Bombay High Court
Dr. Joshi Trust Amravati, Thr. ... vs Shri Ambadevi Sansthan Amravati ... on 14 September, 2022
Bench: Avinash G. Gharote
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.5212/2022
PETITIONERS: 1. Dr. Joshi Trust Amravati,
Registered No.A-4187, through
Smt. Mangala Pandurang Joshi,
R/o Tryambakashram, Vakil Line,
Ambadevi Road, Amravati.
2. Smt. Mangala Pandurang Joshi,
Aged : Major, Occupation : Trustee,
R/o Tryambakashram, Vakil Line,
Ambadevi Road, Amravati.
3. Charusheela Mukundrao Sathey,
Aged : Major, Occupation : Trustee,
R/o A- 1 Building, Top Floor, Plot No.103,
Todkar Residency, Near Ravikiran Hall,
Bibwaywadi, Upper Indira Nagar, Pune.
4. Sau. Ashatai Sureshrao Kher,
Aged : Major,
Occupation : Trustee, R/o Shri S.N. Kher,
Plot No.19/2, Snehlatangaj, Indore,
Madhya Pradesh.
5. Dr. Digambar Vyankatesh Jahagirdar
Aged : Major, Occupation : Trustee,
R/o Gulamohar Colony, Camp, Amravati.
6. Sunil Prabhakarrao Chitale,
Aged : Major, Occupation : Trustee,
R/o Vyankatesh Lawn, New Swastic
Nagar, Badnera Road, Amravati.
7. Shivajirao Mahadeorao Gedam,
Aged : Major, Occupation : Trustee,
R/o Shivkrupa Colony, Near Talai
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Celebration Hall, V.M.V. Road, Amravati.
8. Shailaja Mahadeorao Bhagvat,
Aged : Major, Occupation : Trustee
R/o Shriram Prasad, Ambapeth, Amravati.
...VERSUS...
RESPONDENTS : 1. Shri Ambadevi Sansthan, Amravati.
Registration No.A-429 (Amravati)
Through Trustee.
2. Smt. Vidhya Vijayrao Deshpande
Aged 72 years, Occ. President,
R/o Ambapeth, Amravati.
3. Shri Dr. A.M. Parsodkar,
Aged 74 years, Occ. Vice President,
R/o Renuka, Sharda Nagar, Amravati.
4. Shri Ravindra V. Karve,
Aged 68 years, Occ : Secretary,
R/o 202, Ganediwal Layout, Camp, Amravati.
5. Shri Deepak M. Shrimali,
Aged 69 years, Occ : Secretary,
R/o Mangilal Plot, Amravati.
6. Shri Dr. Atul Pandurang Alshi,
Aged 62 years, Occ: Trustee,
R/o Anandvan, Mangilal Plot, Amravati.
7. Shri Kishor G. Bendre,
Aged 55 years, Occ : Trustee
R/o Mangilal Plot, Amravati.
8. Shri Surendra R. Burange,
Aged 52 years, Occ : Trustee,
R/o Bhajibazar, Amravati.
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9. Sau. Vijaytai A. Gudhe,
Aged 45 years, Occ : Trustee,
R/o Budhwara, Amravati.
10. Shri Ashok Motilal Gupta,
Aged 65 years, Occ : Trustee,
R/o Cotton Market Road, Amravati.
11. Shri Ramesh Krushnarao Kewale,
Aged 75 years, Occ : Trustee,
R/o Budhawara, Amravati.
12. Sau. Deepatai R. Khandekar,
Aged 48 years, Occ : Trustee,
R/o Mudholkar Peth, Amravati.
13. Shri Ashok Shankarrao Khandelwal,
Aged 52 years, Occ : Trustee,
R/o Ratnaprabha Apartment, Mangilal
Plot, Amravati.
14. Shri Digambar M. Mahajan,
Aged 75 years, Occ: Trustee,
R/o In front of D.R.G. Gungalow,
Camp Amravati.
15. Shri Vilas Arun Marathe,
Aged 52 years, Occ : Trustee,
R/o 1st Floor, Pratapgad Apartment,
Khaparde Garden, Amravati.
16. Dr. Yashwant Shankar Mashankar,
Aged 80 years, Occ : Trustee,
R/o Mashankar Hospital, Rajapeth,
Amravati.
17. Adv. Rejendra R. Pande,
Aged 52 years, Occ : Trustee,
R/o Ramprabha, Amar Colony, Amravati.
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18. Shri Dr. Jayant Damodhar Pandhrikar,
Aged 52 years, Occ : Trustee,
R/o Near Topper Hospital, Rajpeth, Amravati.
19. Sau. Minatai D. Pathak,
Aged 48 years, Occ : Trustee,
R/o Dahane Nagar, Amravati.
20. Shri Shailesh P. Potdar
Aged 48 years, Occ : Trustee,
R/o Durgavihar, Amravati.
21. Shri Dr. Pradeep Balavant Shingore
Aged 62 years, Occ : Trustee,
R/o Rutuparna, Camp Amravati.
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Shri A.C. Dharmadhikar, Advocate for petitioners
Shri J.T. Gilda, Senior Advocate assisted by Shri A.J. Gilda, Advocate for respondents
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CORAM : AVINASH G. GHAROTE, J.
DATE : 14/09/2022
ORAL JUDGMENT
1. Heard Shri A.C. Dharmadhikari, learned counsel for the
petitioners and Shri J.T. Gilda, learned senior counsel for the
respondents. Rule. Rule made returnable forthwith. Heard finally
with the consent of the learned counsel for the rival parties.
2. The petition challenges the order dated 13/07/2022
(pg.30) whereby the application filed by the plaintiffs/respondents
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in Regular Civil Suit No.95/2022, for withdrawal of the suit under
Order XXIII Rule 1 (3) (a) of the Code of Civil Procedure (for short,
"CPC" hereinafter) with liberty to institute a fresh suit, has been
allowed by the learned Trial Court.
3. Shri Dharmadhikari, learned counsel appearing for the
petitioners, submits that though the right of withdrawal by the
plaintiffs is an absolute right vested in the plaintiffs, however when
liberty is sought, the same cannot be granted merely for the sake of
asking, but has to satisfy the requirement of Order XXIII Rule 1 (3)
(a) of CPC, which requires that such liberty be granted, if the Court
is satisfied that the suit must fail for the reason of some formal
defect. He submits that perusal of the application for withdrawal at
Exh.45, merely spelt out, that since the suit was filed for declaration
and mandatory injunction and since the plea on which it was sought
to be withdrawn indicated that what was necessary was to file a suit
under Section 6 of the Specific Relief Act, 1963 for restoration of
possession against the defendants, this could not be termed as a
defect which was formal in nature for the reason that the nature of
the suit intended to be filed was a totally different one. He lays
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stress upon the expression "formal defect as comparative to a
substantive defect" and contends that what was filed was a
substantive suit which itself was not maintainable for want of
permission under Section 50 of the Maharashtra Public Trusts Act,
1950, which was necessary as the plaint itself indicated that
permission of the learned Charity Commissioner was necessary to
institute the suit which defect goes to the very jurisdiction of the
Court to entertain the suit. He further submits that what was the
nature of the formal defect is also not spelt out in the application at
Exh.45. Reliance is placed by him on M.B. Development Corporation
Vs. Manilal Patel and Co., MANU/MH/0278/2001, on Jagjit Singh
Vs. Gursharan Singh, 2002 (1) Civil LJ 302 and on Govind Gulabrao
More and another Vs. Laxman Sahebrao More and others, 2000 (1)
Mh.L.J. 310.
4. Reliance is also placed upon the Full Bench judgment in
Ramrao Bhagwantrao Inamdar and another Vs. Babu Appanna
Samage and others, AIR 1940 Bombay 121 to contend that a formal
defect and sufficient grounds are two different and distinct things
which cannot be mixed together.
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5. Shri Gilda, learned senior counsel appearing for the
respondents supports the impugned order and submits that though
the plaint indicated that it was a suit for declaration and permanent
injunction in sum and substance, it was a suit for recovery of
possession from the defendants, as on 22/02/2022 the defendants
had put a lock upon the premises from which Shri Ambadevi
Sansthan and Dr. Joshi Trust Hospital was being run and the
plaintiffs were prevented from running the hospital in the said
premises though admittedly, under the agreement dated
09/02/1984 between the plaintiff no.1 and the defendant no.1 the
premises were put in possession of the plaintiffs for the purpose of
running the aforesaid hospital, which position is again reiterated by
the supplementary agreement dated 13/06/1991. It is thus
submitted that what was necessary in law was for the plaintiffs to
have filed the suit under Section 6 of the Specific Relief Act, 1963
for restoration of possession instead of suit for declaration and
mandatory injunction as filed, and the application for withdrawal
with liberty merely sought to rectify this defect.
6. It is a trite position of law that where an application is
filed under Order XXIII Rule 1 (3) (a) of CPC for withdrawal of the
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suit with liberty, the Court has either to grant the application as it is,
in light of the prayer made or dismiss the application. It is not
permissible, in my considered opinion, for the Court to partly allow
the application regarding withdrawal and partly reject it insofar as
the liberty is concerned, for the reason that in case the liberty is
rejected, the plaintiff may choose to continue the suit as it is and
take appropriate steps to bring the suit in the nature and form which
the plaintiff deems fit and appropriate.
7. Insofar as the averment in the plaint in Regular Civil
Suit No.95/2022 is concerned, it is a suit for declaration and
permanent injunction claiming a restraint also, in the working of the
hospital on behalf of the defendant nos.1 to 8. It is the contention as
reflected from the plaint itself that on 22/02/2022 the defendants
had put a lock to the main gate of the hospital and therefore
restrained the plaintiffs from operating the said hospital. As rightly
contended by Shri Gilda, learned senior counsel for the respondents,
what was necessary to be filed was a suit seeking restoration of
possession which could be a suit under Section 6 of the Specific
Relief Act. The plaint in Regular Civil Suit No.95/2022 did not seek
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such a relief of possession. It is in this context that the objection that
the suit was infirm in light of not having obtained permission under
Section 50 of the Maharashtra Public Trusts Act has to be
considered. The question whether permission was necessary or not
would not be germane for deciding whether the application at
Exh.45 for withdrawal with liberty needs to be allowed. What is to
be seen as to whether the plaintiffs in spite of a decree being passed,
as it is, on the basis of the prayer clause in the plaint would have
been put in possession of the property in question, to which
obviously the answer is in the negative. The Full Bench judgment in
Ramrao Bhagwantrao Inamdar (supra) relied upon by
Shri Dharmadhikari, learned counsel for the petitioners itself
indicates that the expression "formal defect" must be given a wide
and liberal meaning and must be deemed to connote every kind of
defect which does not affect the merits of the case, whether that
defect be fatal to the suit or not. Since a relief for possession was not
claimed it was even otherwise permissible for the plaintiffs to have
filed a suit under Section 6 of the Specific Relief Act.
8. Govind Gulabrao More (supra) was a case in which the
learned lower Court had on merits dismissed the suit of the plaintiffs
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by giving a categorical finding, as a result of which, it was held that
a right had accrued in favour of the defendants and it is in light of
that position that the learned Court had refused to grant liberty
holding that the withdrawal of the suit at the appellate stage would
give liberty to the plaintiffs to file a suit afresh and deprive the
defendants from the right accrued in their favour and therefore the
same is not applicable in the facts of the present matter, as the suit is
still at a very nascent stage.
9. In M.B. Development Corporation (supra) the suit was
filed in the name of dead person or a firm which had already been
dissolved before the institution of the suit and therefore liberty could
not granted to a third person or entity to file a fresh suit on the same
cause of action, considering which, the same is not attracted in the
present matter. In Jagjit Singh (supra) formal defect has been held
to be understood differently from the suit which was not legally
maintainable. Insofar as the maintainability of the suit is concerned,
in my considered opinion, when a Trust seeks to recover possession
having been dispossessed, that would be enforcement of the rights of
the Trust under the common civil law and therefore would not be a
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situation where the requirement of permission would be necessary to
restore the possession of the property and therefore prima facie it
cannot be said that the suit was not maintainable. A perusal of the
plaint therefore indicates that since the possession was not claimed
and since even otherwise it is permissible for the plaintiffs to have
filed suit under Section 6 of the Specific Relief Act, the learned Trial
Court did not commit any irregularity or illegality in permitting the
plaintiffs to file a fresh suit on the same cause of action. I, therefore,
do not see any reason to interfere in the impugned order. The writ
petition is therefore dismissed. No order as to costs.
10. Needless to say, that the above observations will not
shut off any defence which the defendants may have available in law
in respect of any suit which may be instituted by the plaintiffs on the
same cause of action, on the basis of the liberty granted.
(AVINASH G. GHAROTE, J.)
Digitally signed bySHAILENDRA
SUKHADEORAO WADKAR
Signing Date:16.09.2022 17:15
Wadkar
