AI Drafter 
TaxTMI 
TaxTMI 
2014 (3) TMI 1216
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....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 the plaint and/or for striking off the unnecessary and/or scandalous and/or frivolous and vexatious and seeks other reliefs. Notice of Motion No. 3050 of 2008 is filed by defendant no. 13 inter alia praying for dismissal of the present suit on various grounds. Some of the relevant facts which emerged from the plaint and affidavits filed by the parties are summarized as under:- 3. The plaintiff claims to be a trustee of Lilavati Kantilal Mehta Medical Trust (hereinafter referred to as the 'said Trust'). According to plaintiff, defendant nos. 2 to 7 are the purported trustees of the said trust. Defendant nos. 8 and 9 are alleged to be the companies of defendant no. 10 and are alleged to be the recipients of ....
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....h 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 rupees which were advanced to defendants nos. 8, 9 and 11. 8. The plaintiff and other contesting parties who are claiming to be the trustees of the said trust have filed over 120 proceedings in various courts against each other pertaining to the said trust including the proceedings under the provisions of Bombay Public Trust Act. Some of the proceedings filed under the provisions of Bombay Public Trust Act including change reports are still pending before the Charity Commissioner. 9. Sometime in the year 2007 the plaintiff herein filed a suit (2764 of 2007) in this court against defendants nos. 11 to 16 for recovery of alleged gains arising out of an alleged advance of Rs. 5 crores by the trust to defendant no. 1....
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....ified 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. Dwarkadas, learned senior counsel then submits that this court did not grant any liberty to file fresh suit while permitting the plaintiff to withdraw the said suit No. 2764 of 2007. The plaintiff thus could not have filed a fresh suit on the basis of same cause of action as pleaded in Suit No. 2764 of 2007 in view of Order 23 Rule 1 of Code of Civil Procedure. The suit is thus barred under Order 23 Rule 1 of Code of Civil Procedure. 13. Mr. Dwarkadas, learned senior counsel invited my attention to various paragraphs of the plaint and in particular paragraphs 7 to 16, 21, 46 and 48 of the plaint and submits that the entire suit is frivolous, scandalous and/or vexatious and is an abuse of process of this court and ....
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....ality 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 concerned with the question as regard creation of any right by the trust in a third party which would be otherwise beyond the jurisdiction of the Charity Commissioner. It is also not a case where the plaintiffs made a complaint that the provisions of the BPT Act were not complied with or the statutory tribunal had not acted in conformity with the fundamental principles of judicial procedure. In fact no order has been passed on the Appellant's application for changes in the entries made in the registers maintained under Section 17 of the Act. The BPT Act provides for express exclusion of the jurisdiction of the Civil Court. It in various provisions contained in Chapter IV a power of i....
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....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 matter might have been different if the suit was not for declaration or injunction in favour or against the public trust or where the plaintiffs are not beneficiaries either. 80. Narmadabai and Anr. v. Trust Shri Panchvati Balaji Mandir and Ors. MANU/SC/1306/1995 was a case where a suit for injunction was filed for restraining the defendants from interfering with the implementation of the scheme for better management and administration of the public trust settled by the Charity Commissioner. In that view of the matter, it was held that a suit was not required to be filed in conformity with the provisions of Sections 50 and 51 of the Act. 81. In Shree Gollales....
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.... 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 arrived at, having regard to the nature of the claim as also the reliefs sought for, that civil court has no jurisdiction, Section 26 per force will have no application whatsoever. 16. Mr. Seksaria, learned counsel appearing for defendant no. 11, 13, 14 and 17 in support of Notice of Motion No. 3050 of 2008 submits that in the plaint, plaintiff has claimed monetary reliefs. My attention is invited to order dated 6th October, 2008 passed by this court in Notice of Motion No. 2935 of 2008 in this suit to show that the plaintiff has sought time to make an application before the concerned court for seeking clarification as regards the order dated 17th Janu....
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....ule 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 nip it in the bud at the first hearing by examining the party searchingly under Order X, Code of Civil Procedure An activist Judge is the answer to irresponsible law suits. The trial Courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. The Penal Code is also resourceful enough to meet such men, (Cr. XI) and must be triggered against them.... It is clear that if the allegations are vexatious and meritless and not disclosing a clear right or material(s) to sue, it is the duty of the trial Judge to exercise his power under Order VII Rule 11....
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.... 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 independent remedy made available to the defendant to challenge the maintainability of the suit itself, irrespective of his right to contest the same on merits. The real object of Order VII Rule 11 of the Code of Civil Procedure is to keep out of courts irresponsible law suits and in case Court is prima facie persuaded of the view that the suit is an abuse of the process of the court, in the sense that it is a bogus and irresponsible litigation, the jurisdiction under Order VII Rule 11 of the Code of Civil Procedure can be exercised. 21. Mr. Seksaria, learned counsel placed reliance on the judgment of the Supreme Court in c....
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....sorted 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 has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order X, C.P.C. An activist Judge is the answer to irresponsible law suits. The trial Courts would insist imperatively on examining the party at the first hearing so that bogus litigation cam be shot down at the earliest stage. The Penal Code is also resourceful enough to meet such men, (Ch. XI) and must be triggered against them. In this case, the learned Judge to his cost realised what George Bernard Shaw remarked on the assassination of Mahatma Gandhi It is dangerous to....
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....ndant 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 and 17 in support of his submission that there is no cause of action against defendants nos. 15 and 16 at all and the suit is totally vexatious, frivolous against defendants nos. 15 and 16 and deserves to be dismissed on that ground alone. It is submitted that though the plaintiff has loosely alleged fraud against defendants nos. 15 and 16 also, no particulars of such alleged fraud or misappropriation which is mandatory to be furnished under Order 6 Rule 4 of Code of Civil Procedure is furnished. Suit alleging such fraud without particulars is liable to be rejected against defendants no....
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.... 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 the respondent is only bringing to the notice of the Court that the plaint suffers from a fatal infirmity with regard to a requirement which the plaintiff was expected to include in his plaint so as to make it maintainable in the eye of law. This being the position it is obvious that Rule 11 of Order 7 lays down an independent remedy made available to the defendants to challenge the maintainability of the suit itself irrespective of his right to contest the same on its merits by filing his written statement. It thus stands to reason that the defendant is bound to file....
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....r 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 be raised only along with the written statement. The learned counsel has firstly invited my attention to the case of Smt. Patasibhai v. Ratanlal MANU/SC/0429/1990 : [1990] 1 SCR 172 which while dealing with Order 7, Rule 11 and rejection of the plaint on the ground that no cause of action was disclosed has held that mere issuance of summons by the trial Court does not require that the trial should proceed even when no triable issue is shown to arise. The question involved in the case was the maintainability of the suit which had given rise to the appeal. The ap....
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....though 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 out the pleadings. Order 6, Rule 16 itself empowers the Court to strike out the pleadings at any stage of the proceedings. It may even be before the filing of the written statement by the defendant. If the Court is satisfied that the election petition does not make out any cause of action and that the trial would prejudice, embarrass and delay the proceedings, the Court need not wait for the filing of the written statement. Instead it can proceed to hear the preliminary objections and strike out the pleadings. If after striking out the pleadings the Court find....
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....it 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 suit in respect of the same cause of action, but withdrew it. It appears that in the previous suit the plaintiffs presented a petition for liberty to withdraw from the suit with permission to bring a fresh suit. The Court, however, gave the plaintiffs permission to withdraw from the suit, but did not in terms give them liberty to bring a fresh suit. The learned Judicial Commissioner takes the view that the order operated as a refusal of the permission. With this view I am unable to agree. There is a decision of the Calcutta High Court which is to the....
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....orted 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, his Lordship simply ordered: that the appellant-plaintiff was allowed to withdraw the suit but he was directed to pay the costs of the defendant etc. In this connection a decision reported in Khudi Rai v. Lalo Rai MANU/BH/0240/1925 may be seen, which is a direct authority on the point. In that case their Lordships held: Where an application is made by a plaintiff, to withdraw from a suit with liberty to bring a fresh suit on which an order is passed giving the permission to withdraw from the suit although nothing is s....
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....lia, 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 permission or order of the Court was required by the plaintiff. The plaintiff's application was for withdrawing with liberty to file a fresh suit under Order 23, Rule 1(1) (2) and, if he learned Judge of the Court below though that that liberty should not be granted, he could reject that application, but he could not make an order whereby the plaintiff's suit stood withdrawn without liberty to file a fresh suit, with the result that the plaintiff would be precluded from filing a fresh suit in respect of the same ca....
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....ant 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 referred by the Supreme Court in the said judgment. Paragraphs 14 and 16 of the said judgment of the Supreme Court reads thus:- 14. The application filed for withdrawal of the suit categorically stated about the pendency of the earlier suit. Respondent, therefore was aware thereof. They objected to the withdrawal of the suit only on the ground that legal costs therefore should be paid. The said objection was accepted by the learned Trial Court. Respondent even accepted the costs as directed by the Court, gran....
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....ed 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 submitted that in any event, remedy under sections 50 and 51 of the Bombay Public Trust Act is an additional remedy and is not defeasance to usual remedy. Learned senior counsel submits that even if a change report is pending before the Charity Commissioner under section 22 of the Bombay Public Trust Act, plaintiff can still file a suit as a trustee. Reliance is placed on the judgment of this court delivered by Mr. Justice J.P. Devadhar (as His Lordship then was) delivered on 11th July, 2008 in ....
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....ation 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 Civil Court. Consequently, the Civil Court would not be justified in rejecting the plaint in its entirety. This is more so when the case of the plaintiffs is that the suit property does not belong to the Trust and is a private property of the plaintiffs. The case of the plaintiffs is that no instrument is executed transferring the suit property in favour of the Trust. In other words, the case of the plaintiffs is that the property did not validly vest in the Trust and therefore, the Authorit....
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....s 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 invited my attention to sections 41A, 41AA, 41B, 41C, 41D and 41E of the said Act and would submit that under none of these provisions of the Bombay Public Trust Act monetary reliefs which are claimed by the plaintiff in this suit can be granted by the charity commissioner or other authority under the said Act. None of the reliefs which are claimed in the suit can be granted by the authorities under any of the provisions of the said Act. Section 80 of the ....
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....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 set out in the section. Section 51 of the Act provides that if person having an interest in any public trust intends to file a suit of the nature specified in section 50, then such person shall apply to the Charity Commissioner in writing for his consent. 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 contesting d....
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.... 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, including a person holding adversely to the public trust but not a tenant or a licensee, consent is necessary. The learned Single Judge felt that the decision recorded by the Single Judge and Division Bench of this Court as well as by the Gujarat High Court considered the provisions of section 50 prior to the amendment and therefore are not good law. It was concluded that the amendment demands that when a suit is instituted against a tr....
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....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 their civil rights are not covered by definition of the expression "person having interest" and are entitled to file suits without obtaining prior permission. The same view was taken by another Single Judge in the decision reported in 1988 (2) BCR 429, Leelavati w/o Vasantrao Pingle v. Dattraya D. Kavishar & others. The same view was taken by another Single Judge in an unreported decision dated September 13, 1990 deliver....
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....7 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. Respondent No. 1 Trust and the Trustees along with others filed respective suits on 28th September, 1987. The basic prayers were against the appellants to declare that they have no right, title or interest in the property and/or to retain the possession of the same being trespasser, and/or illegal occupants and further prayed for possession of the suit premises. Respondent Nos. 2 to 5 and 7 in the Suit No. 26 of 1987 en....
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.... "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 Court is concerned in respect of filing of suits by "persons having interest" as defined in Section 2(10) of the BPT Act which includes "Trustees" to recover possession of the property against person holding adversely has been considered in Shree Gollaleshwar Dev (supra), Amirchand Tulsiram Gupta (supra) and Leelavati (supra) and Gafoor Ali Hussain and Ors. (supra). All these judgments have made it ver....
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....o. 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 follows from the various observations made in the judgment. Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there is not intended to be exposition of the whole law, but governed and qualified by the particular facts of the case in which such expression are to be found. It would....
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....ed 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 pleased to dismiss the Writ Petition holding that the suit did not relate to the Trust property but to the rights of the Respondents (plaintiffs) to worship which they were exercising over a period of time. The learned Judge further held that for the purpose of exercising the rights of worship there was no question of obtaining the permission of the Charity Commissioner u....
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.... 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 along with any other relief mentioned in this section; (i) a direction authorising the whole or any part of the trust property to be let, sold, mortgaged or exchanged or in any manner alienated on such terms and conditions as the court may deem necessary; (j) the settlement of scheme, or variation or alteration i....
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....visional 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 trust and defendant no. 2 to defendant no. 7 are purported trustees. It is submitted that the plaintiff himself has relied upon the pending change reports in support of such plea. It is also alleged by the plaintiff that he was appointed as a trustee for a f....
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....ustee 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 of matters where family members who are claiming to be trustees are at logger heads and more particularly in view of the fact that about 123 proceedings filed by and between the parties are pending before the Charity commissioner and various courts. Mr. Dwar....
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....ed 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 of this court in First Appeal No. 2667 of 2007 and other connected appeals filed by the plaintiff herein and others against Leelavati Kirtilal Mehta Medical Trust and others. City civil court had held that that court had jurisdiction to entertain and try the....
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.... 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 out substantial amendment without leave of the court. Learned senior counsel invited my attention to the order passed by this court in Notice of Motion No. 368 of 2011 by which plaintiff was granted liberty to withdraw suit. Learned senior counsel submits th....
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....fore, 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 (a)(ii) of the plaint in so far as defendant no. 15 and 16 are concerned shall be dismissed. Mr. Sancheti, learned senior counsel distinguished the judgment of the Supreme Court in (2004) 3 SCC 137. Mr. Sancheti placed reliance on the judgment of this court ....
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.... 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 provided to some of the defendants. In paragraph 13 of the plaint, it is alleged that a sum of Rs. 13,43,93,988/- is outstanding and payable by defendant nos. 1 to 7 and 10 to the said trust. In para 16 it is alleged that the trust is put to loss as far as interest o....
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....tion 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 willful default. In my view the case of the plaintiffs falls under sections 50(i), (ii) (a), (d), (f). Plaintiffs seek money decree not only in his favour as a trustee but also in favour of the trust. In my view, the consent of the charity commissioner would be req....
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....he 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 to the temple in question. If the matter pertains to administration of public trust then the Charity Commissioner comes into the picture and a Civil suit is not maintainable without compliance of Sections 50 and 51 of the Act. The real question is whether....
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.... 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 temple was established and the deity was consecrated. It is different matter whether ultimately the plaintiffs' contention is accepted by the court or not. Surely, the plaintiffs are entitled to have their claim examined by the court. I....
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....y 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 attracted, however, the principles laid down by the Supreme Court in the said judgment would squarely apply to the facts of this case. A perusal of the averments in the plaint and prayers clearly indicates that the suit and the reliefs claim....
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....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 section 52 makes section 92 and 93 of the Code of Civil Procedure inapplicable the public trust registered under the said Act, it has made provision by section 50 for institution of such suit by the Charity Commissioner or by two or m....
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....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 legal right vest either in the plaintiff or in the trust indirectly and such a prayer relating to the possession of the property comes squarely within the purview of the Bombay Public Trusts Act. If the question as regards recovery of....
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....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 commissioner under section 22 of the Bombay Public Trusts Act. 78. The learned Single Judge had recorded the submission of the appellants therein that on a considered view of the legal position having regard to the judgment of the S....
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....e 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 to file a fresh suit in the said order. On the contrary the plaintiff has proceeded on the premise that the liberty was deemed to have been granted by the court for filing a fresh suit for same cause of action. A perusal of the order ....
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....erty 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 application is made by a plaintiff to withdraw from a suit with liberty to bring a fresh suit on which an order is passed giving the permission to withdraw from this suit, although nothing is said in the order as to the liberty to the plainti....
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....imed 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 clause, plaintiff has made claim in respect of such amount also against defendant nos. 15 and 16 who are in no way concerned or responsible of any of such alleged transaction at all. Defendant nos. 15 and 16 are advocates. A meaningful ....