JUDGMENT :

(Prayer: Civil Revision Petition is filed under Section 115 of C.P.C., praying against the to set aside the order passed in I.A.No.348 of 2012 in I.A.No.181 of 2012 in O.S.No.103 of 2012 on the file of Subordinate Court, Namakkal dated 17.11.2017.)

(The case has been heard through video conference)

1. Heard the Learned Counsel for the petitioner and the Learned Senior Counsel for the respondent Nos.1 to 9.

2. This revision petition under Section 115 of C.P.C is filed by the 1st plaintiff in the suit filed in their representative capacity being aggrieved by the revocation of leave granted and consequential dismissal of the suit.

3. The revision petitioner herein along with one Suresh and Ravichandran for themselves and on behalf of the beneficiaries of Kalaimagal Educational Trust had filed O.S.No.103 of 2012 on the file of Subordinate Court, Namakkal, to frame a scheme for proper administration and management of the property held by Kalaimagal Educational Trust and other consequential relief. Along with suit, I.A.No.181 of 2012 was filed seeking leave to file the suit under Section 92 of C.P.C.

4. The defendants filed an application to revoke the leave on the ground that suit filed against the wrong entity. As per trust deed, only the Secretary of the defendants Trust is empowered to sue and to be sued. Whereas, the suit is filed against the Managing Trustee of the Trust and others. The suit to formulate scheme under Section 92 of C.P.C was filed on 09.05.2012 along with I.A.No.181 of 2012 the petition for leave to sue was filed. The Courts without affording opportunity to the defendants taken the plaint on file. Numbered the suit and allowed the leave to sue petition contrary to the law laid by the Hon'ble Supreme Court in the case reported in 2008 (3) CTC 868. Such a leave granted without hearing the adverse parties has to be revoked. The judgment reported in 2009 (1) CTC 416, the Hon'ble High Court has revoked the leave granted in such circumstances and given an opportunity to the defendants to place their objections.

5. When the application to revoke the leave was pending, two of the co-plaintiffs namely Suresh and Ravichandran withdrawn their plaint as not pressed. In view of the said fact, the Subordinate Judge, Namakkal, has revoked the leave and also consequential dismissal of the suit.

6. In this revision, it is contended that once leave granted under Section 92 of C.P.C., neither the withdrawal or death of the parties will affect the suit. When the prayer sought for I.A.No.348 of 2012 by the defendants is only to revoke the leave granted exparte and to afford an opportunity, the Trial Court not only revoked the leave but also dismissed the suit. In a suit filed in representative capacity under Order 1 Rule 8 of C.P.C., party representing the interest of a larger group cannot withdraw without giving an opportunity to substitute any other competent person to represent the interest of others. The revocation of leave and consequential dismissal of the suit without providing sufficient opportunity to the plaintiff to cure the deficiency has caused miscarriage of justice.

7. The Learned Counsel for the revision petitioner contended that under Order 1 Rule 8 of C.P.C., before allowing request to withdraw the plaint it is mandatory on the part of the Court to issue publication on the plaint expenses, to facilitate any other person interested to contest the suit in the representative capacity.

8. The Learned Senior Counsel appearing for the respondents would submit that, scheme suit was filed under Section 92 of C.P.C, no doubt to be treated as representative suit. However, the Trial Court before taking the suit on file ought to have tested the locus of the plaintiffs to file scheme suit against a registered trust in the representative capacity. In this case, the suit was numbered even before leave to suit was granted which is fundamentally erroneous. The numbering of the suit prior to grant of leave bears an inherent defect