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TMI Blog1990 (10) TMI 381X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 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 preferred a Civil Revision Petition in the Madras High Court which has been allowed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 92, as the case may be." 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 Sing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ein 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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- 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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