Introduction
Today’s blog is based on the recent judgment of the Hon’ble Supreme Court in S. Panchalingu & Ors. v. People’s Education Trust (R) & Ors. Etc. 2026 INSC 1010, that brings into focus the procedural safeguards governing suits instituted under Section 92 of the Code of Civil Procedure, 1908. The decision revisits the significance of the statutory requirement of obtaining the leave of the Court before a suit concerning a public charitable or religious trust can be validly instituted.
The judgment assumes particular significance in clarifying that the requirement of leave under Section 92 CPC is not a mere procedural formality, but a necessary threshold for the institution of the suit. It further examines the extent to which the inherent powers of the civil court under Section 151 CPC can be invoked where the statutory requirement of leave remains unsatisfied. The Court also addresses an important ancillary issue: whether interim or supplemental reliefs, including an injunction or appointment of a receiver, can independently survive in the absence of a validly instituted substantive proceeding under Section 92.
Against this backdrop, S. Panchalingu provides an important exposition of the scheme of Section 92 CPC and the relationship between the institution of the main proceedings and the interlocutory reliefs sought in aid of those proceedings. The judgment thus offers a timely occasion to revisit the essentials of a Section 92 suit, the purpose behind the requirement of leave, and the limits of invoking inherent jurisdiction to bypass a statutory condition
Issue at hand
The substantial question of law before the Hon’ble Apex Court was whether a Civil Court, seized of a plaint filed under Section 92 of the Code of Civil Procedure, 1908 (‘Code’), together with an application seeking leave to institute the suit, possesses the power to pass protective or preservatory interim orders during the pendency of the leave application?
Suit against public charities are instituted only on grant of leave unlike any other civil suit
Section 26 of the Code, which governs the institution of Suits, provides that a Suit shall be instituted by the presentation of a plaint or ‘in such other manner as may be prescribed’. Order IV of the Code further clarifies that a Suit commences with the filing of a plaint. Sub-section (1) of Section 92 authorises the institution of a Suit in respect of an alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, ‘by the Advocate-General, or two or more persons having an interest in the trust and having obtained the leave of the Court’. Sub-section (2) mandates that ‘no suit claiming any of the reliefs specified in sub-section (1) shall be instituted in respect of any such trust as is therein referred to, except in conformity with the provisions of that sub-section’.
Requirement of Advocate General’s Consent done away with
It bears mention that, by the Amendment Act of 1976, Section 92 was amended to substitute the requirement of the Advocate-General’s administrative consent with the mandatory requirement of ‘having obtained leave of the Court’, in the case of suits instituted by two or more persons. The threshold of scrutiny was thereby shifted from the executive to the judiciary. Consequently, the obtaining of leave of the Court is a mandatory pre-condition to the institution of a suit against Public Charities.
Special Provision containing Protective Shield and Remedial Sword
The essential pre-requisites for the maintainability of a Suit under Section 92 are:
(a) the trust must be created for public purposes of a charitable or religious nature;
(b) there must exist a breach of trust or a necessity for directions of the Court in the administration of the trust; and
(c) the relief claimed must be one of those enumerated in Section 92(1)
In Operation Asha vs. Shelly Batra and Ors., (2026) 1 SCC 569, this Court held that non-maintainability under Section 92 may be established by showing that any one of these conditions is not satisfied, whereas maintainability requires that all three conditions be cumulatively fulfilled.
Upon an analysis of Section 92 of the Code, this Court is of the view that it constitutes a special provision contemplating a representative suit of a distinct character, in as much as the action is instituted not to vindicate private rights, but on behalf of public beneficiaries and in the larger public interest. (Ashok Kumar Gupta Vs. Sitalaxmi Sahuwala Medical Trust, (2020) 4 SCC 321)
Objective of the provision
One of the objects underlying the enactment of Section 92 is to enable two or more persons interested in a trust created for a public purpose of a charitable or religious nature to institute a suit against such trust and/or its trustees, without the necessity of joining all the beneficiaries, a course that would otherwise be highly inconvenient and impracticable. Accordingly, any two or more such persons are entitled to institute a suit for the reliefs enumerated in Section 92(1) of the Code. At the same time, a further object of Section 92 is to protect public trusts and trustees of a charitable or religious nature, from harassment through vexatious suit and to avert the wastage of resources that ought properly to be directed towards charitable or religious purposes. It is for this reason that the obtaining of leave of the Court has been made a condition precedent to the institution of a suit under Section 92 of the Code.
The provision thus embodies a delicate balancing act of safeguarding public trust property from mismanagement, while simultaneously shielding the trust from vexatious and malicious litigation. Consequently, it is both a ‘protective shield’ and a ‘remedial sword’. (Gour Mohun Das Baishnav v Sajedur Raja Ghowdhuri, (1897) ILR 24 Cal 418)
In Vidyodaya Trust vs. Mohan Prasad R and Ors., (2008) 4 SCC 115, it has been held :-
“18. Prior to legislative change made by the Code of Civil Procedure (Amendment) Act (104 of 1976) the expression used was “consent in writing of the Advocate General”. This expression has been substituted by the words “leave of the Court”. Sub-section (3) has also been inserted by the Amendment Act. The object of Section 92 CPC is to protect the public trust of a charitable and religious nature from being subjected to harassment by suits filed against them. Public trusts for charitable and religious purpose are run for the benefit of the public. No individual should take benefit from them. If the persons in management of the trusts are subjected to multiplicity of legal proceedings, funds which are to be used for charitable or religious purposes would be wasted on litigation. The harassment might dissuade respectable and honest people from becoming trustees of public trusts. Thus, there is need for scrutiny.”
Mandatory pre-condition-Applying for leave and must have obtained it
An application for leave under Section 92 is not a ‘substantive proceeding’ merely because it is required to be registered as a separate petition under relevant Civil rules framed by the High Court. In fact, the proceedings under Section 92 are substantial proceedings in the nature of a Suit and interlocutory orders can be passed only after leave has been granted. Further, the Code contains no provision analogous to Section 92. Even those provisions which incorporate the condition of ‘leave of the Court’, such as those relating to public nuisance, are not qualified by the expression ‘having obtained’, as is the case under Section 92 of the Code. Moreover, there is no provision in Order XXXII of the Code to the effect that a suit for or against a minor, instituted without a next friend or a guardian is incompetent. A Court is, therefore, competent to appoint a next friend during the pendency of the suit, before a decree is passed. (R.M. Naryana Chettiar vs. N. Lakshmanan Chettiar, (1991) 1 SCC 48)
Consequently, the grant of leave under Section 92 is an essential and mandatory pre-condition, in the absence of which there exists no pending proceeding in which interlocutory applications can be entertained.
Supplementary Proceedings necessarily pre-suppose an underlying main proceeding
Hon’ble Court also stated that ‘supplemental proceedings’ under Section 94 necessarily presuppose the existence of an underlying proceeding. The concept of ‘supplemental proceedings’ cannot be invoked to circumvent the ‘gateway proceedings’ of leave under Section 92 of the Code. Indeed, an application under Order XL Rule 1 cannot be maintained as a supplemental proceeding, since the original action under Section 92, in the absence of leave, does not mature into a proceeding within which a supplemental application can be entertained. Accordingly, until leave is granted, there is no lis before the Court and consequently no jurisdiction to invoke supplemental powers. Consequently, an application under Order XL Rule 1(a) would not be maintainable as a supplemental proceeding prior to the grant of leave, which constitutes the ‘threshold requirement’ leading to the institution of the Suit.
Section 141 CPC can’t be invoked to override the essentials provided under Section 92
Further, Section 141 only makes the procedure contained in the Code applicable to miscellaneous proceedings as far as it can be made applicable. A Full Bench of Kerala High Court in Thresia vs. Xavier, 1976 SCC OnLine Ker 23 has held that Section 141 of the Code does not apply to provisions relating to substantive rights and applies only to procedural rights. This Court is in agreement with the view taken by the Kerala High Court. In R.M. Narayana Chettiar & Anr. (supra), this Court held that a suit instituted without leave under Section 92 is not maintainable at all. Leave under Section 92 is thus peremptory and non-derogable and interlocutory applications can be entertained only after leave has been granted.
Consequently, this Court is of the view that the safeguards enshrined in Section 92 of the Code, as well as the appointment of receiver are not mere procedural steps, but constitute and affect the substantive rights of the parties. Additionally, the deliberate use of the expression ‘whether before or after decree’ in Order XL Rule 1(a) presupposes the existence of a validly instituted Suit under the Code. After all, there cannot be a decree without a properly instituted Suit. Consequently, Order XL has no applicability prior to the institution of a Suit against Public Charities. Even assuming that an application under Order XL is maintainable in an application seeking leave to sue, by virtue of Section 141 of the Code, the very pre-condition of Order XL, namely, the existence of a validly instituted suit remains unfulfilled.
Accordingly, this Court is of the opinion that Section 141 of the Code cannot be invoked to alter or override the substantive rights and safeguards vested in the parties.
Use of Inherent Powers and theory that Jurisdiction needs to be presumed can’t be relied upon
The Hon’ble Court was of the view that neither the inherent powers of a Civil Court under Section 151 of the Code nor the principle of preference for a construction that preserves jurisdiction, can be relied upon in contravention of the express provisions of the Code. Since Order XL of the Code governs the procedure for appointment of a receiver and Section 92 of the Code provides a statutory safeguard, the Court cannot invoke its inherent powers under Section 151 of the Code or the principles of statutory interpretation, to appoint a receiver. Inherent powers and principles of statutory interpretation can be invoked only where jurisdiction already exists.
Moreover, it is settled law that the generality of the inherent power preserved under Section 151 of the Code cannot override the special provision contained in Section 92, in light of the principle generalia specialibus non derogants. The special provision must prevail over the general and the safeguards embedded in Section 92 must be complied with before any interlocutory orders are passed. Additionally, there are binding precedents to the effect that interim orders are to be granted in aid of the final relief in a Suit and not in a proceeding which the Court cannot entertain until leave has been granted. Also, in Vareed Jacob vs. Sosamma Geevarghese (supra), it has been held “….the inherent power of the court under Section 151 CPC is in addition to and complementary to the powers expressly conferred under CPC, but that power will not be exercised in conflict with any of the powers expressly or by implication conferred by other provisions of CPC. If there is express provision covering a particular topic, then Section 151 CPC cannot be applied…” It is also an established principle that where a power is conferred to do a certain thing in a certain manner, it must be done in that manner alone, or not at all; the performance thereof by any other method is forbidden. (Taylor Vs. Taylor (1875) 1 Ch.D.426, Nazir Vs. King Emperor AIR 1936 PC 253, Babu Verghese Vs. Bar Council of Kerala (1999)) Consequently, neither the inherent power nor the submission that where two constructions are possible, the Court must prefer the one that preserves jurisdiction, is of any assistance to the plaintiff.
Why it is not advisable to appoint receiver without grant of leave
The submission that the appointment of a receiver is protective and preservatory in character, rather than adjudicatory, is of no consequence where the Court lacks the power and jurisdiction to appoint a receiver in the first place. A Court which lacks jurisdiction cannot assume jurisdiction merely on the basis of how the relief sought is characterised. The appointment of a receiver in respect of a public trust cannot be regarded as merely preservatory. Such appointment is intrusive in nature and has the effect of dislodging the management of the trust, thereby defeating the very purpose of the requirement of leave, namely, protection from litigation. A situation in which leave is ultimately refused, but a receiver has in the interim been appointed, would undoubtedly prejudice the management of the trust.
In urgent cases the requirement of issuing notice before grant of leave can be done away with
However, the court being mindful of the circumstances that may arise necessitating urgent interim measures, including ex parte temporary injunctions, in suits instituted under Section 92 of the Code, to safeguard the property of public charities. While the statutory framework affords a ‘protective shield’ to such institutions, it is the considered view of the Court that, where facts disclose compelling urgency, issuance of notice prior to grant of leave is not indispensable. Nonetheless, Courts must exercise utmost care, caution and circumspection in granting leave ex parte. This approach finds support in the pronouncement of R.M. Narayana Chettiar & Anr. (supra), wherein it was held that, at the stage of considering leave, the Court neither adjudicates upon the merits of the controversy nor confers substantive rights upon the parties. In keeping with the object and language of Section 92, notice to proposed defendants ought ordinarily to precede the grant of leave, save where impracticable. However, a suit instituted pursuant to leave granted without notice is not, on that account, rendered bad in law or non-maintainable. The ex parte grant of leave does not defeat or seriously prejudice any right of the defendants, who remain entitled to seek revocation of leave, which must then be adjudicated on merits and in accordance with law. Such an approach harmonises the dual objectives of Section 92, namely, the ‘protective shield’ and the ‘remedial sword’. The Court, at that stage, must record prima facie cogent reasons for granting leave, while retaining the power to pass interim orders beyond the mere appointment of a receiver. In this manner, the competing interests are balanced and the public charity is afforded liberty to seek recall of the order granting leave. So a Civil Court, seized of a plaint under Section 92 of the Code together with an application seeking leave to institute the suit, is not empowered to pass protective or preservatory interim orders pending disposal of the leave application. However, for compelling reasons to be recorded in writing like where facts disclose the necessity of urgent relief, notice prior to the grant of leave may be dispensed with.
Conclusion
So, it can be concluded like this that the Hon’ble Supreme Court held that a Civil Court, seized of a plaint under Section 92 CPC together with an application seeking leave to institute the suit, lacks jurisdiction to pass protective or preservatory interim orders pending disposal of the leave application. The Court clarified that leave under Section 92 CPC is a mandatory threshold requirement, until granted, no lis exists enabling supplemental proceedings under Section 94 CPC or appointment of a receiver under Order XL Rule 1 CPC. Also use of inherent powers under Section 151 CPC cannot override this statutory safeguard. However, in compelling circumstances, leave may be granted ex parte without prior notice, provided reasons are recorded, and defendants retain the right to seek its revocation.