Bombay High Court
Bombay Diocesan Trust Association Pvt. ... vs Indian Church Trustees And 5 Ors on 11 February, 2020
Bench: K.K. Tated, Sarang V. Kotwal
Laxmi 1
22. APP 412-19.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO. 412 OF 2019
IN
CHAMBER SUMMONS NO. 605 OF 2018
IN
SUIT NO. 86 OF 2017
The Bombay Diocesan Trust
Association Pvt. Ltd. ...Appellant
Vs.
Indian Church Trustees & Ors. ...Respondents.
....
Mehul Shah for the Appellant.
Amrut Joshi i/b Nikhil Mishra for Respondent Nos. 1 to 3.
....
CORAM : K.K. TATED &
SARANG V. KOTWAL, JJ.
DATE : FEBRUARY 11, 2020 P.C. Heard.
2. By this Appeal, the Appellant third party is challenging order dated 11th March, 2019 passed by the Learned Single Judge dismissing the Appellant's Chamber Summons No. 605 of 2018.
3. In the present proceeding, Respondents/Original Plaintiffs filed Suit No. 86 of 2017 directing the Defendants for possession of the suit property i.e. CS No. 3/4, 3-A/4 and 3-B/4 of 1/7 ::: Uploaded on - 18/02/2020 ::: Downloaded on - 08/06/2020 17:50:03 ::: Laxmi 2
22. APP 412-19.odt Colaba Division Mumbai with a Church and Bungalow named as Saint John's House, Duxbury Lane, Colaba, Mumbai 400 002 with following prayers.
a) That this Hon'ble Court be pleased to declare that the Defendants are a trespassers in illegal occupation of the Church property (which is more particularly described in the schedule annexed to the plaint) and is not entitled to deal with or alienate and/or part with the possession of the same to a third party and/or create any third party rights in respect of the Church property;
b) That this Hon'ble Court be pleased to pass an order and decree of possession directing the Defendants to handover vacant and peaceful possession of the Church property (which is more particularly described in the schedule annexed to the plaint) to the Plaintiffs thereby evicting the Defendants therefrom;
c) That this Hon'ble Court be pleased to consequently issue a permanent injunction restraining the Defendants from disturbing the possession of the Plaintiffs in respect of the Church property;
d) That pending the hearing and final disposal of this suit, this Hon'ble Court be pleased to restrain by its order and injunction, the Defendants and/or any other person(s) claiming by and or under him including his agents, servants and successors from dealing with or alienating and/or from parting with the possession to any third party and/or from creating any third party rights in any manner in respect of the Church property;
e. That pending the hearing and final disposal of this suit, this Hon'ble Court be pleased to appoint a Court Receiver with all such powers as are available under Order XL of the Code of Civil Procedure with respect to Saint John's House, Duxbury Lane, Colaba, Mumbai 400 002 on the property bearing CS No. 2/7 ::: Uploaded on - 18/02/2020 ::: Downloaded on - 08/06/2020 17:50:03 ::: Laxmi 3
22. APP 412-19.odt 3/4, 3-A/4 and 3-B/4 of Colaba Division Mumbai. f. For ad-interim reliefs in terms of prayers (d) & (e) above;
g. For costs and;
h. For such further and other reliefs as the circumstances of the case may require as this Hon'ble Court may deem fit and proper."
4. In that suit, the Appellant filed Chamber Summons No. 605 of 2018 for joining them as party either co-plaintiff or Defendant, on the ground that, they are the owner of the suit property. The Learned Single Judge dismissed the said Chamber Summons on the ground that the Appellants are not necessary party as per Order 1, Rule 10 of the CPC.
5. The Learned Counsel for the Appellant submits that, the Appellant is the owner of the suit property hence, they are necessary party in the Suit No. 86 of 2017 filed by the Respondents/ Original Plaintiffs. He submits that if the possession is handed over to the Respondents/Original Plaintiffs of the Suit property, then irreparable loss will be caused to the Appellant as an owner. He submits that even the property is standing in the name of the Appellant. He further submits that earlier, the Respondents/Original Plaintiffs filed Suit No. 1808 of 1989 in respect of the same 3/7 ::: Uploaded on - 18/02/2020 ::: Downloaded on - 08/06/2020 17:50:03 ::: Laxmi 4
22. APP 412-19.odt property for declaration. He relies on the prayers in the said suit which reads thus:
"(a) for a declaration that
(i) the BDTA is merely a custodian trustee of the properties vested in it whether at the time of incorporation or under the aforesaid Schemes;
(ii) It is incumbent upon the BDTA to exercise its rights and powers in respect of the aforesaid properties as per the directions of the Bishop of Bombay of the Church of North India and/or the Diocesan Council of the said Church;
(iii) that the Bishop of Bombay of the Church of North India is entitled to attend and preside over all meetings of the BDTA and that it is incumbent upon the Defendants 1 to 12 to give notice of all such meetings to the Bishop and to permit him to attend all meetings of the Board of Directors of the BDTA;
(iv) that the members of the Board of Finance of the Standing Committee (known as the Finance Committee under the Constitution of 1974 of the BDC) of the Bombay Diocesan Council are the members of the Board of Directors of the BDTA and are as such members entitled to attend the meetings of the Board of Directors of the BDTA and that it is incumbent upon the Defendants to give notice of all such meetings to the said members;
(v) that the members of the Standing Committee of the BDC (known as the Executive of the BDC under the Constitution of 1974) are the members of the BDTA as also such other persons as the BDC shall from time to time elect as members and who shall signify in writing their consent to become members of the BDTA;
(vi) office bearers of the said Association including Defendants 1 to 12 are required to act in 4/7 ::: Uploaded on - 18/02/2020 ::: Downloaded on - 08/06/2020 17:50:03 ::: Laxmi 5
22. APP 412-19.odt accordance with the Memorandum and Articles of Association of the BDTA and consequently in all matters pertaining to the aforesaid properties, it is incumbent upon the said office-bearers to act in accordance with the directions given to them by the said Bishop or the said Council;
(b) for a permanent injunction of the Hon'ble Court restraining Defendants Nos. 1 to 13, their servants and agents from
(i) dealing with or disposing of any of the properties listed in Exhibits "C" or "D" hereto except in consultation with and with the consent of the Bombay Diocesan Council of the Church of North India;
(ii) holding any meetings of the Board of Directors of the B.D.T.A. without giving notice to the Bishop of Bombay of the Church of North India and members of the Finance Committee of the Bombay Diocesan Council of the Church of North India;
(c) Pending the hearing and final disposal of the suit the Defendants Nos. 1 to 13, their servants and agents be restrained by an Order and Injunction of this Hon'ble Court from
(i) dealing with or disposing of any of the properties listed in Exhibits "C" or "D" hereto except in consultation with and with the consent of the Bombay Diocesan Council of the Church of North India;
(ii) holding any meetings of the Board of Directors of the B.D.T.A. without giving notice to the Bishop of Bombay of the Church of North India and members of the Finance Committee of the Bombay Diocesan Council of the Church of North India;
(d) for ad-interim reliefs in terms of prayer (c);
(e) for costs of the suit;
(f) for such other and further reliefs as this
Hon'ble Court may deem fit and proper in the circumstances of the case."
5/7 ::: Uploaded on - 18/02/2020 ::: Downloaded on - 08/06/2020 17:50:03 ::: Laxmi 622. APP 412-19.odt He submits that the said suit stood dismissed under Order 9, Rule 3 of the CPC. He submits that in that suit the Appellant was party as Defendant therefore, in the present proceeding the Appellant is a necessary party.
6. At this stage, the Learned Counsel for the Appellant submits that the Learned Single Judge at the time of dismissing their Chamber Summons imposed a cost of Rs. 50,000/- On the Trust. He submits that this Hon'ble Court be pleased to waive the said cost.
7. We heard both sides at length. It is to be noted that, in the present proceedings, the Respondents/Original Plaintiffs filed the Suit No. 86 of 2017 only for possession of the suit property on the ground that the Original Defendants were trespassers and occupying the same unlawfully.
8. Considering the pleading in the Suit No. 86 of 2017 and the prayers in that suit, it is crystal clear that the Respondents/Original Plaintiffs are seeking only possession without 6/7 ::: Uploaded on - 18/02/2020 ::: Downloaded on - 08/06/2020 17:50:03 ::: Laxmi 7
22. APP 412-19.odt any declaration. Therefore, in any case, as per Order 1, Rule 10 of the CPC, the Appellant is not a necessary party to decide the said suit. These facts are considered by the Learned Single Judge.
Therefore, we do not find any error in the order passed by the Learned Single Judge.
8. Hence, the following order:
a. The Appeal stands rejected.
b. As the Appellant is a Trust, the cost imposed by the
Learned Single Judge is waived.
(SARANG V. KOTWAL, J.) (K.K. TATED, J.)
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