SOPAN SUKHDEO SABLE Vs. ASSISTANT CHARITY COMMISSIONER

JUDGEMENT

(1.) Leave granted.

(2.) The appellants who were plaintiffs in a suit filed before the learned Civil Judge, Senior Division, Srirampur have questioned legality of the conclusions arrived at by the Courts below holding that the plaint filed by them was to be rejected in terms of Order VII, Rule 11 of the Code of Civil Procedure, 1908 (in short the Code). The plaintiffs claimed to be tenants under respondent No. 2, Shaneshwar Deosthan Trust (hereinafter referred to as the trust). Its trustees and the Assistant Charity Commissioner (in short the Commissioner) were the other defendants. Plaintiffs claimed that they were tenants of the trust of which the defendants Nos. 3 to 13 were the trustees. Alleging that they have been forcibly evicted notwithstanding continuance of the tenancy, the suit was filed for the following reliefs :

(3.) The suit was numbered as R.C.S. No. 160/1997 in the trial Court. The stand of the plaintiffs-appellants essentially was that the tenancy was for a period of 11 years and not for 11 months as claimed by the trust. An application was filed by the trust raising a preliminary plea that the plaint is liable to be rejected under Order VII Rule 11 of the Code. With reference to Section 80 of the Bombay Public Trusts Act, 1950 (in short the Act) it was urged that no Civil Court had jurisdiction to decide or deal with any question which by or under the Act is to be decided or dealt with by any officer or authority under the Act and in respect of which the decision or order of such officer or authority has been made final and conclusive. The trial Judge framed two preliminary issues, i.e. (a) whether the suit was liable to be rejected under Order VII Rule 11 of the Code for want of cause of action, and (b) whether the suit was tenable against all the defendants. Findings in respect of the preliminary issues were recorded against the plaintiffs. A finding was recorded that the plaint does not disclose any cause of action and also in view of the specific provisions of the Act, the jurisdiction vests only with the District Court to give direction to Commissioner and in any event Section 80 of the Act took away jurisdiction of the Civil Court and the plaint was rejected. Challenging the judgment and decree dated 21-10-2000 passed by the learned Civil Judge, Senior Division , Srirampur, an appeal was preferred before the District Court which was numbered as Regular Civil Appeal No. 178 of 2000. The appeal was dismissed and the decree passed by the trial Court was confirmed by II Additional District Judge at Srirampur, Ahmed Nagar District. The matter was carried in Second Appeal before the High Court which by the impugned judgment upheld the findings recorded by the Courts below. Before the High Court, it was contended by the appellants that Sections 50, 51 and 80 of the Act had no application and the lease being for 11 years, the action of the trust in dispossessing the plaintiffs forcibly cannot have the approval of law. The stand of the trust was to the effect that the plaintiffs have not approached the Court with clean hands. They had tried to get relief from the High Court by filing a petition under Article 226 of the Constitution of India, 1950 (in short the Constitution). They failed to comply with the interim directions given by the High Court and before the date posted before the High Court for consideration of the interim orders, they filed the suit and prayed for injunction. Subsequently, the writ petition was withdrawn. The plaint filed by the plaintiffs did not disclose any cause of action and in any event the relief sought for could not have been granted by the Civil Court in view of the specific provisions contained in Sections 50, 51 and 80 of the Act. There was no forcible dispossession as claimed. The Courts below were justified in rejecting the plaint.