Bombay High Court
Dr. Joshi Trust, Amravati Through ... vs Shri Ambadevi Sanstha, Amravati ... on 8 June, 2022
Bench: S. M. Modak
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Civil Revision Application [CRA] No.48 of 2022
Dr. Joshi Trust Amravati & others
vs.
Shri Ambadevi Sanstha, Amravati & others
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Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders
or directions and Registrar's orders.
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Mr. A.C. Dharmadhikari, Advocate for the Applicants.
Mr. J.T. Gilda, Senior Advocate assisted by Mr. A.J. Gilda, Advocate for the Non-Applicants.
CORAM : S.M. MODAK, J.
DATE : 8th JUNE, 2022.
Heard learned Advocate Mr. A.C. Dharmadhikari for the
applicants/original defendants and learned Senior Advocate Mr. J.T. Gilda
for the non-applicants/original plaintiffs.
02] During pendency of this revision application, the original
plaintiffs are seeking leave to withdraw the suit along with permission to
file a fresh suit. It is opposed on behalf of the original defendants. The
present non-applicants have preferred Regular Civil Suit No.95/2022
before the Court of Civil Judge Senior Division, Amravati and the present
applicants are the defendants therein. The plaintiffs have sought for
declaration that the plaintiffs are having legal right to conduct Shri
Ambadevi Sansthan and Dr. Joshi Trust Hospital in the suit property and
they have sought for declaration to that effect. In addition to that, they
have sought for permanent and temporary injunction. During pendency
of that suit, the defendants have challenged the maintainability of the suit
on the ground that the plaintiffs have not sought permission of the Charity
Commissioner as contemplated under Section 50 of the Maharashtra
Public Trusts Act and an application for rejecting the plaint under the
provisions of Order VII Rule 11 of the Code of Civil Procedure was filed.
That was rejected by the trial Court as per the order dated 05/04/2022.
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Its legality is challenged by the defendants by way of this revision
application.
03] Now the plaintiffs do not want to continue the suit. It is
submitted on behalf of the plaintiffs that there is a formal defect in the
suit. The suit in the present form was filed for declaration as to their
status as contemplated under Section 34 and for permanent injunction as
contemplated under Section 38 of the Specific Relief Act. In fact the
plaintiffs ought to have filed a suit for recovery of possession under
Section 6 of the of the Specific Relief Act and the learned Senior Advocate
Mr. Gilda submits that it is a formal defect. According to him, if leave to
file fresh suit is not granted, that will be a bar for maintainability of a
fresh suit as contemplated under the provisions of Order II Rule 2 of the
Code of Civil Procedure. He, therefore relied upon the following
judgments--
i. Raosaheb s/o Shamrao Patwari and others vs. Vinod s/o
Raosaheb Patwari and others - 2015(2) Mh.L.J. 36.
ii. Neeraj M. Gwalani vs. Jenny Neeraj Gwalani - 2010(4)
Mh.L.J. 944.
iii. Mahendra Uttamrao Kadam and others vs. M/s Kacchi
Properties, Satara - 2011(6) Mh.L.J. 623.
04] According to him, even the revisional Court can grant such
relief. He also relied upon the provision of Order 23 Rule 1(3) of the
Code of Civil Procedure. Whereas, learned Advocate Mr. Dharmadhikari
opposed the prayer mainly on two grounds; (i) for granting of leave to file
a fresh suit and (ii) granting of leave by this Court. According to him, this
exercise ought to have been done before the trial Court in stead of this
Court.
05] I have read all these judgments. In the above judgments, the
order granting leave to file fresh suit was challenged by the respective
parties. In the case of Neeraj Gwalani, the Family Court at Bandra
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granted permission to withdraw the petition for divorce but rejected leave
to file a fresh petition. On this background, it was held that the
permission to withdraw and leave to file a fresh petition has to be
simultaneous, either the Court has to grant both the requests together or
to reject it. If it is rejected, the plaintiff has to continue with the suit in
the same form. That is observed in paragraph 6 of the said judgment.
Whereas, in the case of Raosaheb Patwari, the trial Court
granted permission to withdraw the suit with liberty to file a fresh suit.
This order was challenged. This Court has interpreted that the phrase
sufficient ground appearing in the second part of the judgment needs to
be interpreted liberally. Further more, it is observed that the discretion
has to be exercised for meeting the ends of justice.
Whereas, in the case of Mahendra Kadam, the trial Court
granted permission to withdraw the suit along with leave to file a fresh
suit. The legality of the said order was challenged before this Court.
There also meaning of phrase 'sufficient grounds' is interpreted.
06] There cannot be any dispute about the interpretation given in
above judgments. The issue is, whether this Court can grant such
permission or leave. Learned Senior Advocate Mr. Gilda submitted that
for that purpose, the revisional Court is presumed to have power to grant
such leave, whereas it is opposed by learned Advocate Mr.
Dharmadahikari. It is true that there is difference in between the
appellate jurisdiction and revisional jurisdiction. The appeal proceedings
is presumed to be continuation of the suit. This cannot be said so far as
the revision proceedings are concerned. When we read the provisions of
Section 115 of the Code of Civil Procedure, we may find that there are
certain restrictions on the powers of the revisional Court. The proviso to
sub-section (1) of of Section 115 and sub-section (2) of Section 115 lays
down, what the High Court should not do.
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07] At this stage, learned Senior Advocate Mr. Gilda relied upon a
judgment in the case of Shankar Ramchandra Abhyankar vs. Krishnaji
Dattatraya Bapat reported in AIR 1970 (SC) 1 with a view to buttress his
submission about the wide powers to be exercised by the revisional Court.
I have gone through the said judgment. The issue involved before the
Hon'ble Supreme Court was about the maintainability of the writ petition
on the background that the High Court has already exercised the
revisional jurisdiction. It was held that when two modes of invoking
jurisdiction of the High Court are available and one of the modes has been
exhausted, it would not be a proper and sound exercise of discretion to
grant relief in the other set of proceedings (Paragraph 8). While deciding
that issue, the Hon'ble Supreme Court also dealt with the powers of the
appellate Court on one hand and of the revisional Court on the other
hand. It was held that exercising revisional jurisdiction is one of the
modes of exercising of power conferred by the statute. Basically and
fundamentally it is the appellate jurisdiction of the High Court, which is
being invoked and exercised in a wider and larger sense. While observing
so, the Hon'ble Supreme Court has also taken a note of the limitation laid
down in Section 115 of the Code of Civil Procedure.
08] It is true that when above three judgments are perused, it is
clear that the issue has not been cropped up as to, whether the Court
referred in Order 23 Rule 1(3) of the Code of Civil Procedure includes
revisional Court or not. Those matters were decided on the background
that leave was granted by the trial Court. So, except for assisting the
plaintiffs, what are the parameters for deciding the leave it does not help
the plaintiffs. I am of the considered view that such prayers have to be
made before the trial Court only. Yet the suit is pending. One of the
contingencies when the appellate Court deals with the matter, is when the
suit is finally decided. It may be at an interim stage also. So, I am of the
considered view that the meaning of the word 'Court' as referred in Order
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23 Rule 1(3) of Code of Civil Procedure cannot be interpreted as a
revisional Court in the facts and circumstances of the case. The
observations of the Apex Court are on different background. So, I do not
think that they will also help the plaintiffs.
09] There is one more reason for not accepting the request of the
defendants. It may also happen that the Court may grant leave or refuse
the leave. If the decision will go in favour of either of the parties, then the
aggrieved party may lose the chance of challenging the findings recorded
by the revisional Court. So, I think that the best forum available is to go
before the trial Court. Hence, I am not accepting such a request. The
plaintiffs are at liberty to move the trial Court and if such request is made,
the trial Court will be at liberty to decide the matter on its own merits.
For that purpose, it is made clear that the stay granted by this Court will
not come in the way of the trial Court to decide such a request. If such
request is made, the trial Court to decide such request as early as possible
or within a period of one month.
10] The matter be kept after six weeks.
JUDGE
*sandesh
Signed by:SANDESH DAULATRAO
WAGHMARE
Private Secretary to the Hon'ble Judge
Signing Date:09.06.2022 18:08
