The pre-condition of obtaining leave under Section 92 of the Code of Civil Procedure before instituting a suit and the relevance of the allegations in the plaint in determining the jurisdiction of the court.

JUDGMENT :

C. JAYACHANDRAN, J.

1. The question, which arise for consideration in this Original Petition, is whether an interlocutory application for issuance of Commission, that too at the instance of the defendants in the suit, can be allowed before grant of leave under Section 92 of the Code of Civil Procedure.

2. The plaintiffs filed an application under Section 92 of the Code seeking leave to file the instant suit. While so, the defendants sought for issuance of a Commission, apparently to disprove the allegations in the plaint. The same was allowed by the learned Sub Judge by Ext.P6 order, which is under challenge herein.

3. Sri. B. Krishna Mani, learned counsel for the petitioners relied upon the following judgments to canvass the proposition that a commission application cannot be allowed before grant of leave under Section 92 of the Code:

(i) Achuthan Pillai vs. Mohanan Unnithan, 1979 KLT SN 53 (Case No. 116)

(ii) Mathew vs. Thomas, 1982 KLT 493

(iii) Sulaiman vs. Chunakara S.M. Jama Ath, 1982 KLT 790

(iv) Govindan vs. Koovalasseri S.M.K. Trust, 2001 (2) KLT 907

4. Per contra, it was argued by Sri. G. Sreekumar Chelur, learned counsel for the respondents that the prima facie correctness of the allegations in the plaint will be a relevant consideration for the court to decide, as to whether the leave sought for should be granted or not, for which purpose, it is not illegal to allow a commission application. What was sought is a commission for local inspection to disprove the allegations in the plaint levelled against the defendants. Such facts cannot be said to be completely irrelevant in the context of grant of leave, is the submission made by the learned counsel for the respondents. Learned counsel relied upon the judgment of this Court in Malankara Orthodox Syrian Church Catholicate Palace and Others vs. Eldho Basil and Others, 2022 KHC 4026. On the requirements for grant of leave under Section 92, learned counsel relied upon a judgment of the Honourable Supreme Court in Ashok Kumar Gupta and Another vs. Sitalaxmisahuwala Medical Trust and Others, (2020) 4 SCC 321.

5. Having heard the learned counsel appearing on both sides, this Court finds substantial merit in the submissions made by the learned counsel for the petitioners. Going by the scheme of Section 92, a suit of the nature referred to therein can be instituted, after having obtained the leave of the court. Thus, a suit can be said to live and pending consideration before the court, only after leave under Section 92 is granted. Leave of the court is a pre-condition/condition precedent for institution of the suit, as held by the Honourable Supreme Court in R.M. Narayana Chettiar and Another vs. N. Lakshmanan Chettiar and Others, AIR 1991 SC 221. As far back as in 1940, a Patna High Court held that, it is allegations in the plaint that determine the jurisdiction of the court under Section 92 and an allegation of breach of trust as levelled in the plaint is sufficient to confer jurisdiction under Section 92. [See: Ramdas Bhagat vs. Krishna Prasad Tewari and Others, AIR 1940 Patna 425]. The legal position got the seal of approval from the Honourable Supreme Court in Swami Paramatmanand Saraswati and Others vs. Ramji Tripathi and Others, AIR 1974 SC 2141 and Charan Singh and Others vs. Darshan Singh and Others, AIR 1975 SC 371. As a necessary corollary, the defendants are not at liberty in law to adduce evidence to disprove the contents of the plaint at that stage, though they have a right to object the grant of leave, as held by a Division Bench of this Court in T.R. Sanjeev and Others vs. Karanakodam Sri Venkitachalapathy Devaswom and Others, AIR 2005 (3) Ker 302 : ILR 2005 (3) Kerala 642. In a suit under Section 92, a court is not bound even to issue notice to the defendant before granting leave, though it is always desirable. [See: R.M. Narayana Chettiar (supra)].

6. In the instant case, the Commission is sought for by the defendants to establish that the plaint allegatio