Sustainability of the suit filed after obtaining leave without notice to defendant.

Ratnam, J.

1. These Civil Revision Petitions, at the instance of defendants 1 to 4 in C.S. No. 55 of 1987, Sub Court, Sivaganga, have been preferred against the order passed by the Sub Court, Sivaganga, dismissing I.A.Nos.125 and 126 of 1988 praying for the reliefs of revoking the order passed in I.A. No. 358 of 1987 and for the dismissal of the suit in O.S. No. 55 of 1987 in limine.

2. On 11.9.1987, the respondents herein filed before the Sub Court, Sivaganga, I.A. No. 358 of 1987 praying for leave to file a suit under Section 92, C.P.C. and also presented oh the same day a plaint in which they prayed for the settling of a scheme for the administration of Pillayarpatti Sri Karpaka Nagartharal trust and for an account of the management of petitioners 1 and 2 herein from 1986 onwards and to make them liable for their acts of mal-feasance, mis-feasance, nonfeasance and negligence. 'A' schedule to the plaint so presented detailed immovable properties while in the 'B' schedule the movables and Vahanams are catalogued. On the presentation of I.A. No. 358 of 1987 on 11.9.1987, the learned Subordinate Judge passed an order "permitted" on that day itself. Likwise on the plaint presented on 11.9.1987, the Sheristadar made an endorsement that it had been presented in time and stamped aright and may be filed. Thereupon, the learned Subordinate Judge, Sivaganga, on 11.9.1987 itself passed an order to the effect "Issue summons to defendant for issues/final disposal 13.10.1987". In the plaint presented before Court, there was no reference whatever to the filing of the application in I.A. No. 358 of 1987 or the obtaining of leave by the respondents to institute the suit under Section 92, C.P.C. After the service of summons on the petitioners along with a copy of the plaint, a written statement was also filed on behalf of the petitioners disputing the case of the respondents and in particular, in paragraphs 2 and 19 of the written statement, the petitioners questioned the maintainability of the suit on the ground that leave of Court as contemplated under Section 92, C.P.C. had not been obtained and the suit was liable to be dismissed. While matters stood thus, when issues were sought to be framed on 2.3.1988, the petitioners, realising that the plaint was totally silent about the filing of an application seeking leave from Court under Section 92, C.P.C. for the institution of the suit, wanted to raise an issue relating to that question and it was then pointed out by the respondents that I.A. No. 358 of 1987 had already been filed and leave had also been obtained. It is thereafter the petitioners filed I.A. No. 125 of 1988 purporting to be under Order 9, Rule 9 and Section 151, C.P.C. praying for the revocation of the order passed in I.A. No. 358 of 1987 on the ground that, that order had been passed without notice to the petitioners as if such an order was an administrative order without any enquiry and that merely on the strength of the order in I.A. No. 358 of 1987 without even an order for registering the suit, the suit had been numbered along with the interlocutory application and the procedure followed was thus irregular and the leave stated to have been granted in I.A. No. 358 of 1987 was void and deserved revocation. This was followed up by the petitioners by another application in I.A. No. 126 of 1988 where they had prayed for the dismissal of the suit in limine owing to the irregularities adverted to earlier.

3. These applications were registered by the respondents herein on the ground that prior to the obtaining of leave from Court for instituting a suit under Section 92, C.P.C., it is not necessary to issue notice to the petitioners and that the Court was satisfied that a prima facie case had been made out for proceeding under Section 92, C.P.C. and that would suffice and that all such objections could be taken in the written statement and decided in the course of the trial of the suit. The respondents also stated that there was