The single judge bench of the Jammu and Kashmir High Court held that a suit under Section 92 of the code of civil procedure, 1908 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.
Brief facts:
The factual matrix of the case is that respondents 1 to 5 filed a suit under and in terms of Section 92 of the Code of Civil Procedure and besides impleading the present petitioner as defendant 2, impleaded respondents 6 to 12 also as defendants. Thereafter, Defendant no. 2 filed an application under Order 7 Rule 11 CPC for rejection of the plaint on the ground that the suit having been filed under Section 92 of the Code of Civil Procedure is liable to be rejected on the ground of being barred by law, having been instituted without seeking leave of the court. The trial court rejected the application by holding that the defect of non-seeking leave to file suit under Section 92 CPC is procedural and a curable defect on account of which the plaint cannot be rejected. Aggrieved by this, the Defendant No. 2/ petitioner has challenged the impugned order.
Observations of the court:
The Hon’ble Court observed that a suit under Section 92 of the Code is a suit of a special nature and Section 92 CPC has been enacted for the protection of public rights in a public trust and charity and such a suit if instituted is fundamentally on behalf of the entire body or persons who are interested in the trust and is essentially maintained for vindication of public rights.
The court furthermore observed that 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 noted that the suit in question was entertained by the court below without there being a motion filed by the plaintiffs for seeking leave of the Court for the institution of the said suit and the trial court ought not to have either entertained the suit or proceeded to deal with the same, and even overlooked the provisions and position of law occupying the field in this regard and ruled that the filing of the suit in question without seeking leave is a procedural curable defect.
Based on these considerations, the impugned order is not legally sustainable and the same is accordingly liable to be set aside.
The decision of the court:
With the above direction, the court allowed the application filed by Defendant No. 2/ Petitioner.
Case Title: Rakesh Kumar Mahajan v. Sidharth Wazir and others
Coram: Hon’ble Mr. Justice Javed Iqbal Wani
Case No: CR No. 1/2024 CM No. 68/2024
Advocates for the Petitioner: Mr. P. K. Puri, Advocate Mr. Rajiv K Sharma, Advocate.
Advocate for the Respondent: Mr. Himanshu Beotra, Advocate.
