OP(C) No. 147 of 2015 (O)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE P.SOMARAJAN THURSDAY, THE 16TH DAY OF MARCH 2017/25TH PHALGUNA, 1938 ## OP(C).No. 147 of 2015 (O) AGAINST THE ORDER DATED 23.8.2014 IN I.A.NO.921/2014 IN O.S.NO.27/2014 OF THE SUB COURT, ATTINGAL. ## PETITIONERS: PETITIONERS: DEFENDANTS 1,5,6 AND 7: 1. RAMACHANDRAN UNNITHAN S/O.PACHAN KURUP, P.R.LAND, PANAYARA DESOM, CHEMMARUTHY VILLAGE, THIRUVANANTHAPURAM. 2. ASOKAN, S/O.SIVASANKARA PILLAI, ASOKA BHAVAN, MUTHANA DESOM, CHEMMARUTHY VILLAGE, THIRUVANANTHAPURAM. 3. MADHAVA KURUP, S/O.PADMANABHA KURUP, KALLIYIL VEEDU, PANAYARA DESOM, CHEMMARUTHY VILLAGE, THIRUVANANTHAPURAM. 4. MOHANDAS, S/O.PACHAN UNNITHAN, CHAITHANYA, PANAYARA DESOM, CHEMMARUTHY VILLAGE, THIRUVANANTHAPURAM. BY ADV. SRI.J.JAYAKUMAR ## RESPONDENTS: RESPONDENTS: PLAINTIFFS & DEFENDANTS 2, 3, 4,8 AND 9: 1. SREE BHAGAVATHI, THRIPORITTAKKAVU BHAGAVATHI KSHETHRAM, PANAYARA DESOM, CHEMMARUTHY VILLAGE, THIRUVANANTHAPURAM. 2. THRIPPORITTAKAVU BHAGAVATHY DEVASOM TRUST NO.60/2013, ITS OFFICE AT THRIPPORITTAKAVU BHAGAVATHY TEMPLE PREMISES, PANAYARA DESOM, CHEMMARUTHY VILLAGE, THIRUVANANTHAPURAM. 3. ANILKUMAR, S/O.RAGHAVAN UNNITHAN, CHIRAKONATHU VEEDU, PANAYARA DESOM, CHEMMARUTHY VILLAGE, THIRUVANANTHAPURAM. 4. THULASIDHARA KURUP, S/O.RAGHAVAN UNNITHAN, CHIRAKONATHU VEEDU, PANAYARA DESOM, CHEMMARUTHY VILLAGE, THIRUVANANTHAPURAM. 5. KUMAR, S/O.THANKAPPAN PILLAI, JAYAMANDIRAM, PANAYARA DESOM, CHEMMARUTHY VILLAGE, THIRUVANANTHAPURAM. :: 2 :: O.P.(C) NO.147 OF 2015 6. SREEDHARAN UNNITHAN, S/O.KESAVAKURUP, PILLAI VEETIL, CHADAYAMANGALAM, KOTTARAKKARA. 7. BIJU, S/O.SREEDHARAN, PILLAI VEETIL, CHADAYAMANGALAM, KOTTARAKKARA. 8. GOPALAN UNNITHAN, S/O.KESAVAKURUP, CHARUVILA PUTHEN VEEDU, VETTIYARA DESOM, NAVAIKULAM VILLAGE. 9. VISHNU, S/O.RADHAKRISHNA KURUP, 'KRISHNA', MULAKKALATHU KAVU, KILIMANOOR VILLAGE. 10. SINU, S/O.GOPALAN UNNITHAN, CHARUVILA PUTHENVEEDU, VETTIYARA DESOM, NAVAIKULAM VILLAGE. R1 TO R5 BY ADV. SRI.AJITH ANTONY CHATHAMKANDAM R1 TO R5 BY ADV. SRI.SANTHOSH MATHEW R1 TO R5 BY ADV. SRI.ARUN THOMAS R6 TO R10 BY ADV. SRI.D.AJITHKUMAR THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 16-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## OP(C).No. 147 of 2015 (O) ## APPENDIX ## PETITIONERS' EXHIBITS EXHIBIT-P1: TRUE COPY OF THE LEAVE PETITION I.A.NO.543/2014 IN O.S.NO.27/2014 FILED BY THE PLAINTIFFS BEFORE THE SUB COURT, ATTINGAL. EXHIBIT-P2: TRUE COPY OF THE PLAINT IN O.S.NO.27/2014 FILED BY THE PLAINTIFFS BEFORE THE SUB COURT, ATTINGAL. EXHIBIT-P3: TRUE COPY OF THE COMMON ORDER DATED 23/8/2014 IN I.A.NOS.544/2014 AND I.A.854/2014 IN O.S.NO.27/2014 OF SUB COURT, ATTINGAL. EXHIBIT-P4: TRUE COPY OF THE APPLICATION I.A.NO.921/2014 IN O.S.NO.27/2014 FILED BY THE PETITIONERS BEFORE THE SUB COURT, ATTINGAL. EXHIBIT-P5: TRUE COPY OF THE OBJECTION FILED BY THE PLAINTIFFS IN I.A.NO.921/2014 IN O.S.NO.27/2014 BEFORE THE SUB COURT, ATTINGAL. EXHIBIT-P6: TRUE COPY OF THE ORDER DATED 23/8/2014 IN I.A.NO.921/2014 IN O.S.NO.27/2014 OF SUB COURT, ATTINGAL. ## RESPONDENTS' EXHIBITS: NIL //TRUE COPY// AHZ/ **“C.R.”** **P. Somarajan, J.** **-----------------------------------------------------O.P.(C) No.147 of 2015 (O) -----------------------------------------------------Dated this the 16[th] day of March, 2017** ## **JUDGMENT** Challenging the order dated 23.8.2014 in I.A.No.921 of 2014 in O.S.No.27 of 2014 of the Sub Court, Attingal, defendants 1 and 5 to 7 came up with this petition under Article 227 of the Constitution of India. The abovesaid application in I.A.No.921 of 2014 was filed for the grant of leave under Section 92 of the Code of Civil Procedure. It was allowed by the lower court without issuing notice to the defendants. Defendants 1 and 5 to 7 entered appearance and filed the application in I.A.No.921 of 2014 for revoking the leave already granted as per the order in I.A.No.543 of 2014. It was dismissed by the lower court under Ext.P6 order dated 23.8.2014. Aggrieved by the said order, defendants 1 and 5 to 7 approached this court by this petition. 2. Heard the learned counsel appearing for the petitioners and Sri.Arun Thomas, learned counsel appearing for respondents 1 to 5 ## **O.P.(C) No.147 of 2015 (O)** :: 2 :: and Sri.D.Ajith Kumar, learned counsel appearing for respondents 6 to 10. 3. Ext.P1 is the application submitted under Section 92 of the Code of Civil Procedure for the grant of leave. This is an interlocutory application supported by an affidavit. The learned Sub Judge accepted the application and issued notice to the respondents after granting leave. 4. The question remains for consideration is whether the leave granted in an interlocutory application filed along with the suit would satisfy the mandate under Section 92 CPC. A mere reading of Section 92 CPC after its amendment by Act 104 of 1976 shows that leave should be obtained before the institution of the suit. The wordings used in Section 92 CPC “having obtained the leave of the court may institute a suit” stands for a leave which has to be obtained before the institution of the suit. It is a condition precedent to institute a suit under Section 92 CPC. The said question was earlier considered by this court in **Mathew** v **. Thomas (AIR 1983 KERALA 5 = 1982 KLT 493 = 1982 (1) KLJ 634).** A subsequent ## **O.P.(C) No.147 of 2015 (O)** :: 3 :: decision drawn by this court in **Abdul Azeez v. L.I.W.A Educational Charitable Society (2010 (3) KLT 158** ) took the very same view, but subsequently in **St.Peter's and St.Paul's Syrian Orthodox Church v. Varghese (2010 (3) KLT 382** ) a learned Single Judge of this court made an observation that the decision reported in _**2010 (3) KLT 158 (Abdul Azeez's case)**_ was rendered on the facts pleaded for grant of leave but did not lay down that no reference could be made to the averments in the plaint under any circumstance. The decision reported in 2010 (3) KLT 158 cannot be taken into account to mean that a pending request for leave can be dismissed as not maintainable for the mere fact that it is made as an interlocutory application. At this juncture, it has to be borne in mind that the first decision rendered by this court is the decision drawn in **Mathew V. Thomas** reported in AIR 1983 KERALA 5 = 1982 KLT 493 = 1982 (1) KLJ 634 wherein it was held by this court that obtaining leave of the court is a condition precedent to institute a suit under Section 92 CPC. Needless to say that the previous decision would prevail over the subsequent decision rendered by the same strength of Bench and as such the legal position settled down in **Mathew's** case can be followed. This would show that the granting of leave is a condition ## **O.P.(C) No.147 of 2015 (O)** :: 4 :: precedent. As such, the suit which was received on file and numbered without having leave granted prior to its institution is bad in law. 5. Here in this case, the leave was granted in an interlocutory application filed along with the suit. Interlocutory application would come into play only after the institution of the suit. It is not at all permissible to grant leave under Section 92 CPC after the institution of the suit in an interlocutory application. Going by the scheme of Section 92 CPC, an original petition has to be filed for the grant of leave and it should be supported by sufficient document relied on by the plaintiff and a copy of the plaint so as to have an assessment regarding the issues involved in the suit and to take a decision on the leave application. 6. Rule 56 of the Civil Rules of Practice mandates that an original petition shall, in addition to the particulars required by Rules 11 and 13, state the provision of law or authority under which it is presented as in Form Nos.5 and 6. If it is not intended to serve any person with notice of the petition, it shall be so stated and the petition ## **O.P.(C) No.147 of 2015 (O)** :: 5 :: shall be headed as in form No.6, but if the Court directs any person to be made a party, the cause title shall be amended to conform Form No.1. Rule 11 mandates that a plaint or original petition shall be headed with a cause title as in Form No.1. The cause title shall set out the name of the Court and the names of the parties separately numbered and described as plaintiffs and defendants or petitioners and respondents as the case may be. Rule 13 states that all proceedings subsequent to the plaint or original petition shall be headed with a cause title as in Form No.3 and all proceedings subsequent to a memorandum of appeal or revision petition except interlocutory applications shall be headed with a cause title as in form No.4. This has to be read along with the object of Section 92 CPC to prevent people from interfering with the administration of the public trust of a charitable or religious nature by instituting frivolous suits. This would mandate the requirement of a considered order, prima facie satisfying the scope, nature and object of the suit. It can be done only after taking into consideration the pleading in the plaint and the materials relied on. A meticulous analysis is not necessary, but there should be a prima facie satisfaction as to its nature, object and scope; for which, the leave application should disclose the ## **O.P.(C) No.147 of 2015 (O)** :: 6 :: relevant pleadings and materials relied on. Hence a petition under Section 92 CPC should contain all pleadings in the plaint with reliefs sought and materials relied on. It mandates an exact replica of the plaint in addition to cause title. The leave granted by the lower court in an interlocutory application supported by an affidavit is bad in law and does not satisfy the requirement of a leave as mandated under Section 92 CPC. Hence, the order of the lower court granting leave in an interlocutory application in I.A.No.921 of 2014 is not proper. The suit instituted without obtaining leave is liable to be struck off from the file of the lower court but with liberty to the plaintiff to have a fresh suit after obtaining leave under Section 92 CPC. 7. In the result, the original petition is allowed. The suit and orders passed in the suit in O.S.No.27 of 2014 of the Sub Court, Attingal, including the order passed in I.A.No.921 of 2014 are hereby set aside and struck off from the file of the lower court as there is no valid granting of leave prior to the institution of the suit. The plaintiffs/petitioners are at liberty to apply for grant of leave by filing an original petition as mandated under Section 92 CPC along with a copy of the plaint and the documents relied. On filing of such an ## **O.P.(C) No.147 of 2015 (O)** :: 7 :: application, the lower court shall dispose of the same in accordance with law. No order as to costs. The Registry shall communicate a copy of the judgment to the lower court immediately. **P. Somarajan Judge** **ahz/**