The main legal point established in the judgment is that the institution of a suit under Section 91 of the CPC requires the leave of the Court, and the suit is deemed to be instituted on the date when the leave is granted.

JUDGMENT

Sanjay S. Agrawal, J. - This Revision Petition has been preferred by Defendant No.5 M/s I. Square Infrastructure & Developers questioning the legality and propriety of the order dated 31.03.2018 passed by the trial Court in Civil Suit No.118-A/2014, whereby the suit as framed has been held to be instituted from the date when the leave for its institution has been accorded, while entertaining the issue No.8, under Section 91 of the Code of Civil Procedure, 1908 (hereinafter referred to as the ''CPC''). The parties to this petition shall be referred hereinafter as per their description in the Court below

2. Briefly stated the facts of the case are that the Plaintiff, a registered society, instituted a suit claiming declaration of civil rights and also for protection from public nuisance by way of injunction in a mandatory form with regard to the property in question admeasuring 0.42 acres of land forming part of Khasra No. 406 total admeasuring 5 acres situated at village Risali, Tehsil and District Durg. According to the Plaintiff, the owners of the said property, had applied for a development plan before the Director, Town and Country Planning, Durg and it was sanctioned by the Assistant Director, Town and Country Planning, Durg vide order dated 13.12.1990 under certain terms and conditions stipulated therein. In the said sanctioned order, an open space admeasuring 0.42 acres the suit land, was left for the purpose of garden/children Park and for its development, the Muncipal Corporation, Bhilai has sanctioned a sum of Rs.5,04,651/- vide its order dated 14.05.2008.

3. Further claim of the Plaintiff is that the Joint Director, Town and Country Planning, Durg on the basis of an application made by Defendant No.5, namely, M/s I. Square Infrastructures and Developers, a partnership firm, has initiated the proceeding wherein the park area has been reduced to the extent of 50% vide its order dated 14.10.2010 and that by taking undue advantage of it, the said Defendant has started interfering with the said park area with an intention to convert the same into the plots for residential purposes, giving rise to the institution of the revision by the Plaintiff under Section 32 read with Section 72/74 of the Chhattisgarh Nagar tatha Gram Nivesh Adhiniya, 1973 before Defendant No.1, who, in turn, has dismissed the same vide its order dated 26.03.2012 which led to the filing of the petition being WP(PIL) No.42/13. The said petition was disposed of by the Division Bench of this Court vide order dated 11.11.2014 while granting permission to the Plaintiff for filing a civil suit and accordingly the suit in the instant nature for the protection of the children park as granted earlier by the competent authority vide order dated 13.12.1990, which has attained its finality, has been instituted on 24.12.2014 while taking recourse to the provision prescribed under Section 94 of the CPC.

4. The defendants have contested the claim and the trial Court vide order dated 17.02.2016 has framed the issues and one of the issues, namely, issue No.8 was framed as under:-

"Whether the mandatory provision prescribed under Section 91(1) of CPC has been complied with?"

5. After considering the submissions of the parties with regard to the aforesaid issue, it was observed by the trial Court vide order impugned dated 31.03.2018 that although a formal application seeking leave to institute the suit has not been filed from its inception but as the matter was pending for a long upon its registration and also the interim orders were made therein and in view of the said background observed that the suit shall be deemed to be instituted with the date the leave is granted while allowing the application filed by the Plaintiff during its pendency under Section 151 of the CPC to this effect. The said issue has, thus, been decided accordingly which has been impugned by way of preferring this revision petition by Defendant No.5.

6. According to Shri Sunil Pillai, learne