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Judgment
Rajesh Tandon, J.—Heard Shri Alok Singh, Sr. Advocate assisted by Shri D. Barthwal, counsel for the revisionists and Shri J.P. Joshi, counsel for the respondents.
By the present revision filed u/s 115 of Code of Civil procedure, the applicant has prayed for setting aside the order dated 22.11.2006 by which the permission has been granted to institute the suit u/s 92 of Code of Civil Procedure, 1908.
Briefly stated, counsel for applicant has submitted that the provisions of Section 92 of CPC are applicable only when the trust is for the public and charitable purpose before application for leave is filed.
The only argument of the counsel for the revisionist is that by the impugned order no reason has been given with regard to the applicability of the provisions u/s 92 of the Code of Civil Procedure. The application has been allowed without recording the finding as to whether it is a public trust or not.
Without going into the merits of the controversy with regard to maintainability of the revision as well as to whether it is a judicial or an administrative order, it will be open for the applicants to raise the plea in the suit itself alleging therein that the ingredients of Section 92 of the CPC are not attracted and the suit itself is not maintainable. The court shall frame an issue and shall decide alongwith the suit itself.
In B.S. Adityan and Others Vs. B. Ramachandran Adityan and Others, , the Apex Court has observed as under:
In the normal course if an appeal is filed against an order granting permission to a party to file a suit as falling u/s 92 CPC, we do not normally interfere with an order made by the High Court nor do we think of entertaining a proceeding of this nature under article 136 of the Constitution because the order made thereunder will not determine the rights of the parties, but only enable a party to initiate a proceeding.
The learned Counsel for the appellants urged that the order that was passed u/s 92 CPC granting permission to file a suit is whether administrative in character or otherwise; that this does arise when the objections of the defendants are considered; that as to scope of the meaning of the expression "order, judgment, decree and adjudication". He drew our attention to decision in Davular Pitchayya and Another Vs. Divi Venkatakrishnamacharlu and Others, to the effect that the object of Section 92 CPC is to safeguard the rights of the public and of institutions under trustees. In this regard, he specifically drew our attention to National Sewing Thread Co. Ltd. Vs. James Chadwick and Bros. Ltd. (J. and P. Coats Ltd., Assignee), . He also adverted to decision in AIR 1948 12 (Privy Council) to content that where a legal right is in dispute and the ordinary courts of the country are seized of such dispute, the courts are governed by ordinary rules of procedure applicable thereto and an appeal lies if authorized by such rules, notwithstanding that the legal right claimed arises under a special stature which does not in terms confer a right of appeal. In R.M. Narayana Chettiar and another Vs. N. Lakshmanan Chettiar and others, this Court has examined in detail the scope of Section 92 CPC and explained the object underlying therein in granting permission to file a suit. In this case, this Court held that court normally give notice to the defendants before granting leave as a rule of caution but court is not bound to do so in all circumstances and non issuance of notice would not render the suit bad or non-maintainable and the defendants can at any time apply for revocation of the leave, and provision u/s 104(1)(ff) for appeal against refusal of grant of leave does not lead to a different conclusion. In the light of this decision, we do not consider it necessary to advert to other decisions cited by the learned Counsel. More so, the matter was considered by the Law Commission in its report submitted in April 1992 on this aspect of the matter. After noticing various decisions of different courts and the decision in R.M. Narayan Chettiar case the law Commission recommended that to expect the court to issue notice and then to try the several points of detail before granting leave in the light of the objections put forth by the respective defendants, would mean that there will be a trial before trial and this would not be desirable. The recommendation of the Law Commission, was therefore, to insert an explanation below Section 92 CPC to the effect that the court may grant leave under this section without issuing notice to any other person, but his does not, of course, mean that the court will grant leave as matter of course. Particular emphasis is made and heavy reliance is placed on the decision of this Court in Shankarlal Aggarwal and Others Vs. Shankarlal Poddar and Others, to emphasis distinction between administrative and judicial orders. It is urged that order from which appeal was preferred was not a judgment within the meaning of Clause 15 of the Letters Patent and so no appeal lies to the Division Bench. Reference is made to the decision of this Court in Institute of Chartered Accountant of India v. L.K. Ratna (186) 4 SCC 537 to bring out distinction between administrative and judicial order. Scope of Section 92 CPC was examined in Charan Singh and Another Vs. Darshan Singh and Others, , where the whole case turned on the facts arising in that particular case.
9...It is in this background the learned Counsel submitted that the Court ought to have examined the matter in all necessary details before granting permission u/s 92 CPC. In R.M. Narayana Chettiar case this Court considered in detail the history of the legislation and whether court is required to give an opportunity of being heard to the proposed defendants before granting leave to institute a suit u/s 92 CPC and stated the law on the matter. 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 such leave, granted without notice to the defendants, the suit would not thereby be rendered bad in law or non-maintainable. 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 revocation of the leave which can be considered on merits and according to law or even in the course of suit which may be established that the suit does not fall within the scope of Section 92 CPC. In that view of the matter, we do not think, there is any reason for us to interfere with the order made by the High Court.
Counsel for the revisionist has submitted that there was an interim order restraining the respondents from alienating the property in dispute. It will be open for the revisionist to move the application for injunction in the suit itself which shall be decided by the Civil Court. However, for a period of six weeks, the interim order dated 31.1.2007 granted by this Court shall continue.
Subject to the observations made above, revision is dismissed. No order as to costs.