N ANANDAN Vs. AYYANNA GOUNDER

JUDGEMENT

(1.) The 1st defendant in O.S. No. 1217 of 1990 on the file of Sub Court, Coimbatore is the appellant in both these Civil Miscellaneous Appeals. The said suit is one under Section 92, C.P.C. for settling a scheme for the administration of the 1st plaintiff-Trust, the 1st respondent in both the appeals. The 2nd and 3rd respondents herein who are also plaintiffs in the suit, claim to be trustees of the abovesaid trust. These two C.M.As. are against the common order dated 21-4-1993 in three I. As. in the said suit including I.A. Nos. 1511 and 1513 of 1990. C.M.A. 495 of 1993 is against the temporary injunction order in the abovesaid I.A. No. 1511 of 1990 in the said suit restraining the appellant from leasing out the trust properties or collecting the income thereof, as Managing Trustee of the said Trust. C.M.A. No. 497 of 1993 is against the order in the abovesaid I.A. No. 1513 of 1990 appointing a Receiver to take possession of the suit trust properties and manage them.

(2.) Respondents-1 to 3 in the C.M.As. appeared even as caveators and since only a point of law is involved in these two appeals as is indicated below, the appeals themselves have been taken up for disposal.

(3.) The only submission by the learned Counsel for the appellant in both the Appeals is that I.A. No. 604 of 1989 filed in the suit seeking leave of the Court under Section 92, C.P.C. for instituting the abovesaid suit is still pending and no order has been passed thereon so far, granting the said leave and that therefore, the suit itself cannot be deemed to have been already instituted (even though it has been wrongly numbered) and that hence no interim order could have been passed in the said I. A. Nos. 151 land 1513 of 1990. Even though the said I.A. No. 604 of 1989 was filed as early as 29-3-1989 and after the appellant herein filed counter therein as early as 13-6-1989 the Court below has adjourned the hearing of the said I.A. "for enquiry" very many times, admittedly so far no order has been passed therein granting or refusing the said leave. 3A. But, what the learned Counsel for the respondents-1 to 3 urges is that it should be inferred from certain features of the case that the said leave has been granted by the Court below by implication and that there is no necessity for any formal or express order granting the said leave. According to him, one of the abovesaid features is that the Court itself thought fit to number the suit in 1990. Another feature pointed out is that in the abovesaid I.As., no specific objection was taken stating that the said I.As. could not be ordered before leave is expressly granted pursuant to the abovesaid I.A. 604 of 1989. Yet another feature pointed out is that there was also amendment petition in the suit pursuant to the death of some of the parties of the suit and that the said petitions were also ordered. While so, all that he contends is that it should be inferred that the Court below has impliedly granted the abovesaid leave. Further, the said counsel points out that at this late stage, in the interest of the trust, the appellant should not be allowed to set at naught the just interim orders that have been passed in the abovesaid I.As. to protect the interests of the trust. He also submits that Section 92 - suit is similar to a suit under Order 1, Rule 8, C.P.C. wherein it has been held that interim orders could be passed pending disposal of the petition under the abovesaid Order 1, Rule 8, C.P.C. seeking permission of the Court to sue in a representative capacity on behalf of numerous persons having the same interest. In this connection, he drew my attention to the following passage in AIR 1990 SC 444 at page 447 (R. Venugopala Naidu v. Venkatarayulu Naidu Charities).