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A.K. Tak Vs. Noor-ud-dIn Bhat and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtJammu and Kashmir High Court
Decided On
Case NumberCivil Revn. Petn. No. 55 of 1985
Judge
Reported inAIR1987J& K1
ActsJammu and Kashmir Code of Civil Procedure (CPC) , 1977 Smvt. - Section 92
AppellantA.K. Tak
RespondentNoor-ud-dIn Bhat and ors.
Appellant Advocate G.N. Hagroo, Adv.
Respondent Advocate M.A. Qayoom, Adv.
DispositionPetition dismissed
Excerpt:
- .....charges of corruption and mis-management, the trial court permitted the plaintiffs to institute thesuit. permission of the trial court for institution of the suit is also provided under section 92 of the civil p. c. by virtue of amendment effected in the said section.3. mr. hagroo appearing for the petitioner herein, has submitted that permission to file the suit was granted in his absence. therefore, the same should be revoked, and the trial court be directed to give him an opportunity of being heard, and after it is done, the court may proceed in the matter and grant or refuse permission to institute the suit.4. it is true that permission to file the suit has been granted at the back of the defendant. but there is no provision in the civil p. c. or in any other law which requires court.....
Judgment:
ORDER

M.L. Bhat, J.

1. A civil suit Under Section 92 Civil P. C. was instituted by the respondents against the petitioner herein. The suit related to a Trust of which petitioner herein is a patron/trustee. The respondents have alleged embezzlement in the funds of the trust. They have also alleged that the petitioner herein was not working honestly, the result was that the trust was mis-managed. The petitioner herein is said to have no interest in the management of the trust for which the trust was created. It was prayed that the petitioner herein be removed from the trust and a new trustee be appointed in his place. Accounts be taken from the 'petitioner and the petitioner be restrained from obtaining grant-in-aid from Social Welfare Department. Along with the suit an application Under Section 92 C.P.C. came to be filed for permission in the trial Court to file the suit The trial Court granted the permission on 13-2-1985 which order is impugned in this petition.

2. From the record it appears that application for grant of permission to institute the suit was supported by an affidavit and in view of the serious allegations and charges of corruption and mis-management, the trial Court permitted the plaintiffs to institute thesuit. Permission of the trial Court for institution of the suit is also provided Under Section 92 of the Civil P. C. by virtue of amendment effected in the said section.

3. Mr. Hagroo appearing for the petitioner herein, has submitted that permission to file the suit was granted in his absence. Therefore, the same should be revoked, and the trial Court be directed to give him an opportunity of being heard, and after it is done, the Court may proceed in the matter and grant or refuse permission to institute the suit.

4. It is true that permission to file the suit has been granted at the back of the defendant. But there is no provision in the Civil P. C. or in any other law which requires Court granting permission to file the suit should afford opportunity to the proposed defdt. to file objections for grant of such a permission. The suit itself is to be instituted only after the permission is obtained. The suit will be considered duly filed if the permission is granted. So at that stage Court has only to look into the plaint and nature of its allegations and satisfy itself about the correctness of the facts asserted in the plaint. Civil P. Code does not provide any form for grant of permission to institute the suit but it appears that the Court has to be satisfied that the suit falls within the mischief of Section 92 C.P.C. and nature of allegations is such that permission sought should be given. So at that stage application of mind on the part of the Court is needed in respect of following matters :

a) that prima facie allegations set up in the plaint require investigation;

b) that allegations are such that they require investigation and trial;

c) that suit falls otherwise Under Section 92 Civil P. Code;

d) that the plaintiffs in such a suit are interested persons who can file the suit Under Section 92 C.P.C.

5. In the present case the trial Court has not gone into these details but that would not make its order of granting permission to file the suit invalid. Ordinarily the trial Court should have considered the application and recorded its reasons but it has not done so. It necessarily would not follow that the trial Court would not have applied its mind when the suit was brought before it. The trial Court has granted permission and it has relied on the application as also on the affidavit which by necessary implication means that it has been satisfied and then granted permission to the plaintiff to institute the suit.

6. Before Institution of the suit there was no plaint. Suit in fact could not be registered unless there was permission. So at that time defendants had no right of audience. They could defend the suit only after the suit was instituted and they were ordered to be summoned. The trial Court could refuse the permission if grounds for such refusal did exist Therefore, Mr. Hagroo's argument that he was required to be heard before the institution of the suit is wholly misplaced.

7. For the reasons stated above the order of the trial Court does not suffer from any error muchless jurisdictional error nor is it infirm on any other account.

8. The revision petition is dismissed. The trial Court record be sent back to the Court below. The parties through their counsel are directed to appear before the trial Court on 16-10-1985.


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