Gujarat High Court
The Ahmadsha Gujari Association ... vs Mohammadhussain Noormohamad Shaikh on 19 February, 2025
NEUTRAL CITATION
C/AO/65/2024 ORDER DATED: 19/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 65 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In R/APPEAL FROM ORDER NO. 65 of 2024
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THE AHMADSHA GUJARI ASSOCIATION (GUJARI BAJAR)
Versus
MOHAMMADHUSSAIN NOORMOHAMAD SHAIKH
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Appearance:
MR SAMIR B GOGDA(11306) for the Appellant(s) No. 1
MR CHAITANYA M VYAS(5651) for the Respondent(s) No. 1
MR MAHAVIRDAN H RATNU(13822) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 19/02/2025
ORAL ORDER
1. The present case is a classic example of a tyranny of association of persons, who can suppressed the voice of its member and removed the member because of member raised the voice against administration of association.
2. The present appeal is filed under Order 43 Rule 1 of Civil Procedure Code, 1908 (hereinafter referred to as "CPC") by original defendant - an association against judgment and order dated 30th March, 2024 passed by City Civil and Page 1 of 30 Uploaded by MOHD MONIS(HC01900) on Sat Mar 01 2025 Downloaded on : Fri Mar 07 23:03:46 IST 2025 NEUTRAL CITATION C/AO/65/2024 ORDER DATED: 19/02/2025 undefined Sessions Court, Court NO.18, Ahmedabad City, below Exh. 6/7 in Civil Suit NO.1250 of 2023.
3. The parties will be referred as far as possible to its original position in the suit. The short facts which emerges out of pleading of the suit reads as under:-
3.1. The respondent is original plaintiff, having filed the suit against appellant - defendant seeking relief of declaration and injunction.
3.2. It is a case of plaintiff that he is a member of defendant association, which is known "The Ahmedshah Gujari Association (hereinafter referred to as Gujari Bazar)".
3.3. The plaintiff is aged about 77 years old, a retired school teacher selling books in Gujari Bazar, thereby, earn livelihood.
3.4. The members of defendant association are allowed to do their business on every Sunday near the Victoria Garden to Bank of Sabarmati River, Ahmedabad City.
3.5. Ahmedabad Municipal Corporation (hereinafter
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referred to as "AMC") appears to have lease out and earmarked the area for Gujari Bazar thereby members of defendant can do their business activity on every Sunday morning on such earmark place.
3.6. It is the case of the plaintiff that somewhere around October, 2023, he was threatened and interfered by office bearer of defendant, thereby, trying to prohibit him from doing his business at his earmarked place on every Sunday.
3.7. With this background of facts, the suit came to be filed wherein a temporary injunction application was also submitted below Exh.6/7.
3.8. The defendant appears to have filed common reply to the suit and such injunction application, contending inter alia that there is no cause of action arise to file the suit. The suit suffers from non-joinder of necessary parties.
3.9. It has been contended by defendant that it is a registered trust under Bombay Public Trust Act, 1950. The defendant has entered into memorandum of understanding Page 3 of 30 Uploaded by MOHD MONIS(HC01900) on Sat Mar 01 2025 Downloaded on : Fri Mar 07 23:03:46 IST 2025 NEUTRAL CITATION C/AO/65/2024 ORDER DATED: 19/02/2025 undefined somewhere in December, 2011 (hereinafter referred to as "MoU") with AMC in regard to use of earmark place by members of defendant on every Sunday morning to evening.
The members of defendant is required to pay Rs.25/- per month as a maintenance charges to AMC.
3.10. It is the case of the defendant that the plaintiff was threatening poor and illiterate members of association, thereby, creating disharmony and spoil the atmosphere and tried to malign the image of defendant in public, it was decided by association to cancel the membership of plaintiff. 3.11. The defendant has cancelled the membership of plaintiff vide its resolution dated 23 rd of February, 2020. It is so contended by defendant that suppressing the material fact about his cancellation of membership, the suit came to be filed, which cannot be entertained.
3.12. So, the defendant has prayed for dismissal of the suit and also requested Trial Court not to grant interim injunction as prayed by plaint.
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3.13. After hearing the parties, the Trial Court vide its impugned order has partly allowed injunction application of plaintiff, thereby, directed defendant to collect licence fee from plaintiff as per MoU, thereby, defendant is restrained from interfering with the business of plaintiff doing at Gujari Bazar. 3.14. It has been further observed by Trial Court vide its impugned order that no permanent right will be created in favour of plaintiff. But his right would be confined to conditions of MoU executed between the defendant with AMC, whereby, he is not allowed to put any construction and further not allowed to do his business beyond the period so decided under MoU.
4. Being aggrieved and dissatisfied with impugned judgment and order of granting interim injunction in favour of plaintiff by order dated 30th March, 2024 passed below Exh. 6/7 by City Civil and Sessions Court, Court No.18, Ahmedabad City in Civil Suit No. 1250 of 2023, the defendant has preferred the present appeal.
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5. Learned advocate Mr. Vikas Nair for learned advocate Mr. Samir Gogda would submit that suit filed by respondent itself is not maintainable as it would hit by Section 50 read with Section 51 of Gujarat Public Trust Act, 1950 (hereinafter referred to as "the Act, 1950").
5.1. Learned advocate Mr. Nair would submit that aforesaid contention is not pressed into service by defendant in its written statement as well course of argument before the Trial Court. But being a pure question of law, defendant can raise such point of law in the present appeal and this Court is bound to consider such pure question of law, even though not raised by the defendant before the Trial Court. 5.2. Learned advocate Mr. Nair would further submit that the defendant is a Trust registered trust governed by the provisions of the Act, 1950. He would submit that the suit filed against Trust, a necessary permission of charity commissioner is requires to be obtained as per the provisions Page 6 of 30 Uploaded by MOHD MONIS(HC01900) on Sat Mar 01 2025 Downloaded on : Fri Mar 07 23:03:46 IST 2025 NEUTRAL CITATION C/AO/65/2024 ORDER DATED: 19/02/2025 undefined of Act, 1950, which was not obtained by the plaintiff before filing suit, the Trial Court was required to consider pure question of law before entertaining injunction application and ought to have rejected the application and consequently dismissed the suit.
5.3. Learned advocate Mr. Nair would further submit that AMC and Charity Commissioner both are necessary and property parties to be joined in the suit and having not been joined, the suit itself suffers from non-joinder of necessary parties.
5.4. Learned advocate Mr. Nair would submit that defendant having passed resolution on 23rd February, 2020, thereby, cancelled the membership of plaintiff, having not challenged such decisions of defendant in the suit, no relief could have been granted in favour of plaintiff.
5.5. Learned advocate Mr. Nair would further submit that plaintiff having suppressed the material fact, about cancellation of his membership, having not disclosed such fact in the suit, Page 7 of 30 Uploaded by MOHD MONIS(HC01900) on Sat Mar 01 2025 Downloaded on : Fri Mar 07 23:03:46 IST 2025 NEUTRAL CITATION C/AO/65/2024 ORDER DATED: 19/02/2025 undefined plaintiff is not entitled to any equitable relief. 5.6. Learned advocate Mr. Nair would further submit that in absence of non-joining all trusties of defendant trust, the suit itself is not maintainable.
5.7. Learned advocate Mr. Nair would further submit that there is no prima facie case, balance of convenience and irreparable loss made out by plaintiff, thereby, the Trial Court has erroneously granted relief in favour of plaintiff. 5.8. To buttress his arguments, he has relied upon the decision of Hon'ble Supreme Court in the case of Asma Lateef and Anr vs. Shabbir Ahmed and others reported in 2024 (4) SCC 696.
6. No other and further submissions are made.
7. Heard learned advocate for the appellant-defendant at length and gone through the documents so supplied by the appellant with paper book.
POINT OF DETERMINATION
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NEUTRAL CITATION
C/AO/65/2024 ORDER DATED: 19/02/2025
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i. Whether, in the facts and circumstances of the case, the Trial Court has committed any gross error while granting an injunction in favor of the original plaintiff?
ii. Whether, in the facts and circumstances of the case, the impugned order passed is preserve, erroneous, capricious and or arbitrary?
ANALYSIS
8. Before adverting to the issue germane in the appeal, I would like to refer and rely upon the decision of the Honorable Supreme Court of India in the case of Ramakant Ambalal Choksi v/s Harish Ambalal Choksi & others, reported in 2024 SCC Online SC 3438, wherein it has been held as under:-
"APPELLATE JURISDICTION UNDER ORDER 43 OF THE CPC [20] Order 43 of the CPC specifies the orders against which an appeal lies. Sub-Rule (r) of Rule 1 of the said order provides that an appeal would lie against an order made under Rules 1, 2, 2A, 4 and 10 of Order 39 of the CPC respectively.
[21] The law in relation to the scope of an appeal against grant or nongrant of interim injunction was laid down by this Court in Wander Ltd. v. Antox India P. Ltd.,1990 Supp SCC 727. Antox brought an action of passing off against Wander with respect to the mark Cal- De-Ce. The trial court declined Antox's plea for an interim injunction, however, on appeal the High Court reversed the findings of the trial judge. This Court, upon due consideration of the matter, took notice of two egregious errors said to have been committed by the High Page 9 of 30 Uploaded by MOHD MONIS(HC01900) on Sat Mar 01 2025 Downloaded on : Fri Mar 07 23:03:46 IST 2025 NEUTRAL CITATION C/AO/65/2024 ORDER DATED: 19/02/2025 undefined Court:
a. First, as regards the scope and nature of the appeals before it and the limitations on the powers of the appellate court to substitute its own discretion in an appeal preferred against a discretionary order; and b. Secondly, the weakness in ratiocination as to the quality of Antox's alleged user of the trademark on which the passing off action is founded.
[22] With regards to (a), this Court held thus:
"In such appeals, the appellate court will not interfere with the exercise of discretion of the court of the first instance and substitute its own discretion, except where the discretion has been shown to have been exercised arbitrarily or capriciously or perversely, or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions ... the appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below ... If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion."
[23] This Court, while arriving at the above findings, relied on its earlier judgment in Printers (Mysore) v Pothan Joseph, 1960 SCC OnlineSC 62 where it was held thus:
"[...] as has been observed by Viscount Simon LC in Charles Osenton & Co v Johnston - the law as to reversal by a court of appeal of an order made by a judge below in the exercise of his/her discretion is well established, and any difficulty that arises is due only to the application of well-settled principles in an individual case."
[24] It is pertinent to note that in Printers (supra) this Court had held that ignoring relevant facts is also a ground for interfering with the discretion exercised by the trial court. Furthermore, Viscount Simon LC in Charles Osenton & Co v Johnston, 1942 AC 130 , after stating the above, went on to quote Lord Wright's decision in Evans v. Bartlam, 1937 AC 473:
"It is clear that the court of appeal should not interfere with the discretion of a judge acting within his jurisdiction unless the court is clearly satisfied that he was wrong. But the court is not entitled simply to say that if the judge had jurisdiction and had all the facts before him, the court of appeal cannot review his order unless he is shown to have Page 10 of 30 Uploaded by MOHD MONIS(HC01900) on Sat Mar 01 2025 Downloaded on : Fri Mar 07 23:03:46 IST 2025 NEUTRAL CITATION C/AO/65/2024 ORDER DATED: 19/02/2025 undefined applied a wrong principle. The court must, if necessary, examine anew the relevant facts and circumstances in order to exercise a discretion by way of review which may reverse or vary the order."
[25] In Evans (supra) case, Lord Wright made it clear that while adjudicating upon the discretion exercised by the trial court, the appellate court is obliged to consider the case put forward by the appellant in favour of its argument that the trial court exercised its discretion arbitrarily or incorrectly in the circumstances. [26] What flows from a plain reading of the decisions in Evans (supra) and Charles Osenton (supra) is that an appellate court, even while deciding an appeal against a discretionary order granting an interim injunction, has to:
a. Examine whether the discretion has been properly exercised, i.e. examine whether the discretion exercised is not arbitrary, capricious or contrary to the principles of law; and b. In addition to the above, an appellate court may in a given case have to adjudicate on facts even in such discretionary orders.
[27] The principles of law explained by this Court in Wander's (supra) have been reiterated in a number of subsequent decisions of this Court. However, over a period of time the test laid down by this Court as regards the scope of interference has been made more stringent. The emphasis is now more on perversity rather than a mere error of fact or law in the order granting injunction pending the final adjudication of the suit.
[28] In Neon Laboratories Ltd. v. Medical Technologies Ltd., 2016 2 SCC 672 this Court held that the Appellate Court should not flimsily, whimsically or lightly interfere in the exercise of discretion by a subordinate court unless such exercise is palpably perverse. Perversity can pertain to the understanding of law or the appreciation of pleadings or evidence. In other words, the Court took the view that to interfere against an order granting or declining to grant a temporary injunction, perversity has to be demonstrated in the finding of the trial court. [29] In Mohd. Mehtab Khan v. Khushnuma Ibrahim Khan, 2013 9 SCC 221 this Court emphasised on the principles laid down in Wander (supra) and observed that while the view taken by the appellate court may be an equally possible view, the mere possibility of taking such a view must not form the basis for setting aside the decision arrived at by the trial court in exercise of its discretion under Order 39 of the CPC. The basis for substituting the view of the trial Page 11 of 30 Uploaded by MOHD MONIS(HC01900) on Sat Mar 01 2025 Downloaded on : Fri Mar 07 23:03:46 IST 2025 NEUTRAL CITATION C/AO/65/2024 ORDER DATED: 19/02/2025 undefined court should be malafides, capriciousness, arbitrariness or perversity in the order of the trial court. The relevant observations are extracted below:
"20. In a situation where the learned trial court on a consideration of the respective cases of the parties and the documents laid before it was of the view that the entitlement of the plaintiffs to an order of interim mandatory injunction was in serious doubt, the Appellate Court could not have interfered with the exercise of discretion by the learned Trial Judge unless such exercise was found to be palpably incorrect or untenable. The reasons that weighed with the learned Trial Judge, as already noticed, according to us, do not indicate that the view taken is not a possible view. The Appellate Court, therefore, should not have substituted its views in the matter merely on the ground that in its opinion the facts of the case call for a different conclusion. Such an exercise is not the correct parameter for exercise of jurisdiction while hearing an appeal against a discretionary order. While we must not be understood to have said that the Appellate Court was wrong in its conclusions what is sought to be emphasized is that as long as the view of the trial court was a possible view the Appellate Court should not have interfered with the same following the virtually settled principles of law in this regard as laid down by this Court in Wander Ltd. v. Antox India (P) Ltd."
(Emphasis supplied) [30] This Court in Shyam Sel & Power Ltd. v. Shyam Steel Industries Ltd., 2023 1 SCC 634 observed that the hierarchy of the trial court and the appellate court exists so that the trial court exercises its discretion upon the settled principles of law. An appellate court, after the findings of the trial court are recorded, has an advantage of appreciating the view taken by the trial judge and examining the correctness or otherwise thereof within the limited area available. It further observed that if the appellate court itself decides the matters required to be decided by the trial court, there would be no necessity to have the hierarchy of courts.
[31] This Court in Monsanto Technology LLC v. Nuziveedu Seeds Ltd., 2019 3 SCC 381, observed that the appellate court should not usurp the jurisdiction of the Single Judge to decide as to whether the tests of prima facie case, balance of convenience and irreparable injury are made out in the case or not.
[32] The appellate court in an appeal from an interlocutory order granting or declining to grant interim injunction is only required to adjudicate the validity of such order applying the well settled Page 12 of 30 Uploaded by MOHD MONIS(HC01900) on Sat Mar 01 2025 Downloaded on : Fri Mar 07 23:03:46 IST 2025 NEUTRAL CITATION C/AO/65/2024 ORDER DATED: 19/02/2025 undefined principles governing the scope of jurisdiction of appellate court under Order 43 of the CPC which have been reiterated in various other decisions of this Court. The appellate court should not assume unlimited jurisdiction and should guide its powers within the contours laid down in the Wander (supra) case."
(Emphasis Supplied)
9. It is required to note that so-called legal issues raised in the appeal by learned advocate Mr. Nair were admittedly not pressed into service before the Trial Court by defendant including in its written statement. As such, unmindful of fact, on the part of learned advocate Mr. Nair, such issues are raised for the first time as if they are pure questions of law and do not depend upon the facts to be pleaded and proved before the Trial Court.
10. The first limb of argument is that in the absence of permission of the Charity Commissioner under Section 51 of the Act 1950, the suit is not maintainable. It is submitted by defendant that in the absence of a statement made by the plaintiff in regard to obtain permission of the Charity Commissioner under Section 51 of the Act 1950, it can be assumed that no such permission obtained. Such a plea would Page 13 of 30 Uploaded by MOHD MONIS(HC01900) on Sat Mar 01 2025 Downloaded on : Fri Mar 07 23:03:46 IST 2025 NEUTRAL CITATION C/AO/65/2024 ORDER DATED: 19/02/2025 undefined be a defense of the defendant, which requires to be expressly raised by the defendant in its written statement. Such a plea cannot even be gone into by the Trial Court at the stage of even under Order VII Rule 11 of CPC.
11. The issue in this regard is longer remain res integra. To appreciate further, it would be apt to refer and rely upon the decision of Division Bench judgment of this Court in the case of Trust Of Shri Laxmi Narayan Dev Temple And Others V/S Ajendrapasadji Narendraprasadji Pande And Anr , reported in 2013 (5) GLR 3686, wherein it has been held as under:-
"[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 Page 14 of 30 Uploaded by MOHD MONIS(HC01900) on Sat Mar 01 2025 Downloaded on : Fri Mar 07 23:03:46 IST 2025 NEUTRAL CITATION C/AO/65/2024 ORDER DATED: 19/02/2025 undefined 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.
[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.
[16] We are unable to approve the view taken by a learned Single Page 15 of 30 Uploaded by MOHD MONIS(HC01900) on Sat Mar 01 2025 Downloaded on : Fri Mar 07 23:03:46 IST 2025 NEUTRAL CITATION C/AO/65/2024 ORDER DATED: 19/02/2025 undefined Judge of this court in the case of Patel Nanji Devji vs. Patel Jivraj Manji, 1988 AIR(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. Kamala and others vs. K. T. Eshwara, 2008 AIR(SC) 3174.
[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."
(Emphasis supplied)
12. The aforesaid judgement carried before Honourable Supreme Court of India by way of Civil Appeal No. 5921 - 5922 of 2013 which were dismissed on 19-02-2014. Thus, in view of the aforesaid decision of the Division of this Court in the case of Trust Of Shri Laxmi Narayan Dev Temple And Others (Supra), in the absence of any statement made by the plaintiff in the plaint in regard to obtaining permission of the Charity Commissioner, it would not ipso facto make the suit Page 16 of 30 Uploaded by MOHD MONIS(HC01900) on Sat Mar 01 2025 Downloaded on : Fri Mar 07 23:03:46 IST 2025 NEUTRAL CITATION C/AO/65/2024 ORDER DATED: 19/02/2025 undefined not maintainable when no defence to that effect set up by defendant.
13. Further, after going through the plaint and the prayer made in the suit, the suit is filed seeking a declaration and injunction against the defendant in relation to the business activity carried out by the plaintiff at the place mentioned in the plaint. The declaration sought by the plaintiff is in regard to his permanent right to do business at an earmarked place designated by the defendant to the plaintiff in Gujari Bazar. The injunction, as prayed for, is in regard to no interference by office bearers of the defendant and/or its agents/representatives etc. in the business activity carried out by the plaintiff at the earmarked place.
14. It is profitable to reproduce Sections 50 and 51 of the Act 1950, which read 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 Page 17 of 30 Uploaded by MOHD MONIS(HC01900) on Sat Mar 01 2025 Downloaded on : Fri Mar 07 23:03:46 IST 2025 NEUTRAL CITATION C/AO/65/2024 ORDER DATED: 19/02/2025 undefined 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.
Section 51. Consent of Charity Commissioner for institution of suit. -
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(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."
15. Prima facie, the suit would not fall within any of the categories enumerated in III of Section 50 of the Act, 1950. Learned advocate Mr. Nair, during the course of his argument, would submit that the case of the plaintiff falls within the category of (f) and (h) of the III of Section 50 of the Act, 1950. The earmarked place, where Gujari Bazar is set up on every Sunday, is neither the property of the defendant trust nor its trusties, but it belongs to Ahmedabad Municipal Page 19 of 30 Uploaded by MOHD MONIS(HC01900) on Sat Mar 01 2025 Downloaded on : Fri Mar 07 23:03:46 IST 2025 NEUTRAL CITATION C/AO/65/2024 ORDER DATED: 19/02/2025 undefined Corporation. So, if the property referred to in the suit is not the property of the defendant trust, then the question of the applicability of (f) of the III of Section 50 of the Act, 1950 would not arise.
16. As far as the applicability of (h) is concerned, it is general in nature, but it has to be read in the context of other contingencies enumerated in (a) to (g) of III of Section 50 of the Act, 1950 and also to administration of trust not otherwise.
17. Thus, prima facie, the argument made by learned advocate Mr. Nair in relation to the non-maintainability of the suit itself is erroneous and misconceived at law. Without verifying the provisions of law and their applicability to the facts of the present case, learned advocate Mr. Nair has audaciously raised such a plea, which requires to be turned down with costs as despite drawing his attention, learned advocate Mr. Nair has emphasized on these issues thereby, consumed precious time of this Court on issues which were never pressed into service before trial Court.
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18. The decision of the Honorable Apex Court in the case of Asma Lateef (supra), in view of the above facts and circumstances of the case, would not apply. Nonetheless, having been so relied upon by learned advocate Mr. Nair by reading Para 38 and 39 of the aforesaid decision of Asma Lateef (Supra), which reads as under:-
"38. What follows from a conspectus of all the aforesaid decisions is that jurisdiction is the entitlement of the civil court to embark upon an enquiry as to whether the cause has been brought before it by the plaintiff in a manner prescribed by law and also whether a good case for grant of relief claimed been set up by him. As and when such entitlement is established, any subsequent error till delivery of judgment could be regarded as an error within the jurisdiction. The enquiry as to whether the civil court is entitled to entertain and try a suit has to be made by it keeping in mind the provision in section 9, CPC and the relevant enactment which, according to the objector, bars a suit. Needless to observe, the question of jurisdiction has to be determined at the commencement and not at the conclusion of the enquiry.
39. Although not directly arising in the present case, we also wish to observe that the question of jurisdiction would assume importance even at the stage a court considers the question of grant of interim relief. Where interim relief is claimed in a suit before a civil court and the party to be affected by grant of such relief, or any other party to the suit, raises a point of maintainability thereof or that it is barred by law and also contends on that basis that interim relief should not to be granted, grant of relief in whatever form, if at all, ought to be preceded by formation and recording of at least a prima facie satisfaction that the suit is maintainable or that it is not barred by law. Such a satisfaction resting on appreciation of the averments in the plaint, the application for interim relief and the written objection thereto, as well as the relevant law that is cited in support of the objection, would be a part of the court's reasoning of a prima facie case having been set up for interim relief, that the balance of convenience is in Page 21 of 30 Uploaded by MOHD MONIS(HC01900) on Sat Mar 01 2025 Downloaded on : Fri Mar 07 23:03:46 IST 2025 NEUTRAL CITATION C/AO/65/2024 ORDER DATED: 19/02/2025 undefined favour of the grant and non-grant would cause irreparable harm and prejudice. It would be inappropriate for a court to abstain from recording its prima facie satisfaction on the question of maintainability, yet, proceed to grant protection pro tem on the assumption that the question of maintainability has to be decided as a preliminary issue under Rule 2 of Order XIV, CPC. That could amount to an improper exercise of power. If the court is of the opinion at the stage of hearing the application for interim relief that the suit is barred by law or is otherwise not maintainable, it cannot dismiss it without framing a preliminary issue after the written statement is filed but can most certainly assign such opinion for refusing interim relief. However, if an extraordinary situation arises where it could take time to decide the point of maintainability of the suit and non-grant of protection pro tem pending such decision could lead to irreversible consequences, the court may proceed to make an appropriate order in the manner indicated above justifying the course of action it adopts. In other words, such an order may be passed, if at all required, to avoid irreparable harm or injury or undue hardship to the party claiming the relief and/or to ensure that the proceedings are not rendered infructuous by reason of non-interference by the court."
(Emphasis Supplied) [
19. As such, the observations made by the Honorable Apex Court of India in the case of Asma Lateef (supra) would help the plaintiff rather than the defendant, especially when the plea of maintainability was never pressed into service before the Trial Court during the course of the hearing of the injunction application. The injunction granted by the Trial Court if not granted would surely cause irreparable harm, injury or hardship to the plaintiff.
20. As far as the non-joining of the Charity Commissioner Page 22 of 30 Uploaded by MOHD MONIS(HC01900) on Sat Mar 01 2025 Downloaded on : Fri Mar 07 23:03:46 IST 2025 NEUTRAL CITATION C/AO/65/2024 ORDER DATED: 19/02/2025 undefined and AMC is concerned, no relief has been prayed for by the plaintiff against those non-joined legal entities. As stated hereinabove, pirma facie, the subject matter of the suit would not fall within the purview of Section 50 of the Public Trust Act. The prayer made in the suit is for seeking a declaration of a permanent right of the plaintiff to do business at an earmarked place in Gujari Bazar and a further prayer for an injunction against the defendant not to disturb the plaintiff while doing his business at the earmarked place. Thus, according to this Court, there is no necessity to join either the Charity Commissioner or AMC, as the case may be, to maintain the present suit when reliefs are not sought against such non-joining parties.
21. As a matter of course, in the absence of such parties, the Trial Court can effectively adjudicate the disputes raised in the plaint and satisfactorily pass appropriate orders in the absence of those parties. At best, it would be open for the parties to summon them as witnesses if necessary and so requires. As Page 23 of 30 Uploaded by MOHD MONIS(HC01900) on Sat Mar 01 2025 Downloaded on : Fri Mar 07 23:03:46 IST 2025 NEUTRAL CITATION C/AO/65/2024 ORDER DATED: 19/02/2025 undefined such, there is no error committed by the Trial Court while granting an injunction against the defendant in the absence of the non-joining of the aforesaid parties to the suit.
22. The next limb of argument made by learned advocate Mr. Nair is in regard to the suppression of material facts by the plaintiff regarding his cancellation of membership by the defendant vide resolution passed by the defendant on 23rd February, 2022, which was not disclosed in the suit by the plaintiff.
23. As such, there is nothing on record to substantiate such a plea raised by learned advocate Mr. Nair. The documents submitted by the defendant, including the police complaint filed by the plaintiff at the given point of time and the notice by the plaintiff prior to filing the suit, do not contain any reference to the fact that the plaintiff was made aware of the passing of the aforesaid resolution by the defendant against him.
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suppressed this fact from the plaintiff when cancelled his membership because of he raised his voice against the functioning of office bearers of the defendant, such facts were withheld from the plaintiff, thereby affecting his right to earn a livelihood. Such conduct of the defendant disentitles it from raising a plea of suppression of material facts by the plaintiff.
25. Having put the question by this Court to Learned Advocate Mr. Nair about any communication served upon the plaintiff by the defendant regarding his cancellation of membership by the defendant?, he has replied that, as such, no communication was ever served upon the plaintiff by the defendant. The fact, which was not within the knowledge of the plaintiff at the time of filing of the suit, and as such, withheld from the plaintiff by the defendant, it would not lie in the mouth of the defendant to raise that there is a suppression of material fact by the plaintiff. Furthermore, when member of association is terminated from membership of Page 25 of 30 Uploaded by MOHD MONIS(HC01900) on Sat Mar 01 2025 Downloaded on : Fri Mar 07 23:03:46 IST 2025 NEUTRAL CITATION C/AO/65/2024 ORDER DATED: 19/02/2025 undefined association, at least fair play, observance of natural justice and a reasonable opportunity to show cause requires from defendant which it did not observe but behaved like monarch thereby, it felt that it take anyone's livelihood.
26. Thus, when resolution and or communication of cancellation of membership of plaintiff when not duly served upon plaintiff by defendant, there was no reason/occasion/cause arise for plaintiff to challenge it in the suit.
27. Lastly, learned Advocate Mr. Nair would unable to show from any provisions of law that, in the absence of the trustees of the defendant trust, either the suit would not be maintainable and / or no injunction cannot be granted against the defendant trust. Again, such a plea is an afterthought, which was not pressed into service before the Trial Court and abruptly raised by the defendant for the first time in the present appeal.
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28. In fact, the Trial Court has appreciated the vital fact of the suit that the plaintiff was prohibited in doing his business in Gujari bazar by the defendant and its agents because due to raising his voice about mismanagement in the affairs of the defendant trust, and he was penalized by the defendant for raising his voice, which his democratic right, being living in a democratic country like India.
29. Thus, the Trial Court has correctly observed that merely because a member has raised his voice against the office bearers of the defendant trust would not be a ground to cancel his membership, which is not only illegal but inhuman. The plaintiff was retired as a principal of a school, now selling books in Gujari Bazar, and thereby earning his livelihood at the age of 77 years.
30. Considering the aforesaid facts and circumstances of the case, the Trial Court has found a prima facie case, balance of convenience, and irreparable loss in favor of the plaintiff, thereby granted an injunction in favor of the plaintiff.
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31. I would like to observe that the defendant is unable to point out any perversity on the part of the Trial Court while granting an injunction in favor of the plaintiff. Contra, all the three parameters, which are required to be observed by the Trial Court while granting an injunction, i.e., prima facie case, balance of convenience, and irreparable loss, were made out by the plaintiff, thereby entitled him to get the injunction as prayed for. Such a discretionary order passed by the trial Court after examining the documents and the pleadings placed before it, in light of the ratio laid down by the Hon'ble Supreme Court of India in the case of Ramakant Ambalal Choksi (supra), this Court would not like to interfere with the impugned order passed by the trial Court.
32. It is pertinent to note that the appellant has filed the present appeal on the so called legal issues, which were never pressed into service before the trial Court, by contending that they are a pure question of law, which is, in fact, an erroneous observation on the part of the appellant, thereby Page 28 of 30 Uploaded by MOHD MONIS(HC01900) on Sat Mar 01 2025 Downloaded on : Fri Mar 07 23:03:46 IST 2025 NEUTRAL CITATION C/AO/65/2024 ORDER DATED: 19/02/2025 undefined consuming the precious time of this Court and affecting the rights of other litigants who are awaiting for justice. Such conduct must be deprecated as the Courts are heavily burdened at this point of time, and some exemplary costs must be imposed upon the appellant for consuming the precious time of this Court thereby to stop such type of unwarranted litigation.
33. The upshot of the aforesaid discussion, observation and reasons, the present appeal from order is thoroughly misconceived at law and no ground of interference is made out by the appellant. Thus, the present appeal is required to be dismissed, and the same is hereby DISMISSED with the cost of Rs.10,000/-. The connected civil application is also disposed of according. Interim relief stands vacated forthwith.
34. The defendant is hereby directed to deposit Rs.10,000/- as costs with DLSA, Ahmedabad on or before 21st March, 2025.
35. The trial Court is hereby requested to verify the Page 29 of 30 Uploaded by MOHD MONIS(HC01900) on Sat Mar 01 2025 Downloaded on : Fri Mar 07 23:03:46 IST 2025 NEUTRAL CITATION C/AO/65/2024 ORDER DATED: 19/02/2025 undefined compliance of deposit of cost by the defendant, and if not deposited by the defendant, it may pass an appropriate order in accordance with law.
(MAULIK J.SHELAT,J) MOHD MONIS Page 30 of 30 Uploaded by MOHD MONIS(HC01900) on Sat Mar 01 2025 Downloaded on : Fri Mar 07 23:03:46 IST 2025