R.M. Narayana
Chettiar & Anr Vs. N. Lakshmanan Chetfiar & Ors [1990] INSC 320 (11 October 1990)
Kania,
M.H. 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.
HEAD NOTE:
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 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]
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 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.
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;
(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 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 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 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.
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