C/FA/376/2022 ORDER DATED: 23/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 376 of 2022
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LATE CHARITRANANDJI NARAYANNANDJI MILKAT AHMEDABAD
THROUGH TRUSTEE PURSHOTTAMANANDJI GURUDAYANANDJI
Versus
MAHANT PURNANADJI
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Appearance:
KURVEN K DESAI(7786) for the Appellant(s) No. 1
MR TUSHAR L SHETH(3920) for the Defendant(s) No. 1
for the Defendant(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 23/02/2023
ORAL ORDER
[1] The First Appeal is filed challenging the order passed by the Ahmedabad City Civil Court dated 24.12.2019 in Civil Suit No.1808 of 2014 below Chamber Summons in Application under Order 7 Rule 11 of the Code of Civil Procedure (for short "CPC").
[2] Apparently, two grounds were raised. The issue before the Civil Court was a civil suit filed by the present appellant with a prayer to declare a Will executed in favour of the respondent No.1 to be bogus and illegal and therefore, not to be acted upon. The suit was filed by the plaintiff who claims to be the himself a trustee of the trust.
[3] Learned advocate for the appellant submitted that an application under Order 7 Rule 11 of the CPC came to be filed raising two contentions namely the suit is barred by limitation and the statutory permission under Section 51 of the Bombay Public Trust Act not being taken from the Charity Commissioner, the suit is barred.
[4] It appears that out of two contentions, the contention regarding limitation was decided against the applicant (respondents herein), whereas Page 1 of 3 Downloaded on : Fri Feb 24 20:50:45 IST 2023 C/FA/376/2022 ORDER DATED: 23/02/2023 the issue with regard to the statutory bar on account of lack of prior permission of the Charity Commissioner was decided in favour of the respondent herein (original defendants). Accordingly, the application under Order 7 Rule 11 of the CPC came to be allowed and the suit stood dismissed.
[5] At the outset, it is relevant to observe that the issue with regard to the permission under Section 51 of the Bombay Public Trust Act is covered by the decision of the Gujarat High Court in case of Nadiad Nagarpalika v/s. Vitthalbhai Zaverbhai Patel, reported in AIR 1980 Guj.
161. However, the issue with regard to the bar of limitation which was decided against the respondents herein is not a subject of challenge however, in the First Appeal it is always open for the respondents to file a cross objection to make good their contention that the suit was also barred by limitation.
[6] At this stage, learned advocates for the both the parties under the consent of the respective parties have urged the Court that the matter may be remanded back for fresh hearing of the application under Order 7 Rule 11 of the CPC.
[7] As the issues in the opinion of the Court, particularly the ground on which the appellant has been non suited is against the decision of this Court and hence in light of the aforesaid judgment, the Civil Court will have to decide afresh on the very issue. At the same time, keeping the option open for the respondents to contend that the suit is also barred by limitation, the matter is remanded back to the City Civil Court for a fresh hearing. Accordingly, the order impugned is quashed and set aside. The matter is remitted back to the City Civil Court at Ahmedabad to consider afresh an application filed by the respondents under Order 7 Rule 11 of the CPC. Accordingly, the parties are directed to remain present before the City Civil Court on 31.03.2023 so as to avoid the Page 2 of 3 Downloaded on : Fri Feb 24 20:50:45 IST 2023 C/FA/376/2022 ORDER DATED: 23/02/2023 formality of issuing service to both the parties. Accordingly, the First Appeal is allowed. The matter is remanded back for fresh hearing. All the contentions are kept open for both the parties.
(A.Y. KOGJE, J) SIDDHARTH Page 3 of 3 Downloaded on : Fri Feb 24 20:50:45 IST 2023