Applicability of section 92 of the Code depends upon certain conditions.

K.Govindarajan,J.

The plaintiffs filed the above Appeal having aggrieved by the order, dated 27.6.2003, rejecting their Application, in Application No.1650/2003 seeking leave to sue the respondents/defendants and to institute the suit under Sec.92 of Code of Civil Procedure.

2. The plaintiffs filed the suit under Sec.92 of the Code of Civil Procedure seeking a decree to remove defendants 1 to 8 from the Chennai Vazal Duraiyur Nadar Uravin Murai Magamai Sangam, directing the defendants to deliver possession of the land and building at Door No.80, S.R.P.Kovil Street, Agaram, Chennai.82 to the 1st plaintiff and its members, directing the defendants to return the books, Bank Pass Books, cheques, ledgers, Bill Books and other records of the Sangam to the plaintiffs and directing defendants 1 to 8 to render the accounts relating to the income from the Kalyana Mandapam and other receipts received on behalf of the Sangam. Since the plaintiffs have to obtain leave from the Court before prosecuting the suit filed under Sec.92 of the Code of Civil Procedure, they filed the Application No.1650/2003. The learned Judge in the order dated 27.6.2003 rejected the said Application on the ground that the Sangam is not a public trust and therefore the Application is not maintainable as the suit cannot be sustained under Sec.92 of the Code. Aggrieved against the same, the plaintiffs filed the above Appeal.

3. Pending appeal, the President of the Sangam, Mr.A.S.Annamalaichamy Nadar died and the plaintiffs filed an Application in C.M.P.No.16946/2003 to substitute Mr.Durairaj Nadar in the place of A.S.Annamalaichamy Nadar on the basis that he was newly elected, after the death of Annamalaichamy Nadar, on 24.9.2003. Even before filing of the above said Application, the respondents filed another Application in C.M.P.No.15928/2003 to dismiss the above Appeal on the ground that the Appeal itself has become infructuous and the Appeal is not maintainable as Annamalaichamy Nadar died, and without any representation on behalf of the Sangam by a President, the suit cannot be sustained as the Sangam alone can be construed as an aggrieved body.

4. Learned Senior Counsel appearing for the appellants submitted that the learned Judge has decided the Application only on the basis of the averments mentioned in paragraph No.3 of the plaint without reading paragraph Nos.4 and 5 of the plaint, which, according to him, establish that the appellants/plaintiffs have come forward with the suit only on the basis that the sangam is a public trust. He also submitted that even if the President of the 1st plaintiff-sangam died, the other plaintiffs can independently sustain the suit in view of Sec.92 of the Code of Civil Procedure. In respect of the Application in C.M.P.No.16946/2003, learned Senior Counsel submitted that the said Application is filed on the basis that after the death of Annamalaichamy Nadar, Durairaj Nadar has been elected as President of the Sangam. Though the respondents/defendants have challenged the validity of the said election, the same has to be gone into on the basis of evidence and so the rejection of the said Application at the threshold cannot be sustained.

5. Learned Senior Counsel appearing for the respondents/defendants submitted that taking into consideration the scope of the relief sought for in the suit, without the Sangam being a party, the suit cannot be sustained, and since the said Annamalaichamy Nadar died, the suit has to be dismissed. Learned Senior Counsel also submitted that without seeking a relief for declaration with respect to the status of the trustees, the other reliefs sought for in the suit cannot be sustained. He further submitted that even according to the appellants/plaintiffs, the respondents/defendants are not the members of the Sangam, as they have left the Sangam, and the suit as framed against the respondents/defendants cannot be sustained. On that basis, learned Senior Counsel submitted that the order of the