Gujarat High Court
Sumanbhai Bhangiyabhai Naika & 9 vs Valsad Parsi Anjuman Trust Temple Thro ... on 26 February, 2016
Author: R.D.Kothari
Bench: R.D.Kothari
C/CRA/53/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL REVISION APPLICATION NO. 53 of 2016
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SUMANBHAI BHANGIYABHAI NAIKA & 9....Applicant(s)
Versus
VALSAD PARSI ANJUMAN TRUST TEMPLE THRO MANAGIND....Opponent(s)
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Appearance:
MR SP MAJMUDAR, ADVOCATE for the Applicant(s) No. 1 - 10
SHASHVATA U SHUKLA, ADVOCATE for the Applicant(s) No. 1 - 10
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CORAM: HONOURABLE MR.JUSTICE R.D.KOTHARI
Date : 26/02/2016
ORAL ORDER
1. Draft amendment is allowed. Applicants to amend the petition accordingly.
2. Heard learned advocate for the applicants.
3. Applicants claim to be aggrieved by rejection of Order VII, Rule 11 application by trial Court.
4. The suit instituted by the public trust seeking vacant possession of the suit property from the defendants. The applicants- defendants moved an application under Order VII, Rule 11 of the C.P.C. The principal contention raised is that it is not clearly stated that suit property belongs to the trust property. In the alternative, it is contended that permission as required under Section 50 of the Bombay Public Trust Act is not obtained prior to the filing of the suit.
5. In support of his submission on Section 50, learned advocate has drawn attention to the case of Thakkar Raghuram Ranchhodbhai Vs. Gohil Shivaji Gamarsinh, 2012 (0) GLHEL- HC 229499 (para 8) of this Court wherein, it appears that this Court has taken view in view of non-compliance of Section 50 plaint Page 1 of 2 HC-NIC Page 1 of 2 Created On Tue Mar 29 01:59:00 IST 2016 C/CRA/53/2016 ORDER requires to be rejected. It appears that in the impugned order, learned trial Court has virtually not dealt with objection raised as regards non-compliance of Section 50 of the Act.
6. During the course of hearing, Court's attention was also drawn to another order passed by the Court below Exh.110 wherein plea of non-compliance of Section 50 Act was taken. While rejecting this plea in that order the trial Court has considered Gollaleshwar Dev of Golgeri a Public Trust and others. Vs. Gangawa Kom Shantayya Math and others, AIR 1972 Mysore 1 and relying on the same has held that Section 50 is not applicable in case suit is instituted by the trustees.
7. It is not clear from the judgment of this Court that in that case plaintiff was a trustee or person other than the trustees. In that case defendant was Power of Attorney Holder of the trust. It appears from the order of the trial Court that Mysore Court has taken the view that only if suit is instituted by person other than the trustees then permission under Section 50 would be required.
8. Matter requires consideration. Notice returnable on 28.03.2016. Notice as to interim relief. Meanwhile, interim relief in terms of paragraph 14(B) till next date of hearing.
(R.D.KOTHARI, J.) dharmendra Page 2 of 2 HC-NIC Page 2 of 2 Created On Tue Mar 29 01:59:00 IST 2016