Grant of leave under Section 92 of the CPC is a mandatory condition precedent to the institution of a suit. If leave is granted during the pendency of the suit, the suit shall be deemed to be instituted on the date the leave was granted and not on any earlier date.

R. C. PATNAIK, J.

( 1 ) GRANT of leave to the opposite parties 1 to 3, the plaintiffs, by the Court under S. 92 of the Code of Civil Procedure during the pendency of a suit has given rise to this Civil Revision.

( 2 ) THE facts briefly stated are : title Suit No. 13 of 1980 was filed by opposite parties 1 to 3 in the Court of Subordinate Judge, Rayagada. The petitioners filed Civil Revision No. 549 of 1980 challenging the maintainability of the suit. This Court granted an order of stay. During the pendency of the revision, an application was filed for withdrawal of the suit with permission to file a fresh one, or in the alternative, for return of the plaint on the ground that the learned Subordinate Judge had no jurisdiction to try the suit. No order was passed thereon inasmuch as the further proceedings of the suit had been stayed by this Court. Then a motion was made to this Court for grant of leave to the Subordinate Judge to dispose of the said application and this Court allowed the prayer. By order dt. 15-11-1980, the learned Subordinate Judge directed return of the plaint and the application seeking leave under S. 92. On 25-11-1980, the plaintiffs presented the plaint in the Court of the learned District Judge and the plaint was registered as Title Suit No. 4 of 1980. On 1-12-1980, the plaintiff-apposite parties 1 to 3 filed an application under O. 43, R. 1 of the Civil P. C. and the same was registered as M. J. C. No. 20 of 1980. On 1-12-1980, the petitioners entered appearance and moved an application for rejection of the plaint. On 3-12-1980, Civil Revision No. 549 of 1980 was disposed of as infructuous. The suit was being adjourned from date to date. On 13-3-1981, Opposite parties 1 to 3 plaintiffs filed an application seeking leave under Section 92 to prosecute the suit.

( 3 ) OPPOSITE parties 1 to 3 have alleged that in 1930's the public of Rayagada desired to have a choultry at the site over which stood Umashankar Lodge, shop rooms of Nataraj Electricals and Bata Shoe Company. The construction of choultry building was entrusted to defendant No. 1. The choultry was a public trust and charitable in nature. In course of time, defendant No. 1 misused the trust property and committed breach of trust in violation of the character of the trust property. He constructed a massive building, got the same recorded in his name and in the name of his children. In a family partition, the property was said to have been allotted to defendants 2 and 3, who were enjoying the income derived from the lodging house and the shop rooms. The plaintiffs have further averred that the defendants 2 and 3 are liable to render accounts of the income received by them. The plaintiffs and the members of the public of Rayagada are interested for proper management of the trust property and for restoration of the trust to its original purpose and character as choultry. They have asked for the following reliefs :" (A) To declare the suit property as public trust of a charitable nature used as Choultry (Dharmasala) at Rayagada. (B) To direct the defendants or his sons Defendants 2 and 3 or legal representatives be removed from trusteeship and management of the suit properties. (C) To direct Defendants 1 to 3 to furnish the accounts of income and management of the suit property. (D) To direct Defendants 4 and 5 to furnish their accounts of rent paid and security deposit given to Defendants Nos. 1 to 3 for taking shop roams and to direct them to deposit the future rents in the Court or to pay to the persons appointed by the Court. (E) To settle claims for proper administration of the suit property by appointing a new Board of Trustees. (F) To take immediate possession of the suit property till the new scheme is settled through a receiver appointed by the Court. (G) To take such other steps and give such reliefs as the Court deems proper in the facts and circumstances of the case. "the petitioner-defendants 1 to 3 have controverted the allegations and h