NARMADABAI Vs. TRUST SHRI PANCHVATI BALAJI MANDIR

JUDGEMENT

(1.) Leave granted.

(2.) On an application filed by the respondents herein before the Assistant Charity Commissioner a declaration was granted to the effect that the Balaji Temple was a public trust. That declaration was granted despite the objection raised by the two appellants herein claiming the temple to be their private property and not the property of the public trust. After granting the declaration, the Assistant Charity Commissioner granted permission to register the property as the property of the public trust. The order was challenged before the Deputy Charity Commissioner who however confirmed the finding of the Assistant Charity Commissioner. The matter was taken up before the District Judge in an application under Section 72 of the Bombay Public Trusts Act, 1950 (hereinafter the 'act') and a finding was returned holding the temple to be a public trust. An appeal to the High court by the appellants failed, with the result that the findings of the Assistant Charity Commissioner declaring the. templeproperty to be a public trust stood confirmed. Pursuant to the findings recorded by the authorities, the temple was registered as a public trust. A scheme for 3 better management and administration of the temple came to be framed and the scheme was settled by the Joint Charity Commissioner, Aurangabad by his order dated 23/7/1985. After the framing of the scheme, the appellants moved the Joint Charity Commissioner, Aurangabad to stay the enforcement and operation of the scheme but failed. Subsequently, it appears, that in 1993, the appellants filed a suit in the court of Civil Judge, Senior Division, Aurangabad for a declaration that Balaji Temple, Chelipura, Aurangabad is the personal and private temple of the appellants and the property belonging to the temple is not the property of the public trust. The appellants also sought a perpetual/temporary injunction restraining the respondents not to disturb or interfere with their possession, enjoyment and ownership of the temple and its property. The injunction was refused by the civil court. The suit however is pending disposal. Finding that the appellants were causing hindrance in the implementation of the scheme framed by the Joint Charity Commissioner, the respondents filed Civil Suit No. 394 of 1993 in the court of Civil Judge, Senior Division, Aurangabad against the appellants claiming the following reliefs:

(3.) The appellants filed an application before the trial court tinder Section 9-A of the Code of Civil Procedure and claimed that since the respondents (plaintiffs in the suit) had not obtained permission of the Charity Commissioner, as envisaged by S. 50/51 of the Act for the institution of the civil suit, the suit was not maintainable. The learned Civil Judge rejected the application and the matter was carried to the High court in a civil revision. The High court directed the trial court to frame a preliminary issue in that regard and decide that issue before proceeding further in the case. Accordingly the following preliminary issue was framed: