R.M. NARAYANA CHETTIAR AND ANOTHER versus N. LAKSHMANAN CHETTIAR AND OTHERS

Citation: [1990] SUPP. 2 S.C.R. 266 · Decided: 11-10-1990 · Supreme Court of India · Bench: M.H. KANIA · Disposal: Appeal(s) allowed

cites 2 · see the full citation network in Lexace

Judgment (excerpt)

A 
R.M. NARAYANA CHETIIAR AND ANOTHER 
B 
c 
D 
E 
F 
G 
v. 
N. LAKSHMANAN CHETIIAR AND OTHERS 
OCTOBER 11, 1990 
[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. 
-
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-
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 
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. 
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 
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 
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 
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 
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 
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] 
(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 
revocation of the leave which can be considered on merits and accord-
ing to law. [275G] 
A 
B 
c 
D 
E 
f 
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,

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