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2006 Supreme(P&H) 3464
PUNJAB AND HARYANA HIGH COURT
Vinod K. Sharma, J.
Sushil Kumar Bansal and others - Petitioners
Versus
Surinder Pal Sharma and others - Respondents
C.R. No. 1019 of 2006.
Decided On : 7 September, 2006
For the Petitioner:Mr. Amit Rawal, Advocate.
For the Respondents:Mr. Sunil Chadha, Advocate.
The main legal point established in the judgment is that the grant of leave under Section 92 of the Civil Procedure Code is a mandatory condition precedent to the institution of the suit and cannot be implied. The court emphasized the requirement of a formal order granting leave and highlighted that no notice is required to be issued to the defendants prior to the granting or refusing of the leave to file a suit under Section 92 as the order is administrative in nature.
Headnote:
Leave to Institute Suit - Civil Procedure Code - Section 92 - 2, 92 - The judgment discusses the requirement of obtaining leave from the court to file a suit under Section 92 of the Civil Procedure Code. The court emphasizes that the grant of leave is a mandatory condition precedent to the institution of the suit and cannot be implied. It further highlights that the court must pass a formal order granting leave, and no notice is required to be issued to the defendants prior to the granting or refusing of the leave to file a suit under Section 92 as the order is administrative in nature.
Fact of the Case:
The petitioners challenged the order declining their application under Order 7 Rule 11 of the Code of Civil Procedure for rejection of plaint for want of leave to institute a suit under Section 92 CPC.
Finding of the Court:
The court held that the grant of leave under Section 92 of the Code is a mandatory condition precedent to the institution of the suit and cannot be implied. It set aside the impugned order and directed the trial Court to dispose of the application for leave to file the suit under Section 92 of the Code, and if such leave is granted, the suit would be deemed to have been instituted from that date.
Issues: The main issue was whether the suit under Section 92 of the Code could be filed without obtaining the leave of the Court and if the defect in obtaining the leave of the Court could be cured by grant of leave subsequent to the filing of the suit.
Ratio Decidendi: The court emphasized that the grant of leave is a mandatory condition precedent to the institution of the suit and cannot be implied. It further highlighted that the court must pass a formal order granting leave, and no notice is required to be issued to the defendants prior to the granting or refusing of the leave to file a suit under Section 92 as the order is administrative in nature.
Final Decision: The revision petition was allowed, and the impugned order was set aside. The trial Court was directed to dispose of the application for leave to file the suit under Section 92 of the Code, and if such leave is granted, the suit would be deemed to have been instituted from that date.
Vinod K. Sharma, J. - The petitioners have challenged the order dated 25.1.2006 passed by the Civil Judge (Junior Division), Ludhiana, vide which the application moved by them under Order 7 Rule 11 of the Code of Civil Procedure for rejection of plaint for want of leave to institute a suit under Section 92 CPC has been declined.
2. The respondent-plaintiffs filed a civil suit under Section 92 of the Code of Civil Procedure (for short the Code) for framing a scheme for appointment of new Trustees/Trustees for proper and effective administration and management of Public Religious and Charitable Endowment property known as KHUI TILAK RAM measuring 3 kanals 16 marlas comprised in Khwat No. 1356 Khatauni No. 1507, Khasra Nos. 370, 371, 372 as per jamabandi for the year 2000-01 of Taraf Karabara and Khasra No. 1708 min, 1708/1 min and Khasra Nos. 2247/2113, 2228/2112, 2246/2181 as per jamabandi for the year 1935-36 on Ferozepur Road, Tehsil and District Ludhiana and further directing the petitioner-defendants to render accounts for settling the claim for proper administration of the trust in terms of the trust deed dated 2.4.1938 and for mandatory injunction directing the defendant-petitioners to remove the illegal and unauthorised construction as shown red in the plan attached with the suit and encircled in green as well as for a decree of perpetual injunction restraining the petitioner-defendants from raising any construction in contravention of the terms of the above said trust deed in any part of the suit property and changing the user of the said property on the basis of oral and documentary evidence.
3. Along with the suit, the respondent-plaintiffs also filed an application seeking leave to file the suit under sub-section (1) of Section 92 of the Code.
4. On 5th of December, 2005, the learned Civil Judge (Jr. Divn.), Ludhiana, passed the following order :-
"Present : Counsel for the plaintiff.
Suit received by entrustment. Office report seen. Be registered. Ex-parte interim is ordered. I have perused the file. To prevent irreparable loss to the plaintiffs in the light of the trust deed, jamabandi, injunction is ordered. The order dated 25.01.1995 on record. Parties are directed to maintain status quo regarding nature of suit property strictly till 3.1.2006. The order is subject to the service of defendants. Compliance under Order 39 Rule 3 be made.
Notice of suit also be given to Defendants for 3.1.2006.
5/12/05
Sd/- CJJD, Ldh."
5. The case of the petitioners is that the reading of the above order shows that no specific order allowing the leave to plaintiff-respondents to institute the suit was granted by the Court.
On 3rd of January 2006, the following order was passed by the trial Court.
"Sh. M.C. Sehgal, Advocate filed Power of Attorney on behalf of Defendant No. 1. He has also appeared on behalf of Defendant No. 3 and has promised to file power of attorney on the next date of hearing. For filing power of attorney and WS to come up on 9.1.2006. Status quo granted earlier stands extended."
Again on 9th of January and 18th of January 2006 following orders were passed by the Court below :-
"Status quo against defendant No. 2 stands vacated till unserved. Now notice in routine to Defendant No. 2 be issued for the date fixed i.e. 18.1.2006."
"Present : Counsel for plaintiff.
Counsel for defendant Nos. 1 and 3.
Shri A.C. Gupta, Advocate has filed P.O.A. on behalf of defendant No. 2. Reply also filed and for arguments to come on 21.1.2006.
Sd/- CJJ/18.1.2006."
In pursuance to the notice issued, petitioner Nos. 1 and 3 appeared and filed an application under Order 7 Rule 11 of the Code seeking rejection of the plaint stating therein that the learned trial Court had no jurisdiction to entertain and try the present suit as the said suit under Section 92 could be filed only in the principal Court of original jurisdiction or in any Court empowered in that behalf by the State Government within the local limits of whose jurisdiction the who
