SAIYED KASAMMIYA GULAM RASULMIYA Vs. STATE

JUDGEMENT

(1.) PRESENT Second Appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellant -original plaintiff to quash and set aside the impugned judgment and order dated 28.4.1986 passed by the learned 2nd Extra Assistant Judge, Junagadh passed in Regular Civil Appeal No.113 of 1984, by which the learned trial Court has allowed appeal preferred by the respondent herein -original defendant and has quashed and set aside the judgment and decree passed by the learned trial Court learned 4th Joint Civil Judge (S.D.), Junagadh by which the learned trial Court dismissed the said suit.

(2.) THE facts leading to the present Second Appeal in nutshell are as under:

(3.) SHRI S.M. Shah, learned advocate for the appellant has vehemently submitted that the learned Appellate Court has allowed the said appeal mainly on the ground that suit was not maintainable in absence of notice under Section 80 of the Code of Civil Procedure as well as for want of prior permission of the Charity Commissioner as required under Section 51 of the Bombay Public Trust Act. It is submitted that as such it was the specific case on behalf of the defendant before the learned Appellate Court that no proper issue has been framed by the learned trial Court. It is submitted that as such without framing any issue and / or point for determination by the learned Appellate Court with respect to the jurisdiction of the Civil Court and / or maintainability of suit in absence of any notice under Section 80 of the Code of Civil Procedure and / or in absence of prior permission of the Charity Commissioner as provided under Section 51 of the Bombay Public Trust Act before filing of the suit, the learned trial Court could not have and ought not to have decided such issue. It is submitted that if the learned Appellate Court was of the opinion that proper issue has not been framed, more particularly, with respect to the jurisdiction, which came to be decided by the learned Appellate Court, the learned Appellate Court was required to remand the matter to the learned trial Court to frame proper issue with respect to jurisdiction and / or maintainability of the suit and ought to have directed the learned trial Court to decide and dispose of the same in accordance with law and on merits and / or could have framed the issues and referred the matter the trial Court for deciding the same.