Gujarat High Court
The Ahmadsha Gujari Association ... vs Mohammadhussain Noormohamad Shaikh on 19 February, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 65 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In R/APPEAL FROM ORDER NO. 65 of 2024
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THE AHMADSHA GUJARI ASSOCIATION (GUJARI BAJAR)
Versus
MOHAMMADHUSSAIN NOORMOHAMAD SHAIKH
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Appearance:
MR SAMIR B GOGDA(11306) for the Appellant(s) No. 1
MR CHAITANYA M VYAS(5651) for the Respondent(s) No. 1
MR MAHAVIRDAN H RATNU(13822) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 19/02/2025
ORAL ORDER
1. The present case is a classic example of a tyranny of
association of persons, who can suppressed the voice of its
member and removed the member because of member raised
the voice against administration of association.
2. The present appeal is filed under Order 43 Rule 1 of
Civil Procedure Code, 1908 (hereinafter referred to as "CPC")
by original defendant - an association against judgment and
order dated 30th March, 2024 passed by City Civil and
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Sessions Court, Court NO.18, Ahmedabad City, below Exh. 6/7
in Civil Suit NO.1250 of 2023.
3. The parties will be referred as far as possible to its
original position in the suit. The short facts which emerges out
of pleading of the suit reads as under:-
3.1. The respondent is original plaintiff, having filed the
suit against appellant - defendant seeking relief of declaration
and injunction.
3.2. It is a case of plaintiff that he is a member of
defendant association, which is known "The Ahmedshah Gujari
Association (hereinafter referred to as Gujari Bazar)".
3.3. The plaintiff is aged about 77 years old, a retired
school teacher selling books in Gujari Bazar, thereby, earn
livelihood.
3.4. The members of defendant association are allowed
to do their business on every Sunday near the Victoria Garden
to Bank of Sabarmati River, Ahmedabad City.
3.5. Ahmedabad Municipal Corporation (hereinafter
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referred to as "AMC") appears to have lease out and
earmarked the area for Gujari Bazar thereby members of
defendant can do their business activity on every Sunday
morning on such earmark place.
3.6. It is the case of the plaintiff that somewhere around
October, 2023, he was threatened and interfered by office
bearer of defendant, thereby, trying to prohibit him from
doing his business at his earmarked place on every Sunday.
3.7. With this background of facts, the suit came to be
filed wherein a temporary injunction application was also
submitted below Exh.6/7.
3.8. The defendant appears to have filed common reply
to the suit and such injunction application, contending inter
alia that there is no cause of action arise to file the suit. The
suit suffers from non-joinder of necessary parties.
3.9. It has been contended by defendant that it is a
registered trust under Bombay Public Trust Act, 1950. The
defendant has entered into memorandum of understanding
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somewhere in December, 2011 (hereinafter referred to as
"MoU") with AMC in regard to use of earmark place by
members of defendant on every Sunday morning to evening.
The members of defendant is required to pay Rs.25/- per
month as a maintenance charges to AMC.
3.10. It is the case of the defendant that the plaintiff was
threatening poor and illiterate members of association, thereby,
creating disharmony and spoil the atmosphere and tried to
malign the image of defendant in public, it was decided by
association to cancel the membership of plaintiff.
3.11. The defendant has cancelled the membership of
plaintiff vide its resolution dated 23 rd of February, 2020. It is
so contended by defendant that suppressing the material fact
about his cancellation of membership, the suit came to be
filed, which cannot be entertained.
3.12. So, the defendant has prayed for dismissal of the
suit and also requested Trial Court not to grant interim
injunction as prayed by plaint.
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3.13. After hearing the parties, the Trial Court vide its
impugned order has partly allowed injunction application of
plaintiff, thereby, directed defendant to collect licence fee from
plaintiff as per MoU, thereby, defendant is restrained from
interfering with the business of plaintiff doing at Gujari Bazar.
3.14. It has been further observed by Trial Court vide its
impugned order that no permanent right will be created in
favour of plaintiff. But his right would be confined to
conditions of MoU executed between the defendant with AMC,
whereby, he is not allowed to put any construction and further
not allowed to do his business beyond the period so decided
under MoU.
4. Being aggrieved and dissatisfied with impugned judgment
and order of granting interim injunction in favour of plaintiff
by order dated 30th March, 2024 passed below Exh. 6/7 by
City Civil and Sessions Court, Court No.18, Ahmedabad City in
Civil Suit No. 1250 of 2023, the defendant has preferred the
present appeal.
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SUBMISSION OF THE APPELLANT
5. Learned advocate Mr. Vikas Nair for learned advocate
Mr. Samir Gogda would submit that suit filed by respondent
itself is not maintainable as it would hit by Section 50 read
with Section 51 of Gujarat Public Trust Act, 1950 (hereinafter
referred to as "the Act, 1950").
5.1. Learned advocate Mr. Nair would submit that aforesaid
contention is not pressed into service by defendant in its
written statement as well course of argument before the Trial
Court. But being a pure question of law, defendant can raise
such point of law in the present appeal and this Court is
bound to consider such pure question of law, even though not
raised by the defendant before the Trial Court.
5.2. Learned advocate Mr. Nair would further submit
that the defendant is a Trust registered trust governed by the
provisions of the Act, 1950. He would submit that the suit
filed against Trust, a necessary permission of charity
commissioner is requires to be obtained as per the provisions
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of Act, 1950, which was not obtained by the plaintiff before
filing suit, the Trial Court was required to consider pure
question of law before entertaining injunction application and
ought to have rejected the application and consequently
dismissed the suit.
5.3. Learned advocate Mr. Nair would further submit that
AMC and Charity Commissioner both are necessary and
property parties to be joined in the suit and having not been
joined, the suit itself suffers from non-joinder of necessary
parties.
5.4. Learned advocate Mr. Nair would submit that defendant
having passed resolution on 23rd February, 2020, thereby,
cancelled the membership of plaintiff, having not challenged
such decisions of defendant in the suit, no relief could have
been granted in favour of plaintiff.
5.5. Learned advocate Mr. Nair would further submit that
plaintiff having suppressed the material fact, about cancellation
of his membership, having not disclosed such fact in the suit,
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plaintiff is not entitled to any equitable relief.
5.6. Learned advocate Mr. Nair would further submit that in
absence of non-joining all trusties of defendant trust, the suit
itself is not maintainable.
5.7. Learned advocate Mr. Nair would further submit that
there is no prima facie case, balance of convenience and
irreparable loss made out by plaintiff, thereby, the Trial Court
has erroneously granted relief in favour of plaintiff.
5.8. To buttress his arguments, he has relied upon the
decision of Hon'ble Supreme Court in the case of Asma Lateef
and Anr vs. Shabbir Ahmed and others reported in 2024 (4)
SCC 696.
6. No other and further submissions are made.
7. Heard learned advocate for the appellant-defendant at
length and gone through the documents so supplied by the
appellant with paper book.
POINT OF DETERMINATION
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i. Whether, in the facts and circumstances of the
case, the Trial Court has committed any gross
error while granting an injunction in favor of the
original plaintiff?
ii. Whether, in the facts and circumstances of
the case, the impugned order passed is preserve,
erroneous, capricious and or arbitrary?
ANALYSIS
8. Before adverting to the issue germane in the appeal, I
would like to refer and rely upon the decision of the
Honorable Supreme Court of India in the case of Ramakant
Ambalal Choksi v/s Harish Ambalal Choksi & others, reported
in 2024 SCC Online SC 3438, wherein it has been held as
under:-
"APPELLATE JURISDICTION UNDER ORDER 43 OF THE CPC
[20] Order 43 of the CPC specifies the orders against which an
appeal lies. Sub-Rule (r) of Rule 1 of the said order provides that an
appeal would lie against an order made under Rules 1, 2, 2A, 4 and
10 of Order 39 of the CPC respectively.
[21] The law in relation to the scope of an appeal against grant or
nongrant of interim injunction was laid down by this Court in Wander
Ltd. v. Antox India P. Ltd.,1990 Supp SCC 727. Antox brought an
action of passing off against Wander with respect to the mark Cal-
De-Ce. The trial court declined Antox's plea for an interim injunction,
however, on appeal the High Court reversed the findings of the trial
judge. This Court, upon due consideration of the matter, took notice
of two egregious errors said to have been committed by the High
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Court:
a. First, as regards the scope and nature of the appeals before
it and the limitations on the powers of the appellate court to
substitute its own discretion in an appeal preferred against a
discretionary order; and
b. Secondly, the weakness in ratiocination as to the quality of
Antox's alleged user of the trademark on which the passing off
action is founded.
[22] With regards to (a), this Court held thus:
"In such appeals, the appellate court will not interfere
with the exercise of discretion of the court of the first
instance and substitute its own discretion, except
where the discretion has been shown to have been
exercised arbitrarily or capriciously or perversely, or
where the court had ignored the settled principles of
law regulating grant or refusal of interlocutory
injunctions ... the appellate court will not reassess the
material and seek to reach a conclusion different from
the one reached by the court below ... If the discretion
has been exercised by the trial court reasonably and
in a judicial manner the fact that the appellate court
would have taken a different view may not justify
interference with the trial court's exercise of
discretion."
[23] This Court, while arriving at the above findings, relied on its
earlier judgment in Printers (Mysore) v Pothan Joseph, 1960 SCC
OnlineSC 62 where it was held thus:
"[...] as has been observed by Viscount Simon LC in
Charles Osenton & Co v Johnston - the law as to reversal
by a court of appeal of an order made by a judge below in
the exercise of his/her discretion is well established, and
any difficulty that arises is due only to the application of
well-settled principles in an individual case."
[24] It is pertinent to note that in Printers (supra) this Court had held
that ignoring relevant facts is also a ground for interfering with the
discretion exercised by the trial court. Furthermore, Viscount Simon
LC in Charles Osenton & Co v Johnston, 1942 AC 130 , after stating
the above, went on to quote Lord Wright's decision in Evans v.
Bartlam, 1937 AC 473:
"It is clear that the court of appeal should not interfere with
the discretion of a judge acting within his jurisdiction
unless the court is clearly satisfied that he was wrong. But
the court is not entitled simply to say that if the judge had
jurisdiction and had all the facts before him, the court of
appeal cannot review his order unless he is shown to have
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applied a wrong principle. The court must, if necessary,
examine anew the relevant facts and circumstances in
order to exercise a discretion by way of review which may
reverse or vary the order."
[25] In Evans (supra) case, Lord Wright made it clear that while
adjudicating upon the discretion exercised by the trial court, the
appellate court is obliged to consider the case put forward by the
appellant in favour of its argument that the trial court exercised its
discretion arbitrarily or incorrectly in the circumstances.
[26] What flows from a plain reading of the decisions in Evans
(supra) and Charles Osenton (supra) is that an appellate court,
even while deciding an appeal against a discretionary order
granting an interim injunction, has to:
a. Examine whether the discretion has been properly exercised,
i.e. examine whether the discretion exercised is not arbitrary,
capricious or contrary to the principles of law; and
b. In addition to the above, an appellate court may in a given
case have to adjudicate on facts even in such discretionary
orders.
[27] The principles of law explained by this Court in Wander's
(supra) have been reiterated in a number of subsequent decisions of
this Court. However, over a period of time the test laid down by this
Court as regards the scope of interference has been made more
stringent. The emphasis is now more on perversity rather than a
mere error of fact or law in the order granting injunction pending the
final adjudication of the suit.
[28] In Neon Laboratories Ltd. v. Medical Technologies Ltd.,
2016 2 SCC 672 this Court held that the Appellate Court should
not flimsily, whimsically or lightly interfere in the exercise of
discretion by a subordinate court unless such exercise is
palpably perverse. Perversity can pertain to the understanding
of law or the appreciation of pleadings or evidence. In other
words, the Court took the view that to interfere against an order
granting or declining to grant a temporary injunction, perversity has
to be demonstrated in the finding of the trial court.
[29] In Mohd. Mehtab Khan v. Khushnuma Ibrahim Khan, 2013 9
SCC 221 this Court emphasised on the principles laid down in
Wander (supra) and observed that while the view taken by the
appellate court may be an equally possible view, the mere possibility
of taking such a view must not form the basis for setting aside the
decision arrived at by the trial court in exercise of its discretion under
Order 39 of the CPC. The basis for substituting the view of the trial
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court should be malafides, capriciousness, arbitrariness or
perversity in the order of the trial court. The relevant observations
are extracted below:
"20. In a situation where the learned trial court on a
consideration of the respective cases of the parties and
the documents laid before it was of the view that the
entitlement of the plaintiffs to an order of interim
mandatory injunction was in serious doubt, the Appellate
Court could not have interfered with the exercise of
discretion by the learned Trial Judge unless such exercise
was found to be palpably incorrect or untenable. The
reasons that weighed with the learned Trial Judge, as
already noticed, according to us, do not indicate that the
view taken is not a possible view. The Appellate Court,
therefore, should not have substituted its views in the
matter merely on the ground that in its opinion the facts of
the case call for a different conclusion. Such an exercise is
not the correct parameter for exercise of jurisdiction while
hearing an appeal against a discretionary order. While we
must not be understood to have said that the Appellate
Court was wrong in its conclusions what is sought to be
emphasized is that as long as the view of the trial court
was a possible view the Appellate Court should not have
interfered with the same following the virtually settled
principles of law in this regard as laid down by this Court in
Wander Ltd. v. Antox India (P) Ltd."
(Emphasis supplied)
[30] This Court in Shyam Sel & Power Ltd. v. Shyam Steel Industries
Ltd., 2023 1 SCC 634 observed that the hierarchy of the trial court
and the appellate court exists so that the trial court exercises its
discretion upon the settled principles of law. An appellate court, after
the findings of the trial court are recorded, has an advantage of
appreciating the view taken by the trial judge and examining the
correctness or otherwise thereof within the limited area available. It
further observed that if the appellate court itself decides the matters
required to be decided by the trial court, there would be no necessity
to have the hierarchy of courts.
[31] This Court in Monsanto Technology LLC v. Nuziveedu Seeds
Ltd., 2019 3 SCC 381, observed that the appellate court should not
usurp the jurisdiction of the Single Judge to decide as to whether the
tests of prima facie case, balance of convenience and irreparable
injury are made out in the case or not.
[32] The appellate court in an appeal from an interlocutory order
granting or declining to grant interim injunction is only required to
adjudicate the validity of such order applying the well settled
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principles governing the scope of jurisdiction of appellate court
under Order 43 of the CPC which have been reiterated in various
other decisions of this Court. The appellate court should not assume
unlimited jurisdiction and should guide its powers within the contours
laid down in the Wander (supra) case."
(Emphasis Supplied)
9. It is required to note that so-called legal issues raised in
the appeal by learned advocate Mr. Nair were admittedly not
pressed into service before the Trial Court by defendant
including in its written statement. As such, unmindful of fact,
on the part of learned advocate Mr. Nair, such issues are
raised for the first time as if they are pure questions of law
and do not depend upon the facts to be pleaded and proved
before the Trial Court.
10. The first limb of argument is that in the absence of
permission of the Charity Commissioner under Section 51 of
the Act 1950, the suit is not maintainable. It is submitted by
defendant that in the absence of a statement made by the
plaintiff in regard to obtain permission of the Charity
Commissioner under Section 51 of the Act 1950, it can be
assumed that no such permission obtained. Such a plea would
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be a defense of the defendant, which requires to be expressly
raised by the defendant in its written statement. Such a plea
cannot even be gone into by the Trial Court at the stage of
even under Order VII Rule 11 of CPC.
11. The issue in this regard is longer remain res integra. To
appreciate further, it would be apt to refer and rely upon the
decision of Division Bench judgment of this Court in the case
of Trust Of Shri Laxmi Narayan Dev Temple And Others V/S
Ajendrapasadji Narendraprasadji Pande And Anr , reported in
2013 (5) GLR 3686, wherein it has been held as under:-
"[11] We, however, make it clear that since this appeal is
preferred against an order of rejection of the plaint and
not against the dismissal of the suit, we are proceeding
first on the assumption that Sections 50 and 51 will
apply to the nature of the present suit and the
question that we propose to answer is even in such a
situation, whether the plaint can be rejected on the
simple ground that there is no statement in the plaint
that the plaintiffs have taken permission of the
Charity Commissioner.
[12] On a plain reading of Section 50 it appears that if the
said Section really applies to a particular suit, all that is
mandatory is that the plaintiff of such a suit must obtain
the permission of the Charity Commissioner in terms of
Section 50 of the Trusts Act as a condition precedent for
institution of such a suit, and as pointed out in Order 6
Rule 6 of the Code quoted by us above, it is for the party
who challenges that any condition precedent has not
been complied with to plead such fact either in the plaint
or in the written statement, as the case may be. It is
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needless to mention that the law may impose
condition precedent not only for filing of a suit but
also for raising defence in the suit. Since, according
to the defendant No.2, the grant of permission by the
Charity Commissioner is a condition precedent for
institution of the suit in question and in the absence
of such permission the suit is not maintainable, he is
required to plead such facts in his written statement
and if such defence is taken, the Court will frame
appropriate issue as to maintainability of the suit for
the alleged want of permission and will decide such
issue; but as provided in the last part of Order 6 Rule
6 of the Code, if nothing is stated in the plaint by the
plaintiff, the condition precedent for institution of the
suit should be implied in the pleadings. In other
words, a plaintiff is not required to specifically plead
that he has complied with the condition precedent for
filing of such suit since law specifically demands that
such facts should be implied in the pleading and it is
for the other side to raise such plea in his pleading.
[14] Thus, Section 80 of the Code is a peculiar provision which
specifically speaks of a notice mentioned therein as a condition
precedent for filing of suit of the nature indicated there and further
requires that compliance of the above condition precedent must be
pleaded. In Section 50 of the Trusts Act, the requirement of
pleading of such a condition precedent for filing a suit is,
however, not the mandate of law, and in such circumstances,
Order 6 Rule 6 of the Code will clearly be applicable and in the
absence of any pleading as regards compliance of such
condition precedent, it should be implied that such condition
precedent has been complied with. However, it is for the
defendant to plead in his written statement that such
mandatory requirement has not been complied with by the
plaintiff and if such a defence is taken, it will be for the plaintiff
to produce evidence showing compliance of condition
precedent.
14.1 Therefore, there is no requirement of a plaintiff to
plead the performance of a condition precedent for
obtaining leave from the Charity Commissioner in
terms of Section 50 of the Trusts Act in the plaint
even if we assume for the sake of argument that
Section 50 of the Trusts Act applies to the suit in
question.
[16] We are unable to approve the view taken by a learned Single
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Judge of this court in the case of Patel Nanji Devji vs. Patel Jivraj
Manji, 1988 AIR(Guj) 182 where at the stage of hearing an
application under Order 7 Rule 11 of the Code, the learned Trial
Judge decided the factual position whether any permission in terms
of Section 50 of the Trusts Act was taken or not and after having
found that no such permission was taken, rejected the plaint. The
learned Single Judge of this court in the above decision, however,
approved such course taken by the Trial Court. We have already
pointed out that at the stage of hearing an application under Order 7
Rule 11 of the Code, the court should restrict its scrutiny to the
averments made in the plaint itself. Kamala and others vs. K. T.
Eshwara, 2008 AIR(SC) 3174.
[18] We, therefore, find that the learned trial Judge erred in law
in rejecting the plaint on the ground that the suit was barred
under Section 50 of the Trusts Act by totally overlooking the
fact that there is no admission of the plaintiffs in the plaint that
they did not take such permission and at the same time, the
absence of averment in the plaint that such permission was
taken does not enable a court to reject the plaint as the
plaintiffs have no duty to aver in the plaint the performance of
condition precedent."
(Emphasis supplied)
12. The aforesaid judgement carried before Honourable
Supreme Court of India by way of Civil Appeal No. 5921 -
5922 of 2013 which were dismissed on 19-02-2014. Thus, in
view of the aforesaid decision of the Division of this Court in
the case of Trust Of Shri Laxmi Narayan Dev Temple And
Others (Supra), in the absence of any statement made by the
plaintiff in the plaint in regard to obtaining permission of the
Charity Commissioner, it would not ipso facto make the suit
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not maintainable when no defence to that effect set up by
defendant.
13. Further, after going through the plaint and the prayer
made in the suit, the suit is filed seeking a declaration and
injunction against the defendant in relation to the business
activity carried out by the plaintiff at the place mentioned in
the plaint. The declaration sought by the plaintiff is in regard
to his permanent right to do business at an earmarked place
designated by the defendant to the plaintiff in Gujari Bazar.
The injunction, as prayed for, is in regard to no interference
by office bearers of the defendant and/or its
agents/representatives etc. in the business activity carried out
by the plaintiff at the earmarked place.
14. It is profitable to reproduce Sections 50 and 51 of the
Act 1950, which read as under:-
"SECTION 50 : Suits relating to public trusts - In any case-
(i) where it is alleged that there is a breach of a public trust,
(ii) where a direction is required to recover possession of a property
belonging to a public trust or the proceeds thereof or for an account of
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such property or proceeds from any person including a person holding
adversely to the public trust, or
(iii) where the direction of the court is deemed necessary for the
administration of any public trust, the Charity Commissioner after
making such enquiry as he thinks necessary or two or more persons
having an interest in the trust and having obtained the consent in
writing of the Charity Commissioner as provided in section 51 may
institute a suit whether contentions or not in the Court within the
local limits of whose jurisdiction the whole or part of the subject-
matter of the trust is situate, to obtain a decree for any of the
following reliefs :-
(a) an order for the recovery of the possession of such property or
proceeds thereof.
(b) the removal of any trustee or manager,
(c) the appointment of a new trustee or manager,
(cc) vesting any property in a trustee,
(d) a direction for taking accounts and making certain inquiries,
(e) a declaration as to what proportion of the trust property or of the
interest therein shall be allocated to any particular object of the trust,
(f) a direction authorising the whole or any part of the trust
property to be let, sold, mortgaged or exchanged,
(g) the settlement of a scheme or variations or alterations in a scheme
already settled, or
(h) granting such further or other relief as the nature of the case
may require :
Provided that no suit claiming any of the reliefs specified in this
section shall be instituted in respect of any public trust except in
conformity with the provisions thereof:
Provided further that the Charity Commissioner may, instead of
instituting a suit, make an application to the Court for a variation or
alteration in a scheme already settled.
Section 51. Consent of Charity Commissioner for institution of
suit. -
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(1) If the persons having an interest in any public trust intend to file a
suit of the nature specified in section 50, they shall apply to the
Charity Commissioner in writing for his consent. The Charity
Commissioner, after hearing the parties and after making such
inquiry as he thinks fit, may within a period of six months from the
date on which the application is made, grant or refuse his consent to
the institution of such suit. The order of the Charity Commissioner
refusing his consent shall be in writing and shall state the reasons for
the refusal.
(2) If the Charity Commissioner refuses his consent to the institution
of the suit under sub-section (1) the persons applying for such
consent may file an appeal to the Bombay Revenue Tribunal
constituted under the Bombay Revenue Tribunal Act, 1939, in the
manner provided by this Act.
(3) In every suit filed by persons having interest in any trust under
section 50, the Charity Commissioner shall be a necessary party.
(4) Subject to the decision of the Bombay Revenue Tribunal in appeal
under section 71, the decision of the Charity Commissioner under
sub-section (1) shall be final and conclusive."
15. Prima facie, the suit would not fall within any of the
categories enumerated in III of Section 50 of the Act, 1950.
Learned advocate Mr. Nair, during the course of his argument,
would submit that the case of the plaintiff falls within the
category of (f) and (h) of the III of Section 50 of the Act,
1950. The earmarked place, where Gujari Bazar is set up on
every Sunday, is neither the property of the defendant trust
nor its trusties, but it belongs to Ahmedabad Municipal
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Corporation. So, if the property referred to in the suit is not
the property of the defendant trust, then the question of the
applicability of (f) of the III of Section 50 of the Act, 1950
would not arise.
16. As far as the applicability of (h) is concerned, it is
general in nature, but it has to be read in the context of other
contingencies enumerated in (a) to (g) of III of Section 50 of
the Act, 1950 and also to administration of trust not otherwise.
17. Thus, prima facie, the argument made by learned
advocate Mr. Nair in relation to the non-maintainability of the
suit itself is erroneous and misconceived at law. Without
verifying the provisions of law and their applicability to the
facts of the present case, learned advocate Mr. Nair has
audaciously raised such a plea, which requires to be turned
down with costs as despite drawing his attention, learned
advocate Mr. Nair has emphasized on these issues thereby,
consumed precious time of this Court on issues which were
never pressed into service before trial Court.
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18. The decision of the Honorable Apex Court in the case of
Asma Lateef (supra), in view of the above facts and
circumstances of the case, would not apply. Nonetheless,
having been so relied upon by learned advocate Mr. Nair by
reading Para 38 and 39 of the aforesaid decision of Asma
Lateef (Supra), which reads as under:-
"38. What follows from a conspectus of all the aforesaid decisions is
that jurisdiction is the entitlement of the civil court to embark upon an
enquiry as to whether the cause has been brought before it by the
plaintiff in a manner prescribed by law and also whether a good case
for grant of relief claimed been set up by him. As and when such
entitlement is established, any subsequent error till delivery of
judgment could be regarded as an error within the jurisdiction. The
enquiry as to whether the civil court is entitled to entertain and try a
suit has to be made by it keeping in mind the provision in section 9,
CPC and the relevant enactment which, according to the objector,
bars a suit. Needless to observe, the question of jurisdiction has to be
determined at the commencement and not at the conclusion of the
enquiry.
39. Although not directly arising in the present case, we also wish to
observe that the question of jurisdiction would assume importance
even at the stage a court considers the question of grant of interim
relief. Where interim relief is claimed in a suit before a civil court
and the party to be affected by grant of such relief, or any other
party to the suit, raises a point of maintainability thereof or that it
is barred by law and also contends on that basis that interim
relief should not to be granted, grant of relief in whatever form, if
at all, ought to be preceded by formation and recording of at
least a prima facie satisfaction that the suit is maintainable or
that it is not barred by law. Such a satisfaction resting on
appreciation of the averments in the plaint, the application for
interim relief and the written objection thereto, as well as the
relevant law that is cited in support of the objection, would be a
part of the court's reasoning of a prima facie case having been
set up for interim relief, that the balance of convenience is in
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favour of the grant and non-grant would cause irreparable harm
and prejudice. It would be inappropriate for a court to abstain from
recording its prima facie satisfaction on the question of maintainability,
yet, proceed to grant protection pro tem on the assumption that the
question of maintainability has to be decided as a preliminary issue
under Rule 2 of Order XIV, CPC. That could amount to an improper
exercise of power. If the court is of the opinion at the stage of hearing
the application for interim relief that the suit is barred by law or is
otherwise not maintainable, it cannot dismiss it without framing a
preliminary issue after the written statement is filed but can most
certainly assign such opinion for refusing interim relief. However, if an
extraordinary situation arises where it could take time to decide the
point of maintainability of the suit and non-grant of protection pro tem
pending such decision could lead to irreversible consequences, the
court may proceed to make an appropriate order in the manner
indicated above justifying the course of action it adopts. In other
words, such an order may be passed, if at all required, to avoid
irreparable harm or injury or undue hardship to the party claiming the
relief and/or to ensure that the proceedings are not rendered
infructuous by reason of non-interference by the court."
(Emphasis Supplied)
[
19. As such, the observations made by the Honorable Apex
Court of India in the case of Asma Lateef (supra) would help
the plaintiff rather than the defendant, especially when the
plea of maintainability was never pressed into service before
the Trial Court during the course of the hearing of the
injunction application. The injunction granted by the Trial
Court if not granted would surely cause irreparable harm,
injury or hardship to the plaintiff.
20. As far as the non-joining of the Charity Commissioner
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and AMC is concerned, no relief has been prayed for by the
plaintiff against those non-joined legal entities. As stated
hereinabove, pirma facie, the subject matter of the suit would
not fall within the purview of Section 50 of the Public Trust
Act. The prayer made in the suit is for seeking a declaration of
a permanent right of the plaintiff to do business at an
earmarked place in Gujari Bazar and a further prayer for an
injunction against the defendant not to disturb the plaintiff
while doing his business at the earmarked place. Thus,
according to this Court, there is no necessity to join either the
Charity Commissioner or AMC, as the case may be, to
maintain the present suit when reliefs are not sought against
such non-joining parties.
21. As a matter of course, in the absence of such parties, the
Trial Court can effectively adjudicate the disputes raised in the
plaint and satisfactorily pass appropriate orders in the absence
of those parties. At best, it would be open for the parties to
summon them as witnesses if necessary and so requires. As
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such, there is no error committed by the Trial Court while
granting an injunction against the defendant in the absence of
the non-joining of the aforesaid parties to the suit.
22. The next limb of argument made by learned advocate Mr.
Nair is in regard to the suppression of material facts by the
plaintiff regarding his cancellation of membership by the
defendant vide resolution passed by the defendant on 23rd
February, 2022, which was not disclosed in the suit by the
plaintiff.
23. As such, there is nothing on record to substantiate such a
plea raised by learned advocate Mr. Nair. The documents
submitted by the defendant, including the police complaint
filed by the plaintiff at the given point of time and the notice
by the plaintiff prior to filing the suit, do not contain any
reference to the fact that the plaintiff was made aware of the
passing of the aforesaid resolution by the defendant against
him.
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24. According to this Court, when the defendant has
suppressed this fact from the plaintiff when cancelled his
membership because of he raised his voice against the
functioning of office bearers of the defendant, such facts were
withheld from the plaintiff, thereby affecting his right to earn
a livelihood. Such conduct of the defendant disentitles it from
raising a plea of suppression of material facts by the plaintiff.
25. Having put the question by this Court to Learned
Advocate Mr. Nair about any communication served upon the
plaintiff by the defendant regarding his cancellation of
membership by the defendant?, he has replied that, as such,
no communication was ever served upon the plaintiff by the
defendant. The fact, which was not within the knowledge of
the plaintiff at the time of filing of the suit, and as such,
withheld from the plaintiff by the defendant, it would not lie
in the mouth of the defendant to raise that there is a
suppression of material fact by the plaintiff. Furthermore, when
member of association is terminated from membership of
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association, at least fair play, observance of natural justice and
a reasonable opportunity to show cause requires from
defendant which it did not observe but behaved like monarch
thereby, it felt that it take anyone's livelihood.
26. Thus, when resolution and or communication of
cancellation of membership of plaintiff when not duly served
upon plaintiff by defendant, there was no
reason/occasion/cause arise for plaintiff to challenge it in the
suit.
27. Lastly, learned Advocate Mr. Nair would unable to show
from any provisions of law that, in the absence of the trustees
of the defendant trust, either the suit would not be
maintainable and / or no injunction cannot be granted against
the defendant trust. Again, such a plea is an afterthought,
which was not pressed into service before the Trial Court and
abruptly raised by the defendant for the first time in the
present appeal.
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28. In fact, the Trial Court has appreciated the vital fact of
the suit that the plaintiff was prohibited in doing his business
in Gujari bazar by the defendant and its agents because due to
raising his voice about mismanagement in the affairs of the
defendant trust, and he was penalized by the defendant for
raising his voice, which his democratic right, being living in a
democratic country like India.
29. Thus, the Trial Court has correctly observed that merely
because a member has raised his voice against the office
bearers of the defendant trust would not be a ground to cancel
his membership, which is not only illegal but inhuman. The
plaintiff was retired as a principal of a school, now selling
books in Gujari Bazar, and thereby earning his livelihood at
the age of 77 years.
30. Considering the aforesaid facts and circumstances of the
case, the Trial Court has found a prima facie case, balance of
convenience, and irreparable loss in favor of the plaintiff,
thereby granted an injunction in favor of the plaintiff.
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31. I would like to observe that the defendant is unable to
point out any perversity on the part of the Trial Court while
granting an injunction in favor of the plaintiff. Contra, all the
three parameters, which are required to be observed by the
Trial Court while granting an injunction, i.e., prima facie case,
balance of convenience, and irreparable loss, were made out
by the plaintiff, thereby entitled him to get the injunction as
prayed for. Such a discretionary order passed by the trial Court
after examining the documents and the pleadings placed before
it, in light of the ratio laid down by the Hon'ble Supreme
Court of India in the case of Ramakant Ambalal Choksi
(supra), this Court would not like to interfere with the
impugned order passed by the trial Court.
32. It is pertinent to note that the appellant has filed the
present appeal on the so called legal issues, which were never
pressed into service before the trial Court, by contending that
they are a pure question of law, which is, in fact, an
erroneous observation on the part of the appellant, thereby
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consuming the precious time of this Court and affecting the
rights of other litigants who are awaiting for justice. Such
conduct must be deprecated as the Courts are heavily burdened
at this point of time, and some exemplary costs must be
imposed upon the appellant for consuming the precious time of
this Court thereby to stop such type of unwarranted litigation.
33. The upshot of the aforesaid discussion, observation and
reasons, the present appeal from order is thoroughly
misconceived at law and no ground of interference is made out
by the appellant. Thus, the present appeal is required to be
dismissed, and the same is hereby DISMISSED with the cost of
Rs.10,000/-. The connected civil application is also disposed of
according. Interim relief stands vacated forthwith.
34. The defendant is hereby directed to deposit Rs.10,000/-
as costs with DLSA, Ahmedabad on or before 21st March,
2025.
35. The trial Court is hereby requested to verify the
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compliance of deposit of cost by the defendant, and if not
deposited by the defendant, it may pass an appropriate order
in accordance with law.
(MAULIK J.SHELAT,J)
MOHD MONIS
