Monday, 21 October 2019

Supreme Court: It is mandatory to obtain leave of court for filing suit U/S 92 of CPC

 A plain reading of Section 92 of the Code indicates that
leave of the court is a precondition
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
impracticable or inconvenient to do so, give a notice to the
proposed defendants before granting leave under Section 92 to
institute a suit. …”
7. Learned counsel for the appellant urges that in view of
law laid down by this Court, it is imperative that leave must
be granted before the suit is instituted. There is no quarrel
with this proposition and we are not inclined to hold, as the
High Court did, that leave can be presumed to have been
granted. There can be no presumption of this kind in a case
of this nature. We are clearly of the view that in every suit
filed under Section 92, CPC, the grant of leave is necessary
before the suit can be said to be properly instituted.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No(s). 6067/2010

BHUPINDER SINGH Vs  JOGINDER SINGH

Deepak Gupta, J.
Dated:September 18, 2019.

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. 3

and 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 AdvocateGeneral,
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 subjectmatter
of the
trust is situate to obtain a decree2

(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 precondition
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
impracticable or inconvenient to do so, give a notice to the
proposed defendants before granting leave under Section 92 to
institute a suit. …”
7. Learned counsel for the appellant urges that in view of
law laid down by this Court, it is imperative that leave must
be granted before the suit is instituted. There is no quarrel
with this proposition and we are not inclined to hold, as the
High Court did, that leave can be presumed to have been
granted. There can be no presumption of this kind in a case
of this nature. We are clearly of the view that in every suit
filed under Section 92, CPC, the grant of leave is necessary
before the suit can be said to be properly instituted.
8. Having held so, we are faced with an unusual situation
where the defendant contested the suit without raising the
plea that leave of the Court has not been granted. Not only

that, both sides led evidence and the matter was decided on
merits, the appellant herein submitted to the jurisdiction of
the Trial Court without any demur and objection. It is also
clear that the appellant was aware of such a provision with
regard to grant of leave because in an earlier suit filed against
the appellant he had taken an objection that leave had not
been granted and that suit was dismissed on this short
ground. However, in the second round of litigation, the
appellant unfortunately chose not to take this defence.
9. The courts below have come to a finding of fact that the
Gurudwara is a public place of worship. In fact, the case of
the appellant/ defendant himself was that his father was
Mohtmim of the Gurudwara. A Mohtmim is in the nature of
Shebait or Manager of the Gurudwara and cannot be the
owner of the Gurudwara. It has also come on record that
about 14 kanals of land was donated by the villagers to the
Gurudwara which fact has been admitted by the appellant in
his cross examination. Therefore, it is a public Gurudwara.
We also find that the Trial Court has framed a proper scheme
for management of the Gurudwara in which an elected body
has to take care of the management of the Gurudwara and

this elected body will consist of people belonging to the
village.
10. Keeping in view the aforesaid facts, though legally the
appellant is right that the suit could not have been instituted
without taking leave yet in the peculiar facts and
circumstances of the case, we are not inclined to continue
this appeal.
11. The civil appeal is dismissed. This case has been
decided in peculiar facts and circumstances and shall
therefore not be treated as precedent.
…….…....................J.
[DEEPAK GUPTA]
……..…....................J.
[ANIRUDDHA BOSE]
NEW DELHI;
September 18, 2019.

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