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Report No. 144

4.1.2. Question for consideration.-

The question has arisen whether, before granting leave under section 92, notice to the defendant is necessary.

4.1.3. According to the Punjab and Haryana High Court, notice is not needed. The case law has been reviewed in these words in its judgment1:-

"A Single Bench of this Court in Prithipal Singh v. Magh Singh, AIR 1982 P&H 137, held that the Court does not have to write a reasoned order. It does not even have to give a notice to the defendant of the application seeking leave to file the suit, as the order granting leave is of an administrative nature. However, contrary view was taken by the Delhi High Court in Gurdwara Prabandhak Committee, Delhi Cantonment v. Amarjit Singh Sabharwal, AIR 1984 Del 39 and by the Madras High Court in T. M. Shanmugham v. Periyar Self-respect Propaganda Institution, AIR 1985 Mad 93, though none of the said High Courts noticed judgment of this Court given earlier. It was under these circumstances that case was referred to the larger Bench, vide my order dated 12-8-1985."

1. Lachmandas v. Ranjit Singh, AIR 1987 P&H 108 (109), paras. 3, 7.

4.1.4. As noted by the Punjab and Haryana High Court, the Madras High Court has taken the view that leave cannot be granted without ordering notice to the defendants. In the Madras case, it was held that a suit cannot proceed on the basis of a leave which was granted without such notice, although a fresh suit can be filed after obtaining proper leave1. The Delhi High Court2 has held that the order is a judicial one and should state reasons.

1. T.M. Shanmugham v. Periyar Self-respect Propaganda Institution, AIR 1985 Mad 93 (94, 95), paras. 5 & 6 (Venkataswami, J.).

2. Gurdwara Prabandhak Committee v. Amarjit Singh Sabharwal, AIR 1984 Del 39 (41, 42), paras. 11 & 12, (S.B. Wad, J.).

4.1.5. The view of the Madras and Delhi High Courts has been impliedly overruled by the Supreme Court1 in a recent case where it observed that the desirability of such notice being given to the defendant 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. The Supreme Court held that 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.

However, it further observed that as a rule of caution, the Court should normally, unless it is impracticable or inconvenient to do so, give a notice to the proposed defendants before granting leave under section 92 to institute a suit, as if fell that the defendants could bring to the notice of the Court that the allegations made in the plaint are frivolous or reckless, or that the persons who are applying for leave are doing so merely with a view to harassing the trust or have such antecedents that it would be undesirable to grant leave to such persons.

1. R.M. Narayan Chettiar v. N. Lakshmanan Chettiar, AIR 1991 SC 221.

Conflicting Judicial Decisions pertaining to the Code of Civil Procedure Back

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