P. Somarajan, J.

Challenging the order dated 23.8.2014 in I.A. No.921 of 2014 in O.S. No.27 of 2014 of the Sub Court, Attingal, defendants 1 and 5 to 7 came up with this petition under Article 227 of the Constitution of India. The above-said application in I.A. No.921 of 2014 was filed for the grant of leave under Section 92 of the Code of Civil Procedure. It was allowed by the lower court without issuing notice to the defendants. Defendants 1 and 5 to 7 entered appearance and filed the application in I.A. No.921 of 2014 for revoking the leave already granted as per the order in I.A. No.543 of 2014. It was dismissed by the lower court under Ext.P6 order dated 23.8.2014. Aggrieved by the said order, defendants 1 and 5 to 7 approached this court by this petition.

2. Heard the learned counsel appearing for the petitioners and Sri. Arun Thomas, learned counsel appearing for respondents 1 to 5 and Sri. D. Ajith Kumar, learned counsel appearing for respondents 6 to 10.

3. Ext.P1 is the application submitted under Section 92 of the Code of Civil Procedure for the grant of leave. This is an interlocutory application supported by an affidavit. The learned Sub Judge accepted the application and issued notice to the respondents after granting leave.

4. The question remains for consideration is whether the leave granted in an interlocutory application filed along with the suit would satisfy the mandate under Section 92 CPC. A mere reading of Section 92 CPC after its amendment by Act 104 of 1976 shows that leave should be obtained before the institution of the suit. The wordings used in Section 92 CPC "having obtained the leave of the court may institute a suit" stands for a leave which has to be obtained before the institution of the suit. It is a condition precedent to institute a suit under Section 92 CPC. The said question was earlier considered by this court in Mathew v. Thomas (AIR 1983 KERALA 5 = 1982 KLT 493 = 1982 (1) KLJ 634). A subsequent decision drawn by this court in Abdul Azeez v. L.I.W.A Educational Charitable Society (2010 (3) KLT 158) took the very same view, but subsequently in St. Peter's and St. Paul's Syrian Orthodox Church v. Varghese (2010 (3) KLT 382) a learned Single Judge of this court made an observation that the decision reported in 2010 (3) KLT 158 (Abdul Azeez's case) was rendered on the facts pleaded for grant of leave but did not lay down that no reference could be made to the averments in the plaint under any circumstance. The decision reported in 2010 (3) KLT 158 cannot be taken into account to mean that a pending request for leave can be dismissed as not maintainable for the mere fact that it is made as an interlocutory application. At this juncture, it has to be borne in mind that the first decision rendered by this court is the decision drawn in Mathew v. Thomas reported in AIR 1983 KERALA 5 = 1982 KLT 493 = 1982 (1) KLJ 634 wherein it was held by this court that obtaining leave of the court is a condition precedent to institute a suit under Section 92 CPC. Needless to say that the previous decision would prevail over the subsequent decision rendered by the same strength of Bench and as such the legal position settled down in Mathew's case can be followed. This would show that the granting of leave is a condition precedent. As such, the suit which was received on file and numbered without having leave granted prior to its institution is bad in law.

5. Here in this case, the leave was granted in an interlocutory application filed along with the suit. Interlocutory application would come into play only after the institution of the suit. It is not at all permissible to grant leave under Section 92 CPC after the institution of the suit in an interlocutory application. Going by the scheme of Section 92 CPC, an original petition has to be filed for the grant of leave and it should be supported by sufficient document relied on by the plaintiff and a copy of the plaint so as to have an assessment regardin