Grant of leave is a necessary prerequisite before a suit under Section 92, CPC can be entertained, but the court may consider peculiar facts and circumstances in reaching a decision.

ORDER

Deepak Gupta, J. - The respondents filed a suit in respect of Gurudwara in village Pilkhani Tehsil and District Ambala. It was alleged that the Gurudwara is a place of public worship where free access to the public is allowed. It was further alleged that father of Bhupinder Singh, defendant No. 2 (the appellant herein) was a Mohtmim of the Gurudwara and looking after the same.

2. According to the plaintiffs, a committee for manning the Gurudwara was set up in which plaintiff No. 1 was the President, plaintiff No. 2 was the Secretary and plaintiff Nos. 3and 4 were members of the Managing Committee. It is alleged that after the death of Tarlok Singh, his son was not managing the Gurudwara properly and therefore the Committee wanted a scheme to be framed in terms of Section 92 of the Code of Civil Procedure, 1908, (CPC) for proper management of the Gurudwara in question.

3. The case of the appellant herein was that the Gurudwara was a private property earlier owned by his father and now owned by him. It was alleged that public has no right to access the Gurudwara and the suit under Section 92 was not maintainable.

4. Unfortunately, though an application was filed for seeking leave of the Court to institute the suit under Section 92, CPC, no orders appear to have been passed on the said application. Section 92, CPC reads as follows:

"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-

(g) settling a scheme....."

5. A bare perusal of Section 92, CPC clearly indicates that either a suit under the provision can be filed by the Advocate General or by two or more persons having an interest in the trust and having obtained the leave of the Court. The contention raised on behalf of the appellant herein is that since no orders were passed on the application for grant of leave, the entire proceedings in the suit are vitiated and the orders passed in the suit and subsequently in the appellate proceedings need to be set aside.

6. As far as the legal issue is concerned, there can be no manner of doubt that grant of leave is a necessary prerequisite before a suit under Section 92, CPC can be entertained. This Court has held in a number of judgments that in an application filed under Section 92, CPC seeking leave to institute a suit, normally a notice should be issued to the other side before passing orders thereupon. However, that is not absolutely necessary and in an emergent situation, the Court can grant leave even without issuing notice to the other side but then the respondent has a right to file an application for revocation of the leave granted. Reference in this behalf is made to R.M. Narayana Chettiar & Another.v. L. Lakshmanan Chettiar & Others. [(1991) 1 SCC 48], Vidyodaya Trust v. Mohan Prasad R. & Ors. [(2008) 4 SCC 115] . In R.M. Narayana's case (supra), this Court held as follows:-

"17. A plain reading of Section 92 of the Code indicates that leave of the court is a pre-condition or a condition precedent for the institution of a suit against a public trust for the reliefs set out in the said section; unless all the beneficiaries join in instituting the suit, if such a suit is instituted without leave, it would not be maintainable a all. Having in mind the objectives underlying Section 92 and the language thereof, it appears to us that, as a rule of caution, the court should normally, unless it is