Regular First Appeal No. 39 of 2013 (D) against the judgment and decree dated 09.11.2012 in O.S. No.21/2010, II Additional District Court, Ernakulam

IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR. JUSTICE P.SOMARAJAN WEDNESDAY, THE 23[rd] DAY OF MARCH 2022 / 2ND CHAITHRA, 1944 RFA NO. 39 OF 2013 (D) AGAINST THE JUDGMENT AND DECREE DATED 09.11.2012 IN OS No.21/2010 OF II ADDITIONAL DISTRICT COURT, ERNAKULAM ## APPELLANTS/DEFENDANTS 2 TO 4, 6 & 7: 1 SETHUMADHAVAN, SON OF VILASINI AMMA, EDAMURI HOUSE, CHERAI KARA, PALLIPPURAM VILLAGE, KOCHI TALUK. 2 REGHUNATHAN, SON OF VILASINI AMMA, EDAMURI HOUSE, CHERAI KARA, PALLIPPURAM VILLAGE, KOCHI TALUK. 3 PRASANNAKUMARI, D/o VILASINI AMMA, EDAMURI HOUSE, CHERAI KARA, PALLIPPURAM VILLAGE, KOCHI TALUK. 4 VINOD KUMAR M. (WRONGLY WRITTEN IN OS AS VINOD), SON OF VILASINI AMMA, EDAMURI HOUSE, CHERAI KARA, PALLIPPURAM VILLAGE, KOCHI TALUK. 5 KAVITHAKUMARI M. (WRONGLY WRITTEN IN OS AS KAVITHA), D/o VILASINI AMMA, EDAMURI HOUSE, CHERAI KARA, PALLIPPURAM VILLAGE, KOCHI TALUK. BY ADVS. SRI.K.RAMAKUMAR (SR.) SMT.ASHA BABU SMT.G.ASHWINI SMT.SMITHA GEORGE SRI.T.RAMPRASAD UNNI SRI.S.M.PRASANTH SRI.M.MANOJKUMAR (CHELAKKADAN) SRI.T.H.ARAVIND SMT.R.S.ASWINI SANKAR SRI.G.RENJITH ## RESPONDENTS/PLAINTIFFS, D1 & D5: 1 K.A.VISWANATHAN, S/o AYYAPPAN, RESIDING AT KILIKKODAN HOUSE, CHERAI P.O., PIN:683514. RFA No.39 of 2013 2 2 K.P.SANTHOSH, S/o PRABHAKARAN, RESIDING AT KILIKKODAN HOUSE, CHERAI P.O., PIN:683514. 3 CHERAI SREE RUDHIRAMALA BHGAVATHY TEMPLE, CHERAI, REPRESENTED BY ITS PRESIDENT AND MANAGING TRUSTEE SRI K.C.REJNITH, S/o CHANDRAN, KILIKKODAN HOUSE, CHERAI P.O., PIN:683 514. 4 RAMESH, S/o VILASINI AMMA, EDAMURI HOUSE, CHERAI KARA, PALLIPPURAM VILLAGE, KOCHI TALUK. R1 & R2 BY ADV. SRI.K.M.BIJU R3 BY ADVS. SRI. S.K.BALACHANDRAN SMT. N.D.DEEPA THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 23.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RFA No.39 of 2013 3 ## **JUDGMENT** The main question came up for consideration in this appeal is whether an interlocutory application can be maintained under Section 92 C.P.C. for getting sanction. In the instant case, leave under Section 92 C.P.C. was granted in an interlocutory application. Hence, the same is brought under challenge by the defendants. The legal position was earlier laid down by this Court in **Ramachandran Unnithan V. Sree Bhagavathi Thriporittakkavu Bhagavathi Kshethram [2017 (2) KLT 522].** Paragraph 4 of the said judgment is extracted below for reference. _“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 S.92 C.P.C. A mere reading of S.92 C.P.C. after its amendment by Act 104 of 1976 shows that leave should be obtained before the institution of the suit. The wordings used in S.92 C.P.C. “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_ RFA No.39 of 2013 4 _a suit under S.92 C.P.C. The said question was earlier considered by this court in Mathew v. Thomas (1982 KLT 493 = AIR 1983 Ker.5 = 1982 KLJ 634). A subsequent 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 1982 KLT 493 = AIR 1983 Ker. 5 = 1982 KLJ 634 wherein it was held by this court that obtaining leave of the court is a condition precedent to institute a suit under S.92 C.P.C. 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 precedent. As such, the suit which was received on file and numbered without having leave granted prior to its institution is bad in law.”_ RFA No.39 of 2013 5 2. It would speak volume regarding the legal position. It is also observed by this court in paragraph 6 that the suit instituted without obtaining leave is liable to be struck off from the file of the lower court, but with liberty to file a fresh one under Section 92 CPC. 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. Paragraph 6 of the abovesaid judgment is hence extracted below for reference: _“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 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_ RFA No.39 of 2013 6 _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 S.92 C.P.C. 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 relevant pleadings and materials relied on. Hence a petition under S.92 C.P.C. should contain all pleadings in the plaint with reliefs sought and materials relied on. It mandates an exact_ RFA No.39 of 2013 7 _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 S.92 C.P.C. 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 S.92 C.P.C.”_ 3. What is laid down by a Division Bench of this Court in **Mathew v. Thomas [1982 KLT 493 = AIR 1983 Ker. 5 = 1982** **KLJ 634]** shall not be misread so as to reject the mandate under Section 92 C.P.C. What is considered and laid down in the above decision is the duty of the court to look into the plaint and the document produced along with the suit initially so as to consider the grant of leave under Section 92 C.P.C. That does not mean that an interlocutory application can be maintained for the purpose of Section 92 C.P.C. That question was not taken up or decided by the Division Bench. Interlocutory application and its RFA No.39 of 2013 8 maintainability would come into play only during the subsistence of a suit or such other legal proceedings. No interlocutory application can be maintained at the prelitigation stage. Hence, the grant of leave in an interlocutory application will stand set aside. The reception of suit on file will also stand set aside. The parties are at liberty to take up the matter under Section 92 C.P.C. afresh in accordance with the mandate laid down in **Ramchandran Unnithan's** (supra). Without prejudice to the said right, the appeal is allowed accordingly. No costs. **Sd/-** **P.SOMARAJAN** **JUDGE** DMR/-