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A. BADHARUDEEN
Sadasivan, S/o. Gangadharan Pillai – Appellant
Versus
Sadasivan Nair, S/o. Sankara Pillai – Respondent
JUDGMENT :
This Original Petition has been filed under Article 227 of the Constitution of India challenging Ext.P3 order, viz., order in I.A.No.3671/2016 in O.S.No.46/2009 on the file of Principal Munsiff Court, Neyyattinkara, dated 23.08.2016. The original petitioners are the plaintiffs in the above Suit and the respondents herein are the respondents in the above Suit.
2. Heard the learned counsel for the petitioners Advocate Arun.V.G; Advocate Shinod.P, appearing for respondents 1 to 12; Advocate Govind Padmanabhan appearing for Respondents R14 and 15 and Advocate Vinod Raveendra Nath appearing for respondents 20 to 23.
3. Originally, the petitioners herein as plaintiffs filed a Suit for a prohibitory injunction restraining the defendants from forcefully taking the administration of Alara Sree Bhadrakali Temple, Perumpazhuthoor and also from forcefully obstructing the construction of Sreekovil as part of temple reformation. While the Suit has been pending, Ext.P2 application was filed to hear and decide issue No.3, viz. "Is the suit maintainable in view of S.92 of the Civil Procedure Code, 1908?". It has been contended before the trial court that the additional third issue referred
Point of law: In matter of grant of leave under Section 92(1) of C.P.C, plaint averments alone need to be looked into.
The court established that while leave to file a suit under Section 92 C.P.C. can be granted, it does not prevent defendants from contesting the maintainability of the suit based on the applicability....
Suit filed by the trust against a third party as done in this case, in Court considered opinion would not come within the purview of Section 92 of CPC.
Explicit leave to sue is a prerequisite under Section 92 of the CPC, and cannot be presumed; the suit's maintainability is contingent on having at least two plaintiffs.
The amendment incorporating 'leave of the Court' in Section 92 of the CPC does not impact the jurisdiction already conferred upon the Sub Court by a notification issued in 1966.
Partial rejection of a plaint is impermissible; if any relief survives, the action cannot be dismissed in parts, emphasizing the need for whole plaint consideration.
Point of Law : Where the allegation of breach of trust, direction for administration of Trust is absent, the suit is maintainable and obtaining leave under Section 92 of the CPC is not necessary.
The requirement of two or more persons as a condition precedent for a suit under Section 92 of the CPC is only for the institution of the suit and not its continuation or prosecution.
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