SHANKAR NARAYAN GIRI DEAD Vs. KAMALABAI VENKATESH DESHPANDE

JUDGEMENT

(1.) THIS civil revision petition has given rise to an interesting controversy with regard to the aspect of jurisdiction in relation to legal action a trustee is empowered to initiate within the framework of the Bombay Public Trusts Act. The facts to the extent necessary for purposes of deciding the issue are only being recounted by me. The petitioner is a trustee who is the original plaintiff before the lower Court and it is his case that the respondents are alleged to have committed certain encroachments on trust property and he has, therefore, instituted the suit for purposes of obtaining appropriate reliefs in respect thereof. The litigation has had a long history in so far as it commenced in the year 1962 and the respondent before me deserves to be complimented for having kept his litigation going for 34 years without the suit having commenced. The petitioners have virtually been bouncing from Court to Court and the question of whether the Court of the learned Munsiff before whom the proceeding is at present, has jurisdiction to entertain the suit, has still not been finally concluded. As of now, the respondents, relying on the provisions of Section 50 of the bombay Public Trusts Act, contended that having regard to the law as enunciated by the Full Bench of this Court in the decision in Ganapathi Ram Naik and Another v Kumta Shri venkatraman Dev, as also the decision of the Supreme Court in shree Gollaleshwar Dev and Others v Gangawwa Kom shantayya Math and Others , that the proceeding can only be instituted before the District Court and that the learned Munsiff has no right to entertain and try the suit. After hearing the parties, the learned Munsiff upheld this contention and so did the Appeal Court. The present civil revision petition is directed against that order.

(2.) THE petitioners' learned Advocate sought to place relianceon the fact that when the suit was originally filed, the question of jurisdiction was raised and that the present petitioner was directed to represent the plaint before the appropriate Court and according to him, this controversy was finally resolved in the year 1972 when it was held that the Munsiff s Court does have jurisdiction. His submission is that this issue was concluded in the same proceeding between the same parties, that the respondent did not challenge that decision and that therefore, according to him, there is a bar of estoppel in the way of the respondents once again re-agitating the same point. The respondents' learned Advocate sought to place reliance on the decision of the Supreme Court in Jai Singh Jairam Tyagi v maman Chand Ratilal Agarwal and Others, in support of his plea, that the principles analogous to res judicata which are sought to be enforced against his client, would not apply because, there has been considerable amount of legal thought bestowed on the interpretation of Section 50 of the Act and that it has been the subject-matter of the aforesaid two subsequent decisions both of which are binding on the Trial Court and the parties and he therefore, submits that if having regard to the change of law, as laid down by the Supreme Court, there is alteration of the situation that it is certainly open to a litigant to point that out to the Court and insist on the changed position being given effect to. I do concede that this is the correct position in law and that the respondents' learned Advocate is justified in this submission in so far as law is an ever growing process and if there are changes or modifications in the state of the law, no bar can be pleaded on the basis of the old situation.

(3.) THE petitioners' learned Advocate submitted that a trustee of a public trust is performing the role of a manager or an administrator, that he has to deal with property, assets and various other situations and that in the event of disputes arising or in the event of the need arising for the safeguarding of the interests of the trust or for that matter, even as far as recovery proceedings are concerned, that trustees would from time to time be required to have recourse to the law Courts. The learned advocate submitted that there is absolutely nothing in the bombay Public Trusts Act which prohibits a trustee from approaching any Court for obtaining such a remedy and that even though this is a special statute, there is no provision contained therein which requires that a trustee will be precluded from approaching a Court of law. His submission is that this is an inherent right of a trustee and that the provisions of Section 50 of the Act will not have any application because, according to him, that provision relates only to action instituted either by the charity Commissioner or by persons interested in the trust other than trustees who have to institute such action after obtaining sanction. He therefore, submits that the aforesaid decisions, even though they have interpreted Section 50, would not in any way come to the assistance of the respondents and that both the lower Courts have erred in relying on these decisions.