JUDGMENT : Petitioners are the defendants in O.S. No.1/2021 of the Sub Court (Commercial Court, Kalpetta), Sulthan Bathery and the order under challenge is Ext.P9, which refused to consider the maintainability issue raised by the defendants as a preliminary issue, for reason of the suit being ripe for trial. 2. Heard Sri.M.P. Ashok Kumar, learned counsel for the petitioners and Sri.B.G. Bhaskar, learned counsel for the respondents. 3. Learned counsel for the petitioners submits that the triple conditions to be satisfied in order to seek a leave under Section 92 of the C.P.C. is not satisfied in the plaint, wherefore, Ext.P4 leave granted by the learned District Judge is grossly improper. It is all the more so, since leave has been granted without notice to the defendants (petitioners herein). It was also contended that the Malabar Hindu Religious and Charitable Endowments Act (MHR & CE Act), oust the jurisdiction of the Civil Court, inasmuch as, the power has been vested upon the Deputy Commissioner under Section 57 of the Act to deal with situations and reliefs, as is seen raised in the instant plaint. These aspects were brought to the notice of the District Court, Wayanad, where the suit was originally instituted (which was subsequently transferred to the Sub Court, Sulthan Bathery) at the earliest possible opportunity, when the defendants filed their written statement. However, the infirmity attached to the leave granted and the issue of maintainability raised was not considered by the learned Sub Judge. Instead, the matter was sought to be listed for trial. Thereupon the petitioners/ defendants filed I.A. 18/2023 to hear the maintainability of the suit as a preliminary issue, which was dismissed vide Ext.P9, the subject matter of challenge in this proceeding. As regards the triple conditions to be satisfied for grant of leave under Section 92, learned counsel relied upon the judgment of the Hon'ble Supreme Court in Ashok Kumar Gupta v. M/s. Sitalaxmi Sahuwala Medical Trust [2020 (2) KLT 1137 (SC)]. On the requirement of considering the maintainability as a preliminary issue before proceeding with the suit, learned counsel for the petitioners relied upon the two Single Bench Judgments of this Court, as also, on a Single Bench judgment of the Gauhati High Court, the citations of which are as follows: (i) Dhanalakshmi (Partner) v. Sahal V.J. & Another [ILR 2022 (3) Ker. 80] (ii) Bimal Vas & Ors. 80] (ii) Bimal Vas & Ors. v. Shakthan Kuries and Loans (P) Ltd. [O.P.(C) No.627 of 2022 dt.16.08.2022] (iii) Sushanta Kar v. Ganesh Chakraborty Through His Legal Heirs [2015 KHC 2783] 4. On the question of grant of leave under Section 92, learned counsel relied upon a judgment of the Hon'ble Supreme Court in Vidyodaya Trust v. Mohan Prasad [ 2008 (2) KLT 68 (SC)], wherein the Hon'ble Supreme Court held that, to ascertain whether the suit was for vindicating public rights, the Court has to go beyond the relief and to focus on the purpose for which the suit is filed. 5. Per contra, the proposition canvassed by the learned counsel for the petitioners was seriously refuted by the learned counsel for the respondents. On the question of grant of leave vide Ext.P4, learned counsel would point out that the petitioners/defendants have unsuccessfully challenged the same before this Court in O.P.(C) No.805/2020, which resulted in Ext.P6 judgment. This Court held that an original petition under Article 227 of the Constitution of India cannot be maintained against a provisional order granting leave, wherefore, the said issue cannot be raked up now. That apart, the learned counsel explained on facts that the leave granted is fully legal and proper. On the question of the requirement, if any, of issuance of notice to the defendants before granting leave under Section 92, learned counsel relied upon the judgment of the Hon'ble Supreme Court in R.N. Narayana Chettiar & Another v. Lakshmanan Chettiar & Others [ (1991) 1 SCC 48 ], wherein it was held that the requirement of issuing notice to the defendants before granting leave under Section 92 cannot be regarded as a statutory requirement, though the same is desirable, as a rule of caution. As regards the requirement to consider the question of maintainability as a preliminary issue, learned counsel relied upon Order XIV, Rule 2, which mandates the court to pronounce judgment on all the issues, notwithstanding that a case may be disposed of on a preliminary issue, in support, whereof learned counsel relied upon a recent judgment of the Hon'ble Supreme Court in Sathyanath v. Sarojamani [ (2022)7 SCC 644 ]. 6. Having heard the learned counsel appearing on both sides, this Court finds little merit in the instant Original Petition. 6. Having heard the learned counsel appearing on both sides, this Court finds little merit in the instant Original Petition. As referred to above, two issues are raised before this Court, of which, the first is with respect to the infirmity in granting leave under Section 92, for want of issuance of notice to the defendants and also for non-satisfaction of the triple conditions envisaged in Section 92 for grant of leave. On the question of issuance of notice, the judgment relied on by the learned counsel for the respondents in R.N. Narayana Chettiar (supra), holds the field, the relevant findings of which in paragraph No.17, are extracted herein below. “17. .......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 given 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. 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.” (underlined by me, for emphasis) 7. In view of the above authoritative pronouncement, it cannot be held that the issuance of notice to the defendants before granting leave under Section 92 is mandatory, though it is desirable. Now, coming to the second limb of the first issue, the Hon'ble Supreme Court categorically held in Ashok Kumar Gupta (supra), as regards the three conditions to be satisfied for grant of leave under Section 92. The relevant findings in paragraph No.13 of the judgment are extracted herein below. “13. Three conditions are therefore, required to be satisfied in order to invoke Section 92 of the Code and to maintain an action under said Section, namely, that (i) the Trust in question is created for public purposes of a charitable or religious nature; (ii) there is a breach of trust or a direction of Court is necessary in the administration of such a Trust; and (iii) the relief claimed is one or other of the reliefs as enumerated in said Section. Consequently, if any of these three conditions is not satisfied, the matter would be outside the scope of said Section 92.” 8. Needless to say that the above proposition mandates satisfaction of the triple conditions laid down. However, the controversy in the instant facts is centered around the point of time at which the above satisfaction has to be arrived at. Without the slightest hesitation, it can be laid down as a general proposition that the existence of the triple conditions is to be satisfied at the time of granting leave. If the defendant is aggrieved about the grant of leave without notice to them, the remedy lies in filing an application before the court seeking revocation of the leave already granted, as held in R. N. Narayana Chettiar (supra). 9. The peculiar facts obtaining in this case is very much relevant in resolving the instant controversy. If the defendant is aggrieved about the grant of leave without notice to them, the remedy lies in filing an application before the court seeking revocation of the leave already granted, as held in R. N. Narayana Chettiar (supra). 9. The peculiar facts obtaining in this case is very much relevant in resolving the instant controversy. It requires to be noticed that, apart from alleging infirmity with respect to the grant of leave and raising the issue of maintainability in terms of the MHR & CE Act in the written statement, there was no effort on the part of the defendants to get the above two issues considered, as a preliminary issue. No application in this regard is seen filed. According to the learned counsel for the respondents, the first challenge to grant of leave, which culminated in Ext.P6 judgment, surfaced when the matter was first listed for trial. As pointed out by the learned counsel, no relief was granted by this Court in Ext.P6 judgment, where it was found that an original petition under Article 227 cannot be maintained against a provisional order granting leave under Section 92. Although learned counsel for the petitioners canvassed on the basis of the observations made in Ext.P6 judgment, that the trial court is bound to pass a final order granting leave under Section 92, after taking into account the objections in this regard by the defendants, this Court cannot find any peremptory direction in Ext.P6 mandating to pass such a final order. Among other things, this court observed in Ext.P6 that a provisional order granting leave will stand merged with the final order that may be passed after giving notice to the respondents and that no such final order was passed by the trial court. This Court also took note of the fact that the matter is ripe for trial and ultimately left all other questions for consideration by the trial court. 10. In the peculiar facts, it could, thus, be seen that the issue with respect to the grant of leave was unsuccessfully challenged by the petitioners herein by filing an original petition under Article 227, which culminated in Ext.P6. Now, again, Ext.P7 I.A. has been filed to consider the issue of maintainability as a preliminary issue and seeking rejection of the plaint under Order VII Rule 11, which application was dismissed by the impugned Ext.P9 order. Now, again, Ext.P7 I.A. has been filed to consider the issue of maintainability as a preliminary issue and seeking rejection of the plaint under Order VII Rule 11, which application was dismissed by the impugned Ext.P9 order. In Ext.P9 order, the learned Single Judge essentially took stock of the fact that the suit of the year 2019 is ripe for trial and that an issue, as regards the maintainability of the suit, has already been raised. 11. It is in the above factual backdrop that the question as to whether the issue of maintainability raised should necessarily be considered as a preliminary issue has to be addressed. Order XIV Rule 2 is extracted herein below. “2. Court to pronounce judgment on all issues.—(1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues. (2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if the issue relates to— (a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.” 12. As pointed out by the learned counsel for the respondents and as seen addressed in Sathyanath (supra), Order XIV Rule 2, as it stood before 1976 amendment reads thus: “Rule 2 Issues of law and of fact “Where issues both of law and of fact arise in the same suit, and the court is of the opinion that the case or any part thereof may be disposed off on the issues of law only, it shall try those issues first, and for that purpose may if it thinks fit postpone the settlement of issues of fact until after the issues of law have been determined.” 13. Learned counsel for the respondents would point out that the provision, as it stood prior to the amendment led to misuse, resulting in agonising delay. Learned counsel for the respondents would point out that the provision, as it stood prior to the amendment led to misuse, resulting in agonising delay. The respondents have quoted the report of the Law Commission in this regard in Ext.P8 counter, which reads thus: “This rule has led to one difficulty. Where a case can be disposed off on a preliminary issue often the courts do not inquire into the merits with the result that when on an appeal against the finding on the preliminary issue the decision of the court on that issue is reversed the case has to be remanded to the court of first instance for trial of the other issues. This causes delay. It is considered that this delay should be eliminated.......” 14. It is, accordingly, that Order XIV, Rule 2 was amended with the present provision. A perusal of the amended provision in Order XIV, Rule 2 would indicate that the court is mandated to pronounce judgment on all issues, notwithstanding that a case may be disposed on a preliminary issue. The language used is “shall”. Whereas, coming to Order XIV, Rule 2(ii), the language is “may”, which essentially permits a court to consider an issue, which relates to the jurisdiction of the court or a bar to the suit created by any law, first, provided the case can be disposed of on that issue of law only and also when the court thinks it fit to do so. As pointed out by the learned counsel for the respondent, the provision contained in Order XIV Rule 2(ii) is an exception to the mandate contained in Order XIV Rule 2(i). The controversy in this regard is more res-integra, since the Hon'ble Supreme Court, in Sathyanath's case (supra), after referring the opinion expressed by the various High Courts in the country, categorically held in paragraph 31 as follows:- “31. We find that the order of the High Court to direct the learned trial court to frame preliminary issue on the issue of res judicata is not desirable to ensure speedy disposal of the lis between parties. Order XIV Rule 2 of the Code had salutary object in mind that mandates the Court to pronounce judgments on all issues subject to the provisions of sub-Rule (2). Order XIV Rule 2 of the Code had salutary object in mind that mandates the Court to pronounce judgments on all issues subject to the provisions of sub-Rule (2). However, in case where the issues of both law and fact arise in the same suit and the Court is of the opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that suit first, if it relates to jurisdiction of the Court or a bar to the suit created by any law for the time being in force. It is only in those circumstances that the findings on other issues can be deferred.” 15. Applying the above settled legal position to the instant facts, this Court cannot find any infirmity or illegality in Ext.P9 order of the learned Sub Judge. As rightly taken note of, the suit has proceeded substantially and the same is ripe for trial. In such circumstances, a direction to consider the question of maintainability as a preliminary issue would be neither legal, nor conducive. If such a course is adopted and the suit is found to be not maintainable, which finding, if upset by an Appellate court, would result in an unnecessary remand for consideration of the rest of the issues on merits. Per contra, if all the issues are answered as mandated by Order XIV Rule 2, the Appellate court on the event of an appeal being carried, can consider the correctness of all the issues, including the one pertaining to maintainability as well, so as to give a quietus to the dispute. In the circumstances, this Original Petition fails and the same is dismissed.