ORDER
K.A. Mohamed Shafi, J.
1. The 26th counter petitioner in I.A. 1528/2000 in O.P. 156/98 on the file of the District Court, Thiruvananthapuram has preferred this Revision Petition challenging the order dated 28.8.2000. That I.A. was filed by the petitioners in the O.P. to direct the respondents to produce the documents or the certified copies before the court as called for in the I.A.
2. The above O.P. is filed by the respondents herein seeking leave to file the suit against the counter petitioners in the O.P. under S. 92 of the C.P.C. While the O.P. was pending consideration before the court the petitioners in the O.P. – respondents herein filed the above petition before the lower court under O. XI R. 14 and Ss. 141 and 151 of the C.P.C. to direct the respondents in the O.P. to produce the documents mentioned in the petition. Though the respondents objected the I.A. as premature since no leave is granted by the court under S. 92 of the CPC to institute the suit and as such no suit in fact is pending before the court, the lower court allowed the I.A. stating that there is no harm in ordering production of the original documents or their certified copies in this case. Hence the 26th respondent in the O.P. has preferred this Revision Petition before this Court challenging that order.
3. By reading the impugned order it would appear that the lower court allowed the I.A. treating the above petition filed under O.XI R. 14 of the CPC on par with the application field under O.XL R. 1 of the CPC to appoint a receiver as it has been held that receiver can be appointed even before granting leave to institute the suit under S. 92 of the CPC.
4. The counsel for the petitioner vehemently contended that even though an application in I.A. 1350/99 filed by the respondents for appointment of a receiver is pending in the above O.P., there is absolutely no reference either in the affidavit filed in support of the petition or int eh petition to link the same with the receiver application.
5. The counsel for the respondents, petitioners in the O.P. submitted that the above O.P. seeking leave to file the suit under S. 92 of the C.P.C. was filed in the year 1998 and the court issued notice to the parties. Accordingly some of the respondents appeared and filed counter. Therefore, the lower court has to adjudicate the issue as to whether leave should be granted or not. It is also submitted that in order to decide whether leave should be granted or not, only a prima facie case need be made out by the respondents. The court can require the parties to produce documents in order to examine whether leave can be granted or not. It is further contended that even though in para 19 of he O.P. specific allegations of misconduct are made against the respondents therein and leave could have been granted by the court even ex parte against the respondents in the O.P., the lower court found it necessary to issue notice to the respondents in the O.P. in pursuance of which some of the respondents have appeared and filed counter. Therefore, the lower court has to pass a considered order after hearing the parties. It is also submitted that since no procedure with regard to the enquiry for grant of leave under S. 92 of the C.P.C. is laid down in the C.P.C., the proceedings before the court should be treated as the proceedings in the suit as provided under S. 141 of the CPC. Therefore, according to the respondents, all proceedings in a civil suit will apply to proceedings seeking leave under S. 92 of the CPC also. Therefore, according to them, all the provisions of the CPC including O.XI will apply to the above proceedings and as such the impugned order passed by the lower court directing the revision petitioner herein and the other respondents in the O.P. to produce the documents under O.XI R. 14 of the CPC is perfectly legal and valid.
6. In support of the above contention the counsel for the respondents relied upon several decisions of the Supreme Court and other High Courts. One of the decisions relied upon by the counsel for the respondents is reported in (1975) 2 SCC 447 Rajendra Kumari Bajpai v. Ram Adhar Yadav, wherein the Supreme Court has observed as follows:
“In the first place he contended that the provisions regarding inspection and discovery and interrogatories as contained in O. XI of the Code of Civil Procedure are not an integral part of the procedure in a civil suit but are special powers contained in the Code and cannot, therefore, be made applicable to election petitions which are proceedings of a special nature. In amplification of this argument it was argued that the history of the English Law as also the Election Law of our country before independence would show that the procedure contained in O. XI of the Code of Civil Procedure was not made applicable to the trial of election petitions. It is, however, not necessary for us to examine the history of this matter because the Act of 1951 settles the issue. When the Parliament expressly conferred powers contained in O. XI on the Tribunal under the statutory provision of S. 92 of the Act of 1951, it must be presumed to have made a drastic departure from the old law on the subject and particularly the English Law. In view of this enactment, therefore, it cannot be said that the provisions of our Election Law, particularly in regard to S. 92 of the Act of 1951 were in pari materia with the provisions of the English Law on the subject. In fact S. 92 incorporating the entire provisions of O. XI of the Code of Civil Procedure was expressly enacted to that the elected representatives also may be subjected to the same law of the land such as the Code of Civil Procedure as any other citizen. In these circumstances, we are unable to apply the English Law to the Act in order to hold that the principles contained in O. XI of the Code of Civil Procedure are excluded from the trial of election petitions.”
7. The above principles laid down by the Supreme Court are not applicable to the facts of this case. In the case before the Supreme Court filed under the Representation of People Act, S. 92 is enacted incorporating the entire provisions of O. XI of the C.P.C. and therefore, there was no question of exclusion of the principles contained in O. XI of the CPC from the proceedings initiated challenging the elections.
8. The counsel of the respondents relied upon by the decision in M.L. Sethi v. R.P. Kapur ((1972) 2 SCC 427). In that case the Supreme Court has held that the procedure for discovery of documents under O.XI R. 12 is permissible in proceedings under O. XXXIII R. 5(b) of the C.P.C. for suing as an indigent person.
9. It is well settled that the suit commences from the moment an application for permission to sue an indigent person as required under O. XXXIII is presented. Therefore, in such cases the provisions of O. XI R. 12 of the C.P.C. relating to the discovery will apply in terms to those proceedings under O. XXXIII of the Code. Therefore, the above decision relied upon by the counsel for the respondents is also not applicable to the facts of this case.
10. The counsel for the respondents relied upon the decision in B.S. Adityan v. R. Kannan Adityan (AIR 1983 Madras 334) wherein a Division Bench of the Madras High Court has held that the suit must be deemed to have commenced with the filing of application for leave and consequently the provisions of the Original Side Rules or O. XI Rr. 15 and 18 of the CPC regarding production and inspection of documents will be attracted tot he proceedings.
11. In view of the rulings of this Court as well as the Supreme Court which I am adverting to presently, I am not inclined to subscribe to the above views expressed by the Division Bench of the Madras High Court.
12. The counsel for the respondents relied upon the decision in Ravindra Bal Niketan Samiti, Sikar v. Sushila Shrivastava (AIR 1988 Rajasthan 177) wherein a single Judge of the Rajasthan High Court has held that application under O. XI Rr. 12 & 14 can be filed in miscellaneous application filed in a suit for grant of temporary injunction. The above decision has no bearing to the facts of this case since in that case already a suit filed was pending before the court and S. 141 of the CPC applied to the proceedings. In this case there is no suit pending before the court as contemplated under the CPC so as to attract the provisions of S. 141 and thereby O.XI of the CPC. Therefore, the above decision relied upon by the counsel for the respondents is not applicable to the facts of this case since there is no validly instituted suit in this case.
13. In the decision in Madappa v. M.N. Mahanthadevaru (AIR 1966 SC 878 the Supreme Court has observed as follows:
“The main purpose of S.92(1) is to give protection to public trusts of a charitable or religious nature from being subjected to harassment by suits being filed against them. That is why it provides that suits under that section can only be field either by the Advocate General, or two or more persons having an interest in the trust with the consent in writing of the Advocate-General. The object clearly is that before the Advocate-General files a suit or gives his consent for filing a suit under S. 92, he would satisfy himself that there is a prima facie case either of breach of trust or of the necessity for obtaining directions of the Court.”
14. In the decision in Simon v. Advocate General (1975 KLT 78 (FB)) a Full Bench of this Court has held that before filing a suit or giving consent to file the suit under S. 92(1) of the C.P.C. the Advocate General should satisfy himself that there is a prima facie case either of breach of trust or of the necessity of obtaining directions from the Court and that satisfaction cannot be characterised as a purely subjective satisfaction, but the Advocate General should act objectively.
15. In the decision in R.M. Narayana Chettiar v. N. Lakshmanan Chettiar (AIR 1991 SC 221) the Supreme Court has observed as follows:
“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”.
16. In this case it is the common case that notice is issued by the court to the respondents before granting leave to file the suit under S. 92 of the CPC and the respondents have raised objections. Therefore, in order to institute a suit the leave of the court is absolutely essential. It is also pertinent to note that it is the admitted case that the O.P. filed by the respondents seeking leave to file a suit under S. 92 of the CPC is still pending.
17. In the decision in Amrithakumari v. Ramanathan (1998 (2) KLT 305) a single Judge of this Court has observed as follows:
“I am also of the view that the leave petition has to be considered independently. Leave petition should contain all facts just as a petition filed for prosecuting a suit as an indigent person. It should contain the statement of facts, grounds on which the plaintiff relies and also the relief sought for in the plaint. Suit can be instituted only after the leave is granted. Hence, the lower Courts should take care to see that leave petitions alone are filed at the initial stage and it should contain all facts. Regarding irregularity I don’t think that any prejudice was caused to the petitioners to any extent. But I make it clear that it is the duty on the part of the Court to see that suit is numbered only after leave is granted.”
18. I am in respectful agreement with the above observations made by the learned Single Judge and hold that before granting formal permission by the Court under S. 92 of the CPC, there is no properly instituted suit before the court.
19. In the decision in Achuthan Pillai v. Mohanan Unnithan (1979 KLT SN Case No. 116 at SN Page No. 53) a Single Judge of this Court has held that interlocutory orders cannot be passed until suit is instituted in applications filed under S. 92 of the CPC seeking leave of the court to file the suit.
20. In the decision in Mathew v. Thomas (1982 KLT 493) a Division Bench of this Court has held that prior tot he grant of leave under S. 92(1) of the CPC, there cannot be any valid suit with the further consequence that the court cannot pass interim orders in the suit before granting leave.
21. It is clear from the above rulings of this Court as well as the Supreme Court that even though leave to sue under S. 92 of the CPC can be granted by the court on the prima facie satisfaction regarding the allegations made against the respondents either without giving notice to the respondents or after giving notice to the respondents and hearing them, there will be no properly instituted suit under law before formal leave is granted by the court under S. 92 of the CPC and no interlocutory order in the proceedings can be passed by the Court before granting permission to institute the suit under S. 92(1) of the CPC.
22. But in the decision in Sulaiman v. S.M. Juma Ath (1982 KLT 790) a Single Judge of this Court has held that court can entertain an application for appointment of receiver under O. 40 R. 1 of CPC while proceedings for leave under S. 92 of the CPC are pending before the Court. In that judgment this Court has distinguished an application for appointment of receiver under O. 40 R. 1 of CPC and the applications filed under the other provisions of the CPC in the suit. In para 13 of the judgment the Single Judge has observed as follows:
“13. The result of the above discussion is that unlike an application for the issue of a commission, which contemplates the existence of a suit for passing an order under O. 26 R. 1, an application for the appointment of a Receiver does not, in terms of O. 40 R. 1 CPC, contemplate ann already registered suit for the exercise of the power thereunder. The decision of the Allahabad High Court in AIR 1964 Allahabad 366 referred to above also takes the same view. Even while proceedings for leave under S. 92 are pending, and the question of leave remains undecided, it will be open to the court to entertain an application for the appointment of a receiver, and deal with and dispose of the same in accordance with law.”
23. Even though in view of the above judgment an application under O. 40 R. 1 of the CPC can be entertained and orders can be passed by the court while an application for leave of the court to institute the suit under S. 92 of the CPC is pending and before leave is granted and the suit is properly instituted, the above judgment of this Court is for no help to the respondents in this case.
24. In the above application seeking direction against the respondents in the O.P. to produce the documents filed by the respondents in the O.P. or in the affidavit filed in support of the application it is not stated that the documents sought for are necessary for disposal of the application seeking appointment of receiver under O. 40 R. 1 of the CPC. But in the affidavit filed in support of the above I.A. it is only stated that perusal of the documents sought to be produced is necessary to establish the mismanagement of the temple by the respondents therein. Therefore,m the respondents cannot contend that he above application is linked with the application for appointment of receiver under O. 40 R. 1 of CPC filed by the respondents in this case.
25. Therefore, it is clear that the order passed by the lower court in the interlocutory application filed under O. XI R.14 and Ss. 141 & 151 of the CPC before granting leave to sue and proper institution of the suit is absolutely illegal and unsustainable.
Hence the C.R.P. is allowed and the impugned order is set aside. This order will not affect the rights of the respondents to file application under O. XI of the CPC. after proper institution of the suit.