vil Appeal Nos
4890 91 of 1990
From the Judgment and Order dated 17101989 of the Madras High Court in CRP Nos
517  5 18 of 1989
section Padmanabhan PN Ramalingam and ATM Sampath for the Appellants
K Parasaran section Balakrishnan and Ms Revati for the Respondents
The Judgment of the Court was delivered by KANIA J
Special Leave granted
Counsel heard
These two appeals are filed by Special leave against the judgment of the High Court of Madras in Revision Petitions Nos 5 17 and 5 18 of 1989
These appeals raise an interest ing question as to whether it is obligatory on the Court before granting leave to institute a suit as required under section 92 of the Code of Civil Procedure 1908 to give an opportunity to the respondents to show cause against the grant of such leave and whether leave granted without such opportunity having been given is void
The appellants instituted suit No OS 55 of 1987 in the court of the learned subordinate Judge of Sivaganga in Tamil Nadu against the respondents as a representive suit inter alia praying for framing a scheme for a public char itable trust
It is common ground that the reliefs prayed for in the suit were such that leave under section 92 of 269 the Civil Procedure Code was required for instituting the suit
On the same day on which the suit was filed by lodging the plaint in court an application was made praying for leave to institute the suit under section 92 of the Code
Without issuing any notice to the respondents the said court granted leave by passing an order reading permitted and issued summons to the respondents
In March 1988 the respondents filed an interim application before the learned Subordinate Judge for revoking the leave granted inter alia on the ground that the respondents had not been given any opportunity to be heard before leave was granted
The learned Subordinate Judge dismissed the said application on the ground that the grant of leave was an administrative act of the court and no notice to the respondents was required before such leave was granted
The respondents then pre ferred a Civil Revision Petition in the Madras High Court which has been allowed by a judgment delivered by learned Single Judge
He took the view that an analysis of the provisions of section 92 of the Code shows that in order to institute a representative suit as contemplated in the said section two or more persons must have an interest in the trust and they should have obtained the leave of the court before they institute the suit
The learned Single Judge held that while the said section enables persons interested in a public trust to file a suit to secure the proper admin istration and management of the trust and its properties by its trustees it also imposes a check on the institution of such suits by the imposition of certain conditions one of which is the obtaining of leave from the court
It was held that it is the grant of leave which confers on the person concerned a right to institute a suit under section 92 of the Code
If there were any facts which might disentitle the applicants for leave from obtaining the leave of the court these could be best brought to the notice of the court by the party arrayed on the opposite side
The learned Judge also referred to the provisions of section 1041 ffa of the Code whereby an order under section 91 or section 92 refusing leave to institute a suit of the nature referred to in section 91 is made appealable
The learned Judge followed the decision of the High Court of Madras in TM Shanmugam and Others vs The Periyar Self Respect Propaganda Institu tion and Others 1984 II MLJ 440 and held that as the leave had been granted without any notice to the respondents it was void and liable to be set aside
The learned Judge allowed the revision petitions set aside the leave and held that the suit could not be entertained and was liable to be dismissed
It is against this decision that these appeals have been peferred to
Learned counsel for the appellants submitted that if the court 270 were required to give opportunity to the defendants to be heard before granting leave to under section 92 the grant of leave would entail a great deal of delay and might defeat the ends of justice where some urgent relief was required
He pointed out that if a defendant had a grievance against the grant of leave he could always made an application to revoke the leave and no serious prejudice would be caused to the defendant by the grant of leave
Learned counsel for the respondents contended that leave under section 92 of the Code to institute a suit was a material requirement for maintenance of a suit
Before granting leave the court was called upon to consider various aspects of the matter namely whether the suit was such as contemplated under section 92 whether the persons applying for such leave were fit persons to institute a representa tive suit and so on
It was submitted by him that the court could not decide whether leave should be granted without giving an opportunity to the defendants to show cause against the grant of leave
It was submitted by him that the grant of leave was a pre condition for instituting a suit under section 92
Leave granted without giving any opportu nity to the defendant to show cause was void and a suit instituted on the basis of such void leave was not maintain able at all
It was submitted by him that at the stage of grant of leave what the court is called upon to consider is the plaint and whether prima facie the suit proposed to be instituted was of the kind contemplated under section 92 of the Code that is whether the reliefs prayed for were such as were set out in section 92 and whether the suit was against a public trust
It was also necessary for the court to consider whether the proposed plaintiffs had an interest in the public trust and were fit persons for leave being granted to them
The Court could also consider whether prima facie the allegations in the plaint were baseless or frivolous
At that stage it was necessary to give any notice to the defendant because he could point out the reasons why leave should not be granted
Before considering the merits of the aforesaid conten tions it would not be out of place to refer to the relevant provisions of the Code of Civil Procedure
The relevant part of sub section 1 of section runs as follows 92
Public Charities 1 In the case of any alleged breach of any express or constructive trust created for public purposes of a charita ble or religious nature or where the direction of the Court 271 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 in any other court empowered in that behalf by the State Gov ernment 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 a removing any trustee b appointing a new trustee c vesting any property in a trustee cc directing a trustee who has been removed or a person who has ceased to be a trustee to deliver possession of any trust property in his possession to the person entitled to the possession of such property d directing accounts and enquiries e declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust f authorising the whole or any part of the trust property to be let sold mortgaged or exchanged g settling a scheme or h granting such further or other relief as the nature of the case may require
Section 104 provides for appeals against certain orders unless otherwise provided in the body of the Code or by any other law in force
Clause ffa of that section runs as follows ffa an order under section 91 or section 92 refusing leave to institute a suit of the nature referred to in section 91 or section 92 as the case may be
 272 We may mention that prior to its amendment in 1976 section 92 of the Code provided that leave of the Advocate General had to be obtained for the institution of a suit of the kind described in that section and not the leave of the court
We may now discuss the main cases relied on by the learned Counsel for the respective parties
Coming first to the cases relied upon by learned Counsel for the appellants we find that the first decision cited by him was the deci sion of this Court in Swami Parmatmanand Saraswati  Anr
vs Ramji Tripathi  Anr  at p 796
In that case it was held that to see whether the suit falls within the ambit of section 92 only the allegations in the plaint should be looked into in the first instance
But if after the evidence is taken it is found that the breach of trust alleged has not been made out and that the prayer for direc tion of the court is vague and is not based on any solid foundation of fact or reason but is made only with a view to bring the suit under the section then such a suit must be dismissed
Learned Counsel next drew our attention to the decision of this Court in Charan Singh  Anr
vs Darshan Singh  Ors  Section 92 of the Code before its amendment in 1976 was applicable to the case
The court cited with approval the observations of Mukherjea J as he then was in Mahant Pragdasji Guru Bhagwandasji vs Patel Ishwarlalbhai Narsibhai and Others reported in 13 which runs as follows A suit under section 92 Civil Procedure Code is a suit of a special nature which presupposes the existence of a public trust of a religious or charitable character
Such suit can proceed only on the allegation that there is a breach of such trust or that directions of the court are necessary
It is only when these conditions are fulfilled that the suit has got to be brought in conformity with the provisions of section 92 Civil Procedure Code   Neither of the aforesaid decisions of this Court deal with the question as to whether before granting leave to insti tute a suit under section 92 Advocate General or later the Court was required to give an opportunity to the proposed defendants to show cause why leave should not be granted
What learned counsel for the appellants urged however was that these decisions show that at the time when the Advo cate General or the Court is required to consider whether to grant leave to institute a suit as contemplated under sec tion 92 it is only the averments in the plaint which have to be examined and hence 273 the presence of the defendant is not necessary
We may now consider the High Court decisions relied on by the learned counsel for the appellants
In Prithipal Singh vs Magh Singh and Others AIR 1982 Punjab and Haryana 137 a learned Single Judge of the Punjab and Haryana High Court held that the grant of leave to file a suit is not a mere irregularity which can be cured but is a condition precedent
The provisions of section 92 are mandatory in nature in that respect
He further held that in granting leave under section 92 of the Code the court does not have to write a reasoned order
It does not even have to give a notice to the defendant of an application for leave to file a suit as the order granting leave is of an adminis trative nature
The same view was taken by a Division Bench of the Punjab and Haryana High Court in Lachhman Dass Udasi deceased by LR s and Others vs Ranjit Singh and Others AIR 1987 Punjab and Haryana 108 wherein it was held that no notice is necessary to be issued to the defendants prior to the granting or refusing of leave under section 92 of the Code as at that stage it is only the subjective satisfaction of the court that is required and thus the order is an order of administrative nature
A Division Bench of the Kerala High Court also took the same view in PV Mathew and Others vs KV Thomas and Oth ers AIR 1983 Kerala 5
In that case it was held that along with the petition for leave the plaintiffs petitioners should produce in court the plaint for the court s perusal to enable it to pass a proper order under section 921
This does not preclude the court from requiring the produc tion of any other record necessary for a proper decision
The court if it is so satisfied may grant the leave with out issuing notice to the respondents defendants or hearing them
In coming to this conclusion the Division Bench relied upon the earlier decision of the Full Bench of the Kerala High Court in Mayer Simon Perur vs Advocate General of Kerala and Others which was rendered before the amendment of Section 92 of the Code in 1976
Learned Counsel referred to the judgment of a learned Single Judge of Allahabad High Court in Ambrish Kumar Singh vs Raja Abhushan Bran Bramhshan and Others AIR 1989 Allaha bad 194
In that case the learned Judge held that while granting leave the court does not decide the rights of the parties
No right is adjudicated at this stage
The court has merely to see whether there is a prima facie case for granting leave to file a suit
This order does not in any way affect the final decision which will be given on merits after the parties have 274 led evidence in the suit
Section 92 of the Code does not contemplate giving of any notice to the proposed defendants before granting leave
Learned counsel for the respondent
on the other hand drew our attention to the afore mentioned decision of the Madras High Court in TM Shanmugham and Others vs The Periyar Self Respect Propaganda Institution and Others which has been relied upon in the impugned judgment
In that case a learned Judge of the said High Court held that leave granted to the plaintiffs to institute a suit under section 92 of the Code without notice to the defendants is void in law and the logical consequence will be that the institution and the numbering of the suit cannot be validly sustained in law and therefore the suit was liable to be dismissed on that technical ground
However this will not stand in the way of the plaintiffs if so desired to institute fresh proceedings in accordance with law under section 92 of the Code
In the case of Gurdwara Prabandhak Committee
Delhi Cantonment and Others vs Amarjit Singh Sabharwal and Others
a learned Single Judge of the Delhi High Court has taken the view that an order of District Judge granting or refusing leave must be a reasoned order
The public trust concerned has right to be heard before the grant or refusal of leave
It was held by him that if the trust is not given an opportunity of being heard it would be a material irregularity
To pass a non speaking order in a judicial proceeding is also a material irregularity and revision would lie against such an irregularity
The grant ing or refusing leave is a judicial order subject to revi sion or appeal and it must be supported by reasons
Before such an order is passed both sides must have had an opportu nity of being heard
As far as the decisions of this Court which have been pointed out to us are concerned the question as to whether before granting leave to institute a suit under section 92 of the Code the Court is required to give an opportunity of being heard to the proposed defendants did not arise for determination at all in those cases
As far as the High Courts are concerned they have taken different views on this question
The legislative history of section 92 of the Code indicates that one of the objects which led to the enactment of the said section was to enable two or more persons interested in any trust created for a public purpose of a charitable or religious nature should be enabled to file a suit for the reliefs set out in the said section without having to join all the beneficiaries since it would be highly inconvenient and impractic 275 able for all the beneficiaries to join in the suit hence any two or more of them were given the right to institute a suit for the reliefs mentioned in the said section 92 of the Code
However it was considered desirable to prevent a public trust from being harassed or put to legal expenses by reckless or frivolous suits being brought against the trus tees and hence a provision was made for leave of the court having to be obtained before the suit is instituted
A plain reading of section 92 of the Code indicates that leave of the court is a pre condition or a condition prece dent for the institution of a suit against a public trust for the reliefs set out in the said section unless all the beneficiaries join in instituting the suit
if such a suit is instituted without leave it would not be maintainable at all
Having in mind the objectives underlying section 92 and the language thereof
it appears to us that as a rule caution the court should normally
unless it is impractica ble or inconvenient to do so give a notice to the proposed defendants before granting leave under section 92 to insti tute a suit
The defendants could bring to the notice of the court for instance that the allegations made in the plaint are frivolous or reckless
Apart from this
they could in a given case point out that the persons who are applying for leave under section 92 are doing so merely with a view to harass the trust or have such antecedents that it would be undesirable to grant leave to such persons
The desirability of such notice being given to the defendants however cannot be regarded as a statutory requirement to be complied with before leave under section 92 can be granted as that would lead to unnecessary delay and in a given case
cause considerable loss to the public trust
Such a construction of the provisions of section 92 of the Code would render it difficult for the beneficiaries of a public trust to obtain urgent interim orders from the court even though the circum stances might warrant such relief being granted
Keeping in mind these considerations in our opinion
although as a rule of caution court should normally give notice to the defendants before granting leave under the said section to institute a suit
the court  is not bound to do so
If a suit is instituted on the basis of such leave granted without notice to the defendants the suit would not thereby be rendered bad in law or non maintainable
The grant of leave cannot be regarded as defeating or even seriously prejudicing any right of the proposed defendants because it is always open to them to file an application for revocation of the leave which can be considered on merits and according to law
We may mention that although clause ffa of a section 1041 of the Code provides that an appeal shall lie against the refusal of grant of 276 leave that cannot lead to the conclusion that it is obliga tory on the part of the court to give notice to the proposed defendants before granting leave because an appeal lies only against the refusal of leave and not against the grant of leave
Before refusing leave the proposed plaintiffs are bound to be heard and it is the plaintiffs and not the defendants who could be prejudiced by refusal to grant such leave
In the result the appeals are allowed as aforestated
The impugned judgment of the High Court is set aside
The Trial Court is directed to dispose of the application for revocation of leave on merits and in accordance with law
On the facts and circumstances of the case there will be no order as to cost incurred so far
RS section Appeals allowed


Summary:
TA Jotindranath Mudaliar the original lessor let out his premises viz two shops and a house adjoining the shops to MsBhoolchand Chandiram appellant on 4101943 on the terms contained in the letter dated 4101943 whereby the shops were let out on a monthly rent of Rs430 for two years with the option of sub letting one of the shops and the house adjoining the shops was let out on a monthly rent of Rs50 for eleven months with the option of sub letting the house also
The appellant sub let one of the two shops to one Arts Palace  and later wef
141948 the appellant inducted another sub tenant Ms Super Dry Cleaners appel lant in the other appeal
Consequent upon a partition in the family of original lessor the premises in dispute came to the share of Narendranath Mudaliar
The original lessor including Narendranath Mudaliar after partition continued to realise rent from the tenant of the entire premises till May 1974
On 2861974 Narendranath Mudaliar sold the property in question to respondent No 1
The appellanttenants at torned in favour of respondent No 1 and paid rent for the premises  Rs335 fair rent fixed to respondent No 1
Respondent No 1 filed petition on 591975 for eviction of the appellant on the grounds of sub letting and bona fide need of the landlord under clauses f and h of the provi so to sub section 1 of Section 21 of the Karnataka Rent Act
The trial court dismissed the application but the High Court set aside that order and passed a decree for eviction on both the grounds
Hence these appeals by the tenant and sub tenant have been filed after obtaining special leave of the Court
The appellants question the findings of the High Court on both the questions viz bona fide requirement of the landlord as also sub letting
252 Respondent No 1 on the other hand urged that there is no infirmity in the High Court s decision on both the questions so as to warrant any interference in these appeals
Dismissing the appeals this Court HELD Landlord s written consent for sub letting during the period of contractual tenancy cannot be construed as his consent subsisting after the expiry of the contractual tenancy
265D A sub letting by the tenant with the consent in writing of the landlord does not become unlawful on the expiry of the contractual tenancy of the tenant unless there is any fresh sub letting by the tenant without the written consent of the landlord
Mere continuance in possession of a sub tenant lawfully inducted does not amount to any fresh or further sub letting
265E F The sub letting in the instant case was after expiry of the contractual tenancy and after the commencement of the Act prohibiting sub letting without the written consent of the landlord when it was made on 141948
265B Damadilal and Ors
vs Parashram and Others 1976 supp
SCR 645 Dhanapal Chettiar vs Yesodai Ammal   Smt
Gian Devi Anand vs Jeerart Kumar and Ors 1985 Supp 1 SCR 1 L Mahabir Prasad Verma vs Dr Surinder Kaur   Ms Shalimar Tar Products Ltd vs HC Sharma and Ors
   Shantilal Rampuria and Ors
vs Ms Vega Trading Corpn
and Ors   Ms Bajaj Auto Ltd vs Behari Lal Kohli   Duli Chand dead by Lrs  Ors
vs Jagmender Dass  and Tara Chand and Ant
vs Ram Prasad  referred to