Permission of the Court is a mandatory condition precedent for institution of a suit under Section 92 of the Code of Civil Procedure. Such permission cannot be granted during pendency of the suit.

V.S.Aggarwal, J.

1. The present revision petition has been filed by Thakardwara Patiala Mohalla Bibrian and others (hereinafter described as the petitioners) directed against the order passed by the learned Civil Judge (Sr. Division), Patiala, dated 5.2.1998. By virtue of the impugned order the learned trial Court allowed the application filed by the plaintiff-respondent to institute the suit under Section 92 of the Code of Civil Procedure for removal of petitioner No. 3 Mahant Garib Dass from Mohtmimship of Thakardwara Patiala and further held that the said permission has been granted after filing the suit and, therefore, the suit be taken to have been filed on the date the permission had been granted.

2. The relevant facts are that respondents who were plaintiffs filed a suit under Section 92 of the Code of Civil Procedure for removal of petitioner No. 3 from the Mohmimship of Thakaidwara Patiala and for appointment of new trustees. It was prayed that petitioner No. 3 should be directed to deliver possession of the property of the said Thakardwara to the new trustees. Notice was issued to the petitioners and they filed a written statement. A preliminary objection was raised regarding maintainability of the suit for want of permission of the Court in view of Section 92 of the Code of Civil Procedure.

3. When this objection was taken the respondents filed an application alleging that petitioner No. 3 has misutilised the income of the Thakardwara (petitioners 1 and 2) and is misusing the property of the said Thakardwara. Inadvertantly the respondents failed to file a formal application seeking permission of the Court for institution of the suit. They requested for the said permission. The said application was contested by the petitioners. It is contended that the suit was earlier filed in the Court of District Judge, Patiala without any permission of the. court. The plaint was returned but still no application seeking permission under Section 92 of the Code of Civil Procedure was filed. Therefore, the suit was not maintainable. It was further contended that no permission as such should be granted.

4. The learned trial Court relied upon the decision of the Orissa High Court in the case of Kintali China Jaganadham and Ors. v. K. Laxmi Naidu and Ors., A.I.R. 1988 Orissa 100 and held that such a permission could be granted subsequently and suit be taken to have been filed on the date the permission has been granted. It was further held that falsity and truthfulness of questions has to be taken subsequently. Taking stock of the facts, the court granted permission for institution of the suit. Hence, the present revision petition.

5. The relevant portions of sub-section (1) and (2) of Section 92 of the Code of Civil Procedure read as under :-

"92(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 contenuous 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- (a) removing any trustee;

(b) appointing a new trustee;

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(2) Save as provide by the Religious Endowments Act, 1863 (20 of 1963) (or by any corresponding law in force in (the territories which, immediately before the 1st November 1956. were comprised in part B States) no suit claiming any of the reliefs specified in sub-section (1) shall be instituted in respect of any such trust as is therein referred to except in conformity with the provisions of that sub-section".

It is abundantly dear from aforesaid that a suit und