VASANTBEN UTTAMGIRI GOSWAMI Vs. JYOTIBEN HARIGIRI GOSWAMI

JUDGEMENT

(1.) THE petitioners who happened to be some of the trustees of the trust of Shree Bhimnath Mahadev Temple, and who were opponents in the application being Misc. Application No. 12 of 2008 which came to be decided and disposed of vide order dated 23/9/2008, had approached this Court by way of this petition invoking Article 226 and 227 of the Constitution of India, with following prayers.

(2.) THE facts in brief leading to filing the present petition as gathered from memo of the petition deserve to be set out as under. The trustees of the said trust are governed by the Scheme which came to be settled way back in year 1985. The trustees named under that Scheme have right to take their turn in performing "Seva - Puja" and receive the offerings, gifts etc. offered to the deity for their sustenance. The private respondents did find it difficult to carry out their obligation and rights under the Scheme which compelled them to approach the concerned Civil Court by way of Special Civil Suit No. 283 of 1997 which came to be instituted on 22/7/1997, inter alia seeking permanent injunction against the defendants wherein some of the trustees were party so as to restrain them from interfering with their acting as Pujari and taking the proceeds of offerings etc. This suit was instituted without any permission of the competent authority under Section 51 of The Bombay Public Trusts Act, 1950 (herein after referred to as the 'Trusts Act' for brevity) and the suit was resisted by the present petitioners on the ground of Civil Court having no jurisdiction to entertain the suit and adjudicate the controversy. The Civil Court decided the suit vide judgment & order dated 3/5/2003 inter alia holding that the Scheme where under the right as claimed by the plaintiffs was not acted upon and hence the suit came to be dismissed. The dismissal of the suit did not give rise to any appeal. In other words the parties did not choose to approach higher forum and the judgment of the Civil Court remained as it is. The Scheme provided change of turn in performance of Puja on Akhatrij of every year and one such occasion arose on 7/5/2008 where under when present petitioners ­ trustees turn was to end and the opponents were to take their turn on 7/5/2008, which the opponent did not get on account of highhanded action which gave them cause of action for moving the competent authority viz. Joint Charity Commissioner by way of application called Misc. Application No. 12 of 2008 under Section 41A. of the Trusts Act wherein a specific direction was sought for implementing the Scheme in its totality which would give the opponents trustees right to carry out Puja and receive the offerings and gifts during that tenure under which they were entitled to perform Puja. The parties were heard and concerned competent authority, viz. Respondent No.3 herein issued directions dated 23/9/2008. Being aggrieved and dissatisfied there with the present petitioners have approached this Court challenging the same by invoking Article 226 and 227 of the Constitution of India.

(3.) LEARNED counsel appearing for the petitioners further contended that the findings of the Civil Court were rendered at the instance of opponent/ private respondent trustees and having failed in that suit and having chosen not to challenge the same in an appellate proceedings they debarred themselves from taking up any other proceedings for similar relief and prayers. The Civil Court's findings being rendered in the civil proceedings should be treated as barring and estopping the present private respondents from moving any application in the nature of Misc. Application No. 12 of 2008 under Section 41A of the Trusts Act.