Gujarat High Court
Surat Parsi Panchayat Board Through ... vs S Mangalsen Chopra Sons on 4 July, 2018
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/CRA/43/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 43 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE BIREN VAISHNAV
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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 or any
order made thereunder ?
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SURAT PARSI PANCHAYAT BOARD THROUGH TRUSTEE JAMSHED P
DOTIWALA
Versus
S MANGALSEN CHOPRA SONS
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Appearance:
MR. R.S.SANJANWALA, LD. SR. ADVOCATE with MR. SAHIL M
SHAH(6318) for the PETITIONER(s) No. 1,2
MR KK TRIVEDI(934) for the RESPONDENT(s) No. 1
UNSERVED EXPIRED (R)(69) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 04/07/2018
ORAL JUDGMENT
[1] This Civil Revision Application has been filed by the original-defendants. They have challenged the order dated 17.04.2013 of the learned Principal Senior Civil Judge, Surat below application Exh.87 by which the application of the applicants filed under Order VII Rule 11(d) of the Code of Civil Procedure (for short "the Code") in Regular Civil Suit No.71 of Page 1 of 6 C/CRA/43/2014 JUDGMENT 1999 has been rejected.
[2] The facts in brief are as under:-
[3] The respondent was original plaintiff who had filed Regular Civil Suit No.71 of 1999 before the Court of learned Senior Civil Judge, Surat. It was the case of the plaintiff that by virtue of lease agreement made on 12.08.1966 between the Surat Parsi Panchayat Board -defendant and the plaintiff, the suit lands in question were given on lease for a period of 30 years to the plaintiff. Such lease was entered into by the defendant-Panchayat after obtaining necessary sanction of the Charity Commissioner. The lease was to expire and therefore, a notice was issued by the plaintiff-respondent herein on 20.12.1995 for extending the period of lease for a further period of 30 years. The suit was accordingly, filed for specific relief seeking declaration that the lease period pursuant to which the plaintiff was lease holder of the lands, be extended upto 31.08.2026.
[4] In such proceedings, the applicants-defendants filed an application under Order VII Rule 11(d) of the Code, inter alia, contending that the suit was not filed by competent person as the partnership firm was not registered and therefore, Section 69 of the Indian Partnership Firm Act, 1932 prohibits such a partnership firm to file a suit.
[4.1] The second and the most relevant contention as argued between the parties is that it was the case of the applicants that in accordance with Section 36 of the Bombay Public Trusts Act, 1950 (for short "the Trusts Act"), extension of lease was not possible without valid sanction of the Charity Page 2 of 6 C/CRA/43/2014 JUDGMENT Commissioner. That in accordance with Section 80 of the Trusts Act, no Civil Court shall have jurisdiction to deal with any question, which is by or under this Act to be decided or dealt with by any officer under the Act. Since no previous sanction of the Charity Commissioner was obtained, the question of extension of lease without permission cannot be decided under the Act and therefore, the suit was barred. By the impugned order, the learned trial Court has held that such a question is mixed question of fact and law and can only be decided at the stage of trial.
[5] Mr. R.S.Sanjanwala, learned senior counsel appearing with Mr. Sahil M. Shah, has assailed the order of the trial Court and submitted that on reading of the plaint, it was apparent that the suit was barred by law. The lease deed which was executed for a period of 30 years was to expire in 1996. Notice of renewal was given by the plaintiff and the prayer of specific performance was sought to extend the period of lease. Without the previous sanction of the Charity Commissioner under Section 36 of the Trusts Act, lease period cannot be extended. Filing of such suit seeking a relief in the nature of declaration to extend the period of lease without permission of the Charity Commissioner would amount to circumventing the provisions of Section 36 of the Trusts Act. According to Shri Sanjanwala, reading of Section 80 of the Trusts Act would indicate that the question of permission under Section 36 of the Trusts Act would be subject matter to be decided under Section 80 of the Trusts Act and therefore, the suit was clearly barred. In the course of his submission, Shri Sanjanwala has relied on the judgment in the case of Church of North India v/s. Lavjibhai Ratanjibhai and others, reported in (2005) 10 Page 3 of 6 C/CRA/43/2014 JUDGMENT SCC 760. Drawing my attention to paragraph Nos.42, 69, 70 and 82 of the judgment, it was Shri Sanjanwala's submission that the Trusts Act is a complete code. It provides machinery for a person to put forward his claim. Party cannot maintain a suit to avoid rigours of the Act. Shri Sanjanwala submitted that bare reading of the plaint would suggest that the suit is barred, plaint ought to have been rejected rather than the applicants be made to undergo rigours of facing the suit.
[6] Mr. K.K.Trivedi, learned advocate for the respondent- original plaintiff has drawn my attention to the lease deed dated 12.08.1966. According to Shri Trivedi, a specific averment is made in the lease deed that such a deed is entered into after obtaining necessary sanction by the Charity Commissioner, Ahmedabad. Drawing my attention to clause-9 of the lease deed, Shri Trivedi submits that the lease deed suggests that in the event the lessee of the second part i.e. the plaintiff intends to extend the period of lease, he shall have to apply within one year and at least six calender months before expiry of the term. In other words, the condition within the lease deed itself provided for inbuilt mechanism of extension, which did not circumvent the provisions of Section 36 of the Trusts Act. According to Shri Trivedi, even now on 14.12.2012, issues have been framed by the trial Court wherein, one of the issues is as to whether the suit is barred by the provisions of Section 36 of the Trusts Act.
[7] Having considered the submissions of learned advocates for the respective parties and reading of the plaint, it suggests that the plaintiff-respondent herein has prayed for extension of the lease for a further period of 30 years once such lease Page 4 of 6 C/CRA/43/2014 JUDGMENT expired on 1996. Under clause 9 of the lease deed, it is open for such lessee to give notice seeking extension. On reading the plaint, it appears that a specific avement is made that the cause of action to file the the suit arose when the plaintiff gave notice on 26.12.1995 for extension of the lease period and deposited the rent and when the applicants-defendant refused to accept the rent for the extended periods.
[7.1] A specific recital in the lease deed is made that the lease deed has been entered into after obtaining necessary sanction of the Charity Commissioner. Recital in clause 9 would also indicate that there is inbuilt mechanism for extension of such lease. The question whether such extension under the lease deed would require renewed permission of the Charity Commissioner is a question which can only be decided at the trial. Whether in accordance with Section 80 of the Trusts Act, such an issue can be decided by the office or authority under the Act is therefore, mixed question of law and fact. The trial Court itself at Exh. 46 has framed issue as to whether suit is barred under Section 36 of the Trusts Act. Therefore, in view of this, I do not see any reason to find fault with the order of the learned trial Court in rejecting the application of the applicants under Order VII Rule 11(d) of the Code.
[8] Mr. R.S.Sanjanwala, learned senior counsel has suggested that an additional issue be framed as prayed for in the application under Order VII Rule 11(d) on the question whether the suit could be maintainable under the provisions of Section 69 of the Indian Partnership Act, 1932 because it was the contention of the applicants that respondent-plaintiff partnership firm does not appear to have been a registered Page 5 of 6 C/CRA/43/2014 JUDGMENT partnership firm. Shri Trivedi, learned advocate for the respondent-original plaintiff agreed that an additional issue as to whether the suit under Section 69 of the Indian Partnership Act, 1932 regarding competency of the plaintiff to file suit is maintainable or no? be also framed as an additional issue and be tried during the course of the trial.
[9] Accordingly, it is directed that the trial Court in addition to the issue framed regarding maintainability of the suit under Section 36 of the Trusts Act should also frame an issue as suggested aforesaid regarding Section 69 of the Indian Partnership Act. After framing such issue, the trial Court is directed to proceed further and decide the suit being Regular Civil Suit No.71 of 1999, pending before the learned Principal Senior Civil Judge, Surat preferably within one year from the date of receipt of writ of this Court.
[10] This application is accordingly, disposed of with the aforesaid observations. Rule is discharged. Interim relief, if any, stands vacated.
(BIREN VAISHNAV, J) Siddharth Page 6 of 6