An order granting leave to file a suit under Section 92 of the Civil Procedure Code is a judicial order and is revisable under Section 115 of the Civil Procedure Code.

1. - Pivotal question that falls for consideration in this revision is whether an order of trial Court granting permission to file suit under Section 92 of the Civil Procedure Code is revisable under Section 115, C.P.C?Back-Ground Facts

2. This question emerges in the following circumstances :

(a) The plaintiff-non-petitioners (for short the plaintiffs) instituted suit against the defendant-petitioners (for short defendants) in the Court of the District Judge, Kota stating therein that a registered trust was created for temple of Shri Jagdish ji situated in Rampura Kota, for the proper management of the temple properties. Defendant S.K.S. Rangacharyulu was appointed as working Trustee but for the management of the temple a committee was constituted. The defendants, it was averred is given the said committee and started selling the temple property. They instead of arranging Seva Puja, started spending the income of temple for their own pleasure. Therefore, it was prayed that the defendant S.K.S. Rangachal-yulu be removed from the office of trustee and new trustee be appointed for the proper management of the temple property. Along with the suit, application under Section 27, CPC, seeking leave to file suit was also moved by the plaintiffs.

(b) The learned Additional District Judge No. 2, Kota, where the suit was transferred, allowed the said application vide order dated July 19, 1995. The validity of this order that the defendants have now questioned in the instant revision.
Rival Contentions

3. Mr. Sanjay Mehrish, learned counsel for the defendants canvassed that as per averments made in Para 12 of the plaint, the temple is a registered public trust under the provisions of Rajasthan Public Trusts Act, 1959 (for short the Act, 1959), therefore, provisions of Section 92, Civil Procedure Code, are not applicable to the said trust by virtue of Section 44 of the Act, 1959. Provisions of Sections 38, 39 and 40 of the Act 1959 are in peri materia with the provisions of Section 92, Civil Procedure Code. Since the provisions under the Act, 1959 are special provisions, the applicability of general provisions contained in Civil Procedure Code. is completely excluded.It was next contended that pursuant to the permission dated September, 19, 1986 granted by the Assistant Commissioner, Devasthan, Shri Pooran Chand could have filed an application under Section 40 of the Act, 1959 within 30 days before the District Judge seeking the reliefs provided in Section 40(2) of the Act, 1959 and no suit could be filed under Section 92, Civil Procedure Code. Shri Pooran Chand was not impleaded as party in the suit, application under Section 92, Civil Procedure Code. was not maintainable. The suit was barred by limitation as permission was granted on September, 19, 1986 whereas suit was filed in the year, 1987.

4. Mr.G.C. Garg, learned counsel for the plaintiff contended that order impugned is not revisable as it does not decide the rights of the parties. Reliance was placed on Raju Pillai v. V.P. Paramsivam, AIR 1995 Madras 253 and R.M. Narayana Chettiar v. N. Lakshmanan Chettiar, AIR 1991 Supreme Court 221.Statutory Backgrounds.

5. Before considering the merits of the aforesaid contentions it would not be out of place to refer the relevant statutory provisions.

6. Earlier the leave under Section 92 was to be granted by the Advocate General. But by virtue of Amendment of 1976 words "Leave of the Court" have been substituted in the place of "Advocate General". The function of the Advocate General have now been given to the Court.

7. Mulla on the Civil Procedure Code, 14th Edition, at page 534, has stated thus :

".....The mere fact that the amended section now requires leave of the Court in place of consent by the Advocate-General does not seem to change the nature of the order of leave made by the Court. In making such an order the Court, like the Advocate General earlier, would no doubt have to apply its mind but that is only to satisfy itself