JUDGMENT :

Petitioners are the defendants in O.S. No.1/2021 of the Sub Court (Commercial Court, Kalpetta), Sulthan Bathery and the order under challenge is Ext.P9, which refused to consider the maintainability issue raised by the defendants as a preliminary issue, for reason of the suit being ripe for trial.

2. Heard Sri.M.P. Ashok Kumar, learned counsel for the petitioners and Sri.B.G. Bhaskar, learned counsel for the respondents.

3. Learned counsel for the petitioners submits that the triple conditions to be satisfied in order to seek a leave under Section 92 of the C.P.C. is not satisfied in the plaint, wherefore, Ext.P4 leave granted by the learned District Judge is grossly improper. It is all the more so, since leave has been granted without notice to the defendants (petitioners herein). It was also contended that the Malabar Hindu Religious and Charitable Endowments Act (MHR & CE Act), oust the jurisdiction of the Civil Court, inasmuch as, the power has been vested upon the Deputy Commissioner under Section 57 of the Act to deal with situations and reliefs, as is seen raised in the instant plaint. These aspects were brought to the notice of the District Court, Wayanad, where the suit was originally instituted (which was subsequently transferred to the Sub Court, Sulthan Bathery) at the earliest possible opportunity, when the defendants filed their written statement. However, the infirmity attached to the leave granted and the issue of maintainability raised was not considered by the learned Sub Judge. Instead, the matter was sought to be listed for trial. Thereupon the petitioners/ defendants filed I.A. 18/2023 to hear the maintainability of the suit as a preliminary issue, which was dismissed vide Ext.P9, the subject matter of challenge in this proceeding. As regards the triple conditions to be satisfied for grant of leave under Section 92, learned counsel relied upon the judgment of the Hon'ble Supreme Court in Ashok Kumar Gupta v. M/s. Sitalaxmi Sahuwala Medical Trust [2020 (2) KLT 1137 (SC)]. On the requirement of considering the maintainability as a preliminary issue before proceeding with the suit, learned counsel for the petitioners relied upon the two Single Bench Judgments of this Court, as also, on a Single Bench judgment of the Gauhati High Court, the citations of which are as follows:

(i) Dhanalakshmi (Partner) v. Sahal V.J. & Another [ILR 2022 (3) Ker. 80]

(ii) Bimal Vas & Ors. v. Shakthan Kuries and Loans (P) Ltd. [O.P.(C) No.627 of 2022

dt.16.08.2022]

(iii) Sushanta Kar v. Ganesh Chakraborty Through His Legal Heirs [2015 KHC 2783]

4. On the question of grant of leave under Section 92, learned counsel relied upon a judgment of the Hon'ble Supreme Court in Vidyodaya Trust v. Mohan Prasad [2008 (2) KLT 68 (SC)], wherein the Hon'ble Supreme Court held that, to ascertain whether the suit was for vindicating public rights, the Court has to go beyond the relief and to focus on the purpose for which the suit is filed.

5. Per contra, the proposition canvassed by the learned counsel for the petitioners was seriously refuted by the learned counsel for the respondents. On the question of grant of leave vide Ext.P4, learned counsel would point out that the petitioners/defendants have unsuccessfully challenged the same before this Court in O.P.(C) No.805/2020, which resulted in Ext.P6 judgment. This Court held that an original petition under Article 227 of the Constitution of India cannot be maintained against a provisional order granting leave, wherefore, the said issue cannot be raked up now. That apart, the learned counsel explained on facts that the leave granted is fully legal and proper. On the question of the requirement, if any, of issuance of notice to the defendants before granting leave under Section 92, learned counsel relied upon the judgment of the Hon'ble Supreme Court in R.N. Narayana Chettiar & Another v. Lakshmanan Chettiar & Others [(1991) 1 SCC 48], wherein it was held that the requirement of issuing notice