The court established that an order granting leave under Section 92 of CPC is judicial and subject to revision, contrary to previous interpretations.

ORDER :

(G.R. Swaminathan, J.)

1. The respondents herein filed a suit under Order 7 Rule 1 read with Section 92 of CPC for settling a scheme for administration of the Madha Trust, Maruthanallur, Kumbakonam established under trust deed dated 22.12.1999. Since leave must be obtained for taking such a suit on file, they filed I.A.No.14 of 2015. Notice was ordered. After hearing both sides, the IA was allowed vide order dated 31.03.2021. Questioning the same, this Civil Revision Petition has been filed.

2. The Interlocutory Application could not have been allowed for two reasons. Firstly, Madha Trust had not been impleaded as one of the respondents. Secondly, except making a bare averment in the plaint as well as in the supporting affidavit that they are beneficiaries of the Trust, the applicants have not shown as to how they are interested in the Trust.

3. The aforesaid issues go to the root of the matter and the impugned order granting leave under Section 92 of CPC deserved to be straighaway set aside. When I was about to do so, the learned counsel for the respondents submitted that my hands are tied since the Civil Revision Petition itself is not maintainable. He contended that in a catena of case laws, the Madras High Court has repeatedly laid down that an order granting leave under Section 92 of CPC is merely an administrative order and not a judicial order and that therefore it is not amenable to challenge in exercise of jurisdiction either under Section 115 CPC or Article 227 of the Constitution of India.

4. It is true that in G.R.Govindarajulu & Sons Charities, Coimbatore & 2 others Vs. V.R.Sethurao and 12 Others, (1998) (2) CTC 65, it was held that granting of leave, though being exercised by the Court, it is not by a Court of law, in the sense that the Court is discharging its administrative function and not a judicial or quasi judicial one. Section 151 of CPC also may not have any application. Hence a revision is not maintainable against the order granting leave.

5. The aforesaid judgment has been followed in the following cases:

" (i) 2009 (1) CTC 416 (Anikadavu Madamanai Lathekarar Kulam Sri Venkatesa Perumal Thirukovil Arakkattalai and Ors. Vs. K. Thandapani and Ors.)

(ii) 2009 SCC OnLine Mad 1821 (M.Azariah v. T.D. Sundaravarathan)

(iii) 2010 SCC OnLine Mad 5618 (A.G.Syed Mohideen Vs. Jayaram Educational Trust)

(iv) 2011 SCC OnLine Mad 52 (A.Vrishabados Vs. P.Jayachandran)

(v) 2013 (4) CTC 566 (Sri. Aurobindo Ashram Trust and Ors. Vs. S. Ramanathan and Ors.,)

(vi) MANU/TN/0966/2017 (Ottakoothar Charitable Trust and Ors. Vs. V. Deivasigamani and Ors.)."

All the aforesaid orders are based on the ratio laid down by the Hon'ble Division Bench of the Madras High Court in R.Kannan Adityan Vs. B.S.Adityan ((1996) 2 LW 364).

6. The decision rendered in R.Kannan Adityan Vs. B.S.Adityan (1996) 2 LW 364) was questioned in Civil.Appeal.Nos. 12915 - 20 of 1996 and decided on 16.04.2024 (B.S.Adityan Vs. Ramachandran Adityan, (2004) 9 SCC 720). The appeals were dismissed. However, in the judgment it was observed that while some High Courts have taken the view that an order of granting permission under Section 92 of CPC is an administrative order, other Courts have taken the view that such an order is liable to be judicially reviewed. The Hon'ble Supreme Court did not endorse the ratio laid down in R.Kannan Adityan Vs. B.S.Adityan that the order granting leave is administrative in character. On the other hand, there is an observation in the judgment of Hon'ble Supreme Court that in the normal course, if an appeal is filed against an order granting permission to a party to file a suit under Section 92 of CPC, they would not normally interfere with the same.

7. Swami Shivshankargiri Chella Swami Vs. Satya Gyan Niketan, (2017) 4 SCC 771 appears to strike a different note altogether. In that case, the District Judge had granted leave under Section 92 of CPC. It was questioned by filing revision petition under Section 115 of CPC. The revision petition