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2010 DIGILAW 1077 (ALL)

Thakur Ram Janki v. Jot Bahadur Singh

2010-04-01

RAJIV SHARMA

body2010
JUDGMENT Rajiv Sharma,J. - List is being revised. 2. Neither learned Counsel for the respondents is present nor there is any request for passing over or adjournment of the case. 3. Heard Sri S.K. Mehrotra, learned Counsel for the revisionists and learned Standing Counsel and perused the records. 4. The instant revision under Section 115 of Code of Civil Procedure, has been filed against the order dated 29.4.1994 passed in Civil Misc. Case No. 32 of 1994 by the District Judge, Faizabad, allowing the application of the respondents under Section 92 of Code of Civil Procedure for granting leave for instituting the suit for removal of revisionist No.2 as Mahanth and Sarvarakar of the Deity of revisionist No.1. 5. Sri S.K. Mehrotra, learned Counsel for the revisionists submits that plaintiffs-opposite parties have preferred a suit for removal of defendant No.2-revisionist No.2-Mahanth Narainchari Chela from the post of Mahanth and Sarvarakar of the Deity of Thakur Ram Janki Virajman Mandir Dant Dhawan Kund Ayodhya, Faizabad-petitioner No.1 along with an application under Section 92 of the Code of Civil Procedure for granting leave for filing a suit.? The said application under Section 92 of the Code of Civil Procedure was allowed by the District Judge, Faizabad by the order dated 29.4.1994, whereby leave prayed for was granted. 6. Feeling aggrieved, the revisionists preferred the instant revision inter alia on the grounds that the Court below has acted illegally and with material irregularity in exercise of its jurisdiction in allowing the application under Section 92 of the Code of Civil Procedure without issuing notice and without affording opportunity of hearing to the revisionists? prior to granting the leave in question. 7. In support of the aforesaid submission, learned Counsel for the revisionists has relied upon the judgment of Apex Court in 'R.M. Narayan Chettiar v. N. Lakshmanan Chettiar wherein in para 17, it has been held as under : 7"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 at 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.? The defendants could bring to the notice of the court for instance that the allegations made in the plaint are frivolous or reckless.? Apart from this, they could, in a given case, point out that the persons who are applying for leave under Section 92 are doing so merely with a view to harass the trust or have such antecedents that it would be undesirable to grant leave to such persons.? The desirability of such notice being give to the defendants, however, cannot be regarded as a statutory requirement to be complied with before leave under Section 92 can be granted as that would lead to unnecessary delay and, in a given case, cause considerable loss to the public trust.? Such a construction of the provisions of Section 92 of the Code would render it difficult for the beneficiaries of a public trust to obtain urgent interim orders from the court even though the circumstances might warrant such relief being granted.? Keeping in mind these considerations, in our opinion, although, as a rule of caution, court should normally give notice to the defendants before granting leave under the said section to institute a suit, the court is not bound to do so. If a suit is instituted on the basis of such leave, granted without notice to the defendants, the suit would not thereby be rendered bad in law or non-maintainable.? The grant of leave cannot be regarded as defeating or even seriously prejudicing any right of the proposed defendants because it is always open to them to file an application for revocation of the leave which can be considered on merits and according to law." 8. The aforesaid principle has been followed by the Apex Court in Vidyodaya Trust Versus Mohan Prasad and others. 9. The aforesaid principle has been followed by the Apex Court in Vidyodaya Trust Versus Mohan Prasad and others. 9. It is not in dispute that the District Judge, Faizabad, while granting leave to institute suit by the impugned order, did not issue notice to the revisionists, and also did not provide any opportunity of hearing to the revisionists and as such, the impugned order is against the provisions of Section 92 of the Code of Civil Procedure and also law laid down by the Apex Court in R.M. Narayana Chettiar (supra) and Vidyodaya Trust (supra). 10. Accordingly, the revision is allowed. The order dated 29.4.1994 passed in Civil Misc. Case No. 32 of 1994 by the District Judge, Faizabad, is hereby set-aside.? The matter is remitted to the District Judge, Faizabad for deciding the same afresh, after affording opportunity of hearing to all the parties.? 11. Since the matter is lingering since 1994, it is expected that the District Judge, Faizabad, will make earnest endeavour to decide Civil Misc. Case No. 32 of 1994 on merits, expeditiously, say, within a period of six months from the date of receipt of a certified copy of this order.