Suit dismissed on Technical ground.

Application No. 2208 of 1978 is filed by the defendants 1 and 2 in C. S.170 of 1978, for revoking the leave granted to the plaintiffs in Application No. 1427 of 1978, without notice to the defendants by an order dated 3-4-1978 under S.92 of the Civil P.C. Appln. No. 376 of 1984 is again filed by the defendants 1 and 2 to dismiss the suit C.S. 170 of 1978 as not maintainable.

2. C. S. No. 170 of 1978 was filed under O.IV, R.2 of Original Side Rules read with Order VII, Rule 1 of the Civil P.C., after obtaining leave of the Court under S.92, Civil P.C. for removal of the second defendant from the Secretaryship of Periyar Self Respect Propaganda Institution (first defendant) and for other consequential reliefs, including appointment of a receiver for taking over charge of the first defendant institution. It is seen from the papers that Appln No. 1427 of 1978 was filed under S.92, Civil P.C. read with O.XIV, R.8 of the Original Side Rules by the applicants plaintiffs for the leave to institute the suit for the purpose of settling the scheme in respect of first defendant institution on 31-3-1978. That application was ordered by S. Natarajan J. on 3-4-1978 without ordering notice to the defendants/respondents 1 and 2. After obtaining the leave, the suit was filed on 3-4-1978 and numbered on 6-4-1978. After the suit was taken on file, it appears that Appln. No. 1549 of 1978 was taken out to restrain the defendants 1 and 2 from alienating all or any of the properties movable or immovable belonging to the first defendant institution in any way whatsoever pending disposal of the application for appointment of receiver. In that application counsel appeared for defendants 1 and 2, and took notice. At that time, Appln. No. 2208 of 1978 was filed for revoking the leave granted ex parte as stated above on 3-4-1978. However, that application was not disposed of earlier and when the suit was ready for hearing, the defendants 1 and 2 have taken out another application No. 376 of 1984, to dismiss the suit as not maintainable.

3. Mr. G. Ramaswami, learned counsel appearing for the applicants defendants 1 and 2 submitted that a Division Bench of this Court in New College v. Basheer Mohammed (reported in (1979) 1 Mad LJ 145) has held that the order granting leave under S.92, Civil P.C. is a judgment coming within the meaning of Cl.15 of the Letters Patent and as such appealable. On the basis of this judgment, it is contended that the leave of Court under S.92 must be given only after notice to the defendants. In this connection, the learned counsel relied on a judgment of Kader, J. in C. S. No. 394 of 1978, dated 9-8-1983. Under similar circumstances, the learned Judge has held as follows : -

"In New College v. Basheer Mohammed (1979) 1 Mad LJ 145, the question that came up before the Division Bench was whether the appeal would lie against an order of a single Judge of this Court granting leave to the plaintiffs to institute a suit under S.92 of the Civil P.C. After reviewing the various authorities, the Bench held that the order granting leave to sue under S.92 is a judgment coming within the meaning of cl. 15 of the Letters Patent, and the appeal there against is maintainable. It follows that the order granting permission is not administrative but judicial in character. Judgment means and involves the deciding of a dispute in a judicial manner after hearing both the parties. The leave granted to the plaintiffs to institute the suit under S.92 of the Civil P.C., without notice to the defendants is therefore void in law." *

In the light of these pronouncements, it is the contention of the learned counsel for the applicants that the leave granted is void in law, which means non est in law and entertaining and numbering of the suit pursuant to an order which is non est in law will have to be removed from the file.

4. Mr. N. C. Raghavachari, learned counsel for the plaintiffs in view of the judgment of Kader J. conceded to a limited extent tha