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Lachhman Dass And Others v. Ranjit Singh And Others
Judgment Summary
Factual and Procedural Background
This petition, placed before a larger Bench on reference by J.V. Gupta, J., challenges an order of the learned Subordinate Judge II Class that granted leave under section 92 of the Code of Civil Procedure without notice to the defendants. The core procedural question is whether defendants are entitled to notice before the Court grants leave under section 92. The opinion proceeds without recounting factual details of the underlying dispute, addressing instead the legal question raised by that order. The Court noted that section 92 of the Code had been amended in 1976 so that leave of the Court (rather than the prior requirement of the Advocate-General's consent) became the pre-condition for instituting suits under that section.
Legal Issues Presented
- Whether the defendants must be given notice before the Court grants or refuses leave under section 92 of the Code of Civil Procedure.
- Whether an order granting leave under section 92 is administrative in nature and therefore can be made without a reasoned order or notice to defendants, or whether it is judicial/quasi-judicial requiring notice and reasons.
Arguments of the Parties
Petitioners' Arguments (as presented)
- Leave under section 92 must be granted by the Court; therefore notice should be issued to defendants before such leave is granted or refused.
- The order granting or refusing leave is not merely administrative but is judicial or at least quasi-judicial in nature, and should be a reasoned order.
- Reliance was placed on the decisions of the Madras and Delhi High Courts (T.M. Shanmugham and Amarjit Singh Sabharwal) to support the position that notice and reasons are required.
- The Delhi High Court decision was said to hold that because such orders are subject to revision by the High Court, they should be reasoned judicial orders.
Other Parties
The opinion does not contain a detailed account of the defendants' or the plaintiffs-respondents' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Prithipal Singh v. Megh Singh, AIR 1982 P&H 137 | Held that the Court does not have to write a reasoned order and need not give notice to the defendant for an application seeking leave under section 92; the order granting leave was described as administrative in nature. | The opinion notes this Single Bench decision as supporting the view that no notice is necessary and that the order is administrative. |
| Gurdwara Prabandhak Committee Delhi Cantonment v. Amarjit Singh Sabharwal, AIR 1984 Delhi 39 | Contrary view: impliedly requires notice and reasoned orders for leave under section 92 (as described in the opinion). | Cited by petitioners' counsel to support the argument that notice and reasoned orders are required; the Court records the contrary position but does not adopt it. |
| T.M. Shanmugham v. The Periyar Self-respect Propaganda Institution, AIR 1985 Mad 93 | Held that leave granted without notice to defendants under section 92 is void in law and that the institution and numbering of the suit cannot be validly sustained; the Madras High Court referred to Order XIV Rule 8 of its original side rules. | Cited by petitioners' counsel; the Court recorded this contrary authority and observed the Madras High Court relied on its original side rules. |
| Charan Singh v. Darshan Singh, 1975 1 SCC 298 | Maintained that the maintainability of a suit under section 92 depends upon the allegations in the plaint and does not require decision with reference to averments in the written statement. | Relied upon by the Court to support the proposition that leave under section 92 is to be granted on the basis of the plaint's allegations and not on the defence that would appear in the written statement. |
| Dr. Ram Parkash v. Dayal Chand, AIR 1986 P&H 237 | Held that an order granting permission to institute a suit without fulfilling essential requirements of section 92 is not immune from challenge in revision and such orders are covered by clause (c) of sub-section 115 of the Code read with proviso (a). | The Court observed this decision but held it was not relevant to the specific question whether notice must be issued before granting leave under section 92. |
Court's Reasoning and Analysis
The Court's analysis proceeded as follows:
- Textual and historical context: The Court compared section 92 as amended in 1976 with its pre-amendment form. Previously the Advocate-General's consent in writing was required; after amendment leave of the Court became the pre-condition.
- Nature of the leave: The Court observed that section 92 nowhere prescribes that notice must be issued before leave is granted. The Court concluded that at the leave stage it is the subjective satisfaction of the Court that matters, and therefore the order is of an administrative nature.
- On reasoned orders: The Court accepted that if leave is refused, reasons should be given so the aggrieved party knows why leave was refused. However, if leave is granted, defendants will have full opportunity to raise all pleas at trial, so no prejudice is caused by the absence of prior notice.
- Maintainability and evidentiary stage: Relying on the Supreme Court’s holding in Charan Singh v. Darshan Singh, the Court stressed that maintainability under section 92 depends on the plaint's allegations and not on the written statement; thus the Court must satisfy itself from the plaint whether a case is made out for leave.
- Avoiding double trial: The Court reasoned that requiring notice before granting leave would amount to trying the suit twice—once at the leave stage and again at trial—which is unnecessary and undesirable.
- Scope of revision: The Court observed a prior decision (Dr. Ram Parkash) that non-complying orders could be subject to revision, but held that decision did not resolve whether notice was necessary before granting leave.
- Conclusion of analysis: On balance, and having applied its mind to the competing authorities and principles, the Court concluded that no notice is necessary before granting or refusing leave under section 92; the leave stage is administrative and based on the plaint's allegations, and defendants will not be prejudiced because all defenses can be raised at trial.
Holding and Implications
Final Holding: The petition is dismissed. Specifically, the Court held that no notice need be issued to defendants prior to the granting (or refusing) of leave under section 92 of the Code of Civil Procedure.
Implications:
- Direct effect on the parties: The impugned order granting leave without notice is sustained; the petition challenging that order was dismissed with no order as to costs. The parties were directed to appear in the trial Court on 16.10.1986.
- Practical consequence for procedure under section 92: Leave to institute a suit under section 92 is to be granted on the Court's satisfaction based on the plaint; prior notice to defendants is not required and granting leave does not prevent defendants from raising all defenses at trial.
- Scope of precedent: The Court’s ruling expresses a contrary position to some High Court decisions (Delhi and Madras) noted in the opinion; the judgment does not state that it is creating a broader precedent beyond the resolution of the reference and the petition before it.
J.V Gupta, J.:— This petition, which has been placed before us, on a reference by me for its decision by a larger Bench, is directed against the order of the learned Subordinate, Judge IInd Class, whereby leave under section 92 of the Code of Civil Procedure (hereinafter called the Code) was granted without notice to the defendants. Thus the short question to be decided in this petition is whether the defendants are entitled to the notice before the leave is granted by the Court to the plaintiffs-respondents as contemplated under section 92 of the Code. The relevant portion of section 92 of the Code reads as under:—
“Section 92. Public Charities.— (1) In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate-General, or two or more persons having an interest in the trust and having obtained the leave of, the Court, may institute a suit, whether contentious or not, in the principal Civil Court of original jurisdiction or any other Court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate to obtain a decree xxxxxx.”
2. For the decision of this question of law, it would be trite to say that the facts of the case need not be looked into. It is, therefore, unnecessary to notice the same. Coming straight to the point of law involved herein it would be pertinent to notice also the provisions of section 92 of the Code as it existed before the amendment of the Code in the year 1976. Section 92 then read as under:—
“(1) In the case of any alleged breach of any express or contructive trust created for public purposes of a charitable or religious nature, or where the direction of Court is deemed necessary for the administration of any such trust, the Advocate General, or two or more persons having an interest in the trust and having obtained the consent in writing of the Advocate General, may institute a suit, whether contentious or not, in the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate, to obtain a decree—xx xx xx.”
3. Thus it would be clear that prior to the amendment of the Code in the year 1976 only permission of the Advocate General was required for instituting a suit under Section 92 of the Code whereas this is now with the leave of the Court which is sine quo non for filing such a suit.
4. A Single Bench of this Court in Prithipal Singh v. Megh Singh . AIR 1982 P&H 137. held that the Court does not have to write a reasoned order. It does not even have to give a notice to the defendant of the application seeking leave to file suit as the order granting leave is of an administrative nature. However, contrary view was taken by the Delhi High Court in Gurdwara Prabandhak Committee Delhi Contonment v. Amarjit Singh Sabharwal . AIR 1984 Delhi 39., and the Madras High in Court T.M Shanmugham v. The Periyar Self-respect Propaganda Institution . AIR 1985 Mad 93., though none of the said High Courts noticed judgment of this Court given earlier. It was under these circumstances that the case was referred to the larger Bench vide my order dated 12.8.1985
5. The learned counsel for the petitioners has urged that since the leave under section 92 of the Code is to be granted by the Court, notice must be issued to the defendants before such a leave is granted or refused. According to the learned counsel such an order could not be said to be administrative in nature and is in the nature of the judicial order is in any case a quasi-judicial order. In support thereof he has mainly relied upon the judgments of the Madras and Delhi High Courts referred to above. According to the Delhi High Court in Amarjit Singh Sabharwal's case (supra) since such an order is subject to the revision of the the High Court therefore, it is for this reason that the judicial orders of the Courts should be reasoned orders. Where the function is a judicial function as under section 92 of the Code it is inherent in the character of the function that an order must be a reasoned order.
6. As to whether the order should be reasoned one or not there may not be much dispute. Of course, when the leave is refused the Court must give reasons for not allowing the leave so that the aggrieved party may know the reasons for which the leave has been refused, but at the same time if the leave is granted then in that situation when the defendant is called upon the defend the suit all possible pleasare open to him and therefore, no prejudice whatsoever is caused in not issing a notice prior to the granting of the leave. Moreover, the maintainability of the suit under section 92 of the Code depends upon the allegations in the plaint and does not call for decision with reference to the avernments in the written statement as held by the Supreme Court in Charan Singh v. Darshan Singh . 1975 1 SCC 298. That being so it is for the Court to satisfy as to whether a case is made out by the two or more persons seeking leave of the Court under section 92 of the Code or not. Of course, the Court will not grant the leave or refuse the leave arbitrarily without applying its mind. It is after the application of the mind that the Court will either grant the leave or refuse the same.
7. Similarly the Madras High Court in T.M Shanmugham's case (supra) took the view that the leave granted to the plaintiffs to institute the suit under section 92 of the Code without notice to the defendants is viod in law and the logical conclusion of that would be that the institution and numbering of the suit cannot be validly sustained in law and therefore, the suit was liable to be dismissed on this technical ground. However, the Madras High Court has referred to Order XIV Rule 8 of the original side rules of the High Court in coming to that conclusion.
8. He also cited a Single Bench judgment of this Court reported as Dr. Ram Parkash v. Dayal Chand . AIR 1986 P&H 237., wherein it was held that an order granting permission to institute a suit without fulfilling the essential requirements of section 92 of the Code is not rendered immune from challenge in revision merely on the ground that such an order is an administrative order which does not finally decide the rights of the parties. According to the said judgment, the order of this type would clearly be covered by clause (c) of sub-section 115 of the Code read with proviso (a) thereto. It follows, therefore that revision would lie against an order granting permission under section 92 of the Code to institute a suit which does not comply with the pre-conditions thereof. To our mind the said judgment is not relevant to decide the question as to whether the Court must issue notice to the defendants before granting the leave or not.
9. Section 92 of the Code nowhere provides that notice must be issued before such a leave is granted. No judgment has been cited on behalf of the petitioners that such a notice was necessary when the leave was to be granted by the Advocate General prior to the amendment of the Code. However, one of this Court to the contrary is there dealing with the amended provisions of the Code. In any case we are of the considered view that no notice is necessary to be issued to the defendants prior to the granting or refusing of the leave under section 92 of the Code as at that stage it is the subjective satisfaction of the Court only and thus the order is an order of administrative nature.
10. There is another reason also why no notice is necessary to the defendants prior to the granting of the leave under section 92 of the Code because that will amount to trying the suit twice-first at the time of granting the leave and secondly after the leave is granted. As a matter of fact it is the satisfaction of the Court as to whether the leave should be granted or not keeping in view the provisions of section 92 of the Code. Suppose the leave is granted, in that situation the defendants can take all available pleas in the written statement and the matter would be decided at the trial of the suit without any prejudice to them if no notice is issued to them prior to the granting of the leave. Moreover as observed earlier the leave is to be granted on the allegations made in the plaint to be filed in the Court and not on seeking the averment made in the written statement. Obviously, thus the Court does not need presence of the defendants at the time of the granting of the leave and therefore, no notice to them at that stage is necessary.
11. In this view of the matter, this petition fails and is dismissed with no order as to costs. Parties are directed to appear in the trial Court on 16.10.1986
D.S Tewatia, J.:— I agree.
R.M.S
Petition dismissed.
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