Gujarat High Court
Vibrant Highrise Llp vs Umeshkumar Kantilal Sheth & ... on 28 March, 2016
Author: R.D.Kothari
Bench: R.D.Kothari
C/CRA/93/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL REVISION APPLICATION NO. 93 of 2016
=========================================================
VIBRANT HIGHRISE LLP....Applicant(s)
Versus
UMESHKUMAR KANTILAL SHETH & 4....Opponent(s)
=========================================================
Appearance:
MS MEGHA JANI, ADVOCATE for the Applicant(s) No. 1
=========================================================
CORAM: HONOURABLE MR.JUSTICE R.D.KOTHARI
Date : 28/03/2016
ORAL ORDER
Heard learned advocate Ms. Jani for the applicant.
The applicant claims to be aggrieved by the rejection of Order 7 Rule 11 of Code of Civil Procedure application by the learned trial Court. The plaintiffs have instituted a suit being Special Civil Suit No. 80 of 2015 praying for various declarations including declaration that granting of permission to sell the suit property by the Charity Commissioner, Mumbai is bad and illegal. The plaintiffs have also prayed that execution of the sale deed and disposal of the property pursuant to the permission granted by the Charity Commissioner be also declared illegal.
The defendant had moved an application under Order 7 Rule 11 of Code of Civil Procedure mainly on the ground that permission granted by the Charity Commissioner under Section 36 of the Page 1 of 3 HC-NIC Page 1 of 3 Created On Tue Mar 29 01:59:07 IST 2016 C/CRA/93/2016 ORDER Bombay Public Trusts Act cannot be set aside by instituting a suit.
At the time of hearing, learned advocate Ms. Jani has drawn attention to the relevant part of the plaint and relevant part of the order of the learned trial Court. It appears that the learned trial Court took the view that the main prayer of the plaintiffs is to set aside the sale deed and considering the nature of prayer, the plaintiffs have raised civil nature of dispute and, therefore, the plaint cannot be rejected.
On perusal of the relevant part of the plaint, it appears that the plaintiffs have alleged misrepresentation, collusion etc., in obtaining sanction of the Charity Commissioner.
Prima facie, this can be considered as a dispute raised by the plaintiffs which is of civil nature. Learned advocate Ms. Jani has drawn attention to Section 36 of the Bombay Public Trusts Act which is applicable to Maharashtra State. It is pertinent to note that Section 36 (2) of the Bombay Public Trusts Act takes care of the revocation of sanction once granted, even in case when sanction is obtained by committing 'fraud' or by misrepresentation made to him or by concealing from the Charity Commissioner the facts material for the purpose of granting sanction. It was also submitted that in substance the prayer to challenge the sale deed in the nature of consequential nature and it depends upon the prayer of setting aside grant of sanction by the Charity Commissioner.
The matter requires consideration.
Notice and Notice as to interim relief returnable on 25.04.2016.
Page 2 of 3HC-NIC Page 2 of 3 Created On Tue Mar 29 01:59:07 IST 2016 C/CRA/93/2016 ORDER In the meanwhile, adinterim relief in terms of para 14(C ) is granted till the next date of hearing.
(R.D.KOTHARI, J.) /phalguni/ Page 3 of 3 HC-NIC Page 3 of 3 Created On Tue Mar 29 01:59:07 IST 2016