28 Sep 2022 3:30 AM GMT
The Kerala High Court on Tuesday held that the question as to whether a suit falls under Section 92 of the Code of Civil Procedure (C.P.C.) would have to be decided before the trial.Justice A. Badharudeen reasoned that a suit under Section 92 can be prosecuted only with the leave of the court and if the parties are relegated till the finalisation of the trial and if ultimately it is found...
The Kerala High Court on Tuesday held that the question as to whether a suit falls under Section 92 of the Code of Civil Procedure (C.P.C.) would have to be decided before the trial.
Justice A. Badharudeen reasoned that a suit under Section 92 can be prosecuted only with the leave of the court and if the parties are relegated till the finalisation of the trial and if ultimately it is found that the Suit requires leave, the entire exercise of trial will become futile, as the Suit itself becomes barred for want of leave.
The petitioners herein were aggrieved by the rejection of an application for deciding whether the Original suit filed by them is maintainable in view of Section 92 CPC. In the suit, the Petitioners had sought prohibitory injunction restraining the defendants from forcefully taking the administration of Alara Sree Bhadrakali Temple, Perumpazhuthoor and also from forcefully obstructing the construction of Sreekovil as part of temple reformation.
The court below held that the issue was not 'preliminary' and could not be decided without going into the facts of the case.
It was contended by Advocates V.G. Arun, Indulekha Joseph, V. Jaya Ragi, and Neeraj Narayan on behalf of the petitioner that, in order to ascertain whether a suit would come within the ambit of Section 92 CPC, only the averments in the plaint need be looked into, and that the same was simply a question of law.
The High Court relied on the decisions in Sreenarayana Vidya Mandir Trust & Anr. v. Unnikrishnan & Ors. (2022) and Fr. John Jacob & Ors. v. Fr. N.I.Paulose & Ors., where it was held that in the matter of grant of leave under Section 92(1) of CPC, the plaint averments alone need to be looked into. It was added that if a dispute arises as to whether the Suit would fall under Section 92 of C.P.C, and if found that the suit requires leave, the party involved ought to be granted opportunity to file the Suit with leave petition to the proper court, and the trial can be proceeded with only after getting the leave.
Accordingly, the Court found that in the instant case, plaint averments and nature of the reliefs needed to be considered while deciding the issue as to whether the suit is maintainable under Section 92 of CPC and added that this had to be done before the trial.
The order of the Munsiff Court was thus set aside, and the Munsiff was directed to hear and decide the said issue as the first issue, and pass orders on merits.
Advocates Ajit G. Anjarlekar, G.P. Shinod, Vinod Raveendranath, Meena and Govind Padmanabhan appeared for Respondents.
Case Title: Sadasivan & Anr. v. Sadasivan Nair & Ors.
Citation: 2022 LiveLaw (Ker) 502
Click Here To Read/Download The Judgment