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1986 Supreme(P&H) 277
PUNJAB & HARYANA HIGH COURT
D.S.Tewatia and J.V.Gupta JJ.
Lachhman Dass
Versus
Ranjit Singh
Civil Revision No. 1297 of 1985,
Decided On : SEPTEMBER 9, 1986
Notice to the defendants is not necessary before granting leave to institute a suit under Section 92 of the CPC.
Headnote:
CIVIL PROCEDURE CODE - SECTION 92 - LEAVE TO INSTITUTE SUIT - NOTICE TO DEFENDANTS - NOT NECESSARY - ORDER GRANTING LEAVE IS ADMINISTRATIVE IN NATURE.
Fact of the Case:
The petitioners challenged the order of the Subordinate Judge granting leave to the plaintiffs-respondents to institute a suit under Section 92 of the Civil Procedure Code (CPC) without notice to the defendants.
Finding of the Court:
The court held that no notice is necessary to be issued to the defendants prior to the granting or refusing of the leave under Section 92 of the CPC as at that stage it is the subjective satisfaction of the Court only and thus the order is an order of administrative nature.
Issues: Whether the defendants are entitled to the notice before the leave is granted by the Court to the plaintiffs-respondents as contemplated under Section 92 of the CPC.
Ratio Decidendi: 1. Section 92 of the CPC does not provide for the issuance of notice to the defendants before granting leave to institute a suit. 2. The order granting leave is an administrative order and not a judicial or quasi-judicial order. 3. The maintainability of a suit under Section 92 of the CPC depends on the allegations in the plaint and not on the averments in the written statement. 4. Issuing notice to the defendants prior to granting leave would amount to trying the suit twice.
Final Decision: The petition was dismissed with no order as to costs.
J.V.GUPTA, J.
1. This petition, which has been placed before us, on a reference by me for its decision by a larger Bench, is directed against the order of the learned Subordinate, Judge IInd Class, whereby leave under S.92 of Civil P.C. (hereinafter called the Code) was granted without notice to the defendants. Thus the short question to be decided in this petition is whether the defendants are entitled to the notice before the leave is granted by the Court to the plaintiffs-respondents as contemplated under S.92 of the Code. The relevant portion of S.92 of the Code reads as under :-
"Section 92. Public Charities. - (1) In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate-General, or two or more persons having an interest in the trust and having obtained the leave of the Court, may institute a suit, whether contentious or not, in the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate to obtain a decree xx xx xx xx xx."
2. For the decision of this question of law, it would be trite to say that the facts of the case need not be looked into. It is, therefore, unnecessary to notice the same. Coming straight to the point of law involved herein it would be pertinent to notice also the provisions of S.92 of the Code as it existed before the amendment of the Code in the year 1976. Section 92 then read as under :-
"(1) In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate General, or two or more persons having an interest in the trust and having obtained the consent in writing of the Advocate-General, may institute a suit, whether contentious or not, in the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate, to obtain a decree xx xx xx."
Thus, it would be clear that prior to the amendment of the Code in the year 1976 only permission of the Advocate-General was required for instituting a suit under S.92 of the Code whereas this is now with the leave of the Court which is sine quo non for filing such a suit.
3. A Single Bench of this Court in Principal Singh V/s. Magh Singh, AIR 1982 Punj and Har 137 held that the Court does not have to write a reasoned order. It does not even have to give a notice to the defendant of the application seeking leave to file the suit as the order granting leave is of an administrative nature. However, contrary view was taken by the Delhi High Court in Gurdwara Prabandhak Committee, Delhi Cantonment V/s. Amarjit Singh Sabharwal, AIR 1984 Delhi 39 and the Madras High Court in T.M. Shanmugham V/s. Periyar Self-respect Propaganda Institution, AIR 1985 Mad 93, though none of the said High Courts noticed judgement of this Court given earlier. It was under these circumstances that the case was referred to the larger Bench vide my order dated 12-8-1985.
4. The learned counsel for the petitioners has urged that since the leave under S.92 of the Code is to be granted by the Court, notice must be issued to the defendants before such a leave is granted or refused. According to the learned counsel such an order could not be said to be administrative in nature and is in the nature of the judicial order or is in any case a quasi-judicial order. In support thereof he has mainly relied upon the judgements of the Madras and Delhi High Courts referred to above. According to the Delhi
