
trust and they should have obtained the leave of the court
before they institute the suit. The learned Single Judge
held that while the said section enables persons interested
in a public trust to file a suit to secure the proper admin-
istration and management of the trust and its properties by
its trustees, it also imposes a check on the institution of
such suits by the imposition of certain conditions,-one of
which is the obtaining of leave from the court. It was held
that it is the grant of leave which confers on the person
concerned a right to institute a suit under section 92 of
the Code. If there were any facts which might disentitle the
applicants for leave from obtaining the leave of the court,
these could be best brought to the notice of the court by
the party arrayed on the opposite side. The learned Judge
also referred to the provisions of section 104(1) (ffa) of
the Code whereby an order under section 91 or section 92
refusing leave to institute a suit of the nature referred to
in section 91 is made appealable. The learned Judge followed
the decision of the High Court of Madras in T.M. Shanmugam
and Others v. The Periyar Self Respect Propaganda Institu-
tion and Others, [1984] II MLJ 440; AIR 1985 Madras 93 and
held that as the leave had been granted without any notice
to the respondents, it was void and liable to be set aside.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8
The learned Judge allowed the-revision petitions, set aside
the leave and held that the suit could not be entertained
and was liable to be dismissed. It is against this decision
that these appeals have been peferred to.
Learned counsel for the appellants submitted that if the
court
270
were required to give opportunity to the defendants to be
heard before granting leave to under section 92, the grant
of leave would entail a great deal of delay and might defeat
the ends of justice where some urgent relief was required.
He pointed out that, if a defendant had a grievance against
the grant of leave he could always made an application to
revoke the leave and no serious prejudice would be caused to
the defendant by the grant of leave.
Learned counsel for the respondents contended that leave
under section 92 of the Code to institute a suit was a
material requirement for maintenance of a suit. Before
granting leave the court was called upon to consider various
aspects of the matter, namely, whether the suit was such as
contemplated under section 92, whether the persons applying
for such leave were fit persons to institute a representa-
tive suit and so on. It was submitted by him that the court
could not decide whether leave should be granted without
giving an opportunity to the defendants to show cause
against the grant of leave. It was submitted by him that the
grant of leave was a pre-condition for instituting a ’suit
under section 92. Leave granted without giving any opportu-
nity to the defendant to show cause was void and a suit
instituted on the basis of such void leave was not maintain-
able at all. It was submitted by him that at the stage of
grant of leave what the court is called upon to consider is
the plaint and whether, prima facie, the suit proposed to be
instituted was of the kind contemplated under section 92 of
the Code, that is, whether the reliefs prayed for were such
as were set out in section 92 and whether the suit was
against a public trust. It was also necessary for the court
to consider whether, the proposed plaintiffs had an interest
in the public trust and were fit persons for leave being
granted to them. The Court could also consider whether,
prima facie, the allegations in the plaint were baseless or
frivolous. At that stage, it was necessary to give any
notice to the defendant because he could point out the
reasons why leave should not be granted.
Before considering the merits of the aforesaid conten-
tions, it would not be out of place to refer to the relevant
provisions of the Code of Civil Procedure. The relevant part
of sub section (1) of section
runs as follows:
"92. Public Charities
(1) In the case of any alleged breach of any express or
constructive trust created for public purposes of a charita-
ble or religious nature, or where the direction of the Court
271
is deemed necessary for the administration of any such
trust, the Advocate-General, or two or more persons having
an interest in the trust and having obtained the leave of
the Court, may institute a suit, whether contentious or not,
in the principal Civil Court of original jurisdiction or in
any other court empowered in that behalf by the State Gov-
ernment within the local limits of whose jurisdiction the
whole or any part of the subject matter of the trust is
situate to obtain a decree--
(a) removing any trustee;
(b) appointing a new trustee;
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8
(c) vesting any property in a trustee;
(cc) directing a trustee who has been removed or a person
who has ceased to be a trustee, to deliver possession of any
trust property in his possession to the person entitled to
the possession of such property;
(d) directing accounts and enquiries;
(e) declaring what proportion of the trust property or of
the interest therein shall be allocated to any particular
object of the trust;
(f) authorising the whole or any part of the trust property
to be let, sold, mortgaged or exchanged;
(g) settling a scheme; or
(h) granting such further or other relief as the nature of
the case may require.
Section 104 provides for appeals against certain orders
unless otherwise provided in the body of the Code or by any
other law in force. Clause (ffa) of that section runs as
follows:
"(ffa) an order under section 91 or section 92 refusing
leave to institute a suit of the nature referred to in
section 91 or section 92, as the case may be."
272
We may mention that prior to its amendment in 1976,
section 92 of the Code provided that leave of the Advocate-
General had to be obtained for the institution of a suit of
the kind described in that section and not the leave of the
court.
We may now discuss the main cases relied on by the
learned Counsel for the respective parties. Coming first to
the cases relied upon by learned Counsel for the appellants,
we find that the first decision cited by him was the deci-
sion of this Court in Swami Parmatmanand Saraswati & Anr. v.
Ramji Tripathi & Anr., [1975] 1 SCR 790 at p. 796. In that
case it was held that to see whether the suit falls within
the ambit of section 92, only the allegations in the plaint
should be looked into in the first instance. But, if, after
the evidence is taken, it is found that the breach of trust
alleged has not been made out and that the prayer for direc-
tion of ’the court is vague and is not based on any solid
foundation of fact or reason but is made only with a view to
bring the suit under the section then such a suit must be
dismissed. Learned Counsel next drew our attention to the
decision of this Court in Charan Singh & Anr. v. Darshan
Singh & Ors., [1975] 3 SCR 48. Section 92 of the Code before
its amendment in 1976 was applicable to the case. The court
cited with approval the observations of Mukherjea, J., (as
he then was), in Mahant Pragdasji Guru Bhagwandasji v. Patel
Ishwarlalbhai Narsibhai and Others, reported in [1952] SCR 5
13 which runs as follows:
"A suit under section 92, Civil Procedure Code, is a suit of
a special nature which presupposes the existence of a public
trust of a religious or charitable character. Such suit can
proceed only on the allegation that there is a breach of
such trust or that directions of the court are necessary. It
is only when these conditions are fulfilled that the suit
has got to be brought in conformity with the provisions of
section 92, Civil Procedure Code ...... "
Neither of the aforesaid decisions of this Court deal with
the question as to whether, before granting leave to insti-
tute a suit under section 92, Advocate-General, or later the
Court, was required to give an opportunity to the proposed
defendants to show cause why leave should not be granted.
What learned counsel for the appellants urged, however, was
that these decisions show that at the time when the Advo-
cate-General or the Court is required to consider whether to
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8
grant leave to institute a suit as contemplated under sec-
tion 92, it is only the averments in the plaint which have
to be examined and hence,
273
the presence of the defendant is not necessary. We may now
consider the High Court decisions relied on by the learned
counsel for the appellants.
In Prithipal Singh v. Magh Singh and Others, AIR 1982
Punjab and Haryana 137 a learned Single Judge of the Punjab
and Haryana High Court held that the grant of leave to file
a suit is not a mere irregularity which can be cured but is
a condition precedent. The provisions of section 92 are
mandatory in nature in that respect. He further held that in
granting leave under section 92 of the Code, the court does
not have to write a reasoned order. It does not even have to
give a notice to the defendant of an application for leave
to file a suit as the order granting leave is of an adminis-
trative nature. The same view was taken by a Division Bench
of the Punjab and Haryana High Court in Lachhman Dass Udasi
(deceased by L.R. ’s) and Others v. Ranjit Singh and Others,
AIR 1987 Punjab and Haryana 108 wherein it was held that no
notice is necessary to be issued to the defendants prior to
the granting or refusing of leave under section 92 of the
Code as at that stage it is only the subjective satisfaction
of the court that is required and, thus, the order is an
order of administrative nature.
A Division Bench of the Kerala High Court also took the
same view in P.V. Mathew and Others v. K.V. Thomas and Oth-
ers, AIR 1983 Kerala 5. In that case it was held that along
with the petition for leave the plaintiffs-petitioners
should produce in court the plaint for the court’s perusal
to enable it to pass a proper order under section 92(1).
This does not preclude the court from requiring the produc-
tion of any other record necessary for a proper decision.
The court, if it is so satisfied, may grant the leave with-
out issuing notice to the respondents-defendants or hearing
them. In coming to this conclusion, the Division Bench
relied upon the earlier decision of the Full Bench of the
Kerala High Court in Mayer Simon, Perur v. Advocate-General
of Kerala and Others, AIR 1975 Kerala 57 which was rendered
before the amendment of Section 92 of the Code in 1976.
Learned Counsel referred to the judgment of a learned
Single Judge of Allahabad High Court in Ambrish Kumar Singh
v. Raja Abhushan Bran Bramhshan and Others, AIR 1989 Allaha-
bad 194. In that case the learned Judge held that while
granting leave the court does not decide the rights of the
parties. No right is adjudicated at this stage. The court
has merely to see whether there is a prima facie case for
granting leave to file a suit. This order does not in any
way affect the final decision which will be given on merits
after the parties have
274
led evidence in the suit. Section 92 of the Code does not
contemplate giving of any notice to the proposed defendants
before granting leave.
Learned counsel for the respondent.,;. on the other hand
drew our attention to the afore-mentioned decision of the
Madras High Court in T.M. Shanmugham and Others v. The
Periyar Self Respect Propaganda Institution and Others, AIR
1985 Madras 93 which has been relied upon in the impugned
judgment. In that case a learned Judge of the said High
Court held that leave granted to the plaintiffs to institute
a suit under section 92 of the Code without notice to the
defendants is void in law and the logical consequence will
be that the institution and the numbering of the suit cannot
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8
be validly sustained in law and, therefore, the suit was
liable to be dismissed on that technical ground. However,
this will not stand in the way of the plaintiffs, if so
desired, to institute fresh proceedings in accordance with
law under section 92 of the Code.
In the case of Gurdwara Prabandhak Committee. Delhi
Cantonment and Others v. Amarjit Singh Sabharwal and Others.
AIR 1984 Delhi 39 a learned Single Judge of the Delhi High
Court has taken the view that an order of District Judge
granting or refusing leave must be a reasoned order. The
public trust concerned has right to be heard before the
grant or refusal of leave. It was held by him that if the
trust is not given an opportunity of being heard, it would
be a material irregularity. To pass a non-speaking order in
a judicial proceeding is also a material irregularity and
revision would lie against such an irregularity. The grant-
ing or refusing leave is a judicial order subject to revi-
sion or appeal and it must be supported by reasons. Before
such an order is passed both sides must have had an opportu-
nity of being heard.
As far as the decisions of this Court which have been
pointed out to us are concerned, the question as to whether
before granting leave to institute a suit under section 92
of the Code, the Court is required to give an opportunity of
being heard to the proposed defendants did not arise for
determination at all in those cases. As far as the High
Courts are concerned, they have taken different views on
this question. The legislative history of section 92 of the
Code indicates that one of the objects which led to the
enactment of the said section was to enable two or more
persons interested in any trust created for a public purpose
of a charitable or religious nature should be enabled to
file a suit for the reliefs set out in the said section
without having to join all the beneficiaries since it would
be highly inconvenient and impractic-
275
able for all the beneficiaries to join in the suit; hence
any two or more of them were given the right to institute a
suit for the reliefs mentioned in the said section 92 of the
Code. However, it was considered desirable to prevent a
public trust from being harassed or put to legal expenses by
reckless or frivolous suits being brought against the trus-
tees and hence, a provision was made for leave of the court
having to be obtained before the suit is instituted.
A plain reading of section 92 of the Code indicates that
leave of the court is a pre-condition or a condition prece-
dent for the institution of a suit against a public trust
for the reliefs set out in the said section: unless all the
beneficiaries join in instituting the suit. if such a suit
is instituted without leave, it would not be maintainable at
all. Having in mind, the objectives underlying section 92
and the language thereof. it appears to us that, as a rule
caution, the court should normally. unless it is impractica-
ble or inconvenient to do so, give a notice to the proposed
defendants before granting leave under section 92 to insti-
tute a suit. The defendants could bring to the notice of the
court for instance that the allegations made in the plaint
are frivolous or reckless. Apart from this. they could, in a
given case, point out that the persons who are applying for
leave under section 92 are doing so merely with a view to
harass the trust or have such antecedents that it would be
undesirable to grant leave to such persons. The desirability
of such notice being given to the defendants, however,
cannot be regarded as a statutory requirement to be complied
with before leave under section 92 can be granted as that
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8
would lead to unnecessary delay and, in a given case. cause
considerable loss to the public trust. Such a construction
of the provisions of section 92 of the Code would render it
difficult for the beneficiaries of a public trust to obtain
urgent interim orders from the court even though the circum-
stances might warrant such relief being granted. Keeping in
mind these considerations, in our opinion. although, as a
rule of caution, court should normally give notice to the
defendants before granting leave under the said section to
institute a suit. the court’ is not bound to do so. If a
suit is instituted on the basis of such leave, granted
without notice to the defendants, the suit would not thereby
be rendered bad in law or non-maintainable. The grant of
leave cannot be regarded as defeating or even seriously
prejudicing any right of the proposed defendants because it
is always open to them to file an application for revocation
of the leave which can be considered on merits and according
to law.
We may mention that although clause (ffa) of a section
104(1) of the Code provides that an appeal shall lie against
the refusal of grant of
276
leave, that cannot lead to the conclusion that it is obliga-
tory on the part of the court to give notice to the proposed
defendants before granting leave because an appeal lies only
against the refusal of leave and not against the grant of
leave. Before refusing leave the proposed plaintiffs are
bound to be heard and it is the plaintiffs and not the
defendants who could be prejudiced by refusal to grant such
leave.
In the result, the appeals are allowed as aforestated.
The impugned judgment of the High Court is set aside. The
Trial Court is directed to dispose of the application for
revocation of leave on merits and in accordance with law.
On the facts and circumstances of the case, there will
be no order as to cost incurred so far.
R.S. S. Appeals
allowed.
277