TaxTMI 
TaxTMI 
2014 (3) TMI 1216
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.... 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 crores of rupees from the said trust. Defendant n....
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....efendant 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. 11. It is case of the plaintiff that he applied for leave to w....
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....nder 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 deserves to be rejected on this ground alone. 14. Mr. Dwarkadas, lea....
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....1(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 inquiry and consequently a power of adjudication as regard the list of movable and immovable trust property, the descriptio....
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....t. 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 Gollaleshwar Dev and Ors. v. Gangawwa Kom Shantayya Math and Ors. MANU/SC/0397/1985: AIR 1986 SC 231, it was held: 14. It is clear from these provision....
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....tions 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 January, 2008 passed in Notice of Motion No. 3739 of 2007 in view of the issues raised by the defendants that no liberty was granted to file a fresh suit. My attention is also i....
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....l-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. If clever drafting has created the illusion of a cause of action as observed by Krishna Iyer J., in the above referred decision, it should be nipped in the bud at the first hearing by examining the parties under Order X....
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....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 case of T. Arivandandan vs. T.V. Satyapal and another (1977) 4 SCC 467 and in particular paragraphs 4 and 5 in support of his submission that under Order 7 Rule 11, if court comes to the conclusion that a clever drafting has created the illusion of ....
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....mber 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 be too good. 22. In support of his submission that the suit is not maintainable on the ground that consent of the charity commissioner is not obtained under section 50 read with 51 of the Bombay Public Trust Act, 1950, learned counsel placed reliance on the judgment of the Supreme....
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.... 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 nos. 15 and 16 on that ground alone. Learned senior counsel placed reliance on the judgment of this court in case of P.R. Sukeshwala and another vs. Dr. Devadatta V.S. Kerkar and another AIR 1995 Bom. 227 and would submit that a plaint lacks any legal requirement can be rejected under Order 7 Rule 11 of Code of Civi....
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....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 his written statement only in case his application under Rule 11 of Order 7 is not allowed by the trial Court. The law ostensibly does not contemplate any stage wherein such type of objection shall be raised and also does not say in express terms that it should be raised along with the written statement itself. Instead by using the word "shall" th....
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....llenge 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 appellants contended that the suit was not maintainable even on the plaint averments. The trial Court held the suit to be maintainable and the High Court dismissed the appellants' revision affirming that view. The Supreme Court, however, observed that on the admitted facts appearing from the record itself the counsel for the respondent was unable to sho....
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.... 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 finds that no triable issues remain to be considered, it has power to reject the election petition under Order 7, Rule 11. Thus after striking out the pleadings, if the Court finds that no cause of action remains to be tried it would be duty bound to reject the petition under Order 7, Rule 11, C.P.C. If a preliminary objection is raised before the commencement of th....
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....h 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 effect that 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 said in the order as to the plaintiff's liberty to institute a fresh suit on the same cause of action, that order ought to be read along with the petition and construed....
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....at 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 said in the order as to the plaintiffs liberty to institute a fresh suit on the same cause of action, that order ought to be read along with the petition and construed as granting permission to file a fresh suit. Their Lordships followed a decision reported in Golam Mohammad v. Shibendra Pada. The provisions of order XXXIII, Rule 1(1), Civil Procedure Code, give the plaintiff the liberty to withdraw from a suit uncondi....
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.... 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 cause of action as stated in sub rule (3) of Order 23, Rule 1 of the Code of Civil Procedure. The order passed by the lower Court is, therefore, erroneous and must be set aside. The result of this order would ordinarily be that the lower Court would have to proceed with the hearing of the suit in the ordinary course. I am, however, not satisfied with the rejection of the liberty to file afresh suit by the trial Court, in so far as it was....
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....rd 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, granting permission to withdraw the suit. In a situation of this nature, we are of the opinion that an inference in regard to grant of permission can also be drawn from the conduct of the parties as also the Order passed by the Court. It is trite that even a presumption of implied grant can be drawn. 16. In Mulla's The Code of civil Procedure, Seventeenth Edition, page 674, it is stated (g) Permission need not be Express:- The permission mentioned in thi....
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....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 case of Vijay K. Mehta and another vs. Charu K. Mehta in W.P. No. 3849 of 2008 in which matter this court has dealt with one of the litigation between the same parties. 34. Learned senior counsel submits that a trustee being legal owner of the property of the trust need not obtain permission of the charity commissioner. Only if a trustees seeks to file a suit in special court, he has to get consent of the charity commissioner. Trustee has an option of filing suit in a regular civil court or....
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....nted 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 Authorities under the Act will have no jurisdiction to determine the question of title to the trust property.\ 36. The learned senior counsel also placed reliance on the judgment of the Division Bench of this court in case of Charu K. Mehta vs. Leelavati Kirtilal Mehta Medical Trust 2013 (3) All. M.R. 206 in support of his submission that jurisdiction of civil court is barred under section 80 of Bombay Public Trusts Act only if the question which is raised before the civil court is a question which is r....
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....l 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 said Act thus cannot be attracted to the facts of this case. 38. On the issue as to whether consent of the charity commissioner under sections 50 and 51 of the said Act is mandatory or not before filing such suit is concerned, learned senior counsel placed reliance on the judgment of the Supreme Court in case of Shree Gollaleshwar Dev and others vs. Gangawwa Kom Shantayya Math and others (1986) 4 SCC 393 and in particular paragraph 14 and would submit that provisions under section 50 of the said Act is in the form of supplementary statutory provisions w....
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....y 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 defendants urged before the trial Judge that consent under sections 50 and 51 of the Public Trusts Act is a condition precedent for institution of the suit by the trustees for recovery of possession against the trespassers or a person claiming adversely to the interest of the trust and failure to obtain consent must result in dismissal of the suit. The contention was met by the plaintiffs by relying upon two decisions of this Court reported in, Gurusiddappa Tipanna Mugeri v. Miraj Education Society, Miraj, and, Rajgopal Raghunathdas Somani v. Ramchandra Hajarimal Jhavar. T....
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....lic 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 trespasser for recovery of the property belonging to the trust, consent of the Charity Commissioner in writing is obligatory. Mr. Munshi, learned Counsel appearing for the appellants, complains that the view taken by the Single Judge is entirely unsustainable and we find considerable merit in the submission of the learned Counsel. We are unable to appreciate how the amendment will take away effect of the decision recorded by this Court and which has held field for several years. The inclusion of the word "trustee" in section 2(10)(e) makes no difference whatsoever, because the expression "per....
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....s 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 delivered in Original Side Suit No. 958 of 1975 and the decision of the Single Judge was confirmed in Appeal No. 1315 of 1990 by the Division Bench by judgment dated March 14, 1991. The Division Bench specifically disapproved the view taken by the trial Court in the present case holding that the decision reported in Rajgopal Raghunathdas Somani v. Ramchandra Hajarimal Jhavar, still holds field and section 50 does not prohibit a suit being filed by trustees to recover possession from a trespasser without obtaining prior permission. We are in respectful agreement with the view taken by the Division Bench and the le....
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....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 entered into a compromise on 15th October, 1991 and they vacated the premises and gave up all the rights. Respondent Nos. 2 to 7 also entered into a compromise on 24th September, 1992 and on the basis of the said compromise First Appeal No. 808 of 1987 was disposed of. The parties in all these suits led common evidence in support of their respective claims. The various issues were framed. The learned Additional District Judge, Pune (District Court) by an order dated 12th March, 1993 decreed the suits as referred above. The appellants have therefore, preferred respective first appeals. 8. The learned Counsel appearing for ....
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....ch 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 very clear that in a suit, filed by Trustees of Public Charitable Trust, for eviction of a trespasser or for a recovery of possession and/or such action, no permission of the Charity Commissioner is necessary. Such suit, therefore, is maintainable against the trespasser, without the permission as contemplated Under Sections 50 and 51 of the BPT Act. 17. Learned Counsel appearing for the respondents rightly pointed out that there was no such objection about maintainability of the suit based on such plea had been raised at the relevant time before the District Court. The issue of jurisdiction as sought to be raised for the first time in t....
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....y 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, therefore, be not profitable to extract a sentence here and there from the judgment and to build upon it because the essence of the decision is its ratio and not every observation found therein. The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent. Considering this principle and in the fact and circumstances of the case I am of the view that the judgment of Church of North India (supra) is distinct and distinguishable. The Apex Court has not taken any contrary view than the view expressed by the Bombay High Court in Amirchand Tulsiram Gupta (supra) Leelavati Vasantrao Pingle (supra) and....
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....his 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 under section 51 of the Bombay Public Trusts Act. The learned Judge however directed the Respondents (Plaintiffs) to join the Charity Commissioner as a party defendant. This Order was carried further in the Supreme Court by filing SLP which came to be dismissed summarily on 12.5.1999. 43. Mr. Anturkar, learned senior counsel placed reliance on Order 10 of Code of Civil Procedure and submits that application under Order 7 Rule 11 can be invoked only after pleadings are complete under Order 10 of Code of Civil Procedure and not at this stage. In support of this submission the learned senior counsel placed reliance on the judgment of the Supreme Court in case of Sopan Sukhdeo Sable (supra) ....
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.... 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 in a scheme already settled, (k) an order for amalgamation of two or more trusts by framing a common scheme for the same; (l) an order for winding up of any trust and applying the funds for other charitable purposes; (m) an order for handing over of one trust to the trustees of some other trust and deregistering such trust; (n) an order exonerating the trustees from technical breaches, etc; (o) an order varying, altering, amending or superseding any instrument of trust; (p) declaring or denying any right in favour of or against, a public trust or trustee or trustees or beneficiary thereof an issuing injunctions in appropriate cases; or (q) granting any other relief as the nature of the case may require which would be a condition precedent to or consequential to any of....
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....hat 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 further period of five years. All these change reports are pending before the authorities, filed under section 22 of Bombay Public Trust Act. Mr. Dwarkadas, learned senior counsel laid emphasis on the averments made in paragraphs 20, 27 and 30 of the plaint in support of this plea. It is submitted that thus it would be an issue in the suit as to whether plaintiff as well as defendant no. 2 to defendant no. 7 are purported trustees or not which issue can be decided only in the pending change reports filed under section 22 of the Bombay Public Trusts Act and are pending. It is submitted that in view of bar under section 80 of the Bombay Public Trusts Act, this suit is does not maintainable. 46. Mr. Dwarkadas, learned senior counsel also invited my attention to the provisions of the trust deed in particular clause 12(C) of the Trust Deed which provides for passing of a resolution by majority for filing....
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....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. Dwarkadas, learned senior counsel submits that the plaintiff cannot claim to be an exclusive owner of the trust property in the capacity of a trustee or otherwise as his status as a trustee is in dispute. It is submitted that person having interest in the trust has to obtain consent of the charity commissioner before filing such suit. It is submitted that in any event, property of the trust cannot vest in one trustee. There is no resolution passed by the majority of the trustees. Mr. Dwarkadas, learned senior counsel placed heavy reliance on the judgment of the Supreme Court in case of Church of North India (supra) and more particularly in paragraph 82 and would submit that after considering he provisions of the Bombay Public Trusts Act in detail, it is held by the Supreme Court that the Bombay Public Trusts Act is a complete code in itself which provides for a complete machinery for a person interested in th....
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....n 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 suit and rejected the plea of maintainability of suit under section 80 of Bombay Public Trust Act, 1950. The said suit came to be dismissed ultimately which decree was impugned in the said proceedings before this court. The respondents had placed reliance on the judgment of Supreme Court in case of Church of North India (supra) in support of the submission that the city civil court had no jurisdiction to entertain and try that suit. The respondent in that proceedings had urged that the issue as regards the validity of the meeting dated 29th April, 2006 would depend upon the status of Defendant No. 10, 11, 12 and 13 as trustees and since the change report under section 22 was still pending before the Charity Commissioner, that issue could not have been decided by the City Civil Court in the suit. This court held that all the learned counsel appearing for the appellants informed the court that on a considered view o....
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....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 that there was no application for withdrawal of the suit with liberty to file fresh suit made by the plaintiffs admittedly. There was thus no question of this court granting any liberty to file a fresh suit. It is submitted that since there was no application for liberty to file fresh suit for same cause of action or any part thereof, plaintiff could not file a fresh suit for claiming interest which was subject matter of the first suit. 55. Mr. Kamdar learned senior counsel distinguished the judgments of various courts including this court relied upon by Mr. Anturkar by pointing out that in all those matters, application for withdrawal of suit with liberty to file a fresh suit was made in writing which is absent in this case and thus those judgments are clearly distinguishable with the facts of this case. Mr. Kamdar learned senior counsel placed reliance on order 23 rule 1(3) and also order 23 rule 1(4) (b) and would ....
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....) 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 reported in AIR 995 Bom 127 and particularly paragraph 10 thereof and would submit that separate application under Order 7 rule 11 in writing by defendant no. 15 and 16 is not necessary. Reasons And Conclusion: 58. I will first decide whether this suit filed by the plaintiff is by or against or relating to the said trust, trustees and others falling under any of the categories provided in section 50 of the Bombay Public Trusts Act, 1950 or under section 51 and whether prior consent of the charity commissioner was required before institution of this suit. For the purpose of deciding this issue, it would be necessary to refer to the averments made in the plaint and the prayers. 59. It is alleged in the plaint that the plaintiff is a trustee of the said trust and the Defendant nos. 1, 19 and 20 are permanent trustees of the said trust. It is alleged that defendant nos. 21 and 22 are also trustees of the said trust and defe....
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.... 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 on Rs. 2.30 crores is concerned and the defendant nos. 1 to 7, 10 and 17 have collectively committed an act of misapplication of trust funds and misappropriation thereof. 61. In paragraph 19 of the plaint, it is alleged that if the funds are recovered, same shall be deposited with the office of charity commissioner so as to protect the said funds from further misappropriation. In para 20 it is alleged that on account of disputes between the trustees, the plaintiff was not permitted to participate in the day to day affairs of the said trust and was wrongfully kept out. Defendant nos. 21 and 22 are also wrongfully and illegally kept away from the management of the trust and from discharging their duties. The most of trustee of the trust are not allowing the plaintiff to participate though several letters were addressed. 62. In paragraph 27 of the plaint, it is alleged that during the period between 2001 to 2006, defendant nos. 1 to....
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.... 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 required and ought to have been obtained before filing this suit. It is not in dispute that large number of proceedings filed by and between the parties regarding trust property and management are pending not only in various courts but also before the charity commissioner and other authorities under the Bombay Public Trusts Act. Various change reports filed reporting change regarding appointment of the plaintiff and some of the defendants as trustees are heavily contested and are pending before charity commissioner. It is apparent from the plain reading of the plaint itself that status of the plaintiffs as trustee and status of some of the defendants who are described as alleged trustees in the plaint are pending before charity commissioner. 66. Next question that arises for consideration is 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 o....
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....stion. 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 the present suit is a suit pertaining to administration of a public trust. In response to this question, the learned counsel for the respondents drew our attention to the preamble to the Act which provides "an Act to regulate and to make better provision for the administration of public religious and charitable trusts in the State of Bombay. 11. It was argued on behalf of the respondents that the reliefs claimed in the present suit do not fall in any of the clauses of Section 50 of the Act. There is no allegation of breach of trust; no declaration is sought that any property is a property belonging to a public trust. The right to archakship is an individual and personal right enforceable under ordinary law; nor any direction of the court is sought for administration of the public trust. The plaintiffs have never sought any orders of the court regarding administration of the trust. To illustrate the point our attention was drawn to Sri Kallagar Deva....
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.... 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. If they fail to establish their claim, they will be out of the court. However, if they succeed in establishing the claim they will be entitled to the declaration sought. They cannot be non suited at the threshold unless the suit is expressly barred by any statute. We have seen the provision of Section 50 of the Bombay Public Trusts Act relied upon by the appellants-defendants. The said section does not cover a suit of the present type. Analogy has been drawn of Section 92 of the Code of Civil Procedure while considering Section 50 of Bombay Public Trusts Act. Both provisions are in the nature of representative suits which pertain to public trusts and protection of public interest in the trusts. In the present case, there is no public interest involved. The only interest is that of the plaintiffs and their families. The right of archakship is claimed on the basis of inheritance. It is a hereditary personal right which they want to establish. The right is purely of a private nature. We ar....
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....e 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 claimed relate to the working of the trust and its trustees and therefore, permission of the Charity Commissioner would be required when a suit is instituted by a person having interest of a nature provided in section 50 of the Bombay Public Trust Act. 69. In my view since the consent of the Charity Commissioner is a condition precedent, before filing of the suit, considering the nature of averments and the reliefs claimed in this case and the plaintiff not having obtained the consent of Charity Commissioner, it attracts order 7 rule 11(d) of the Code of Civil Procedure, 1908 clearly and in view of non compliance thereof the plaint deserves to be rejected. 70. In my view, the applicants in the notice of motion have rightly placed reliance on section 80 of the Bombay Public Trust Act, 1950 and the judgment delivered by this court in First Appeal referred to aforesaid and order passed by the Division Bench of this court in case of Charu Mehta (supra) in support of their submission that since one of ....
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....ivil 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 more persons interested in the trust and having obtained the consent in writing of the Charity Commissioner under section 51 of the Bombay Public Trusts Act. It is held that one of the reliefs that can be claimed in a suit brought under section 50 of the Bombay Public Trust Act is that covered by relief (a) set out in clause (ii) which was for a declaration that a certain property belongs to a public trust and for possession thereof from a person holding it adversely to the trust which a suit brought by the Charity Commissioner or two or more persons interested in the trust with his consent in writing as provided in section 51 of the Act. In my view it is not the view of the Supreme Court in that judgment that consent of charity commissioner is not required for filing a suit even though the reliefs claimed in the suit by a person interested falls under and within the purview of sub section (1) and (2) of section 50 read with section 51 of the Act. Even in the matter before the Supreme Court, the suit wa....
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....t 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 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 were persons having interest in the trust and whether a consent should be given to them to maintain a suit. It is held that only when such consent is granted, a suit could be 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. It is held by the Supreme Court that the provisions of the Bombay Public Trusts Act and the scheme thereof leaves no manner of doubt that the Act is a complete code in itself and provides for a complete machinery for a person interested in the trust to put forward its claim before the charity commissioner who is competent to go into the question and to prefer appeal if he feels aggrieved by any decision. It is held that if the property did not validly vest....
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.... 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 Supreme Court in case of Church of North India (supra) the appellants submitted to the correctness of the cross objections in the facts of that suit out of which the first appeals arose in that case. After recording the submissions of the appellant, this court held that having regard to the concession which had been made on behalf of the appellants which was consistent with the law laid down by the Supreme Court in case of Church of North India (supra) the judgment of the learned trial judge has been rendered without jurisdiction. The plaintiff herein was one of the party to the said proceedings. This court also observed that there are live disputes between the parties, disputes over the appointment of the trustees, the mode of succession and validity of meetings which are the subject matter of change reports which are pending. This court considered that it was evident from a bare reading of the averments contained in the plaint that the change reports are pending. It is observed that the matters which are pending ....
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.... 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 passed by this court on 23rd October, 2008 on praecipe filed by the plaintiff clearly indicates that this court has passed 'No order'. With this background, I will now deal with the judgments relied upon by Mr. Anturkar, learned senior counsel appearing for the plaintiff. 82. In so far as judgment of this court in case of Mr. Mario Shaw (supra) relied upon by Mr. Auturkar is concerned, paragraph 6 of the said judgment clearly indicates that the applicant had filed an application for withdrawal of the dispute with a liberty to file a fresh proceedings. This court held that if an application is made for withdrawal of 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. In my view, since the plaintiff is not able to produce any record to indicate that the plaintiff had made an application for liberty to file a fresh suit while withdrawing the suit, the said jud....
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....h 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 plaintiff to institute a fresh suit in the same cause of action, that order ought to be read alongwith the petition and construed as granting permission to file a fresh suit. In my view, this judgment also is of no assistance to the plaintiff as no application for seeking liberty to file a fresh suit was made by the plaintiff. This court therefore passed 'No order ' on the praecipe filed by the plaintiff. 87. A perusal of the record also indicates that in the first suit filed by the plaintiff, plaintiff had prayed for interest. After withdrawal of that suit, plaintiff filed second suit (Suit No. 1224 of 2008) in this court and claimed interest in the suit. The plaintiff thereafter carried out substantial amendments without obtaining permission of the court and deleted prayer for interest in the amended plaint. This court has passed strictures against the plaintiff for this act on the part of the plaintiff and directed the office to keep the papers of that suit in custody. A copy of the original plaint and copy of the amended pl....
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..... 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 reading of the plaint as a whole indicates that though the plaintiff had alleged fraud against defendants nos. 15 and 16 no particulars of such alleged fraud or misappropriation which particulars are mandatory to be furnished under Order 6 Rule 4 of Code of Civil Procedure are furnished. In so far as other prayers against defendants nos. 15 and 16 are concerned, except bare allegations in the plaint that there was a collusion between all the defendants, there are no particulars or facts pleaded constituting the cause of action against defendants nos. 15 and 16. 89. Supreme Court in case of Church of Christ Charitable Trust and Educational Charitable Society (supra) has held that if the allegations are vexatious and meritless and not disclosing a clear right or material to sue, it is the duty of the trial judge to exercise his power under Order 7 Rule 11. The Supreme Court has adverted to the earlier judgment of that court delivered by the Bench presided by Shri Justice Krishna Iyer which had held that if clever drafting has created ....