IMPORTANT POINT
Suit instituted on basis of leave u/s 92 CPC granted without notice to defendants would not be rendered bad in law or non-maintainable.

JUDGMENT

Rajendra Babu, J.-A deed of declaration was executed by S.B. Adityan consisting of himself, his elder brother S.T. Adityan and the first respondent herein, B. Ramachandran Adityan as Trustees on 1.3.1954. Under a deed of resignation dated 19.5.1959 the first respondent herein resigned as Trustee and also as Director of Daily Thanthi. By a deed of appointment of trustees executed on 22.5.1959 the first appellant B.S. Adityan son of S.P. Adityan and the second appellant were appointed as one of the new trustees and also to be the Director of Daily Thanthi. A supplementary deed was also executed on 28.6.1961. On 8.11.1961 the Founder resigned. On 2.3.1962 a decree was passed by the High Court in C.S. No. 90/1961 approving the supplementary deed dated 28.6.1961. On 27.12.1963 S.T. Adityan resigned. In the last week of June 1978 the Founder executed three deeds of appointments of trustees appointing himself, his elder brother S.T. Adityan and the first respondent as additional trustees of Thanthi Trust. The Appellants filed applications under Section 92 Civil Procedure Code (CPC) for leave to file suits challenging the said appointments and leave was granted and the said suits are numbered as C.S. Nos. 352 and 353 of 1978. On 29.8.1978 the first respondent and his uncle S.T. Adityan filed application under Section 92 CPC for leave to file a suit for removing appellants Nos. 1 and 2 as trustees. On 13.9.1978 an temporary order of injunction was made by the High Court restraining the newly appointed trustees from interfering with the management of the trust on the condition that the first appellant must deposit a sum of Rs. 1 lakh per month. All the three newly appointed trustees, that is, Founder, S.T. Adityan and the first respondent executed resignation deeds and withdrew the application No. 3147/1978 filed under Section 92 CPC. Inasmuch as the newly appointed trustees resigned their trusteeship and withdrew their application under Section 92 CPC, the appellants proceeded on the basis that suits C.S. Nos. 352 and 353 of 1978 had become unnecessary and withdrew the same.

2. While the matter stood thus, on 20.1.1981 Kannan Adityan and Kathiresa Adityan filed an application No. 165/1981 under Section 92 CPC for leave to file a suit for appointing them as additional trustees and for rendition of accounts by the first and second appellants. The appellants filed application No. 879/1991 for permission of court to cross-examine the applicants therein, that is, Kannan Adityan and Kathiresa Adityan, to establish the fact that it was the father of the petitioners therein who was supplying all documents and materials and who was conducting the proceedings and that they were 21 and 18 years of age and were students then studying in the Engineering College. The said application filed by the appellants came to be dismissed by the learned single Judge. On appeal filed in O.S.A. No. 152/1981 the Division Bench held that it would be in the interest of justice to allow the appellants therein to cross-examine Kannan Adityan and Kathiresa Adityan. When the matter was carried to this Court, this Court dismissed the Special Leave Petition No. 6040 of 1982 by observing that the cross-examination, however, was confined to the question of sanction and principles governing the same. An application had been filed under Order XI Rule 21 CPC which having been dismissed and on appeal having been confirmed by the Division Bench, the same matter was carried to this Court by way of a special leave petition. This Court disposed of the said special leave petition and ultimately by an order made on 18.1.1993 dismissed it.

3. The trustees, namely, the first and the second appellants, resolved to appoint Mr. Maruthai Pillai, Mrs. Sarojini Varadappan and Mr. R. Somasundaram as additional trustees. On 3.1.1994 respondents Nos. 1 to 4 filed an application No. 33/1994 for leave to file a suit under Section 92 CPC for framing a scheme, for removal of appellants No. 1