S.92 CPC | Leave Of Court Mandatory Prerequisite For Instituting Suit, Defect Cannot Be Cured Later: J&K High Court

A bench of Justice Javed Iqbal Wani emphasized that a suit instituted without such prior leave is void ab initio, and the defect cannot be rectified later, terming it "basic and material."

Section 92 of the CPC is a special provision designed to safeguard public trusts of religious and charitable nature. It permits suits to be filed by the Advocate General or two or more persons interested in the trust, but only with the prior leave of the court. These suits often seek reliefs such as the removal of trustees, directions for proper administration, or framing schemes for trust management.

These observations from the court arose from a dispute regarding the Hanuman Ji Mandir Charitable Trust in Jammu. The plaintiffs, claiming to represent public interest, had filed a suit under Section 92 CPC, seeking declarations to nullify certain trust deeds, injunctions against the defendants' management of the temple, and orders to frame a new management scheme.

The petitioner, Rakesh Kumar Mahajan (defendant no. 2 in the original suit), filed an application under Order 7 Rule 11 CPC, arguing that the suit was invalid as the plaintiffs had not sought prior leave of the court as mandated by Section 92 CPC. The trial court, however, rejected this plea, holding that the lack of prior leave was merely a procedural defect that could be cured subsequently. This decision prompted the petitioner to approach the High Court in revision.

After considering the rival contentions Justice Wani meticulously analyzed the provisions of Section 92 CPC, its legislative intent, and judicial precedents. He reiterated that suits under this section are of a special nature, designed to protect public trusts from unwarranted harassment while safeguarding the interests of beneficiaries as the provision mandates prior leave to prevent frivolous or reckless suits.

Citing the Supreme Court's ruling in R.M. Narayana Chettiar v. N. Lakshmanan Chettiar [(1991) 1 SCC 48], the court underscored that the legislative history of Section 92 demonstrates its dual objectives, enabling interested parties to file suits for protecting public trusts while shielding trustees from frivolous litigation through mandatory leave.

The court unequivocally ruled that the requirement for prior leave is mandatory and jurisdictional. It observed,

“A plain reading of the provisions of Section 92 CPC would manifestly tend to show that the provisions contained therein are mandatory in nature, required to be mandatorily complied with, specifically demonstrating that the leave of the Court is condition precedent for the institution of the suit and unless such a leave is granted, there could not be a valid suit, thus suggesting that leave must proceed the suit and should not follow it and a suit instituted without the leave of the Court is nonest and the said defect being basic and material cannot be cured by grant of leave at a subsequent stage”.

The court also noted that the trial court had erred in treating the absence of prior leave as a procedural defect, asserting that such an oversight amounted to exercising jurisdiction illegally and with material irregularity.

Allowing the revision petition, Justice Wani thus set aside the trial court's order and accepted the petitioner's application under Order 7 Rule 11 CPC, leading to the rejection of the plaint.

Case Title: Rakesh Kumar Mahajan Vs Sidharth Wazir and others

Citation: 2024 LiveLaw (JKL) 349

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