Bombay High Court
Shri Rukhmini Pandurang ... vs Vinod Laxmanrao Rai And Another on 26 February, 2016
Bench: A.S. Chandurkar
CRA89.15.odt 1/14
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
CIVIL REVISION APPLICATION NO.89 OF 2015
PETITIONER: 1. Shri Rukhmini Pandurang Deosthan,
Yavatmal, Registration No.A-145,
(Ori. Deft. No.1 on
Yavatmal, Through its Trustees:-
RA)
(a) Shri Madhao Diwakar Damle, Aged
about 86 years, President, R/o
Awdhoot Wadi, Tiwari Chowk,
Yavatmal Tq. & Dist. Yavatmal.
ig (b) Dr. Govind Narayan Deshpande, Aged
about 76 years, Vice-President, R/o
Bapat Chowk, Tilak Wadi Yavatmal
Tq. & Dist. Yavatmal.
(c) Dr. Dinkar Kashinath Bade, Aged
about 61 years, Secretary, R/o
Sarswat Chowk, Sankatmochan Road,
Yavatmal Tq. & Dist. Yavatmal.
(d) Purushottam Krishnarao Joshi, Aged
Adult, Trustee, R/o Mainde Chowk,
Yavatmal Tq. & Dist. Yavatmal.
(e) Adv. Sanjay Manoharrao Puranik,
Aged Adult, Trustee, R/o Kale Layout,
Yavatmal Tq. & Dist. Yavatmal.
-VERSUS-
RESPONDENTS: 1. Vinod Laxmanrao Rai, Aged about 56
years, Occup Agriculturist & Business,
(On R.A.)
R/o Om Society, Yavatmal Tq. & Dist.
Yavatmal (Ori.Plff.)
2. Joint Charity Commissioner,
Amravati, Tq. & Dist. Amravati
(Ori.Deft.No.2)
Shri S. C. Bhalerao, Advocate for the applicant.
Shri S. R. Deshpande, Advocate for the respondent No.1.
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CRA89.15.odt 2/14
Mrs. H. N. Prabhu, Asstt. Government Pleader for respondent No.2.
----------------------------------------------------------------------------------------------------
CORAM: A.S. CHANDURKAR, J.
DATE ON WHICH SUBMISSIONS WERE HEARD: 23-12-2015.
DATE ON WHICH JUDGMENT IS PRONOUNCED: 26-02-2016.
ORAL JUDGMENT :
1. Admit.
2. Heard finally with the consent of the learned Counsel for
the parties.
ig This revision application under Section 115 of the Code of
Civil Procedure, 1908 (for short, the Code) takes exception to the order
dated 25-6-2015 passed by the Trial Court adjudicating the preliminary
issue with regard to jurisdiction of the civil court to decide the suit and
holding that the civil court had jurisdiction to proceed with suit on
merits.
4. The facts that are relevant for considering the challenge
raised in revision application are that land measuring about 8 Hectares
30 Are from Survey No.23/2 is owned by the applicant trust. On
7-5-2006, the Trust had passed a resolution resolving to alienate said
land. Thereafter, in proceedings under Section 36 of the Maharashtra
Public Trust Act, 1950 (for short the said Act) the learned Joint Charity
Commissioner, Amravati allowed the application filed by the Trust for
seeking permission to sell aforesaid property. The consideration fixed
was Rs.46,20,000/-. The land was to be sold to the non-applicant no.1.
CRA89.15.odt 3/14
In said order dated 20-7-2007 the manner in which the payment should
be made was stipulated. The time to deposit the amount of consideration
was subsequently extended as per order dated 11-7-2007. According to
the non-applicant No.1, the name of one Moreshwar Admane was
recorded in the 7/12 Extracts for the first time in the year 2006-2007.
Though the non-applicant No.1 was always ready and willing to make
payment of the balance consideration, the same was avoided by the
trustees on one pretext or the other. Thereafter, there were exchanges
of notices and ultimately on 16-6-2012 one of the trustees informed the
non-applicant No.1 that the Trust through its trustees was not willing to
execute the sale deed. On that basis the non-applicant No.1 filed Special
Civil Suit No.69/2012 praying that the Trust through its trustees and/or
the Joint Charity Commissioner should execute a sale deed of the suit
field by accepting the balance consideration. In the alternative, a prayer
for refund of the earnest amount was also made.
5. The Trust through its trustees filed written statement
opposing the claim for specific performance. It was denied that the non-
applicant No.1 was entitled for the relief of specific performance. It was
further pleaded that no permission of the competent Authority under the
said Act was obtained before filing the suit. The civil court, therefore,
had no jurisdiction to try the suit.
The trial Court thereafter framed the issues vide Exhibit-17.
The applicants herein filed an application under provisions of Section 9A
of the Code read with provisions of Order XIV Rule 2 of the Code for
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deciding the issues Nos.4,5 & 6 as preliminary issues.
6. The trial Court by passing an order below Exhibit-22
directed issue No.6 as framed to be tried as a preliminary issue. Issue
No.6 was with regard to jurisdiction of the civil court to decide the suit.
The non-applicant No.1 filed his affidavit in lieu of evidence in support
of the preliminary issue. The applicants, however, did not adduce any
evidence and relied upon their pleadings for seeking rejection of the
plaint. By the impugned order, the trial court came to the conclusion
that as the suit had been filed by the non-applicant No.1 for protecting
his civil rights, the provisions of Sections 50, 51 and 80 of the said Act
were not attracted. It was held that the Joint Charity Commissioner had
been joined as a proper party. Accordingly, by the order dated 25-6-
2015 the trial court answered the preliminary issue by holding that it
had jurisdiction to decide the suit. Being aggrieved, the trustees have
filed the present revision application.
7. Shri S. C. Bhalerao, the learned Counsel for the applicants
submitted that considering the nature of reliefs sought by the non-
applicant No.1, the suit as filed before the civil court was not
maintainable. The civil court had no jurisdiction to entertain the same
in view of various provisions of the said Act. The learned Counsel
referred to the provisions of Sections 50, 51(1) and 80 of the said Act to
urge that the civil court could not have taken cognizance of the suit in
view of the fact that the necessary permission of the Charity
Commissioner for filing the suit in respect of the public trust property
CRA89.15.odt 5/14
had not been obtained. It was submitted that the proceedings arose out
of an application filed under Section 36 of the said Act with relation to
the trust property. It was submitted that the trial Court did not consider
the nature of relief that was sought by the non-applicant No.1 and
erroneously held that the civil court had jurisdiction to entertain the suit.
In support of his submissions, the learned Counsel relied upon the
following judgments:
(1) Charity Commissioner, Maharashtra State, Bombay vs.
Shantidevi Lalchand Chhaganlal Foundation Trust by
trustees Lalchand Chhaganlal Jain and others 1989 Mh.L.J.
ig 1048.
Bomi Jal Mistry and others Vs. Joint Charity Commissioner,
Maharashtra and others 2002(5) Mh.L.J. 660.
(3) Church of North India vs. Lavajibhai Ratanjibhai and Ors.
2005 SAR (Civil) 647.
(4) Lakhanlal Brijlal Purohit and others vs. Marwadi Samshan
Hanuman Mandir, Akot 2006 (2) Mh.L.J. 479.
(5) Sainath Mandir Trust VS. Vijaya & Ors. 2011 SAR (Civil)
(6) Major Dadasaheb Nimbalkar Educational Charity Trust vs.
Latadevi Govind Pati and others 2013 (6) Mh.L.J. 497.
(7) Rajiv K. Mehta Vs. Rekha H. Sheth & Ors. 2014(3) BCR
(8) Foreshore Co-operative Housing Society Ltd. vs. Praveen D.
Desai (dead) Lrs and others 2015(3) Mh.L.J. 315 (SC).
It was, therefore, submitted that the preliminary issue ought to be
answered by holding that the civil court had no jurisdiction to entertain
the suit.
8. Shri S. R. Deshpande, learned Counsel for the non-
applicant No.1 on the other hand submitted that the trial court had
CRA89.15.odt 6/14
rightly found that it had jurisdiction to entertain the suit. The learned
Counsel relied upon provisions of Sections 2(3), 3A, Section 36, Sections
50 and 51 of the said Act and urged that there was no need whatsoever
for the non-applicant No.1 to obtain any permission of any authority
under the said Act before filing the suit. The non-applicant No.1 was
concerned with his civil rights and was seeking enforcement of a
document of title in his favour. As the interest of the non-applicant No.1
was adverse to the interest of the Trust, no permission of the Joint
Charity Commissioner was necessary for filing the suit. He further
submitted that Section 51 of the said Act did not relate to jurisdiction of
the civil court to entertain the suit and, therefore, the provisions of
Order VII Rule 11 of the Code were not attracted. It was also submitted
that the non-applicant No.1 was not seeking adjudication of any
questions that were required to be decided by any Authority under the
said Act. Without prejudice to the aforesaid, it was submitted that even
if the civil court had no jurisdiction to grant some part of the relief then
the plaint in its entirety could not be rejected and the civil court would
retain jurisdiction for considering those reliefs with regard to which it
had jurisdiction. In support of his submissions, the learned Counsel
placed reliance upon the following judgments:
(1) Abdul Karim Khan and others V. Municipal Committee
Raipur AIR 1965 SC 1744.
(2) Sopan Sukhdeo Sable and others vs. Assistant Charity
Commissioner and others AIR 2004 SC 1801.
(3) Keki Pestonji Jamadar v. Rodabai Khodadad Merwan Irani
CRA89.15.odt 7/14
1972 Mh.L.J. page 427 (FB).
It was, therefore, submitted that the trial court did not commit any
jurisdictional error while holding that it had jurisdiction to proceed with
the adjudication of the suit.
Smt. H. N. Prabhu, learned Assistant Government Pleader
appearing for the non-applicant No.2 submitted that the dispute was
principally between the applicants and the non-applicant No.1. The
non-applicant No.2 had merely decided the application under Section 36
of the said Act.
ig I have heard the respective Counsel for the parties at
length. Since the preliminary issue relates to jurisdiction of the civil
court to entertain the suit, and the impugned order has been passed on
an application preferred under provisions of Order VII Rule 11 of the
Code, it would be necessary to consider the averments made in the
plaint. According to the non-applicant No.1 in response to an
advertisement issued by the applicants, he had participated in the
proceedings for the permission to sell the land of the Trust. The non-
applicant No.1 had initially offered a bid of Rs.21,00,000/- and had also
deposited the earnest amount. In the process of bidding, thereafter the
non-applicant No.1 had offered the highest bid of Rs.40,00,001/-. He
then pleaded that one Shri Warjurkar was again permitted to bid though
the offer of the non-applicant No.1 had been accepted on 17-7-2007.
Despite that the non-applicant No.1 further offered Rs.46,20,000/- as
consideration for purchasing the land admeasuring 8 Hectares 30 Are.
CRA89.15.odt 8/14
It is then pleaded that the trustees attempted to induct one Moreshwar
Admane in the suit field. In view of this, the non-applicant No.1
requested for extending the time to deposit the balance consideration.
However, no action was taken against the person in possession of the
suit field. The agreement of sale, therefore, could not materialize
though the non-applicant no.1 was always ready and willing to pay the
consideration. Then there was some dispute with regard to actual area
of the land in question. 0.53R land was said to be under encroachment
and, therefore, the non-applicant No.1 issued a letter on 7-5-2012
requesting for execution of the sale deed in his favour in respect of the
remaining land. On 16-6-2012 one of the trustees informed the non-
applicant No.1 that it was not possible for the Trust to execute the sale
deed and treating the same as the cause of action for filing the present
suit, the same was filed on 8-10-2012. As stated above, the reliefs
sought are for a decree directing the present applicants and/or the non-
applicant No.2 to execute a sale deed in favour of the non-applicant
No.1 in respect of land admeasuring 7 hectares 77 Are by accepting the
balance consideration. In the alternative, there is a prayer to refund the
amount already paid. These are the averments as can be seen in the
plaint.
10. While considering the aspect of jurisdiction of the civil
court to entertain the suit, it is well settled that the plaint as a whole has
to be read. As held by the Hon'ble Supreme Court in Sopan Sukhdeo
Sable (supra), there is a basic distinction between the statements of facts
CRA89.15.odt 9/14
disclosing the cause of action and the reliefs sought for. The reliefs
claimed do not constitute the cause of action and they constitute only
the entitlement, if any, on the basis of the pleaded facts. If the
averments of the plaint are seen as a whole, it can be gathered that the
non-applicant No.1 is basically seeking enforcement of a sale deed in his
favour pursuant to orders passed in proceedings under Section 36 of the
said Act. According to the non-applicant No.1, his bid of Rs.46,20,000/-
was the highest bid and in furtherance of the same he had deposited
certain amounts. According to him, he was always ready and willing to
perform his part of the contract, but the applicants on one pretext or the
other had refused to complete the transaction. The suit, therefore, is a
suit for specific performance seeking execution of a document of title in
favour of the plaintiff.
11. Under Section 50 of the said Act, in certain contingencies
either the Charity Commissioner may after making necessary enquiry or
two or more persons having an interest in the public trust can institute a
suit after obtaining consent in writing of the Charity Commissioner.
Section 51 of the said Act contemplates grant of consent by the Charity
Commissioner to persons having interest in any public trust to file a suit
of the nature specified in Section 50. Section 80 of the said Act bars
jurisdiction of the civil court to decide or deal with any question which is
required to be decided or dealt with by any officer or authority under
the said Act in respect of which the decision or order of such officer or
authority has been made final and conclusive.
CRA89.15.odt 10/14
Considering the nature of reliefs sought by the non-
applicant No.1, it can hardly be said that he was seeking relief of the
nature as contemplated by Section 50 of the said Act. The suit is based
on the cause of action that has accrued on account of the permission
granted under Section 36 of the said Act to sell the suit property. The
suit is for specific performance of an agreement entered into pursuant to
permission being granted under Section 36 of the said Act. In fact, the
non-applicant No.1 was seeking enforcement of his civil rights for having
a document of title being executed in his favour. On that basis,
therefore, it cannot be said that provisions of Section 50 of the said Act
were attracted thereby requiring the non-applicant No.1 to obtain
permission of the Joint Charity Commissioner under Section 51 of the
said Act. Similarly, the prayers as made in the civil suit cannot be said to
be of such nature that were required to be adjudicated by an officer or
authority under the said Act. The relief of specific performance could be
obtained only in the civil court. The bar under Section 80 of the said Act
to entertain the suit would also not come in the way of the non-applicant
No.1.
12. In Charity Commissioner, Maharashtra State (supra), certain
landed property was acquired by a public trust. Some of the trustees
wanted to develop the trust property and, therefore, filed a civil suit
praying that they be permitted to enter into a development agreement. A
prayer was also made that if such directions are issued then no separate
sanction from the Charity Commissioner was necessary for the
CRA89.15.odt 11/14
development and its subsequent alienation. It was held by the Division
Bench that the civil court had no jurisdiction to authorize or sanction the
development agreement. Though the trustees had power to alienate the
suit property, they could not have approached the civil court for such a
direction. It was accordingly held that the civil court had no jurisdiction
to grant relief to that extent. Reliance on aforesaid judgment by the
applicants is, therefore, misplaced in view of the facts of the present case
and same does not support their contentions.
13. The decision in Major Dadasaheb Nimbalkar (supra) also
does not assist the case of the applicant inasmuch as the facts therein
indicate that an application under Section 51 of the said Act for grant of
permission to file a civil suit under Section 50 of the said Act for
recovery of trust property came to be filed. This application was allowed
after which the suit came to be filed. A similar application was moved
by the defendant Nos.2 to 4 therein which application came to be
rejected. During pendency of the suit filed by the original plaintiff, the
defendant Nos.2 to 4 filed an application for being permitted to be
joined as the plaintiffs. The trial Court allowed this application which
came to be challenged by the original plaintiff. It was held that the
plaintiff could not be substituted nor could the defendant Nos.2 to 4 be
allowed to prosecute the suit as plaintiffs in the absence of any
permission being obtained by them under Section 51 of the said Act.
The ratio of aforesaid decision also does not assist the applicants.
Similarly, the decision in Rajiv K. Mehta (supra) also does not support
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the case of the applicants. In said case after examining the averments of
the plaint and the reliefs claimed, it was found that the same related to
the working of the Trust and its trustees thereby requiring permission of
the Charity Commissioner under Section 50 of the said Act.
In so far as the judgment in Lakhanlal Brijlal Purohit
(supra) is concerned, it is to be noted that in Miscellaneous Civil
Application No.661/2014 decided on 14-10-2014 said judgment has
been reviewed and recalled. Hence, said decision cannot be taken into
consideration.
ig Another aspect which is relevant is with regard to the
nature of right which the non-applicant No.1 seeks to enforce by filing
the civil suit. The right of specific performance which the non-applicant
No.1 seeks is on the basis of the permission granted by the non-applicant
No.2 to alienate the property in question. The right, therefore, which is
sought to be enforced is a civil right and has nothing to do with any
matter pertaining to the administration of the public Trust. In Vinayaka
Dev Idagunji and others Vs. Shivram and others (2005) 6 SCC 641, it was
held by the Hon'ble Supreme Court that Section 50 of the said Act
relates to matters that fall within the ambit of administration of a public
Trust and in such matters the consent in writing of the Charity
Commissioner has to be obtained under Section 51 of the said Act. It is,
therefore, clear that in the present case the non-applicant no.1 is seeking
enforcement of his civil right which has nothing to do with the
administration of the public trust. On this count also, provisions of
CRA89.15.odt 13/14
Section 50 of the said Act cannot be made applicable.
Similarly, under Section 79 of the said Act, it is only a
question as regards existence of a Trust and whether such trust is a
public Trust or a particular property is the property of the public Trust
has to be decided by the Authorities under the said Act. Under Section
80 of the said Act, jurisdiction of the civil Court is barred with regard to
questions that are required to be decided or dealt with by any Officer or
Authority under the said Act, which decision has been made final and
conclusive. The civil suit filed by the non-applicant No.1 does not call
upon the civil Court to decide or deal with any question that has to be
decided or dealt with by any Officer or Authority under the said Act.
15. Thus, viewed from any angle, it cannot be said that the civil
Court had no jurisdiction to entertain the suit filed by the non-applicant
No.1. In fact, provisions of Sections 50 and 51 are also not attracted in
the present case requiring the non-applicant No.1 to obtain consent of
the non-applicant No.2 before filing said suit.
However, only one aspect that requires reference is that
prayer clause (a) in the suit seeks a decree against the defendant No.1
and/or the defendant No.2 to execute the sale deed. The permission
having been granted by the defendant No.2 under Section 36 of the said
Act, such relief could be claimed only against the defendant No.1.
Impleadment of the defendant No.2 can only be as a proper party.
Subject to these observations, there is no jurisdictional error committed
by the trial Court warranting interference. The Civil Revision Application
CRA89.15.odt 14/14
is, therefore, dismissed with no order as to costs.
JUDGE
//MULEY//
