Gujarat High Court
Pravinchandra Manilal Dave vs Contractor Dineshbhai Ramniklal on 22 December, 2021
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
C/CRA/549/2021 JUDGMENT DATED: 22/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 549 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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PRAVINCHANDRA MANILAL DAVE
Versus
CONTRACTOR DINESHBHAI RAMNIKLAL
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Appearance:
MR MRUGEN K PUROHIT(1224) for the Applicant(s) No. 1
MR KISHAN Y DAVE(8293) for the Opponent(s) No. 1,10,11,2,3,9
MR RASESH H PARIKH(3862) for the Opponent(s) No. 1,10,11,2,3,9
MR.HEMANG H PARIKH(2628) for the Opponent(s) No. 1,10,11,2,3,9
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CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
Date : 22/12/2021
ORAL JUDGMENT
1. This Revision Application has been filed under Section 115 of the Code of Civil Procedure, 1908 ("the Code" for short), in which, the applicant - original defendant has challenged the order dated 27.09.2020 passed by the learned 6th Additional Senior Civil Judge, Nadiad, below application Exh.52 filed in Regular Civil Suit No.153 of 2007.
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2. Heard learned advocate Mr.Mrugen Purohit for the applicant and learned advocate Mr.Hemang Parikh for the respondents caveators.
3. Learned advocate Mr.Purohit appearing for the applicant submitted that the present respondents - plaintiffs have filed Regular Civil Suit No.153 of 2007 for declaration and for possession of the suit property and prayed that the defendant is enjoying the suit property by virtue of leave and licence right and has also prayed to direct the defendant to handover the possession of the suit property to the plaintiff Trust. It is also prayed that the declaration be given that the defendant had no right to do seva puja as Pujari in the temple as his right to do puja has been cancelled by passing resolution. Learned advocate for the applicant has referred the plaint, a copy of which is placed on record at Page- 21 of the compilation. It is submitted that the applicant - defendant appeared in the suit and filed written statement vide Exh.15 and raised various contentions. Thereafter, the applicant - defendant filed application Exh.52 under Order VII Rule 11 of the Code and prayed that the plaint filed by the plaintiffs be rejected. It is submitted that by way of the impugned order dated 27.09.2020, the concerned trial Court has rejected the said application and, therefore, the present applicant has filed this Revision Application.
4. Learned advocate Mr.Purohit has mainly contended Page 2 of 13 Downloaded on : Wed Jan 12 13:46:37 IST 2022 C/CRA/549/2021 JUDGMENT DATED: 22/12/2021 that the suit property belongs to "Shri Vishwakarma Temple and Public Charitable Trust". It is submitted that the said Trust is registered as Public Trust. It is submitted that as the suit property belongs to the public Trust, the plaintiffs have to obtain prior permission of the Charity Commissioner under Section 50 of the Bombay Public Trusts Act, 1950 ("the Act"
for short) before filing of the suit. It is also contended that the plaintiffs have not joined the Charity Commissioner as party defendant in the suit. It is, therefore, urged that filing of the suit is barred by law and, therefore, the concerned Civil Court ought to have rejected the plaint filed by the original plaintiffs. Learned advocate for the applicant has placed reliance upon the decision rendered by the Honourable Supreme Court in the case Sainath Mandir Trust Vs. Vijaya and ors., reported in AIR 2011 SC 389. Learned advocate has more particularly placed reliance upon the observations made by the Honourable Supreme Court in Paragraphs-18 and 19 of the said decision. Learned advocate, therefore, urged that this application be allowed and, thereby, the plaint filed by the plaintiffs be rejected.
5. On the other hand, learned advocate Mr.Parikh appearing for the respondents - caveators has opposed this application. Learned advocate has referred the impugned order passed by the concerned Civil Court and, thereafter, contended that prior permission of the Charity Commissioner under Section 50 of the Act Page 3 of 13 Downloaded on : Wed Jan 12 13:46:37 IST 2022 C/CRA/549/2021 JUDGMENT DATED: 22/12/2021 is not required at the time of filing of the suit in the facts of the present case. Learned advocate Mr.Parikh has placed reliance upon the following decisions:
(1) Malek Chittu Rasul vs. Pathan Mahmadkhan Kalukhan reported in 1966 GLR 1011 (2) Nadiad Nagarpalika, Nadiad vs. Vithalbhai Zaverbhai Patel reported in 1980 GLR 792 (3) Trustees of Hareshwar Mahadev Trust vs. Trustees of Shri Jasvantsinhji Audichya Brahman Boarding Vidarthibhavan & Ors. reported in 1998(1) GLH 127 (4) The Trust of Shri Laxmi Narayan Dev Temple & Its Subordinate Temple & Others vs. Ajendraprasadji Narendraprasadji Pande & Anr.
reported in 2013 (2) GLH 559 Learned advocate has, therefore, urged that this application be dismissed.
6. Having heard learned advocates appearing for the parties and having gone through the material placed on record, it would emerge that the present respondents - plaintiffs have filed Regular Civil Suit before the concerned Civil Court for declaration and for getting possession from the defendant. During the pendency of the proceedings before the trial Page 4 of 13 Downloaded on : Wed Jan 12 13:46:37 IST 2022 C/CRA/549/2021 JUDGMENT DATED: 22/12/2021 Court, the present applicant - defendant filed an application under Order VII Rule 11 of the Code mainly on the ground that prior permission of the Charity Commissioner is not obtained by the plaintiffs before filing of the suit and the Charity Commissioner is not joined as party defendant in the suit.
7. At this state, this Court would like to refer the provisions contained in Section 50 of the Act, which reads as under:
"SECTION 50 : Suits relating to public trusts In any case-
(i) where it is alleged that there is a breach of a public trust,
(ii) where a direction is required to recover possession of a property belonging to a public trust or the proceeds thereof or for an account of such property or proceeds from any person including a person holding adversely to the public trust, or
(iii) where the direction of the court is deemed necessary for the administration of any public trust, the Charity Commissioner after making such enquiry as he thinks necessary or two or more persons having an interest in the trust and having obtained the consent in writing of the Charity Commissioner as provided in section 51 may institute a suit whether contentions or not in the Court within the local limits of whose jurisdiction the whole or part of the subject-
matter of the trust is situate, to obtain a decree for any of the following reliefs :-
(a) an order for the recovery of the possession of such property or proceeds thereof.Page 5 of 13 Downloaded on : Wed Jan 12 13:46:37 IST 2022
C/CRA/549/2021 JUDGMENT DATED: 22/12/2021
(b) the removal of any trustee or manager,
(c) the appointment of a new trustee or manager, (cc) vesting any property in a trustee,
(d) a direction for taking accounts and making certain inquiries,
(e) 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,
(f) a direction authorising the whole or any part of the trust property to be let, sold, mortgaged or exchanged,
(g) the settlement of a scheme or variations or alterations in a scheme already settled, or
(h) granting such further or other relief as the nature of the case may require : Provided that no suit claiming any of the reliefs specified in this section shall be instituted in respect of any public trust except in conformity with the provisions thereof: Provided further that the Charity Commissioner may, instead of instituting a suit, make an application to the Court for a variation or alteration in a scheme already settled.
8. In the case of Malek Chittu Rasul vs. Pathan Mahmadkhan Kalukhan (supra), this Court has observed in Para-2 as under:
"......In my opinion sec. 50 would not apply to a suit by a trustee in respect of the recovery of the possession of the property of a public trust. Such a suit would not be in respect of the trust. It is only on this basis that we can reconcile the first part of sec. 50 with the proviso to sec. 50 of the Act. I therefore, hold that the present suit relates to the property of a public trust and not to a public trust, and Page 6 of 13 Downloaded on : Wed Jan 12 13:46:37 IST 2022 C/CRA/549/2021 JUDGMENT DATED: 22/12/2021 therefore, the proviso does not apply. Sec. 50 of the Act does not apply because this is not a case where a direction is necessary. I therefore, hold that sec. 50 does not apply to the present case and the consent of the Charity Commissioner is not necessary"
9. In the case of Nadiad Nagarpalika, Nadiad vs. Vithalbhai Zaverbhai Patel (supra), this Court has observed in Paragraph-5 as under:
".........Sec. 50 therefore, could not have been intended to impose an embargo on the general powers of the trustees to file suits for the recovery of the possession of the trust property either from tenants or licensees or from trespassers."
10. In the case of Trustees of Hareshwar Mahadev Trust vs. Trustees of Shri Jasvantsinhji Audichya Brahman Boarding Vidarthibhavan & Ors. (supra), this Court has observed in Paragraph-15 as under:
"15. Sec. 50 clearly envisaged that where a property of trust is in possession of any person holding it adversely to the trust, Charity Commissioner himself or any two or more persons having an interest in the trust may institute a suit whether contentions or not in the Court within the local limits of whose jurisdiction the whole or part of the subject-matter of the trust is situate, to obtain a decree for recovery of the possession suit property or proceeds thereof. Therefore a civil court for recovery of trust property from strangers or any other person claiming adversely to the trust is envisaged. Obviously, when civil suit is envisaged, for securing relief against a person in possession of trust property claiming adversely to it. In the context suit for recovery of possession against person claiming Page 7 of 13 Downloaded on : Wed Jan 12 13:46:37 IST 2022 C/CRA/549/2021 JUDGMENT DATED: 22/12/2021 adversely to trust must refer to such relief as the nature of claim admits of. It may also include recovery of possession through removing unlawful encroachment from the property of trust through a decree for mandatory direction for removing encroachment with permanent prohibitory injunction restraining defendants adverse claimants to not to interfere with the possession of the trust. It also envisages that defendants in that suit may raise a question about the title of the suit property. However, while envisaging a suit for recovery of trust property from persons claiming adversely to the trust no such embargo has been put on the jurisdiction of civil court to enquire into any question which becomes necessary for deciding such suit on defendants plea. What shall be the evidence which shall be necessary for deciding such issue is a different question. May be, that where a finding has already been reached under any proceedings under the Act about the belonging of a particular property to a particular trust, that may be produced before the court which may prove to be a final and conclusive proof of the fact that such properly vest in the trust. Raising of such issue before the court and production of evidence which is final and conclusive proof of the fact in dispute does not result into transgressing of jurisdiction barred under Sec. 80 read with Sec. 79 of the Act. It may also be pertinent to notice that while Section 50 authorises Charity Commissioner or two or more persons having interest in the trust by obtaining consent in writing of the Charity Commissioner may institute suit, it does not restrict the right of trustees in whom the legal ownership of property of trust vest to file a suit for recovery of trust property or protect the property in exercise of their own right without obtaining the permission of the Charity Commissioner as for exercising of ownership vest, no permission is required. The bar under Sec. 80 which is subject to other provisions of the Act therefore does not apply to a suit of the nature envisaged under Sec. 50, namely, a Page 8 of 13 Downloaded on : Wed Jan 12 13:46:37 IST 2022 C/CRA/549/2021 JUDGMENT DATED: 22/12/2021 suit by Charity Commissioner having interest in the trust property or by the trustees for recovery of a trust property from persons claiming the same adversely to the trust have encroached upon it."
11. The Division Bench of this Court in the case of The Trust of Shri Laxmi Narayan Dev Temple & Its Subordinate Temple & Others vs. Ajendraprasadji Narendraprasadji Pande & Anr. (supra) , has held in Paragraph-12 as under:
"12. On a plain reading of Sec. 50 it appears that if the said Section really applies to a particular suit, all that is mandatory is that the plaintiff of such a suit must obtain the permission of the Charity Commissioner in terms of Sec. 50 of the Trusts Act as a condition precedent for institution of such a suit, and as pointed out in Order 6 Rule 6 of the Code quoted by us above it is for the party who challenges that any condition precedent has not been complied with to plead such fact either in the plaint or in the written statement, as the case may be. It is needless to mention that the law may impose condition precedent not only for filing of a suit but also for raising defence in the suit. Since, according to the defendant No.2, the grant of permission by the Charity Commissioner is a condition precedent for institution of the suit in question and in the absence of such permission the suit is not maintainable, he is required to plead such facts in his written statement and if such defence is taken, the Court will frame appropriate issue as to maintainability of the suit for the alleged want of permission and will decide such issue; but as provided in the last part of Order 6 Rule 6 of the Code, if nothing is stated in the plaint by the plaintiff, the condition precedent for institution of the suit should be implied in the pleadings. In other words, a plaintiff is Page 9 of 13 Downloaded on : Wed Jan 12 13:46:37 IST 2022 C/CRA/549/2021 JUDGMENT DATED: 22/12/2021 not required to specifically plead that he has complied with the condition precedent for filing of such suit since law specifically demands that such facts should be implied in the pleading and it is for the other side to raise such plea in his pleading."
12. In the case of Sainath Mandir Trust Vs. Vijaya and ors., (supra), the Honourable Supreme Court has observed in Paragraphs-18 and 19 as under:
"18. Hence, even if it were to be held that the deed of gift in favour of the appellant-trust did not confer any title to the appellant-trust as the same was not registered and were also to be held that the same cannot be treated to be a dedication to any idol, as this point was neither pressed hard nor was argued threadbare and the Courts below have also not gone into this question, we do not wish to enter into this question further. However, the fact remains that in view of the possession of the property in question of the appellant-trust, it was obligatory on the part of the purchasers of the plot in question/respondent Nos.1 to 7 to seek permission from the Charity Commissioner under Section 51 of the Bombay Trusts Act, 1950 to recover the property by filing a suit or initiating a proceeding. In fact, in the matter of K. Shamrao and others V/s. Assistant Charity Commissioner reported in (2003) 3 SCC 563, a two Judge Bench of this Court had been pleased to hold that the Assistant Charity Commissioner under the scheme of the Act of 1950 i.e. Bombay Public Trusts Act, 1950 possesses all the attributes of a Court and has almost all the powers which an ordinary civil court has including the power of summoning witnesses, compelling production of documents, examining witnesses on oath and coming to a definite conclusion on the evidence induced and arguments submitted. Section 79 (1) of the same Act also lays down that any question, whether or not a trust exists and such trust is a public trust or Page 10 of 13 Downloaded on : Wed Jan 12 13:46:37 IST 2022 C/CRA/549/2021 JUDGMENT DATED: 22/12/2021 particular property is the property of such trust, is required to be decided under its statutory force by the Deputy or Assistant Charity Commissioner as provided under the Act and Section 80 bars jurisdiction of the civil court 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.
19. Thus, when the appellant-trust was in occupation and possession of the property in question then the respondent- plaintiff clearly could not have approached the civil court ignoring the specific provision under the Bombay Public Trusts Act, 1950 which has laid down provisions to deal with disputes relating to the property of the trusts. It also cannot be overlooked that in the instant case, it is the original owner of the property i.e. respondent No.8 who had executed a deed of gift in favour of the appellant-trust and subsequently after ten years, executed a sale deed in favour of the predecessor of respondent Nos.1 to 7, who approached the Court for recovery of his property in which case it could perhaps have been available for the owner of the property to approach the civil court. But in the case at hand, it is the purchaser of the property predecessor of Respondent Nos. 1- 7 who filed the suit for possession which clearly can be construed as the suit for recovery of possession from the appellant trust which was in possession of the property. In that view of the matter, it was the statutory requirement of the Bombay Public Trusts Act, 1950 to approach the Charity Commissioner before a suit could be instituted.
13. Thus, from the aforesaid decisions rendered by the Honourable Supreme Court in the case of Sainath Mandir Trust Vs. Vijaya and ors., (supra), it is revealed that for filing suit of recovery of possession against the Trust, prior permission of the Charity Commissioner is required and it would be Page 11 of 13 Downloaded on : Wed Jan 12 13:46:37 IST 2022 C/CRA/549/2021 JUDGMENT DATED: 22/12/2021 obligatory on the part of the purchaser to seek permission of the Charity Commissioner before instituting suit. Thus, the facts before the Hon'ble Supreme Court were different and, therefore, the aforesaid decision rendered by the Honourable Supreme Court would not be helpful to the present applicant.
14. From the observations made by the Division Bench of this Court in the case The Trust of Shri Laxmi Narayan Dev Temple & Its Subordinate Temple & Others vs. Ajendraprasadji Narendraprasadji Pande & Anr. (supra), it is clear that the plaintiff is not required to specifically plead that he has complied with the condition precedent for filing of the suit since law specifically demands that such facts should be implied in the pleadings and it is for the other side to raise such plea in his pleadings.
15. From the aforesaid other three decisions rendered by this Court, it is clear that Section 50 of the Act clearly envisages that where a property of trust is in possession of any person holding it adversely to the trust, Charity Commissioner himself or any two or more persons having an interest in the trust may institute a suit. However, Section 50 of the Act would not apply to a suit filed by the Trustee in respect of the recovery of the possession of the property of a public trust. Such a suit would not be in respect of the trust. Thus, when the suit is filed which relates to the property of a public trust and not to a public trust, Section 50 would not Page 12 of 13 Downloaded on : Wed Jan 12 13:46:37 IST 2022 C/CRA/549/2021 JUDGMENT DATED: 22/12/2021 be applicable and the consent of Charity Commissioner is not necessary.
16. Thus, this Court is of the view that when the present suit has been filed by the Trust and the trustees for declaration and for getting possession of the suit property from the stranger, prior permission of the Charity Commissioner under Section 50 of the Act is not required.
17. This Court has also perused the reasoning recorded by the concerned trial Court while rejecting the application filed by the present applicant under Order VII Rule 11 of the Code and this Court is of the view that no error is committed by the trial Court while rejecting the said application, which requires any interference in the present Revision Application.
18. Hence, this Revision Application is dismissed.
(VIPUL M. PANCHOLI, J) piyush Page 13 of 13 Downloaded on : Wed Jan 12 13:46:37 IST 2022