TMI Blog2014 (3) TMI 1216X X X X Extracts X X X X X X X X Extracts X X X X ..... d also against some of the companies which are alleged to be under control of some of the trustees. The plaintiff has applied for money claim against all the defendants alleging loss caused to the trust by virtue of alleged breach of trust, negligence, misapplication, misconduct or willful default - the case of the plaintiffs falls under sections 50(i), (ii) (a), (d), (f). Whether suit filed by the plaintiff is for enforcement of the personal civil rights of the plaintiff or is on behalf of the trust and acting as trustee of the said trust? - HELD THAT:- The averments made in the plaint along with the prayers in the suit clearly indicates that the plaintiffs have filed the suit claiming to be a trustee and seeks an order and decree against the defendants that various amounts be paid by the defendants to the plaintiffs as trustee or to the said trust. Plaintiff has thus not claimed any personal rights or has not filed the suit which can be considered as a suit for enforcement of the rights of a private nature - A perusal of the averments in the plaint and prayers clearly indicates that the suit and the reliefs claimed relate to the working of the trust and its trustees and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndents : Mr. Janak Dwarkadas, Senior Advocate, Mr. Snehal Shah, Mrs. Jyoti Shah, Jesal Shah, i/b. and Daru Shah Co. for Defendant No. 1, Mr. S.U. Kamdar, Senior Advocate, Mr. Prateek Sakseria, Mr. Nirav Shah, i/b and Little Co. for Defendant Nos. 11, 13, 14 and 17, Mr. Pradeep Sancheti, Senior Advocate, Mr. Sanjay Jain, Ms. Akshita Mehta, i/b and Kishore Thakordas Co. for Defendant Nos. 15 and 16, Mr. Nasir Ali Rizvi, i/b. and Thakore Jariwala for Respondent No. 19, Mr. Diniar Madon, Senior Advocate, Mr. Sanjay Udeshi, Mr. Mahesh Londhe i/b and Sanjay Udeshi Co. for Respondent No. 12, Mr. D. Singh, i/b and Law Fin Associates for Defendant Nos. 20 and 21 JUDGMENT R.D. Dhanuka, J. By consent of parties, both these notice of motions were heard together and are being disposed of by a common order. 2. Notice of Motion No. 368 of 2011 is filed by defendant no. 1 inter alia praying for rejection of plaint in suit No. 2521 of 2008 under the provisions of Order VII Rule 11 of Code of Civil Procedure, 1908 and also under the provisions of Order XXIII or any other applicable provisions of the Code of Civil Procedure, 1908. Defendant no. 1 also seeks rejection of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt no. 9 during the Financial Year 2001-2002. However, during the month of November, 2002, an amount of Rs. 40 lacs was adjusted against transfer of property at Lonavala and the balance amount with interest has not been returned by defendant no. 9 to the said trust. It is alleged that no steps have taken by those defendants against defendant no. 9 for recovery of the said amount and accordingly the said trust is put to loss. 6. It is case of the plaintiff that the said trust had paid an amount approximately Rs. 5 crores to defendant no. 11 during the period between 2nd May, 2005 and 12th May, 2005. Though the said amount of Rs. 5 crores was repaid by defendants no. 11 on 7th July, 2006, no interest was paid though the said amount was used for about 14 months by the defendant no. 11. 7. It is case of the plaintiff that during the period when these amounts were paid by way of advance or otherwise to defendant no. 8, 9 and 11 by various defendants who acted as trustees, defendants nos. 12 to 17 acquired various properties in Mumbai and at other places. It is case of the plaintiff that during the period 2001 to 2006, the defendant nos. 1 to 17 had been recipients of crores of rup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he exclusive domain of the powers and authority vested in the charity commissioner and such issues cannot be gone into by this court in this suit. Reliance is placed by the learned senior counsel on section 80 of the Bombay Public Trust Act in support of his submission that this court has no jurisdiction to deal with any question which has to be exclusively decided by the authority under the provisions of Bombay Public Trust Act and in respect of which the decision of such authority is final and conclusive. It is submitted that thus there is jurisdictional bar against this court from entertaining such suit. 11. Mr. Dwarkadas, learned senior counsel then submits that the plaintiff has sought reliefs which are specified in section 50(I), (IV) of the Bombay Public Trust Act and under section 51 of the said Act, the consent of the charity commissioner is mandatory before filing any such suit. Since no consent of the charity commissioner is obtained by the plaintiff for filing the suit, suit is barred by provisions of section 50 read with section 51 of Bombay Public Trust Act and thus plaint deserves to be rejected under Order 7 Rule 11(d) of the Code of Civil Procedure. 12. Mr. D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 981. 55. We have noticed hereinbefore that as regard the correctness or otherwise of functioning of the congregation of Ankleshwar and Valsad had been the subject matter of complaints before the authorities under the BPT Act. 56. One of the causes of action for instituting the suit is said to be constitution of a special committee by the defendant Nos. 1 to 4; resolution dated 12th November, 1978 was passed and the obstructions created by them to the plaintiffs and other members of the Pastorates through the actions of the Plaintiffs and other members of the Pastorates in the name of the former Brethren Church. 69. We have noticed hereinbefore that the BPT Act provides for finality and conclusiveness of the order passed by the Charity Commissioner in Sections 21(2), 22(3), 26, 36, 41(2), 51(4) and 79(2). 70. In view of the decision of this Court in Dhulabhai (supra) such finality clause would lead to a conclusion that civil court's jurisdiction is excluded if there is adequate remedy to do what the civil courts would normally do in a civil suit. In this case, we are not concerned with a dispute as regard absolute title of the trust property. We are also not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were required to establish that they could file a suit for enforcement of right of the Appellant as a religious trust and such a legal right vests either in the plaintiff or in the Appellant herein indirectly. Such a prayer, related to the possession of the property, comes squarely within the purview of the BPT Act. If the question as regard recovery of possession of the property belonging to a public trust squarely falls within the purview of Section 50 of the Act, had such application been filed before the Charity Commissioner he was required to go into the question as to whether the plaintiffs are persons having interest in the trust and whether a consent should be given to them to maintain a suit. Only when, inter alia, such consent is granted, a suit could have been filed in terms of Section 51 of the Act. In the event of refusal to give consent, the persons interested could have preferred an appeal. 79. In Virupakshayya Shankarayya v. Neelakanta Shivacharya Pattadadevaru [MANU/SC/0435/1995 :[1995]2 SCR 820], this Court categorically held that the suit for recovery of possession of property as validly appointed Mathadhipati is hit by Sections 50 and 51 of the Act. The ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... civil court's jurisdiction may not be barred as it gives rise to a jurisdictional question. If a property did not validly vest in a trust or if a trust itself is not valid in law, the authorities under the Act will have no jurisdiction to determine the said question. 83. With a view to determine the question as regard exclusion of jurisdiction of civil court in terms of the provisions of the Act, the court has to consider what, in substance, and not merely in form, is the nature of the claim made in the suit and the underlying object in seeking the real relief therein. If for the purpose of grant of an appeal, the court comes to the conclusion that the question is required to be determined or dealt with by an authority under the Act, the jurisdiction of the civil court must be held to have been ousted. The questions which are required to be determined are within the sole and exclusive jurisdiction of the authorities whether simple or complicated. Section 26 of the Act must be read in that context as it specifically refers to those questions wherewith a court of competent jurisdiction can deal with and if the same is not expressly or impliedly barred. Once a decision is arr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Order 7 Rule 11, Court can consider even other material outside the plaint. Paragraphs 9, 12 and 13 of the said judgment reads thus:- 9. The points for consideration in this appeal are: a) whether the learned single Judge of the High Court was justified in ordering rejection of the plaint insofar as the first Defendant (Appellant herein) is concerned; and b) whether the Division Bench of the High Court was right in reversing the said decision? 12. It is also useful to refer the judgment in T. Arivandandam v. T.V. Satyapal and Anr.: (1977) 4 SCC 467, wherein while considering the very same provision, i.e. Order VII Rule 11 and the duty of the trial Court in considering such application, this Court has reminded the trial Judges with the following observation: 5....The learned Munsif must remember that if on a meaningful-for formal-reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order VII, Rule 11 Code of Civil Procedure taking care to see that the ground mentioned therein is fulfilled. And if clever drafting has created the illusion of a cause of action n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning the question of rejection of plaint on the other grounds mentioned therein, it is the plaint that has to be looked into, but the question is that if the plaintiffs have deliberately suppressed the material facts, the disclosure of which is required by law to be made in terms of Order VI Rule 2 of the Code of Civil Procedure, whether it was open for the court concerned to proceed with the trial and decide the suit after framing issues. The order dated 20.11.2006 was challenged by the plaintiffs-judgment debtors themselves before this Court and the civil revision was dismissed by a reasoned order dated 1.5.2008. Thus, this fact was well known to the plaintiffs and they were duty bound in law to disclose the same which they have not done. Order VI Rule 2(1) of the Code of Civil Procedure clearly stipulates that the pleadings should contain the material facts. It has been observed by the Apex Court in Sopan Sukhdeo Sable and Others vs. Assistant Charity Commissioner and Others: (2004) 3 SCC 137] that omission of a single material fact leads to an incomplete cause of action and the statement or plaint becomes bad. Order VII Rule 11 of the Code of Civil Procedure lays down an indepe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... underwent is obvious from his own order where he stated: I spent a sleepless night yesterday. Luckily, he stabilised himself the next day and heard arguments without yielding to the bullying tactics of the petitioner and impropriety of his advocate. He went into the merits and dismissed the revision. Of course, these fruitless proceedings in the High Court did not deter the petitioner from daring to move this Court for special leave to appeal. 5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentantly resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif's Court Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful--not formal--reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order VII Rule 11, C.P.C. taking care to see that the ground mentioned therein is fulfilled. And, if clear drafting h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icular portion of the plaint. Order VI Rule 16 of the Code is relevant in this regard. It deals with 'striking out pleadings'. It has three clauses permitting the Court at any stage of the proceedings to strike out or amend any matter in any pleading i.e. (a) which may be unnecessary, Scandalous, frivolous or vexatious, or, (b) which may tend to prejudice, embarrass or delay the fair trial of the suit, or, (c) which is otherwise an abuse of the process of the Court . 23. Mr. Sancheti, learned senior counsel appearing for defendants nos. 15 and 16 supports the case of the defendant no. 1 and submits that the suit deserves to be dismissed under Order 7 Rule 11 of the Code of Civil Procedure. Learned senior counsel invited my attention to prayer a(ii) and submits that even claim for interest which is made against defendant no. 11 who has alleged to have not returned the principle amount, such relief is also claimed against defendants nos. 15 and 16. Similarly prayer a(i) also is claimed against defendants nos. 15 and 16 who are not at all responsible and/or concerned with any of such alleged transactions. Learned senior counsel invited my attention to paragraphs 11, 13, 16 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bjection shall be raised by the defendant only while filing the written statement. The learned counsel contended that Rule 11 is included in Order 7 which deals with the plaint and not with the written statement. A perusal of Rule 11 would show that the trial Court suo motu can reject the plaint if any of the predicates of Rule 11 are satisfied and also that this rejection can be done at the instance of the defendant who while doing so is only alerting or assisting the Court to seek a specific compliance of the legal requirements. 5. There is considerable merit in this submission of the learned counsel. A bare reading of Rule 11 of Order 7 shows chat this is a provision which enables the defendant to raise like a preliminary objection against the very maintainability of the suit on account of a formal defect of the plaint consequent upon the lacking of a substantial requirement prescribed by the law for the purpose of drafting a plaint in a suit. The defendant appears thus entitled by virtue of the said provision to raise the objection even before he chooses to contest the suit by leading his defences against the plaintiff. As rightly submitted by Shri Usgaonkar in doing so th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontention of the learned counsel which seems to find full support in the law. Besides admittedly in the instant case the petitioners' application raising objections against the plaint was not decided by the trial Court on its merits and instead they were thrown out merely on the ground that such application was not maintainable. Therefore Mr. Usgaonkar has submitted that in case the petitioners succeed in this petition a direction may be given to the trial Court to decide the application. For that matter the plaint need not be rejected at this stage and it is for the trial Court to decide whether the plaint is to be rejected or not. 10. Before dealing with this last submission of the respondents' learned counsel, 1 may advert to the authorities relied by Mr. Usgaonkar in support of his proposition that the remedy of Rule 11 of Order 7 is a totally independent remedy available to the defendant to challenge the plaint on account of lacking of any of the legal requirements prescribed in Rule 1 of Order 7 of C.P.C. irrespective of his right to contest the suit and that the law does not contemplate at what stage such objection should be raised or does not say that it should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him. In the instant case it is seen that the petitioners had moved their application even before the filing of the written statement and therefore this move appears to be very well covered within the purview of the ratio of the decision relied by Mr. Usgaonkar. The learned counsel has also placed reliance in two other rulings of the Supreme Court being one in the case of Dhartipakar Madanlal Agarwal v. Shri Rajiv Gandhi, MANU/SC/0378/1987 : [1987] 3 SCR 369 and the other in the case of Samar Singh v. Kedar Nath, MANU/SC/0386/1987 : AIR 1987 SC 1926. Although these two decisions have been passed in a case of Election Petition under the Representation of the People Act, however, the point adjudicated by the Supreme Court is directly on the question of the applicability of Order 7, Rule 11 of C.P.C. In the first case of Dhartipakar Agarwal, MANU/SC/0378/1987 : [1987]3 SCR 369 the Supreme Court has observed that it is the duty of the Court to examine the plaint and it need not wait till the defendant files written statement and points out the defect. If the Court on examination of the plaint finds that it does not disclose any cause of action it would be justified in striking ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iable to be dismissed under Order 7 Rule 11 of the Code of Civil Procedure. 25. Per contra Mr. Anturkar, learned senior counsel and Mr. Damle appearing for plaintiff invited my attention to paragraphs 5 to 14 of the plaint and submits that this court cannot go beyond the plaint while deciding application under Order 7 Rule 11 of the Code of Civil Procedure. 26. Mr. Auturkar, learned senior counsel submits that under Order 23 Rule 1 of the Code of Civil Procedure, express permission to file fresh suit while granting liberty to withdraw existing suit is not mandatory. It is submitted that implied permission is enough. Implied permission can be inferred. In support of this submission, Mr. Anturkar, learned senior counsel placed reliance on the judgment of the Patna High Court in case of Khudi Rai vs. Lalo Rai and others AIR 1926 Patna 259. Relevant portion of the said judgment reads thus:- 1. I am unable to agree with the view taken by the learned Judicial Commissioner. The plaintiff instituted a suit for arrears of rent and the defence which found favour with the learned Judicial Commissioner, was that the suit was barred inasmuch as the plaintiffs instituted a previous sui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ected by the High Court in S.A. 43 of 1954 was not a condition precedent to the tiling of the present suit. Moreover it appears from the; order of the lower appellate Court that the costs have been deposited during the pendency of the suit. It was argued that since the order of the High Court in Section A. No. 43 of 1954 only permitted to withdrawal of the suit but did not expressly grant leave to the plaintiff to file a fresh suit, the present suit is not maintainable. In support of his contention Mr. Das relied upon a decision reported in Mt. Deoki v. Jwala Prasad MANU/UP/0163/1928. The facts of that case are quite different and all that was laid down by their Lordships in that case is that granting of permission to withdraw an appeal is not a decree confining the decision appealed from. The Allahabad decision has, therefore, no application to the present case. From the order of the High Court in Section A. 43 of 1954 it appears that the plaintiff made an application to withdraw the suit with liberty to file a fresh suit to which the learned counsel for the respondent-defendant had no objection. But instead of mentioning anything specifically about the filing of a fresh suit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dant-Corporation cancelling his licence to carry on business. In the Written Statement, a plea was raised that the suit was not maintainable without the requisite statutory notice under Section 487 of the Bombay Provincial Municipal Corporation Ct. In view a written application dated 16th October 1970 for permission to withdraw the suit with liberty to file a fresh suit under Order 23, Rule 1(2) of the code of Civil Procedure. On that application, the defendant's reply was endorsed in the usual manner stating, inter alia, that the defendant-Corporation did not press the point of want of notice under Section 487. On that, the learned Judge of the Court below made an order in which, after setting out the course the litigation had taken and the conduct of the plaintiff, he came to the conclusion that the intention of the plaintiff was to harass the defendant-Corporation by protracting the litigation and he, therefore, declined to allows the suit to be withdrawn with liberty to the plaintiff to file a fresh suit, but made an order whereby the suit stood withdrawn without such liberty. For withdrawing a suit without liberty under Order 23, Rule 1(1) of the Civil Procedure Code, no p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere is one more reason for rejecting the petitioner's contention. Admittedly, the application made by the respondents before the Co-operative Court was for withdrawal of the dispute with a liberty to file fresh proceedings. If that is so, the Co-operative Court was clearly in error in passing an order of withdrawal without granting permission to initiate fresh proceedings. It is well settled and if an application is made for withdrawal of the suit with liberty to file a suit, it is not open for the Court to grant only permission for withdrawal without liberty to institute the proceedings, though it is open for the Court to reject such application. Thus I do not find any merit in this petition and the same is dismissed summarily. 31. Mr. Anturkar, learned senior counsel placed reliance on the judgment of the Supreme Court in case of Vimlesh Kumari Kulshrestha vs. Sambhajirao and another (2008) 5 SCC 58 in support of the submission that an inference in regard to grant of permission to file a fresh suit can be drawn from the conduct of the parties as also the order passed by the court. Reliance is also placed on the treatise of Mr. Mulla on Code of Civil Procedure which is ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not rejected the application for liberty to file a fresh suit which indicates of no judicial expression of mind. It is submitted that since this court has already taken a view that no permission could be refused, this court thought it proper not to pass any further order on the praecipe seeking clarification of the order dated 17th January 2008. It is submitted by the learned senior counsel that thus suit is not barred under Order 23 Rule 1(3)(4) as urged by the defendants and cannot be dismissed under Order 7 Rule 11 of Code of Civil Procedure. 33. In so far as issue whether prior consent of charity commissioner is mandatory or not before filing a suit in this court is concerned, it is submitted that section 80 of Bombay Public Trust Act is not attracted in this case. Plaintiff is one of the trustee of the said trust and has filed this suit in the capacity of a trustee. Merely because defendants have denied that the plaintiff is a trustee in this proceeding no adjudication is sought by the plaintiff on the said allegation whether plaintiff is a trustee or not. No part of the claim and/or cause of action in this suit is barred under section 80 of Bombay Public Trust Act. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome of the reliefs cannot be granted by a civil court, it would not entil an automatic rejection of entire plaint. Question as to whether suit property is trust property or private property has to be decided by civil court. Plaint cannot be rejected on the ground that some of the reliefs can be granted only by authorities under Public Trust Act. Paragraph 34 of the said judgment reads thus:- 34. One more aspect that requires to be noted is that the plaintiffs have also prayed for declaration that the sale deed dated 16.08.1996 executed in favour of the defendant No. 2 on the basis of the purported power of attorney of Manjula B. Gurjar is illegal and not binding on the plaintiffs. In the case of Sopan Sukhdeo Sable Vs. Assistant Charity Commissioner, (2004) 3 SCC 137, it is observed that merely because some of the reliefs cannot be granted in the Civil Court, it would not entail an automatic rejection of the entire plaint. In other words, assuming that prayer clause (a) cannot be granted by the Civil Court in view of bar under Sections 79 and 80 of the Act, nonetheless the Authorities under the Act cannot decide prayer clause (b) and the said prayer can be decided only by the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, the Supreme Court has held that where the statute gives a finality to the orders of special tribunals, the jurisdiction of the Civil Courts must be held to be excluded if there is adequate remedy to do what the Civil Courts would normally do in a suit. Where there is an express bar of the jurisdiction of the Court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant, but is not decisive to sustain the jurisdiction of the Civil Court. But where there is no express exclusion, an examination of the remedies and the scheme of the Act to find out the intendment becomes necessary and the result of the enquiry may be decisive. 37. Mr. Anturkar, learned senior counsel submits that for applicability of section 80 of the Bombay Public Trust Act, reliefs which are claimed in the suit must be capable of adjudication before the authorities under the provisions of Bombay Public Trust Act which decision of the authority would be final and conclusive. Since plaintiff is not seeking any declaration that plaintiff is a trustee of the said trust, section 80 of the said Act is not attracted. Learned senior counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this court has held that prior approval of charity commissioner to institute a suit against a trespasser for recovery of possession is not mandatory. Paragraphs (6) and (7) reads thus:- 6. The Bombay Public Trusts Act, 1950 was enacted to regulate and to make better provision for administration of public religious and charitable trusts in the State of Bombay. The plaintiffs are the trustees of a charitable trust registered under this Act. Section 50 of the Act deals with the topic suits by or against or relating to public trusts or trustees or other , and inter alia provides that where a direction or decree is required to recover the possession of a property belonging to a public trust from a trustee, ex-trustee, alliance, trespasser or any other person, including a person holding adversely to the public trust, the Charity Commissioner may institute a suit in the Court within the local limits of whose jurisdiction the subject matter of the Trust is situated. The section provides that apart from the Charity Commissioner two or more persons having the interest and having obtained consent in writing of the Charity Commissioner can institute the suit and seek reliefs which are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ai Zaverbhai Patel, and the Full Bench of the Mysore High Court in the case reported in, Gollaleshwar Dev of Golgeri v. Gangawwa Kom Shantayya Math. The learned trial Judge was bound by the decision of the Division Bench and should not have dismissed the suit on the ground that in absence of permission of the Charity Commissioner the suit was not maintainable. The learned Judge accepted the claim of defendants Nos. 5 to 7 that the decision of the Division Bench of this Court is no longer a good law in view of the amendment to section 50 as also to section 2(10) by Maharashtra Act No. 20 of 1971. Section 2(10) Clause (e) provides that person having interest in the case of any public trust includes trustees or beneficiaries. Initially the word trustees did not find place but was inserted by Amendment Act of 1971. Section 50 initially provided that permission is necessary where the possession of the property of the public trust is sought to be recovered form any person, including a person holding adversely to the public trust. After amendment the section provides that where the property is to be recovered from a trustee, ex-trustee, alliance, trespasser or any other person, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amendment carried out in 1971 does not alter the ratio laid down by the Division Bench of this Court. 7. It is necessary in this connection to refer to the decision in MANU/SC/0397/1985 : AIR 1986 SC 231, Shree Gollaleshwar Dev and others. v. Gangawwa Kom Shantayya Math others. The Supreme Court held that section 50 created and regulated a right to institute a suit by the Charity Commissioner or by two or more persons interested in the trust, in the form of supplementary statutory provisions without defeasance of the right of the manager or a trustee or a she bait of an idol to bring a suit in the name of idol to recover the property of the trust in the usual way. In other words the Supreme Court accepted the view taken by the Division Bench of this Court that the right of a trustee to bring a suit in the usual way, that is in exercise of rights under the Common Law is not affected by provisions of section 50 of the Public Trusts Act. The ratio laid down by the Supreme Court was followed by a Single Judge of this Court in the decision reported in, Vidarbha Kshatriya Mali Shikshan Sanstha v. Mahatma Fuley Shikshan Samiti Amaravai, holding that trustees who want to enforce t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spasser. Paragraphs 1, 6, 8, 15, 17 to 19 of the said judgment of this court read thus:- 1. All these first appeals are filed by the respective appellants/original defendant No. 6, whereby challenge has been made to the judgment and decree dated 12th March, 1993 passed by the Additional District Judge, Pune in Civil Suit No. 6 of 1987, Civil Suit No. 10 of 1987, Civil Suit No. 19 of 1987, Civil Suit No. 4 of 1987 and Civil Suit No. 23 of 1987 respectively whereby, the suits filed by respondent No. 1 Trust, along with other Trustees, have been decreed in respect of the suit premises described in the respective plaint. It has been further declared that defendant/appellant has no right, title and interest in the suit premises to retain the possession of the suit premises. The appellant/defendant No. 6 has been directed to hand over vacant and peaceful possession of the suit premises described in the plaint within three months, failing which it has been further directed that Trust to recover the possession through court. The order of mesne profits as contemplated under Order 20, Rule 12(1)(c) of the Code of Civil Procedure (for short C.P.C. ) has also been passed. 6. Responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the trust property the civil court has no jurisdiction and without obtaining the consent of the Charity Commissioner, no decree for possession can be claimed and/or awarded by the District Court. Therefore, the suit itself is without jurisdiction for want of permission and jurisdiction. Based on the Apex Court decision in Church of North India (supra) he has lastly contended that it is mandatory for the person interested , in the present case, Trust and Trustees , to get the permission from the Charity Commissioner for claiming the possession even from the trespassers and/or unauthorised occupiers. 15. It is settled now that BPT Act, as observed by the Apex Court in Church of North India (supra) is a complete Code. The person interested as defined Under Section 2(10) and the trustees interested , under the scheme of the Act require to resort to the provisions of the BPT Act in all matters relating to the trust, trust properties and/or its management. There are various provisions which are available under the BPT Act which need to be resorted by the concerned parties. We are concerned with Sections 80, 50 and 51 of the BPT Act. The consistent view so far as Bombay High Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st in or over its properties and the constitution, decisions and resolutions of the Church of North India, its Synod and the Gujarat Diocesan Council are binding on all the pastorates in Gujarat which are functioning as local churches or congregations under the First District Church of the Brethren. 19. In this background, Mr. Y.H. Muchhala, Senior Counsel appearing for respondent No. 1 has placed reliance in the case of Dhanwanti Devi (supra) basically for the principle of precedent as contemplated under Article 141 of the Constitution of India. The relevant portion reads as under: According to the well-settled theory of precedents, every decision contains three basic postulates (i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is only an authority for what is actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dge has rightly held that sections 50 and 51 of the Bombay Public Trusts Act are enabling provisions and not disabling in nature. It further appears from the record that the defendants have earlier raised a point that the aforesaid preliminary issues should be decided first in view of the mandate of section 9A of the C.P.C. It further appears that the Trial Court had passed an order on 16.9.1998 holding that the determination of the issue of jurisdiction would be decided along with the hearing of the suit. Even that order was carried before this Court by way of a Writ Petition which was disposed of by an Order dated 23.9.1998 by the learned Single Judge of this Court [A.V. Savant, J.I. It appears from the order that both the parties agreed before the Court for hearing of the notice of motion. It further appears that all the contentions including the preliminary issues were kept open. The Order passed by the Trial Court on 25.9.1998 was also carried to this High Court by way of Writ Petition, (Writ Petition No. 5238 of 1998). The learned Single Judge of this Court (Smt. K.K. Baam. J.) by her Order dated 19.4.1999 was pleased to uphold the order passed by the Trial Court and she was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uit is under sub-clauses (i) to (iii), or one or more such persons in case the suit is under cub-clause (iv) having obtained the consent in writing of the Charity Commissioner as provided in section 51 may institute a suit whether contentious or not in the Court within the local limits of whose jurisdiction the whole or part of the subject matter of the trust is situate, to obtain a decree for any of the following relief's: (a) an order for the recovery of the possession of such property or proceeds thereof; (b) the removal of any trustee or manager; (c) the appointment of a new trustee or manager; (d) vesting any property in a trustee; (e) a direction for taking accounts and making certain enquiries; (f) an order directing the trustees or others to pay to the trust the loss caused to the same by their breach of trust, negligence, misapplication, misconduct or willful default; (g) a declaration as to what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust; (h) a direction to apply the trust property or its income cy pres on the lines of section 56 if this relief is claimed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner refusing his consent shall be in writing and shall state the reasons for the refusal. (2) If the Charity Commissioner refuses his consent to the institution of the suit under subsection (1) the persons applying for such consent may file an appeal to the Divisional Commissioner in the manner provided by this Act. (3) In every suit filed by persons having interest in any trust under section 50, the Charity Commissioner shall be a necessary party. (4) Subject to the decision of the Divisional Commissioner in appeal under section 71, the decision of the Charity Commissioner under subsection (1) shall be final and conclusive. 80. Bar of jurisdiction: Save as expressly provided in this Act, no Civil Court shall have jurisdiction to decide or deal with any question which is by or under this Act to be decided or dealt with by any officer or authority under this Act, and in respect of which the decision or order of such officer or authority has been made final and conclusive. 45. Mr. Dwarkardas learned senior counsel appearing for the defendant no. 1 in rejoinder submits that it is averred by the plaintiff himself in the plaint that he is trustee of the said t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dol can hold the property. Mr. Dwarkadas, learned senior counsel placed reliance on paragraphs 4, 5, 6, 10, 11, 12 and 14 of the said judgment. Learned senior counsel submits that there was no dispute before the Supreme Court that the suit was filed by a trustee on behalf of the trust after obtaining permission from the charity commissioner under section 51 of Bombay Public Trusts Act. The ratio of the Supreme Court in the said judgment is thus confined to the facts of the case. 48. Mr. Dwarkadas, learned senior counsel distinguished the judgment of this court in case of Amirchand Tulsiram Gupta (supra) delivered by the Division Bench of this court. Reliance is placed on paragraphs 6 and 7 of the judgment. It is submitted that the status of the plaintiff in that suit as trustees was not in dispute. The suit was filed against trespassers. It is submitted that since the status of the plaintiff as trustee in this case is in dispute which question is pending before the charity commissioner, judgment of Division Bench of this court in case of Amirchand Tulsiram Gupta (supra) does not assist the plaintiff. It is submitted that charity commissioner has to make an enquiry in this type o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erested and has to apply for permission to the charity commissioner under sections 50 and 51. It is submitted that the suit is filed by the plaintiff on behalf of the trust but is filed in his individual capacity. It is submitted that all the judgments relied upon by Mr. Anturkar, learned senior counsel deals with the suit filed by the trustees whose status is not in dispute and are clearly distinguishable with the facts of this case. 52. In so far as submission of Mr. Anturkar, learned senior counsel that permission of the charity commissioner would be required only if a trustee wants to file a suit in special court and not in regular civil court is concerned, it is submitted that a person who seeks to file a suit falling under the category of section 50 is required to take consent of the charity commissioner and only when such permission is obtained, question of filing such suit in a competent court having jurisdiction thereafter arises. It is submitted that the submission urged by Mr. Anturkar, learned senior counsel is contrary to plain language of sections 50 and 51 of the Bombay Public Trusts Act. 53. Mr. Kamdar, learned senior counsel invited my attention to judgment o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... binding on all the parties and that issue cannot be reopened and or re-agitated. 54. On the issue as to whether leave of the court was obtained before filing this suit or not at least in so far as prayer for interest is concerned, learned senior counsel submits that the plaintiff had filed Suit No. 2764 of 2004 against Mr. A.N. Mehta for recovery of about 5 Crores which suit has been admittedly withdrawn by the plaintiff. The Plaintiff thereafter lodged second suit bearing lodging no. 1224 of 2008 in this court in which plaintiff had claimed interest on loan which was also one of the prayer in that suit. It is submitted that after filing that suit, the plaintiff surreptitiously took away the original record of the said suit proceedings and carried out substantial amendments in the plaint without obtaining consent of the court. In the amended plaint, the plaintiff deleted the prayer for interest. Mr. Kamdar invited my attention to the unamended plaint and amended plaint which are on record of this proceedings in support of his submission that claim for interest was made in the original plaint bearing lodging no. 1224 of 2008 which was subsequently deleted illegally by carrying o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e seeking liberty to withdraw the said suit and such application was not referred in the said order. The plaintiff proceeded on the premise that liberty was deemed to have been granted which was absent in the order passed by this court. This court has therefore, rightly passed no order on such praecipe filed by the plaintiff which clearly indicates that no such liberty was applied for by the plaintiff and therefore, question of granting such liberty did not arise. 57. Mr. Sancheti learned senior counsel appearing for defendant no. 15 and 16 submits that under Order 10 rule 1, court can pass an order for deletion of any portion of the pleadings even suo motu which is vexatious and no application is required by the defendant. My attention is invited to Order 6 rule 16 of C.P.C. in support of his submission that court can strike out pleadings under that provision without any application in writing. It is submitted that since it is clear that there are no allegations against defendant no. 15 and 16 and in any event there are no particulars of any alleged collusion, on a meaningful reading of the plaint, it discloses no cause of action and thus both the prayers i.e. prayer a(i) and ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of defendant no. 22 as trustee are annexed to the plaint. 60. It is alleged in the plaint that defendant no. 7 in collusion with defendant nos. 1 to 6 and 8 to 18 systematically started to siphon of crores of rupees from the funds of the said trust and the said hospital in collusion with each other. It is alleged that defendant no. 7 has committed acts of malfeasance, misfeasance, misappropriation, breach of trust. It is alleged that defendant nos. 1 to 7 in collusion with defendant no. 12, 13, 16 and 17 have defrauded the said trust and the said hospital. No recovery steps have been initiated by the said trust even when defendant nos. 12 and 16 had been acting as advocates/counsel of the trust. It is alleged that no outstanding amount is received by the said trust till death. It is alleged that defendant nos. 1 to 7 have high handedly and arbitrarily parted with the trust funds with the intention to collectively siphon away the said funds. The trust failed to take any steps to recover the said amounts thereby the trust is a looser of the said amount as well as interest thereof. The trust is using interest on the funds and also runs the risk of loosing the entire amount provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the suit is filed for recovery of amounts siphoned off and are due and payable to the registered charitable trust and knowledge of those alleged fraudulent transactions came to light only in 2006-07 and the suit is therefore filed within the period of limitation from the date of knowledge of those transactions. 64. The plaintiff has prayed for an order and decree in favour of the plaintiff and/or the said trust against defendants nos. 1 to 17. 65. On perusal of the plaint as a whole and on meaningful reading of the averments and prayers in the plaint, it is clear that the plaintiff who claims to be one of the trustee has alleged a breach of public trust, negligence, misapplication or misconduct on the part of some of the trustees, has applied for an order and decree against some of the defendants who are admittedly trustees of the said trust and some of them are joined as alleged trustees and also against some of the companies which are alleged to be under control of some of the trustees. The plaintiff has applied for money claim against all the defendants alleging loss caused to the trust by virtue of alleged breach of trust, negligence, misapplication, misconduct or will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts in the suit filed by the plaintiffs therein seeking a declaration about their hereditary right as archaks of the temple which right was claimed in their personal capacity as a family of Archaks who had been performing the functions of Archaks since the day the temple was established and the deity was consecrated. Considering those facts Supreme Court held that the provision of section 50 did not cover the suit of that type as there was no public interest involved. The only interest was that of the plaintiffs and their families which right was purely of a private nature. Supreme Court held that in the facts of that case section 50 of the Bombay Public Trust Act was not attracted. Paragraphs 8, 11 to 14 of the said judgment read thus: 8. A perusal of Section 50 of the Act shows that in matters referred to or enumerated in the said Section, a suit is to be instituted after obtaining the consent in writing of the Charity Commissioner as per provisions of Section 51 of the Act. The learned counsel for the appellants submitted that the claim of the plaintiffs in the plaint falls within the ambit of administration of a public trust as admittedly there is a public trust with respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e administration or management must be with reference to the religious endowment, i.e. with reference to the property mentioned in the definition and not with respect to the dismissal of an archaka. The suit to set aside his dismissal relates to a personal right and as long as there is no question relating to the administration or management of the endowed property, the suit cannot be held to have been barred under that section. 12. This was also a case in which right to archakship was claimed and it was held to be a private personal right which had nothing to do with administration or management of the trust and the suit was held to be maintainable in a civil court. In the case in hand respondents/plaintiffs are trying to establish their hereditary right to act as archaks in the temple in suit. This has nothing to do with administration of the trust. 13. What is to be seen is the relief the plaintiffs are seeking from the court. First of all, they are seeking a declaration about their hereditary right as archaks of the temple. This right is claimed in their personal capacity as a family of archaks who have been performing the functions of archaks since the day the temp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Such a suit, therefore, cannot be covered by Section 50 of the Act. Law is settled on this aspect as per various judgments of this Court. 68. In my view, the averments made in the plaint along with the prayers in the suit clearly indicates that the plaintiffs have filed the suit claiming to be a trustee and seeks an order and decree against the defendants that various amounts be paid by the defendants to the plaintiffs as trustee or to the said trust. Plaintiff has thus not claimed any personal rights or has not filed the suit which can be considered as a suit for enforcement of the rights of a private nature. The principle of law laid down by the Supreme Court in case of Vinayaka Dev (supra) would apply to the facts of this case which clearly holds that the matters affecting administration of trust are covered by section 50 of Bombay Public Trust Act and consent of the Charity Commissioner for filing such suit would be mandatory. Though the Supreme Court in the facts of that case rendered a finding that the plaintiffs had claimed private rights and for enforcement of such private rights, in the facts of that case section 50 of the Bombay Public Trust Act would not be attracte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt as is apparent from the plain reading of section 50 read with section 2(4) of the Bombay Public Trust Act, 1950. The submission of the learned senior counsel is thus devoid of merit and is rejected. 72 In so far as judgment of Supreme Court in case of Shree Gollaleshwar Dev and Ors. (supra) relied upon by Mr. Anturkar is concerned, perusal of the said judgment indicates that the suit was filed by the trustees in the name of idol as plaintiff no. 1 and trustee as plaintiff no. 2. In paragraph 14 of the said judgment, it is held by the Supreme Court that under section 50 of the Bombay Public Trusts Act, a right is created to institute a suit by the Charity Commissioner or by two or more persons interested in the trust in the form of supplementary statutory provisions without defeasance of the right of the manager or of the trustee or a she bait of an idol to bring a suit in the name of idol to recover the property of the trust in the usual way. It is held that there is no reason as why the two or more persons interested in the trust should be deprived of the right to bring a suit as contemplated by section 50(ii)(a) of the Bombay Public Trusts Act. Although sub section (1) of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure specified in section 50, then such person shall apply to the Charity Commissioner in writing for his consent. The charity commissioner may grant or refuse consent depending upon the satisfaction of the existence of a prima facie case. The Division Bench of this court has followed the judgment of the Supreme Court in case of Shree Gollaleshwar Dev and Ors. (supra) in which Supreme Court had considered the situation where suit was filed in the name of idol and by the trustee after obtaining consent of the Charity Commissioner. In my view the judgment of the Division Bench in case of Amirchand Tulsiram Gupta (supra) is clearly distinguishable with the facts of this case. 74. Supreme Court in case of Church of North India (supra) has analysed the scheme and provisions of the Bombay Public Trusts Act and after adverting to various earlier judgments of Supreme Court including judgment in case of Shree Gollaleshwar Dev (supra) has held that the plaintiffs in that suit with a view to obtain an order of injunction in respect of the properties of the trust were required to establish that they could file a suit for enforcement of the right of the trust as a religious trust and such a l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as held that for instituting a suit of the nature specified in section 50 of the Bombay Public Trusts Act, prior consent of the charity commissioner is necessary under section 51. 77. Division bench of this court in case of Charu K. Mehta vs. Lilavati Kirtilal Mehta Medical Trust 2013 (3) All. M.R. 206 which dispute was in respect of the same trust and between the same parties, Division Bench after considering the judgment of Supreme Court in case of Church of North India (supra) has dismissed the originating summons holding it barred under section 80 of Bombay Public Trusts Act, 1950 on the ground that the said proceedings could be considered only by charity commissioner. Division Bench also considered the fact that several suits or proceedings have been instituted by the parties to that proceedings in which the interpretation of diverse clauses of the deed of trust was placed in issue. This court also considered the order passed by the learned Single Judge dated 27th February, 2009 in first Appeals filed by one of the parties to this proceedings which was directed against rejection of plaint by the City Court on the ground that change reports were pending before the charity co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Judge in the first appeal has upheld the order passed by the City Civil Court not only based on the concession made by the appellant but had found the said concession in conformity with the law laid down by the Supreme Court in case of Church of North India (supra). 80. I will now deal with the issue whether this court had granted liberty to the plaintiff to file fresh suit for same cause of action or not and what is the effect thereof under Order 23 Rule 1(3) and (4) of the Code of Civil Procedure. 81. A perusal of the record indicates that the plaintiff had made an oral application before this court for withdrawal of the Suit No. 2764 of 2007. This court passed an order granting liberty to the plaintiff to withdraw the said suit. The said order does not indicate that any application was made by the plaintiff for liberty to file a fresh suit after withdrawal of the said suit. On perusal of the praecipe filed by the plaintiff for seeking clarification of the order passed by this court, it is clear that it was not the case of the plaintiff that though plaintiff had sought liberty to withdraw suit with liberty to file fresh suit, this court had not recorded such application t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rayer for liberty to file a fresh suit. Order rejecting liberty to file a fresh suit by the trial court was impugned in that proceedings before this court. This court in the said judgment has set aside the order refusing to grant liberty to file fresh suit. In my view this judgment is not at all applicable to the fact of this case and is of no assistance to the plaintiff. 85. In so far as judgment of Orissa High Court in case of Muralidhar Marwari (supra) is concerned, in paragraph 9 of the said judgment, the Orissa High Court held that if a plaintiff seeks liberty to file fresh suit, plaintiff must ask leave to the court and make out case for that purpose under clause A or (B) of Order 23 Rule 1(2). However in this case, plaintiff could not prove that any such application for liberty to file a fresh suit was made and/or case was made out for that purpose under clause (A) or (B) of Order 23 Rule 1(2) but such liberty was rejected by this court. In my view this judgment assist the defendants and not the plaintiff. 86. In so far as judgment of Patna High Court in case of Khudi Rai (supra) relied upon by Mr. Anturkar is concerned, Patna High Court has held that when an applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same cause of action, plaintiff once having exercised that liberty by claiming interest in the second suit and thereafter deleting that claim for interest in that second suit which is admittedly pending, plaintiff could not have claimed interest again in this suit by exercising the alleged liberty to file a fresh suit on same cause of action again. In my view the claim for interest is on the face of it barred under Order 23 Rule 1(3) read with Order 23 Rule 1(4)(b) of Code of Civil Procedure and plaint in respect of such claim is liable to be rejected under Order 7 Rule 11(d) of the Code of Civil Procedure, 1908 also. 88. I shall now deal with the submission of Mr. Sancheti, learned senior counsel appearing for defendant nos. 15 and 16 who have though not filed any application separately under Order 7 Rule 11 of Code of Civil Procedure however have urged through the learned senior counsel before this court that the suit against them is totally vexatious, frivolous and does not disclose any cause of action in the plaint. It is submitted that though prayer a(ii) is basically made against defendant no. 11 who had alleged to have not returned the principal amount, in the prayer cla ..... X X X X Extracts X X X X X X X X Extracts X X X X
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