The Kerala High Court ruled that any dispute regarding whether a lawsuit fits under Section 92 of the Code of Civil Procedure (C.P.C.) must be resolved prior to the trial. The court stated that a suit under Section 92 can only be brought with the court's permission. If the parties remain separated until the trial is through and it is ultimately determined that the suit requires leave, the trial will be for naught because the claim will be automatically dismissed for lack of leave.
In the instant case titled Sadasivan & Anr v. sadasivan nair & Ors., the issue raised before the Kerala High Court was:
Whether the rejection of an application for deciding the Original suit filed by the parties is maintainable under Section 92 CPC?
With regard to the issue, the court stated that without delving into the case's facts, the matter could not be resolved because it was not "preliminary."
The High Court cited the rulings in Fr. John Jacob & Ors. v. Fr. N.I.Paulose and Sreenarayana Vidya Mandir Trust & Anr. v. Unnikrishnan & Ors. (2022), where it was determined that the plaint averments alone need to be considered when determining whether to grant leave under Section 92(1) of the CPC. It was added that if there is a disagreement over whether the lawsuit falls under Section 92 of the C.P.C. and it is determined that the lawsuit needs permission, the involved party should be given the opportunity to file a lawsuit with permission petition with the appropriate court, and the trial can only move forward after obtaining permission.
In light of this, the Court determined that the issue of whether the suit is maintainable under Section 92 of CPC in the current instance needed to be resolved before the trial and stated that this had to be done by taking into account the plaint averments and nature of the reliefs.
The court categorically stated that:
“A suit under Section 92 can be prosecuted only with the leave of the court. If in a Suit filed by the plaintiff a dispute arose on the ground that the Suit would fall under Section 92 of C.P.C, the said question shall be decided by the parameters discussed in the above decisions and if it is found that the Suit requires leave, the party must be given an opportunity to file the Suit with leave petition to the proper court. Only after getting leave, the trial can be proceeded.”
Hence, the Munsiff Court's order was reversed, and the Munsiff was instructed to hear and decide the aforementioned problem as the first issue and make merit-based decisions.