Holding

Notice to the defendants before granting leave under Section 92 of the CPC is not a statutory requirement; a leave granted without notice is valid and does not invalidate the suit.

Summary

The appellants filed a representative suit against the respondents for framing a scheme of a public charitable trust, which required leave under Section 92 of the Code of Civil Procedure. The subordinate court granted the leave on the same day without issuing any notice to the respondents. The respondents applied to have the leave revoked, claiming they were denied a chance to be heard; the trial court dismissed the application, holding the grant of leave to be an administrative act. The Madras High Court set aside the leave, declaring it void for lack of notice. The Supreme Court allowed the appeal, holding that while giving notice to the defendants before granting leave is advisable, it is not a statutory requirement; consequently, leave granted without notice is valid and does not render the suit non‑maintainable. The High Court’s order was set aside and the trial court was directed to decide the revocation application on its merits.

Issues considered

Whether the court must give notice or an opportunity to be heard to the proposed defendants before granting leave under Section 92 of the CPC.
Whether leave granted without such notice is void and makes the suit non‑maintainable.
Whether Section 104(1)(ffa) implying an appeal against refusal of leave imposes a duty to give notice before granting leave.

Legislation cited

Code of Civil Procedure, 1908s. 104(1)(ffa), s. 92

Subjects

Section 92 CPCLeave of courtPublic charitable trustNotice to defendantsRevocation of leaveRepresentative suitCivil ProcedureProcedural fairness

Judgment

A R.M. NARAYANA CHETIIAR AND ANOTHER
v.
N. LAKSHMANAN CHETIIAR AND OTHERS

OCTOBER 11, 1990
B
[M.H. KANIA AND L.M. SHARMA, JJ.]

Code of Civil Procedure, 1908: Section 92-Leave to institute,
suit-Grant of-Whether opportunity to show cause to be given to
respondents. -

c The appellants instituted a representative snit in the court of the
learned Subordinate Judge against the respondents inter alia praying
for framing a scheme for a public charitable trust, On the same day, an
application was made in the eourt praying for leave to institute the suit,
as required under section 92 of the Civll Procedure Code, The Court
granted leave without issuing any notice to the respondents. There-
D
upon, the respondents filed an interim application before the Court for
revoking the leave granted inter alia on the ground that the respondents
had not been given any opportunity to be heard before leave was
granted. The learned Subordinate Judge dismissed the said application
on the ground that the grant of leave was an administrative act of the
Court and no notice to the respondents was required before the grant of
E
such leave.

The respondents preferred a Civll Revision Petition in the High
Court which was allowed. The learned Single Judge took the view that
as the leave had been granted without any notice to the respondents, it
was void and liable to be set aside.
F
Before this Court it was contended on behalf of the appellants that
if the court were required to give an opportunity to the defendants to be
heard before granting leave under section 92, the grant of leave would
entail a great deal of delay and might defeat the ends of justice where
some urgent relief was required. It was also urged that at the tinuo when
G the court considered whether to grant leave, it was only the averments
in the plaint which had to be examined and hence, the presence of the
defendant was not necessary. It was further submitted that if a
defendant h:id a grievance against the grant of leave, he could always
make an application to revoke the same and no prejudice would be
H caused to the defendant by the grant of leave.

266
R.M.N. CHETIIAR v. N.L. CHETIIAR 267

On behalf of the respondents it was subinitted that the court could
not decide whether leave should be granted or not Without giving an A
opportunity to the defendants who could point out the reasons why
leave should not be granted.

Allowing the appeals and directing the Trial Court to dispose of
the application for. revocation of leave on merits and in accordance With B
law,· this Court, ·
HELD: (1) ·A plain reading of section 92 of the Civil Procedure
Code indicates that leaves 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 c
be maintainable at aU. [275B-C]

(2} Having in mind the objectives underlying section 92 and the
language thereof, it appears that, as a rule of caution, the court should
normally, unless it is impracticable or inconvenient to do so, give a D
notice to the proposed defendants before granting ieave under section
92 to institute a suit. The desirability of such notice being given to the
defendants, however, cannot be regarded as a statutory requirement to
be complied with before leave under section 92 can be granted as that ·
would lead to unnecessary delay, and in a given case, could cause
considerable loss to the public trust. [275C-E] E
(3) If a suit is instituted on the basis of such leave granted Without
notice to the defendants, the suit would not thereby be rendered bad in
'law or non-maintainable. The grant of leave cannot be regarded as
defeating or even seriously prejudicing any right of the proposed
defendants because it is always open to them to file an application for f
revocation of the leave which can be considered on merits and accord-
ing to law. [275G]

T.N. Shanmugam and Others v. The Periyar Self Respect Pro-
paganda ~Q,n and Others, [1984) II MLJ 440; AIR 1985 Mad. 93;
Swami Parmatmanand Saraswati & Anr. v. Ramji Tripathi & Anr., G
[1975] 1 SCR 790, 795; Charan Singh & Anr. v. Darshan Singh and
Ors., [1975) 3 SCR 48; Mahant Pragdasji .Guru Bhagwandasji v. Patel
Ishwarlalbhai Narsibhai and Others, [1952) SCR 513; Prithipal Singh
v. Magh Singh and Others, AIR 1982 Punjab & Haryana 137;
Lachhman Dass Udasi (deceased by L.RS.) and Others v. Ranjit Singh
and Others. AIR 1987 Punjab and Haryana 108; P. V. Mathew v. K. V. H
268 SUPREME COURT REPORTS [1990] Supp. 2 S.C.R.

Thomas, AIR 1983 Kerala S; Mayer Simon Perur v. Advocate-General
A
of Kera/a, AIR 1975 Kerala 57; Ambrish Kumar Singh v, Raja
Abhushan Bran Bramhshan and Others, AIR 1989 All 194 and Gurd-
wara Prabandhak Committee, Delhi Cantonment and Others v. Amarjit
Singh Sabharwal and Others, AIR 1984 Iklhi 39, referred to.

B (4) Although clause (ffa) of section 104(i) of the Code of Civil
Pr~ure provides that an appeal shall He agaiost the refusal of grant
of leave, that cannot lead to the conclusion that It is obligatory on the
part of the court to give notice to the proposed defendants before grant.
ing leave because an appeal lies only agalost the refusal and not agalost
the grant ofleave. [275H; 276A]
c CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.
4890-91of1990.

From the Judgment and Order dated 17.10.1989 of the Madras
High Court in C.R.P.'.Nos. 517 & 518 of 1989.
D
S. Padmanabhan, P.N. Ramalingam and A.T.M. Sampath for
the Appellants.

K. Parasaran, S. Balakrishnan and Ms. Revati for the Res-
pondents.
E
The Judgment of the Court was delivered by

KANIA, J. Special Leave granted. Counsel heard.

These two appeals are filed by Special leave against the judg-
F ment of the High Court of Madras in Revision Petitions Nos. 517 and
518 of 1989. These appeals raise an interesting question as to whether
it is obligatory on the Court, before granting leave to institute a suit as
required under section 92 of the Code of Civil Procedure, 1908, to give
an opportunity to the respondents to show cause against the grant of
such leave, and whether leave granted without such opportunity hav-
G ing been given is void,
;
.•
The appellants instituted suit No. O.S. 55 of 1987 in the court of
the learned subordinate Judge of Sivaganga in Tamil Nadu against the
respondents as a representive suit inter alia praying for framing a
scheme for a public charitable trust. It is common ground that the
H reliefs prayed for in the suit were such that leave under section 92 of
RM.N. CHEITIAR v. N.L. CHEITIAR [KANIA, J.) 269

the Civil Procedure Code was required for instituting the suit. On the
same day on which the suit was filed by lodging the plaint in court an A
application was made praying for leave to institute the suit under
section 92 of the Code. Without issuing any notice to the respondents,
the said court granted leave by passing an order reading "permitted"
and issued summons to the respondents. In March, 1988 the respon-
dents filed an interim application before the learned Subordinate B
Judge for revoking the leave granted inter alia on the ground that the
respondents had not been given any opportunity to be heard before
leave was granted. The learned Subordinate Judge dismissed the said
application on the ground that the grant of leave was an administrative
act of the court and no notice to the respondents was required before
such leave was granted. The respondents then preferred a Civil Revi-
sion Petition in the Madras High Court which has been allowed by a c
judgment delivered by learned Single Judge. He took the view that an
analysis of the provisions of section 92 of the Code shows that in order
to institute a representative suit as contemplated in the said section
two or more persons must have an interest in the trust and they should
have obtained the leave of the court before they institute the suit. The D
learned Single Judge held that while the said section enables persons
interested in a public trust to file a suit to secure the proper administra-
tion and management of the trust and its properties by its trustees, it
also imposes a check on the institution of such suits by the imposition
of certain conditions. one of which is the obtaining of leave from the
court. It was held that it is the grant of leave which confers on the E
person concerned a right to institute a suit under section 92 of the
Code. If there were any facts which might disentitle the applicants for
leave from obtaining the leave of the court, these could be best
brought to the notice of the court by the parry arrayed on the opposite
side. The learned Judge also referred to the provisions of section
104(1) (ffa) of the Code whereby an order under section 91 or section F
92 refusing leave to institute a suit of the nature referred to in section
91 is made appealable. The learned Judge followed the decision of the
High Court of Madras in T.M. Shanmugam and Others v. The Periyar
Self Respect Propaganda Institution and Others, [1984]H MLJ 440;
AIR 1985 Madras 93 and held that as the leave had been granted
without any notice to the respondents, it was void and liable tu be set G
aside. The learned Judge allowed the revision petitions, set aside the
leave ;md held that the suit could not be entertained and was liable to
be dismissed. It is against this decision that these appeals have been
prefened.

Learned counsel for the appellants submitted that if the court H
270 SUPREME COURT REPORTS [1990] Supp. 2 S.C.R.

were required to give opportuni.ty to the defendants to be heard before
A granting leave to under section 92, the grant of leave would entail a
great deal of delay and might defeat the ends of justice where some
urgent relief was required. He pointed out that, if a defendant had a
grievance against the grant of leave, he could always made an applica-
tion to revoke the leave and no serious prejudice would be caused to
B the defendant by the grant of leave.

Learned counsel for the respondents contended that leave under
section 92 of the Code to institute a suit was a material requirement for
maintenance of a suit. Before granting leave the court was called upon
to consider various aspects of the matter, namely, whether the suit was
such as contemplated under section 92, whether the persons applying
c for such leave were fit persons to institute a representative suit and so
on. It was submitted by him that the court could not decide whether
leave should be granted without giving an opportunity to the defen-
dants to show cause against the grant of leave. It was submitted by him
that the grant of leave was a pre-condition for instituting a ·suit under
o section 92. Leave granted witho4t giving any opportunity to the
defendant to show cause was void and a suit instituted on the basis of
such void leave was not maintainable at all. It was submitted by him
that at the stage of grant of leave what the court is called upon to
consider is the plaint and whether, prirna facie, the suit proposed to be
instituted was of the kind contemplated under section 92 of the Code,
E that is, whether the reliefs prayed for were such as were set out. in
section 92 and whe.ther the suit was against a public trust. It was also
necessary for the court .to consider whether, the proposed plaintiffs had ·
an interest in the public trust and were fit. persons for leave bdng
granted to .them. The Court could also consider whether, prirna facie,
the allegations in the plaint were baseless or frivolou~. At that stage, it
F was necessary to gi.ve any.notice to the defendant because he could
point out the reasons why leave should not be granted.

Before considering the merits of the aforesaid contentions, it
would not be ou.t of place to refer to the relevant provisions of the
Code of Civil Procedure. The relevant part of sub section (I) of section
G Q2 runs 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 charit-
H able or religious nature, or where the direction of the Court
R.M.N. CHEITIAR v. N.L. CHETIIAR [KANIA. J.] 271

is deemed necessary for the administration of any such A
trust, the Advocate-General, or two or more persons hav-
ing 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 Govern-
B
ment within the local limits of whose jurisdiction the whole
or any part of the subject matter of the trust is situate to
o!ltain a decree-

(a) removing.any trustee;

(b) appointing a new trustee; c
(c) vesting any property in a trustee;

(cc) directing a trustee who has been removed or a person
who has ceased to be a trustee, to deliver possession of any D
trust property in his possession to the person entitled to the
possession of such property;

(d) directing accounts and enquiries;

(e) declaring what proportion of the trust property or of
the interest therein shall be allocated to any particular E
object of the trust;

(f) authorising the whole or -any part of the trust property
. to be let, sold, mortgaged or exchanged;
F
(g) settling a scheme; or

(h) granting such further or other relief as the nature of the
~ase may require.

Section 104 provides for appeals against certain orders unless
G
otherwise provided in the body of the Code or by any other law in
force. Clause (ffa) of that section runs as follows:

"(ffa) an order under section 91 or section 92 refusing
leave to institute a suit of the nature referred to in section
91 or section 92, as·the case may be." H
272 SUPREME COURT REPORTS [1990) Supp. 2 S.C.R.

We may mention that prior to its amendment in 1976, section 92
A of the Code provided that leave of the Advocate-General had to be
obtained for the institution of a suit of the kind described in that
se.ction and not the leave of the court.

· We may now discuss the main cases relied on by the learned
B Counsel for the respective parties. Coming first to the cases relied
upon by learned Counsel for the appellants, we find that the first
decision cited by him was the decision of this Court in Swami
Parmatmanand Saraswati & Anr. v. Ramji Tripathi & Anr., [1975) 1
SCR 790 at p. 796. In that case it was held that to see whether the suit
falls within the ambit of section 92, only the allegations in the plaint
should be looked into in the first instance. But, if, after the evidence is
c taken, it is found that the breach of trust alleged has not been made
out and that the prayer for direction of 'the court is vague and is not
based on any solid foundation of fact or reason but is made only with a
view to bring the suit under the section then such a suit must be
dismissed. Learned Counsel next drew our attention to the decision of
D this Court in Charan Singh & Anr. v. Darshan Singh & Ors., [ 1975) 3
SCR 48. Section 92 of the Code before its amendment in 1976 was
applicable to the case. The court cited with approval the observations
of Mukherjea, J., (as he then was), in Mahant Pragdasji Guru
Bhagwandasji v. Patel lshwarlalbhai Narsibhai and Others, reported in
[ 1952] SCR 513 which runs as follows:
E
"A suit under section 92, Civil Procedure Code, is a suit of
a special nature which presupposes the existence of a public
trust of a religious or charitable character. Such suit can
proceed only on the allegation that there is a breach of such
trust or that directions of the court are necessary. It is only
F when these conditions are fulfilled that the suit has got to
be brought in conformity with the provisions of section 92,
Civil Procedure Code ...... "

Neither of the aforesaid decisions of this Court deal with the question
as to whether, before granting leave to institute a suit under section 92,
G Advocate-General, or later the Court, was required to give an
opportunity to the proposed defendants to show cause why leave should
not be granted. What learned counsel for the appellants urged, how-
ever, was that these decisions show that at the time when the
Advocate-General or the Court is required to consider whether to
grant leave to institute a suit as contemplated under section 92, it is
H only the averments in the plaint which have to be examined and hence,
R.M.N. CHETIIAR v. N.L. CHETIIAR !KANIA, J.] 273

the presence of the defendant is not necessary. We may now consider
the High Court decisions relied on by the learned counsel for the A
appellants.

In Pritlzipal Singh v. Magh Singh and Others, AIR 1982 Punjab
and Haryana 137 a learned Single Judge of the Punjab and Haryana
High Court held that the grant of leave to file a suit is not a mere B
irregularity which can be cured but is a condition precedent. The pro-
visions of section 92 are mandatory in nature in that respect. He
further held that in granting leave under section 92 of the Code, the
court does not have to write a reasoned order. It does not even have to
give a notice to the defendant of an application for leave to file a suit as
the order granting leave is of an administrative nature. The same view
was taken by a Division Bench of the Punjab and Haryana High Court c
in Lachhman Dass Udasi (deceased by L.R.'s) and Others v. Ranjit
Singh and Others, AIR 1987 Punjab and Haryana 108 wherein it was
held that no notice is necessary to be issued to the defendants prior to
the granting or refusing of leave und·er section 92 of the Code as at that
stage it is only the subjective satisfaction of the court that is required D
and, thus, the order is an order of administrative nature.

A Division Bench of the Kerala High Court also took the same
view in P. V. Mathew and Others v. K. V. Thomas and Others, AIR
1983 Kerala 5. In that case it was held that along with the petition for
leave the plaintiffs-petitioners should produce in court the plaint for E
the court's perusal to enable it to pass a proper order under section
92(1). This does not preclude the court from requiring the production
of any other record necessary for a proper decision. The court, if it is
so satisfied, may grant the leave without issuing notice to the res-
pondents-defendants or hearing them. In coming to this conclusion,
the Division Bench relied upon the earlier decision of the Full Bench F
of the Kerala High Court in Mayer Simon, Perur v. Advocate-Genera/
of Kera/a arid Others, AIR 1975 Kerala 57 which was rendered before
the amendment of Section 9.2 of the Code in 1976.

Learned Couse! referred to the judgment of a learned Single
Judge of Allahabad High Court in Ambrish Kumar Singh v. Raja G
Abhushan Bran Bramhshan and Others, AIR 1989 Allahabad 194. In
that case the learned Judge held that while granting leave the court
does not decide the rights of the parties. No right is adjudicated at this
stage. The court has merely to see whether there is a prima facie case
for granting leave to file a suit. This order does not in any way affect
the final decision which will be given on merits after the parties have H
274 SUPREME COURT REPORTS [1990] Supp. 2 S.C.R. .<

led evidence in the suit. Section 92 of the Code does not contemplate
A
giving of any notice to the proposed defendants before granting leave.

Learned counsel for the respondent~;. on the other hand drew our
attention to the afore-mentioned decision of the Madras High Court in
T. M. Shanmugham and Others v. The Periyar Self Respect Propaganda
B Institution and Others, AIR 1985 Madras 93 which has been relied upon
in the impugned judgment. In that case a learned Judge of the said
High Court held that leave granted to the plaintiffs to institute a suit
under section 92 of the Code without notice to the defendants is void in
law and the logical consequence will be that the institution and the
numbering of the suit cannot be validly sustained in law and, there-
fore, the suit was liable to be dismissed on that technical ground.
c However, this will not stand in the way of the plaintiffs, if so desired,
to institute fresh proceedings in accordance with law under section 92
of the Code.
.
In the case of Gurdwara Prabandhak Committee. Delhi Canton-
D ment and Others v. Amarjit SinRh Sabharwal and Others, AIR 1984
Delhi 39 a learned Single Judge of the Delhi High Court has taken the
view that an order of District Judge granting or refusing leave must be
a reasoned order. The public trust concerned has right to be heard
before the grant or refusal of leave. It was held by him that if the trust
is not given an opportunity of being heard, it would be a material •
E irregularity. To pass a non-speaking order in a judicial proceeding is
also a material irregularity and revision would lie against such an irre-
gularity. The granting or refusing leave is a judicial order subject to
revision or appeal and it must be supported by reasons. Before such an
order is passed both sides must have had an opportunity of being
heard.
F
As far as the decisions of this Court which have been pointed out
to us are concerned, the question as to whether before granting leave
to institute a suit under section 92 of the Code, the Court is required to
give an opportunity of being heard to the proposed defendants did not
arise for determination at all in those cases. As far as the High Courts
G are concerned, they have taken different views on this question. The
legislative history of section 92 of the Code indicates that one of the
objects which led to the enactment of the said section was to enable
two or more persons interested in any trust created for a public
purpose of a charitable or religious nature should be enabled to file a
suit for the reliefs set out in the said section without having to join all
H the beneficiaries since it would be highly inconvenient and impractic-
R.M.N. CHETTIAR v. N.L. CHETTIAR {KANIA, J.I 275

able for all the beneficiaries to join in the suit; hence any two or more
A
of them were given the right to institute a suit for the reliefs mentioned
in the said section 92 of the Code. However, it was considered desir-
able to prevent a public trust from being harassed or put to legal
expenses by reckless or frivolous suits being brought against the
trustees and hence, a provision was made for leave of the court having
to be obtain-;,d before the suit is instituted. B
'
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 tl;l.e reliels 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 at all. Having in
mind, ·the objectives underlying section 92 and the language thereof. it c
appears to us that, as a rule caution, the court should normally.
unless it is impracticable or inconvenient to do so, give a notice to the
proposed defendants before granting leave under section 92 to insti-
tute a suit. The defendants could bring to the notice of the court for
instance that the• allegations made in the plaint are frivolous or reck- D
less. Apart from this, they could, in a given case, point out that the
persons who are applying for leave under section 92 are doing so
merely with a view to harass the trust or have such antecedents that it
would be undesirable to grant leave to such persons. The desirability
of such notice being given to the defendants, however, cannot be
regarded as a statutory requirement to be complied with before leave E
under section 92 can be granted as that would lead to unnecessary
delay and, in a given case, cause considerable loss to the public trust.
Such a construction of the provisions of section 92 of the Code would
render it difficult for the beneficiaries of a public trust to obtain urgent
interim orders from the court even though the circumstances might
warrant such relief being granted. Keeping in mind t~ese considera- F
tions, in our opinion, although, as a rule of caution, court should
normally give notice to the defendants before granting leave under the
said section to institute a suit, the court is not bound to do so. If a suit
is instituted on the basis of sqch leave, granted without notice to the
defendants, the suit would not thereby be rendered bad in law or
non-maintainable. The grant of leave cannot be regarded as defeating G
or even seriously prejudicing any right of the proposed defendants
because it is always open to them to file an application for revocation
of the leave which can be considered on merits and according to law.

> We may mention that although clause (ffa) of a section 104(1) of
the Code provides that an appeal shall lie against the refusal of grant of H
276 SUPREME COURT REPORTS [1990] Supp. 2 S.C.R.

A leave, that cannot lead to the conclusion that it is obligatory on the
part of the court to give notice to the proposed defendants before
granting leave because an appeal lies only against the refusal of leave
and not against the grant of leave. Before refusing leave the proposed
plaintiffs are bound to be heard and it is the plaintiffs and not the
defendants who could be prejudiced by refusal to grant such leave.
B
1
In the result, the appeals are allowed as aforestated. The
impugned judgment of the High Court is set aside. The Trial Court is
directed to dispose of the application for revocation of leave on merits
and in accordance with law.

C On the facts and circumstances of the case, there will be 110 order
as to cost incurred so far.

R.S.S. Appeals allowed.

',