Section 92 CPC leave: prior notice is desirable but not mandatory, and absence of notice does not void the suit.

Notice to proposed defendants before grant of leave under section 92 CPC is desirable as a matter of caution, but it is not a statutory requirement. Leave remains a pre-condition for a representative suit concerning a public charitable or religious trust, yet an order granting leave without prior notice does not render the suit void or non-maintainable. Proposed defendants may still challenge the grant by seeking revocation on merits. The availability of an appeal against refusal of leave does not make pre-grant notice mandatory.

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Issues: Whether notice to the proposed defendants before granting leave under section 92 of the Code of Civil Procedure, 1908 is mandatory, and whether leave granted without such notice renders the suit non-maintainable or void.

Analysis: The statutory scheme of section 92 permits two or more persons having an interest in a public charitable or religious trust to institute a representative suit only after obtaining leave of the court. The provision is intended both to facilitate genuine suits for proper administration of the trust and to prevent harassment through frivolous litigation. Although the court, as a rule of caution, should normally issue notice to the proposed defendants before granting leave so that they may point out whether the allegations are frivolous, reckless, or brought only to harass the trust, the requirement of notice is not a statutory mandate. The grant of leave is a pre-condition to the suit, but an order granting leave without notice does not by itself invalidate the suit. The proposed defendants are not without remedy, because they may seek revocation of the leave on merits. The availability of an appeal under section 104(1)(ffa) against refusal of leave does not imply that notice is compulsory before grant of leave.

Conclusion: Notice before granting leave under section 92 is desirable but not obligatory, and leave granted without such notice does not render the suit void or non-maintainable.

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