Gujarat High Court
Its Subordinate Temple & vs Ajendrapasadji on 22 April, 2013
Author: Chief Justice
Bench: Chief Justice
TRUST OF SHRI LAXMI NARAYAN DEV TEMPLE & ITS SUBORDINATEV/SAJENDRAPASADJI NARENDRAPRASADJI PANDE C/FA/1521/2012 CAV JUDGEMNT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL NO. 1521 of 2012 With CIVIL APPLICATION NO.
8399 of 2012 In FIRST APPEAL NO. 1521 of 2012 With CROSS OBJECTION NO. 62 of 2013 In FIRST APPEAL NO. 1521 of 2012 FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR.
BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?2
To be referred to the Reporter or not ?` 3 Whether their Lordships wish to see the fair copy of the judgment ?4
Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?5
Whether it is to be circulated to the civil judge ?
========================================================= THE TRUST OF SHRI LAXMI NARAYAN DEV TEMPLE & ITS SUBORDINATE TEMPLE & OTHERS Versus AJENDRAPASADJI NARENDRAPRASADJI PANDE & ANR.
================================================================ Appearance:
MR S.N. SHELAT, SR. ADVOCATE with MR. MRUGEN K PUROHIT, ADVOCATE for the Appellants.
MR MIHIR THAKORE, SR. ADVOCATE with MR. DHAVAL D VYAS and MR PP MAJMUDAR, ADVOCATES for the respondents.
================================================================ CORAM:
HONOURABLE THE CHIEF JUSTICE MR.
BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 22/04/2013 CAV JUDGEMNT (PER : HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA)
1. This First Appeal is at the instance of the plaintiffs in a suit inter alia for recovery of possession of immovable property, injunction in respect of publications and religious gathering and for appointment of Court Commissioner for taking accounts etc., as mentioned in the plaint and is directed against an order dated 25th April 2012, passed by the learned 3rd Additional Senior Civil Judge, Kheda, at Nadiad, in Regular Civil Suit No. 48 of 2011 by which the learned trial Judge rejected the plaint in exercise of powers conferred under Order 7 Rule 11 (d) of the Code of Civil Procedure [the Code, hereafter] on the ground that the same was barred by the provisions of section 50 of the Bombay Public Trusts Act, 1950 [the Trusts Act, hereafter] for having filed without obtaining the permission in writing of the Charity Commissioner.
1.1 The Civil Application is filed by the appellants for substituted service. Since the defendant no. 2 whose application for rejection of the plaint has been allowed has already appeared through Mr Thakore, learned Senior Advocate with Mr. Majmudar, we dispense with the service of notice upon the other defendants and thus, the said Civil Application has become infructuous.
1.2 The Cross Objection has been filed by the respondent No.1 inter alia supporting the impugned order but attacking the adverse findings of the learned trial Judge on the question of limitation and also on the other issues decided against the said respondent.
2. The following facts are not in dispute.
2.1 In the suit filed by the plaintiffs, they prayed for the following reliefs:
[A] Be pleased to pass order and decree in favour of the plaintiffs and against the defendants by directing them to vacate the possession over the suit property as described in the Para No. 16 of this petition and hand over the possession of the same to us the plaintiffs.
[B] Be pleased to pass the stay order directing the defendant/s not to make publication of Nirnay Panchang from Raghuvir Vadi under the name of Vadtal Temple Pithsthan. Be pleased to pass permanent stay order against the defendants.
[C] Be pleased to pass the order staying the defendant no.3 from granting religious credential to the women on 14.4.2011 i.e. on Chaitra Sud 11 Samvat 2067 as per Hindu Calendar or any other day in Raghuvir Vadi or any other place.
[D] Be pleased to pass the order staying the defendants from celebrating religious and social functions in the suit property i.e. Raghuvir Vadi. Be also pleased to direct the defendants not to gather the people on religious and social occasions and events in the suit property.
[E] The defendants or the persons on behalf of the defendants have published Nirnay Panchang in the name of and on behalf of Vadtal Temple. This Hon ble Court is requested to appoint court commissioner and pass order to accumulate all the magazines/books published unauthorized way by the defendants and to destroy all the copies. Be pleased to pass order as such.
[F] By arranging religious and sacred functions/programs, the defendants have collected cash donations and gifts from the satsangis and Hari Bhaktas. Be pleased to appoint Court Commissioner and to get cleared the accounts of the income incurred by the defendants between the years from 2002 to this day. Be also pleased to pass order and decree against the defendants and direct them to hand over all such amounts as decided by the Court Commissioner, to the plaintiff Trust.
[G] Be pleased to pass such other and further relief which may deem fit and proper by this Hon ble Court on the basis of the facts of this petition.
[H] Be pleased to direct the defendants to pay the costs and expenses of this petition, to us the plaintiffs.
2.2 After entering appearance in the suit, the defendant No.2 filed an application under Order 7 Rule 11 of the Code thereby contending that the suit was barred by limitation inasmuch as the cause of action had accrued on 11th May 2002 whereas the suit was filed in the year 2011, and, therefore, in view of Article 113 of the Limitation Act, 1963, the suit was barred by limitation. It was further contended that the monetary claim made in the plaint was also barred by limitation on the basis of the averments made in the plaint.
2.3 It, however, appears from the order impugned in this appeal that at the time of hearing of the application under Order 7 Rule 11 of the Code, the defendant No.2, apart from the question of limitation, also raised various other questions than those alleged in the application for rejection of the plaint, including the one whether the suit, as it appears from the statements made in the plaint, is barred under section 50 of the Trusts Act for want of prior permission of the Charity Commissioner.
The learned trial Judge framed the following issues for the purpose of disposal of the application for rejection of the plaint:
1. Whether present suit deserves rejection on ground that it does not discloses cause of action.
2. Whether the suit appears from statement in the plaint to be barred by law of limitation.
3. Whether the suit is barred by non joinder of necessary party.
4. Whether the suit appears from statement in the plaint to be barred under sec. 50 of the Bombay Public Trust Act for want of prior permission of Charity Commissioner.
2.4 By the order impugned herein, the learned trial Judge answered the first three issues in the negative and in favour of the plaintiffs but the issue No. 4 was decided in the affirmative and consequently, the plaint was rejected.
3. Being dissatisfied, the plaintiffs have come up with the present appeal.
4. Mr. Shelat, the learned senior advocate appearing on behalf of the appellants, strenuously contended before us that the findings on issue No.4 framed by the learned trial Judge was, on the face of it, erroneous inasmuch as for the purpose of rejection of a plaint under Order 7 Rule 11 (d) of the Code, all the averments made in the plaint should be treated to be true, and there is no scope of taking into consideration any of the defences of the defendants as those can be taken note of only at the time of regular trial after filing of the written statements. Mr. Shelat contends that on the basis of the averments made in the plaint, it does not appear that the suit is barred by any law for the time being in force. Mr. Shelat further contends that having regard to the nature of the claim made in the plaint, the provisions contained in Sections 50 and 51 of the Trusts Act are not at all attracted.
5. Mr. Thakore, the learned Senior Advocate appearing on behalf of the respondent No.2, has, on the other hand, opposed the aforesaid contentions of Mr. Shelat and has contended that the learned trial Judge rightly held that in the absence of any averments made in the plaint that the plaintiffs had taken permission in terms of section 50 of the Trusts Act, the suit was not maintainable as the learned trial Judge gets jurisdiction to entertain the suit only on the grant of permission by the Charity Commissioner in terms of Section 50. Mr. Thakore also tried to attack the findings of the learned trial Judge on the question of limitation and also on the other issues decided against his client.
6. Therefore, the questions that fall for determination in this appeal is whether on the basis of the averments made in the plaint, the suit is barred by any law for the time being in force as provided in Order 7 Rule 11 (d) of the Code, and, whether the averments made in the plaint have disclosed any cause of action for filing of the suits.
7. In order to appreciate the aforesaid questions, it will be appropriate to refer to the provisions of Order 6 Rule 6, Order 7 Rule 1, Order 7 Rule 11 of the Code, which are quoted below:-
Order 6 Rule 6:
6.
Condition precedent.--
Any condition precedent, the performance or occurrence of which is intended to be contested, shall be distinctly specified in his pleading by the plaintiff or defendant, as the case may be; and, subject thereto, an averment of the performance or occurrence of all conditions precedent necessary for the case of the plaintiff or defendant shall be implied in his pleading.
Order 7 Rule 1:
1. Particulars to be contained in plaint.--
The plaint shall contain the following particulars:--
[a] the name of the Court in which the suit is brought;
[b] the name, description and place of residence of the plaintiff;
[c] the name, description and place of residence of the defendant, so far as they can be ascertained;
[d] where the plaintiff or the defendant is a minor or a person of unsound mind, a statement to that effect;
[e] the facts constituting the cause of action and when it arose;
[f] the facts showing that the Court has jurisdiction;
[g] the relief which the plaintiff claims;
[h] where the plaintiff has allowed a set-off or relinquished a portion of his claim, the amount so allowed or relinquished; and [i] a statement of the value of the subject-matter of the suit for the purposes of jurisdiction and of court-fees, so far as the case admits.
xxx xxx xxx Order 7 Rule 11: 11. Rejection of plaint.-- The
plaint shall be rejected in the following cases:-
[a] where it does not disclose a cause of action;
[b] where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
[c] where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
[d] where the suit appears from the statement in the plaint to be barred by any law;
[e] where it is not filed in duplicate;
[f] where the plaintiff fails to comply with the provisions of rule 9:
Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature for correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.
xxx xxx xxx 7.1 It will also be profitable to refer to the provisions of Sections 50 and 51 of the Trusts Act, which are quoted below:
50. 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,
(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.
51. (1) If the persons having an interest in any public trust intend to file a suit of the nature specified in section 50, they shall apply to the Charity Commissioner in writing for his consent. The Charity Commissioner, after hearing the parties and after making such inquiry as he thinks fit, may within a period of six months from the date on which the application is made, grant or refuse his consent to the institution of such suit. The order of the Charity Commissioner refusing his consent shall be in writing and shall state the reasons for the refusal.
(2) If the Charity Commissioner refuses his consent to the institution of the suit under sub-section (1) the persons applying for such consent may file an appeal to the Bombay Revenue Tribunal constituted under the Bombay Revenue Tribunal Act, 1939, 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 Bombay Revenue Tribunal in appeal under section 71, the decision of the Charity Commissioner under sub-section (1) shall be final and conclusive.
8. After hearing the learned counsel for the parties and after going through the materials on record and the aforesaid provisions, at the very outset, we make it plain that we are quite conscious of the position of law that while considering an application for rejection of plaint in terms of Order 7 Rule 11 of the Code, there is no scope of considering any of the defence that the defendant can take in his written statement and the Courts should restrict its scrutiny only to the averments made in the plaint for ascertaining whether on the basis of the averments made in the plaint, the suit is barred by any law for the time being in force. There may be cases where, from the mere perusal of the averments made in the plaint, the suit may not appear to be barred by any law but after the defence of the defendant is taken into consideration which is supported by evidence, the suit may ultimately be found to be barred by law. In those cases, although there is no scope of rejection of the plaint, yet, the suit may ultimately be dismissed.
9. We, therefore, first propose to consider whether the plaint should be rejected being barred by sections 50 and 51 of the Trusts Act for not taking the permission of the Charity Commissioner before filing of the suit.
10. Mr. Shelat tried to convince us that in the facts of the present case, Sections 50 and 51 of the Trusts Act have no application in addition to his submissions that even if it is assumed for the sake of arguments that the suit in question comes within the purview of Sections 50 and 51 of the Trusts Act, the suit cannot be said to be barred on the basis of the averments made in the plaint.
11. We, however, make it clear that since this appeal is preferred against an order of rejection of the plaint and not against the dismissal of the suit, we are proceeding first on the assumption that Sections 50 and 51 will apply to the nature of the present suit and the question that we propose to answer is even in such a situation, whether the plaint can be rejected on the simple ground that there is no statement in the plaint that the plaintiffs have taken permission of the Charity Commissioner.
12. On a plain reading of Section 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 Section 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 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.
13. In this connection, we may incidentally refer to the provisions of Section 80 of the Code, which reads thus:
80. Notice.--[1] Save as otherwise provided in sub-section [2], no suit shall be instituted against the Government including the Government of the State of Jammu and Kashmir or against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been delivered to, or left at the office of--
[a] in the case of a suit against the Central Government, except where it relates to a railway, a Secretary to that Government;
[b] in the case of a suit against the Central Government where it relates to railway, the General Manager of that railway;
[bb] in the case of a suit against the Government of the State of Jammu and Kashmir, the Chief Secretary to that Government or any other officer authorised by that Government in this behalf;
[c] in the case of suit against any other State Government, a Secretary to that Government or the Collector of the district;
and, in the case of a public officer, delivered to him or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left.
[2] A suit to obtain an urgent or immediate relief against the Government (including the Government of the State of Jammu and Kashmir) or any public officer in respect of any act purporting to be done by such public officer in his official capacity, may be instituted, with the leave of the Court, without serving any notice as required by sub-section [1]; but the Court shall not grant relief in the suit, whether interim or otherwise, except after giving to the Government or public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit:
Provided that the Court shall, if it is satisfied, after hearing the parties, that no urgent or immediate relief need be granted in the suit, return the plaint for presentation to it after complying with the requirements of sub-section [1].
[3] No suit instituted against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity shall be dismissed merely by reason of any error or defect in the notice referred to in sub-section [1], if in such notice--
[a] the name, description and the residence of the plaintiff had been so given as to enable the appropriate authority or the public officer to identify the person serving the notice and such notice has been delivered or left at the office of the appropriate authority specified in sub-section[1], and [b] the cause of action and the relief claimed by the plaintiff had been substantially indicated.
xxx xxx xxx
(Emphasis
supplied by us).
14. Thus, Section 80 of the
Code is a peculiar provision which specifically speaks of a notice mentioned therein as a condition precedent for filing of suit of the nature indicated there and further requires that compliance of the above condition precedent must be pleaded. In Section 50 of the Trusts Act, the requirement of pleading of such a condition precedent for filing a suit is, however, not the mandate of law, and in such circumstances, Order 6 Rule 6 of the Code will clearly be applicable and in the absence of any pleading as regards compliance of such condition precedent, it should be implied that such condition precedent has been complied with. However, it is for the defendant to plead in his written statement that such mandatory requirement has not been complied with by the plaintiff and if such a defence is taken, it will be for the plaintiff to produce evidence showing compliance of condition precedent.
14.1 Therefore, there is no requirement of a plaintiff to plead the performance of a condition precedent for obtaining leave from the Charity Commissioner in terms of Section 50 of the Trusts Act in the plaint even if we assume for the sake of argument that Section 50 of the Trusts Act applies to the suit in question.
15. It appears that the learned trial Judge totally overlooked the fact that he was not considering the issue of non-performance of a condition precedent at the time of hearing of the suit but was merely considering an application for rejection of the plaint in terms of Order 7 Rule 11 of the Code.
16. We are unable to approve the view taken by a learned Single Judge of this court in the case of Patel Nanji Devji vs. Patel Jivraj Manji reported in AIR 1988 Guj 182 where at the stage of hearing an application under Order 7 Rule 11 of the Code, the learned Trial Judge decided the factual position whether any permission in terms of Section 50 of the Trusts Act was taken or not and after having found that no such permission was taken, rejected the plaint. The learned Single Judge of this court in the above decision, however, approved such course taken by the Trial Court. We have already pointed out that at the stage of hearing an application under Order 7 Rule 11 of the Code, the court should restrict its scrutiny to the averments made in the plaint itself. (See Kamala and others vs. K. T. Eshwara reported in AIR 2008 SC 3174).
17. In this connection, we find that a learned Single Judge of the Bombay High Court in the case of Quazi Azimuddin Ali and others vs. Hercules Insurance Company Ltd. reported in AIR 1953 Bom 61 took the correct view as it appears from the following observations in paragraph 8 of the judgment:
But assuming that the existence of such legal liability was a condition precedent to any liability arising against the insurance company on the policy, the plaintiffs must be deemed to have pleaded that such a condition precedent was fulfilled. If the defendants wished to allege that the condition precedent had not been fulfilled, it was for them to plead that the plaintiffs had not become responsible to third parties against this policy. Order VI, Rule 6, Civil P.C., makes it quite plain that an averment of the performance of any condition precedent shall be implied in any pleading and it is for the party who wishes to contest the fact of performance to plead so distinctly and specifically.
18. We, therefore, find that the learned trial Judge erred in law in rejecting the plaint on the ground that the suit was barred under Section 50 of the Trusts Act by totally overlooking the fact that there is no admission of the plaintiffs in the plaint that they did not take such permission and at the same time, the absence of averment in the plaint that such permission was taken does not enable a court to reject the plaint as the plaintiffs have no duty to aver in the plaint the performance of condition precedent.
19. Mr.Thakore, in this connection, tried to impress upon us that we should uphold the ultimate conclusion of the learned trial Judge that the plaint should be rejected by answering the other issues framed in the order impugned in favour of his client.
19.1 Mr. Thakore strenuously contended that if the performance of a condition precedent is not pleaded in the plaint, in such a situation, it necessarily follows that the plaint does not disclose any cause of action. We are afraid, we are not at all impressed by the submission in view of the specific provisions of Order 6 Rule 6 of the Code which say that performance of condition precedent is implied in the pleading, and, therefore, it cannot be lawfully contended that non-averment of the fact that condition precedent for filing of the suit has been complied with, amounts to nondisclosure of the cause of action. In other words, the performance of condition precedent of institution of a suit by the plaintiff is not a necessary fact constituting cause of action and does not come within the expression facts constituting cause of action and when it arose as indicated in Order 7 Rule 1(e) of the Code. If we accept the contention of Mr. Thakore that the performance of condition precedent is a part of cause of action of a suit and is required to be pleaded, in that event we are to act contrary to the provisions of Order 6 Rule 6 of the Code which directs the defendant to take such plea in its pleadings. In the case before us, we therefore hold that the cause of action for filing of the suit is not the obtaining of permission of the Charity Commissioner but the relevant facts enabling the plaintiffs to get the relief claimed in the suit are sufficiently pleaded.
20. In the case of Ahmed Hossein vs. Mt. Chembelli and others reported in AIR 1951 Cal 262, a decision relied upon by Mr. Thakore, the suit was on a dishonoured cheque. The plaint did not state that any notice of dishonour had been given or that any circumstances existed which rendered it unnecessary to give such notice. The plaintiff subsequently sought to introduce these statements in the plaint by an amendment. The application was opposed by the defendants on the ground that by reason of the absence of these allegations, the plaint as it stood then, disclosed no cause of action and hence it must be rejected under O. 7, R. 11 (a) of the Code and the Court had no power to allow the amendment. The plaintiff's answer was two fold : First the plaint disclosed a cause of action in spite of the omission to state anything with regard to the notice of dishonour and secondly, that O. 7, R. 11, does not take away the Court's power to order amendment of the plaint. With regard to the first point, the plaintiff's contention was that the facts relating to the notice of dishonour were not part of the cause of action on a dishonoured cheque but were mere conditions precedent necessary for the case on the cheque, the performance or occurrence of which is to be implied in the plaint under O. 6, R. 6 of the Code. Sarkar J (as His Lordship then was) did not accept this contention. His Lordship made the following observations in this connection:
A cause of action is that bundle of facts which would, if left to itself, create in law a right or obligation, while a condition precedent is something which prevents the right or obligation which would have otherwise sprung out from those facts from springing out. A condition precedent has thus been described in the notes to O. 19, R. 14 in the White Book:
"Cases constantly occur in which, although everything has happened which would at common law prima facie entitle a man to a certain sum of money, or vest in him a certain right of action there is yet something more which must be done or something more which must happen in the particular case before he is entitled to sue either by reason of the provisions of some statute, or because the parties have expressly so agreed; this something more is called a condition precedent. It is not of the essence of such a cause of action, but it has been made essential. It is an additional formality superimposed on the common law."
I would in the above quotation add to the words "common law" the words "or statute." Now the liability of the drawer of a cheque arises under S. 30, Negotiable Instruments Act, and except as laid down in that section the drawer of a dishonoured cheque has no liability. This is because the whole law as to cheques is contained in that Act and the only section dealing with the liability of the drawer of a cheque is S. 30. The section provides that the drawer of a cheque shall be liable to compensate the holder in case of dishonour "provided due notice of dishonour has been given to, or received by, the drawer as hereinafter provided." Sections 91 to 98 of the Act lay down the provisions relating to the manner of the giving of the notice of dishonour and the cases where the giving of the notice is excused. The only way therefore in which liability on a cheque may arise is when (1) the cheque is dishonoured and (2) notice of such dishonour has been given or circumstances exist which render it unnecessary to give such notice. It is not a case where if no provisions as to notice of dishonour had been laid down, a right would have arisen in the holder on the dishonour of the cheque and where the only effect of those provisions is to prevent such right from springing up. The notice of dishonour as the law as to cheques stands is a part of the cause of action on a dishonoured cheque. In Fruhauf v. Grosvenor and Co., (1892) 67 I. T. 350: (61 L. J. Q. B.
717), Lord Coleridge C. J., expressed himself in these words:
"The obligation upon the drawer of a cheque to pay does not arise until notice of dishonour thereof has been given to him, and therefore the statement of the case against the defendant here is not full and complete without either an allegation of notice of dishonour of the cheque having been given to the defendant the drawer of it, or of facts excusing the plaintiff from giving such notice."
It was decided in this case that in the absence of the allegations as to the notice of dishonour, the plaint on a dishonoured cheque would not disclose a cause of action.
21. We respectfully agree with the above view. In the case before us, if we apply the above principles, the permission of the Charity Commissioner is not of the essence of a cause of action, but it has been made essential. It is an additional formality superimposed which prevents the right or obligation which would have otherwise sprung out from those facts from springing out. Thus, by taking aid of the above decision it cannot be legitimately contended that grant of permission is the cause of action like dishonour of a cheque in an action for dishonour of cheque; on the other hand, it is a condition precedent for enforcement of the right which is the subject-matter of the suit and thus, Order 6 Rule 6 clearly applies.
22. The next question is whether on the basis of the averments made in the plaint, the suit can be said to be barred by law of limitation.
23. We are also not impressed by the submission of Mr. Thakore that on the basis of the averments made in the plaint, the suit is barred for obtaining any relief claimed. So far as the relief of possession is concerned, it is well known that the suit having been filed based on title, the period of limitation cannot be 3 years as provided in Article 113 of the Limitation Act but the appropriate Article is the Article 65 of the Limitation Act, and the learned trial Judge rightly answered the said issue against the defendant No.2. Similarly, unless the defence of the defendant is taken into consideration, on a mere reading of the plaint it cannot be said that the suit is bad for non-joinder of necessary parties so long it is not specifically pleaded who those necessary parties are.
24. On consideration of the entire materials on record, we, therefore, find that on the basis of the averments made in the plaint, the suit is not barred by any law for the time being in force. We, however, make it clear that we have not gone into the questions whether Section 50 of the Trusts Act really applies to the facts of the present case, but even assuming that the said section applies, insofar as the question involved in this appeal is concerned, the suit is not barred under Order 7 Rule 11 (d) of the Code.
25. We, accordingly, find merit in this appeal, and the same is allowed. The order rejecting the plaint is set aside. The Cross-objection filed by the defendant no. 2 against adverse findings recorded in the order impugned is also dismissed. The suit should proceed in accordance with law. The learned trial Judge is directed to dispose of the pending interlocutory applications as expeditiously as possible.
25.1 In the facts and circumstances, there will be, however, no order as to costs.
(BHASKAR BHATTACHARYA, CJ.) (J.B.PARDIWALA, J.) mathew FURTHER ORDER:
After this judgment was pronounced, Mr. Thakore, the learned Senior Advocate appearing on behalf of the respondents prays for stay of operation of our judgment.
In view of what has been stated above, we find no reason to stay our judgment. The prayer is refused. However, certified copy be given by 24th April 2013, if applied for.
(BHASKAR BHATTACHARYA, CJ.) (J.B.PARDIWALA, J.) mathew Page 27 of 27