Narayanrao S/O Namdeorao Kamble vs Shri Balaji Sansthan Through Trustee ...
2025 Latest Caselaw 1172 Bom

Bombay High Court

Narayanrao S/O Namdeorao Kamble vs Shri Balaji Sansthan Through Trustee ... on 2 January, 2025

2025:BHC-NAG:44




                                                      1                                     8wp769.2020.odt



                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   NAGPUR BENCH AT NAGPUR

                                         WRIT PETITION NO. 769 OF 2020

                  Narayanrao s/o Namdeorao Kamble,
                  Aged 63 yrs, Occ. Business,
                  r/o Shivaji Putla Chowk, Washim,
                  Tah Dist. Washim                                                      .....PETITIONER

                                 ...V E R S U S...

                  Shri Balaji Sansthan,
                  registered No. A 660/Akola, thr.
                  Trustee Shri Dnyaneshwar Narayanrao Kaloo,
                  Shri Bhawanipant @ Pushkar                                             }substituted vide
                  Dyaneshwar Kaloo,                                                      } court order dtd
                  Aged 69 yrs, Occ. Agriculturist,                                      } 02.01.2025
                  R/o Washim, Tah Dist. Washim                                          .....RESPONDENT
                  ----------------------------------------------------------------------------------------------
                  Mr. S.B. Mohta, Advocate for the petitioner,
                  Mr. S.S. Deshpande, Advocate for Respondent.
                  ---------------------------------------------------------------------------------------
                  CORAM:- ABHAY J. MANTRI, J.
                  DATE : 02.01.2025

                  JUDGMENT (Per: Abhay J. Mantri, J.)

Rule. Rule made returnable forthwith. Heard finally, by

consent of the learned Counsel for the parties.

2. The petitioner, i.e., the original defendant, being aggrieved by

the order dated 06.01.2020 passed by Joint Civil Judge Junior Division,

Washim, below exhibit 69 in RCS No. 26/2014, thereby allowing the

application filed by the plaintiff and strike out issue No. 1, has preferred 2 8wp769.2020.odt

this petition.

3. The facts in brief are that:

The respondent/Plaintiff is a public Trust that has filed a suit

through its trustee, Dnyaneshwar Narayanrao Kalu, for eviction and

possession against the petitioner/defendant. The defendant challenged

that trustee Dnyaneshwar Kalu has no authority to file the suit on behalf

of the trust, nor did he produce an authoritative resolution or any

document to show that the trust has authorised him to file the suit. Based

on the said pleadings, issues were framed.

4. During the suit's pendency, the plaintiff moved an application

(Exhibit 69) to delete issue No.1, which was allowed, and issue No.1 was

deleted. Hence, being aggrieved by the said order, this petition.

5. The learned Advocate for the petitioner has drawn my

attention to paragraph 11 of the written statement, which reads thus:

11- ;k izfroknhps vls Eg.k.ks vkgs dh] Jh ckykth laLFkku okf'ke gh iathd`r fo'oLr O;oLFkk vlwu v'kk fo'oLr O;oLFskrQsZ oknh Kkus'oj ukjk;.kjko dkGw ;kauk nkok nk[ky dj.;kps dks.krsgh vf/kdkj ukghr] rlk vf/kd`r Bjko fdaok dks.krkgh nLr ukgh Eg.kwu ofjy nkok pkyw 'kdr ukgh-

Therefore, he submitted that based on the averments in the

written statement, the learned Trial Court has rightly framed issue No. 1,

i.e., "whether Mr. Dnyaneshwar Narayanrao Kalu is authorised to file the 3 8wp769.2020.odt

suit?" In such circumstances, it was unnecessary to strike it out as it goes

to the root of the matter. However, the learned trial Court erred in striking

out the said issue. Hence, he submitted that passing the order by the

learned trial court was not sustainable in law and prayed to allow the

petition.

6. Per contra, the learned Counsel for the respondent has

submitted that passing the order is just, legal, and proper and requires no

interference. He has further emphasised the provisions under Section 80

of the Maharashtra Public Trusts Act (for short-" the Trust Act") and

contended that the learned Civil Court has no jurisdiction to determine the

said issue and has rightly rejected the same. Hence, he has prayed for the

dismissal of the petition.

7. Having heard the rival contentions of the parties, the short

question that arises for consideration is " whether the striking out of issue

No. 1 is just and proper or not."

8. A bare perusal of paragraph 11 of the written statement

reveals that the defendant has categorically averred that Mr. Dnyaneshwar

Narayan Kalu has no authority to file the suit on behalf of the trust, nor

did he produce an authoritative resolution or any document to show that

the trust has authorised him to file the suit. Thereby, it is contended that

the filing of the suit by Dnyaneshwar Narayanrao Kalu is without any

authority by the trust in his favour. As per order 14 of the Civil Procedure 4 8wp769.2020.odt

Code, the Court has to frame the issue based on the averments in the

pleadings of the parties and accordingly, the trial Court, after considering

the specific averments in the written statement, has rightly framed the

issue No.1, therefore, in my view, the question of striking out of the issue

No.1 does not arise at all as the plaintiff did not claim it that same was

wrongly framed, or introduced improperly. Moreover, framing issue No. 1

would not cause prejudice to the rights of Plaintiff.

9. But it seems that the respondent has moved an application,

contending that it does not appear from issue no. 1 that on whom the

burden was cast to prove the said issue as the plaintiff has not pleaded

anything about that. So, as per the pleading in the written statement, the

burden should be cast on the defendant only. In addition, it is contended

that as per section 80 of the Trust Act, the Civil Court has no jurisdiction

to decide any contraversy regarding the management of the Trust. Issue

No.1 was framed about "whether the trustee Dnyaneshwar Narayanrao

Kalu of the plaintiff trust was authorised to file the suit. So, the question

of deciding or dealing with any controversy required by or under the Trust

Act by any officer or authority under the said Act does not arise at all. As

such, I do not find substance in the contention of the plaintiff or its

counsel in that regard, as the defendant has challenged the authorisation

of one of the trustees to file the suit.

5 8wp769.2020.odt

10. It is to be noted that as per Section 80 of the Act, there is a bar

to decide or deal with the question that has to be determined under the

Trust Act. However, by framing issue No.1, the Civil Court was neither

considering nor dealing with the controversy that was required under the

Trust Act by any officer or authority under the said Act. But in the case at

hand, the trial Court has to consider only whether the Trust has authorised

one of the trustees, i.e. Dnyaneshwar Narayanrao Kalu, to file the suit,

and for that purpose, the plaintiff must prove the same. If the trust did not

authorise one of the trustees to file the suit, in such an eventuality, the suit

filed by the trustee is not maintainable. On the contrary, if the trust has

authorised the trustee to file the suit, then that issue will be answered

accordingly, and no harm will be caused to the plaintiff. However, the

learned trial Court has not considered the said fact in its proper

perspective and erred in holding that the history of the litigation between

the parties shows that the said issue is not required. In fact, the court has

to assess the controversy independently based on the pleadings in the said

Suit and not on the basis of the findings recorded in another Suit.

11. In the background above, in my view, the finding recorded by

the learned Trial Court that the controversy between the parties has been

determined in the earlier suit, so there is no necessity to frame issue No.1

again appears contrary to the settled position of law. The learned Trial

Court, in paragraph 11 of the impugned order, has observed that the

question regarding the declaration of title of the Municipal Council, 6 8wp769.2020.odt

Washim, was kept open and held that the plaintiff trust is the owner of the

property in question and defendant herein is declared as a tenant of the

plaintiff trust and therefore, strike out issue No.1. However, findings

recorded by the learned Trial Court appears contrary to the pleadings of

defendant in paragraph 11 of the written statement. Based on the said

finding, the impugned order cannot be sustained in the eyes of the law.

12. Having considered the above discussion, in my view, the trial

Court has erred in striking out issue no. 1 when the defendant's pleadings

are specific about filing the suit by the trustee without the authorisation of

the Trust. Based on the said findings, the impugned order cannot be

sustained in the eyes of the law; hence, interference is required in the

Writ's jurisdiction. I answered the above question accordingly,

13. As a result, the petition is allowed. The impugned order dated

06.01.2020, passed by learned 3rd Joint Civil Judge Junior Division,

Washim, below exhibit 69, in RCS No. 26/2014, is hereby quashed and set

aside. As a sequel, issue No. 1 is restored.

Rule is made absolute in the above terms.

Inform the learned Trial Court accordingly.

(ABHAY J. MANTRI, J.) Belkhede Signed by: Mr. R. S. Belkhede Designation: PA To Honourable Judge Date: 03/01/2025 16:15:20