Grant of leave is a necessary prerequisite to entertain a suit under Section 92, Code of Civil Procedure 1908

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 said suit can be said to be properly instituted. The Apex Court referring to Section 92 of the Code noted that a suit under the provision can be filed either 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 said ruling was held in the matter of Bhupinder Singh vs. Joginder Singh (D) Through LR’s (Civil Appeal No. 6067/2010), decided on 18.09.2019.

Challenge

In this case, a suit was filed by persons seeking to frame a scheme in terms of Section 92 of the Code of Civil Procedure (CPC) for proper management of the 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 under the observations that the grant of leave is to be presumed.

The main contention of the Defendant in the instant matter 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.

Held

The Apex Court referring to Section 92 of the Code 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 was further noted that there cannot be any doubt on the fact that grant of leave is a necessary pre-requisite before a suit under Section 92, CPC can be entertained. Even if no ground for defence has been raised by the Defendants, the leave of the Court is a mandatory prerequisite for instituting a suit under Section 92 of the Code.

However, it was also observed that the said leave 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.