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jsn 4 Originating Summons No.774_2014

7. The fact that the period of limitation is material to consider emanates from the observation in the Division Bench of this Court in the case of Charu K Mehta & Ors. Vs. Lilavati Kirtilal Mehta Medical Trust & Ors., 2013(1) Bom C R 23. In that case the Court observed that under Article 137 the originating summons taken out by the plaintiff in that case would have been barred by Law of Limitation. The Court observed that that originating summons was also barred by under Section 80 of the BPT Act. Since it was barred under that provision the Court did not consider the issue of limitation. The observation of the Court in paragraph 67 of the judgment shows that if the bar under Section 80 was not shown the consideration of the issue of limitation by the learned Single Judge could have been directed. Upon such observation this Court would require to consider the issue of limitation which has been considered as above.

8. It is argued on behalf of the defendant Nos.2 and 4 that this application is also barred by under Section 80 of the BPT Act.

Under Section 80 Civil Court's jurisdiction is barred with regard to any question by or under the BPT Act which is required to be decided or dealt with by the Charity Commissioner finally and conclusively. Mr Madon on behalf of defendant Nos.2 and 3 argued that under Section 50 (ii) and (iii) of the BPT Act the consent of the Charity Commissioner is required for any suit which is filed inter-alia to recover possession of any property from any person or in a suit for the administration of any public trust.

He would claim that for want of consent of Charity Commissioner this Court cannot entertain the originating summons. He relied upon the aforesaid judgment in the case of Charu (Supra) that the Court in a similar matter held that the originating summons was barred by Section 80 of the BPT Act. He would argue that question No.6 in this jsn 5 Originating Summons No.774_2014 originating summons is with regard to the filing of the suit relates to recovery of possession from defendant Nos. 2 and 3. Without the consent of the Charity Commissioner under Section 50 r/w. Section 51 of the BPT Act the suit could not be filed. The judgment in the case of Charu (Supra) holds that such an originating summons would be barred under Section 80 of the BPT Act. The reading of that judgment is incorrect. In that case there were several matters arising before the Assistant Charity Commissioner in change reports in which the interpretation of deeds of trust was directly in question. Those matters were disputed and contested and partly heard by Assistant Charity Commissioner. The change reports would have to be decided by the Assistant Charity Commissioner finally and conclusively. The Court would not have any jurisdiction to decide any application with regard to change reports. The originating summons for interpretation of deed of trust with regard to the change reports, therefore, would be barred under Section 80 of the BPT Act. This originating summons is specifically shown to be taken out for questions arising in the administration of the trust of the plaintiffs as specifically averred in paragraph 21 of the summons. A suit required to be filed for recovery of possession would have to be filed in a Civil Court. Orders and directions for administration of any public trust may also be given by the Civil Court. This would only be subject to the Charity Commissioner's consent / sanction. Under Section 50 or 51 of the BPT Act, they would not be matters required to be decided by the Charity Commissioner or any other officer under the Act finally and conclusively. This is not, therefore, one such matter. The Court's jurisdiction to otherwise answer question in an originating summons would not be barred by under Section 80 of BPT Act.