The Supreme Court has observed that in every suit filed under Section 92 of the Code of Civil Procedure the grant of leave is necessary before the suit can be said to be properly instituted.
In this case, a suit was filed by some persons seeking to frame a scheme in terms of Section 92 of the Code of Civil Procedure (CPC) for proper management of a Gurudwara. Though an application was filed for seeking leave of the Court to institute the suit under Section 92, CPC, no orders were passed on the said application. The defendant contested the suit without raising the plea that leave of the Court has not been granted. The Trial Court, taking evidence, proceeded to frame a proper scheme for management of the Gurudwara. The High Court dismissed the appeal filed against the order of the Trial Court.
The contention of the defendant in [Bhupinder Singh vs. Joginder Singh (D)], while assailing this order before the Apex court was 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.
Referring to Section 92 of the Code, the bench comprising Justice Deepak Gupta and Justice Aniruddha Bose noted 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. It said:
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.
Disagreeing with the view adopted by the High Court, regarding the presumption as to grant of leave, the bench said:
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.
Though the bench found that the defendant was legally right that the suit could not have been instituted without taking leave, it dismissed the appeal taking note of the fact that the defendant had not raised the issue before the Trial Court.
Click here to Read/Download Judgment