V. K. Khanna, J. - (1.) THIS revision has been filed against the order of the District Judge, Saharanpur dated 30-5-1987 allowing the application of the plaintiff to sue under section 92, CPC.
(2.) LEARNED counsel for the applicants has urged that the permission granted by the District Judge is without jurisdiction as no notice to the applicant had been issued and such an action of the District Judge is against all the principles of natural justice. It has also been urged that the permission has been granted by a non-speaking order and hence the order is without jurisdiction. The first question which arises for determination in this case is as to whether it was necessary for the District Judge to issue notice and hear the proposed defendants in the suit before granting the leave. Section 92, CPC was amended by the Code of Civil Procedure (Amendment) Act, 1976 (Act No. 104 of 1976). Before the amendment the suit could be filed either by the Advocate General or two or more persons having an interest in the Trust and having obtained the consent in writing of the Advocate General. After the amendment the words "the consent in writing of the Advocate General" were substituted by the words "leave of the court" by Act No. 104 of 1976. There can not be any doubt that when the court grants leave the same is in a judicial proceeding and the order passed by the District Judge is a judicial order. However, while granting leave the rights of the parties are not adjudicated and at this stage the court has merely to see whether there is a prima facie case that should be allowed to be filed. By giving consent the court does not affect the rights of the parties against whom the suit is filed as after granting of the leave the parties will have an opportunity to present their case before the Court in which the suit is filed. As at the time of granting the leave the District Judge will have to see only a prima facie case the conclusion of the District Judge will in no way affect or influence the final decision which will be given in the suit after the parties had led evidence. So far as section 92 CPC is concerned, it does not contemplate of giving any notice to the proposed defendants before granting the leave. In case the intention of the Legislature was that a notice was to be issued to the proposed defendants before granting leave there is no reason as to why the Legislature would not have specifically made a provision in this respect. The Legislature in its wisdom has thought it fit to confer the aforesaid power in this behalf on a Judicial Officer of the status of a District Judge, whose mind is well trained to act judicially. It has further to be seen whether the principles of natural justice would require of giving of a notice to the proposed defendants. The notice would have been necessary if the order adversely affects the rights of the proposed defendants. By merely giving the permission the District Judge does not affect the rights of the proposed defendants against whom the suit is allowed to be filed and thus even the principles of natural justice would not be attracted so as to make it necessary for the District Judge to issue notice to the proposed defendants and to hear them. It can not thus be said that the proposed defendants as a matter of right can claim either issuing of notice or a hearing before the District Judge grants leave for filing the suit under section 92 CPC. However, in a given case the District Judge in order to satisfy himself may in his discretion like to hear the proposed defendants before granting the leave. The issuing of the notice by the District Judge was thus not necessary and the argument raised by the learned counsel for the applicant has no force. It has now to be seen as to whether the District Judge while granting leave under section 92 CPC has to pass a detailed speaking order. It is true that the order granting leave by the District Judge is a judicial order and should indicate that the District Judge applied his mind before granting leave. However, as rights of the parties are not affected, it is not necessary to pass detailed order but it would suffice if the order indicates that it has been passed by the District Judge after due application of mind.
(3.) A bare perusal of the order passed by the District Judge in the present case shows that he had perused the documents filed and had come to the conclusion that the plaintiffs had made out a prima facie case under section 92 CPC. The permission thus granted by the District Judge can not be said to be suffering from any error of jurisdiction requiring interference by this court in exercise of its powers under section 115 CPC. The revision is accordingly dismissed in limine. Revision dismissed.;