The failure to produce the plaint along with the petition seeking leave to institute the suit under S.92 of the CPC would not be fatal, and it is necessary to establish the respondents' interest in the trust before granting leave to institute the suit.

1. Revision petitioners challenge the order of the Second Additional District Judge, Trivandrum in OP (Trust) 116 of 1984. Respondents 1 to 3 filed the OP under S.92 of the CPC for setting up a scheme for management of Swayam Prakash Ashramam, Kulathoor, temple and its properties. The petition was allowed and permission was granted for filing the suit.

2. Revision petitioners contended that the petition is not maintainable as the plaint was not filed along with it. They relied on Mathew v. Thomas (1982 KLT 493) and urged that the failure to produce the plaint is fatal to the petition under S.92 of the CPC In the above decision there is an observation that along with the petition for leave the plaintiff should produce in the court the plaint for the court's perusal to enable it to pass proper order under S.92(1) CPC. In that case this Court considered whether a court can pass interim orders in a suit before granting leave under S.92. As that was the only matter considered the observation is merely obiter dicta.

3. The petition was filed on 5-7-1984 and the plaint was filed on 1-8-1984 The impugned order was passed on 14-1-1986. Thus when the impugned order was passed a copy of the plaint was available in the Court. The question that has to be considered is as to whether the failure to produce plaint along with the petition is detrimental to the very petition. Admittedly the plaint was produced long before the petition under S.92 of the CPC was considered. 1982 KLT 493 is no authority to hold that the failure to produce the plaint along with the petition seeking leave to institute the suit would be fatal to it.

4. To invoke S.92 of the CPC the following conditions are to be satisfied. They are (i) There must exist a trust for public purposes of a charitable or religious nature; (ii) Plaintiff must allege that there is a breach of such trust or that the direction of the court is necessary for the administration of the trust and (iii) the suit must be a representative one on behalf of the public and not individuals for their own interests and (iv) the relief claimed in the suit must be one of the reliefs mentioned in the Section. If any of the conditions are not satisfied the suit falls outside the purview of S.92. The learned District Judge has considered the averments in the petition, the plaint and the documents and came to the finding that a case for leave under S.92 CPC has been made out. The maintainability of the suit under S.92 CPC may depend upon the allegations in the plaint. But in a case where evidence is adduced and if it is found that the various acts of emission and commission alleged against the defendants are not made out and if the prayer for the direction of the Court is vague and not based on concrete materials the Court has no option but to reject the leave praved for. For the purpose of deciding whether leave should be granted or not the court may have to consider the petition as well as the plaint. So long as there is no mandatory provision under the Code that the petition under S.92(1) CPC should be accompanied by a copy of the plaint it is difficult to hold that a petition under S.92(1) unaccompanied by a copy of the plaint has to be rejected cut-right. In the case in hand the plaint was produced before the Court long prior to the date when the Court considered whether leave has to be granted or not.

5. Another ground of attack on the impugned order is that there is no finding by the Court below that the respondents (petitioners before that Court) have any interest in the trust to enable them to file the application under S.92(1) CPC. The impugned order has considered only the interest of the first respondent in the Trust. Learned Judge obviously overlooked the most salient aspect as to whether the respondents have any interest in the trust. Mandate of S.92(1) CPC is that two or more persons having an interest in the trust can approach the Court for leave to institute the suit. As there is no ouch