LexB.S. ADITYAN AND ORS. versus B. RAMACHANDRAN ADITYAN AND ORS.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
A
B.S. ADITY AN AND ORS.
v.
B. RAMACHANDRAN ADITY AN AND ORS.
APRIL 16, 2004
B
[S. RAJENDRA BABU AND DORAISWAMY RAJU, JJ.]
Code of Civil Procedure, 1908 :
Section 92-Suit under-Leave to institute-Grant of-Notice to
C defendants-:--Necessity of-Held: As a rule of caution Court should normally
give notice to the defendants before granting leave but it is not bound to do
so.
Section 104{J)(ffa)-Leave to institute suit-Refusal of-Appeal against-
D Held: Court competent to consider appeal filed against order refusing to
grant leave to file a suit under S. 92 CPC.
Constitution of India, 1950:
Article 136--:-Leave to file suit under S: 92 CPC granted-Interference
E with-Held: Not warranted because the order made underS. 92 CPC would
not determine the rights of the parties, but only enable a party to initiate a
proceeding.
The respondents filed an application before the High Court for leave
to file a suit under Section 92 of the Code of Civil Procedure, 1908 for
p framing a scheme, for removal of appellants Nos. 1 and 2 as trustees and
for rendition of accounts. Single Judge dismissed the application. But the
Division Bench reversed this judgment and further held that a notice to
the defendants before grant of leave was not necessary as a rule of law
but as a rule of caution the Court should normally give notice to the
defendants. Hence the appeal.
G
Dismissing the appeal, the Court
HELD: 1. In the normal course if an appeal is filed against an order
granting permission to a party to file a suit as falling under Section 92 of
the Code of Civil Procedure, 1908, this Court does not normally interfere
II
216
B.S. ADITY AN v. B. RAMACHANDRAN ADITY AN
217.
with an order made by the High Court nor does it think of entertaining a A
proceeding of this nature under Article 136 of the Constitution because
the order made under Section 92 CPC will not determine the rights of
the parties, but only enable a party to initiate a proceeding.
[220-H; 221-AI
2. When a specific provision has been made in the Code of Civil B
Procedure in Section 104(1) (ffa) allowing an appeal to be filed against
an order refusing to grant leave to file a suit, the appeal filed by the
respondents before the Division Bench was certainly competent to be
considered by that Bench. (223-8-CJ
3. Although as a rule of caution, court should normally give notice C
to the defendants before granting leave under Section 92 CPC 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 should 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 D
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. The provision
under Section 104(l)(ffa) CPC for appeal against refusal of grant of leave E
does not lead to a ·different conclusion. [224-B-C; 222-CJ
R.M Narayana Chettiar v. N.Lakshmanan Chettiar, (199111 SCC 48,
relied on.
Pitchayya v. Venkatakrishnamacharlu, AIR (1930) Mad 129, National
Sewing Thread Co. Ltd v. James Chadwick. [1953) SCR 1028, R.MA.R.A. F
Adaikappa Chettiar v. R. Chandrasekhara Thever, AIR 35 (1948) PC 12,
Shan/car/al Aggarwal v. Shan/car/al Poddar [19841 1 SCR 717, Institute of
Charterd Accountants v. L.K.Ratna (19861 3 SCR 1049, Charan Singh v.
Darshan Singh, (197513 SCR 48 and T. Arivanandam v. T. V. Satyapa/, (1978)
1 SCR 742 and John v. Rees, (1969) 2 All ER 274, referred to.
d
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 12915-12920
of 1996.
From the Judgment and Order dated 16.7.96 ofthe Madras High Court
in O.S.A. Nos. 62-64, 128, 129 and 54 of 1996.
H
218
SUPREME COURT REPORTS [2004] SUPP. 1 S.C.R.
A
K. Parasaran, K.S. Cooper, Vinod Bobde, V. Shanmugham, Vineet
Kumar, Ms. Jayanti Natarajan, Tushad Cooper and Tripurari Ray for the
Appellants.
P.P. Rao, L. Nageshwara Rao, Kovilan Poonkundram, T. Harish Kumar,
V. Krishnamurthy, M.A. Krishnamoorthy and M.A. Chinnasamy for the
B Respondents.
The Judgment of the Court was delivered by
RAJENDRA BABU, J. A deed of declaration was executed by S.B.
Adityan consisting of himself, his elder brother S.T. Adityan and thExcerpt shown. Read the full judgment & AI analysis in Lexace.