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The Supreme Court on Friday (September 18) held that a Civil Court cannot pass protective or preservatory interim orders while an application seeking leave to institute a suit under Section 92 of the Code of Civil Procedure, 1908 is pending.

Since, obtaining a prior leave of the court is mandatory to file a representative suit under Section 92 CPC when it is filed by individuals, a bench of Justice Manoj Misra and Justice Manmohan held that grant of leave under Section 92 CPC is a mandatory pre-condition for institution of the suit. Until such leave is granted, there is no pending suit or lis before the Civil Court on which interlocutory or supplemental powers can be exercised.

“…a Civil Court, seized of a plaint under Section 92 of the Code together with an application seeking leave to institute the suit, is not empowered to pass protective or preservatory interim orders pending disposal of the leave application.”, the Court answered, in response to the question framed i.e., “…whether a Civil Court, seized of a plaint filed under Section 92 of the Code of Civil Procedure, 1908 ('Code'), together with an application seeking leave to institute the suit, possesses the power to pass protective or preservatory interim orders during the pendency of the leave application?”

Even inherent powers under Section 151 CPC cannot be exercised unless the leave application remains undecided, the Court clarified.

“…it is settled law that the generality of the inherent power preserved under Section 151 of the Code cannot override the special provision contained in Section 92, in light of the principle generalia specialibus non derogants. The special provision must prevail over the general and the safeguards embedded in Section 92 must be complied with before any interlocutory orders are passed.”, the Court said.

The appellants had instituted proceedings under Section 92 CPC against the People's Education Trust along with an application seeking leave to institute the suit.

While the leave application was pending, the civil court passed an order under Order XL Rule 1(a) CPC, constituting an ad hoc committee comprising the existing trustees to manage the day-to-day affairs of the Trust.

The Karnataka High Court subsequently set aside the civil court's order holding that a Section 92 suit remains "stillborn" in the absence of leave and that the Court has no jurisdiction to pass interlocutory orders before such leave is granted.

Against the High Court's decision, the plaintiff-appellant moved to the Supreme Court.

Dismissing the appeal, the judgment authored by Justice Manmohan while affirming the impugned finding, also examined the divergent views of the High Court on whether protective orders could be passed during the pendency of an application for leave under Section 92.

While the Allahabad, Bombay, Kerala and Madras High Courts had recognised the possibility of protective jurisdiction in appropriate cases, the Orissa and Karnataka High Courts had taken the view that such jurisdiction was unavailable before leave was granted.

The Court resolved the conflict in favour of the latter view, while rejecting the Appellant's contention that application to leave being a substantive proceeding grants civil court's a power to pass an interlocutory order even before the application seeking a leave remains undecided.

Instead, the Court agreed with the Respondents that an application for leave under Section 92 is not a 'substantive proceeding' merely because it is required to be registered as a separate petition under Rule 16-A of the Karnataka Civil Rules of Practice as consideration of leave is a 'threshold proceeding'.

“In fact, the proceedings under Section 92 are substantial proceedings in the nature of a Suit and interlocutory orders can be passed only after leave has been granted…Consequently, the grant of leave under Section 92 is an essential and mandatory pre-condition, in the absence of which there exists no pending proceeding in which interlocutory applications can be entertained.”, the Court said.

Applying the law to the case facts, the Court justified the High Court's interference observing that appointment of a receiver in respect of a public trust is not merely preservatory because it can displace the existing management of the trust.

According to the Court, such an order would undermine the purpose of requiring leave under Section 92 in the first place.

Ex Parte Leave Possible In Urgent Cases

However, the Court clarified that its ruling would not prevent courts from dealing with genuinely urgent situations.

It held that where compelling circumstances exist, the Court may dispense with notice before granting leave under Section 92.

“However, for compelling reasons to be recorded in writing like where facts disclose the necessity of urgent relief, notice prior to the grant of leave may be dispensed with.”, the Court said.

As a result, the appeal was dismissed.

Cause Title: S. PANCHALINGU & ORS. VERSUS PEOPLE'S EDUCATION TRUST (R) & OTHERS ETC.

Citation : 2026 LiveLaw (SC) 955

Click here to download judgment

Appearance:

For Petitioner(s) :Dr. Aditya Sondhi, Sr. Adv. Mr. N. Sai Vinod, AOR Ms. Kanu Garg, Adv. Mr. Anubhav Kumar, Adv.

For Respondent(s) :Mr. Raghavendra S. Srivatsa, Sr. Adv. Mr. Amit Pai, Adv. Ms. Pankhuri Bhardwaj, AOR Mr. Tathagata Dutta, Adv. Mr. Kushal Dube, Adv. Mr. Rahat Bansal, Adv. Mr. Amit Pai, AOR Mr. Rahat Bansal, Adv. Mr. Anoop Haranhalli, Adv. Ms. Bhavana Duhoon, Adv. Ms. Komal Mundhra, Adv. Mr. Saurabh Agrawal, Adv. Mr. Naveen Nagarjuna, AOR Mr. Vinayak Batta, Adv.

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