ANIL KALIDAS PRAJAPATI Vs. KESHAVLAL JIVRAM PRAJAPATI

JUDGEMENT

(1.) The original defendants-petitioners herein are before this Court challenging the order dated 12.06.2013 passed by the learned Additional Senior Civil Judge, Vijapur below Exhibit 14 in Regular Civil Suit No. 31 of 2013.

(2.) The facts in brief are as under: 2. 1 The respondent-original plaintiff filed Regular Civil Suit in the Court of learned Senior Civil Judge, Vijapur. The original defendants-petitioners herein preferred an application below Ex. 14 under Order 7, Rule 11 of the Code of Civil Procedure, 1908. Primarily, the contention before the trial court was that since the suit filed by the plaintiff was in respect of dealing with the property of the trust and the averments made in the plaint so suggested that the defendants were dealing in such properties in violation of the conditions and constitution of the trust, the suit was not maintainable in accordance with Sections 50, 51 and 80 of the Bombay Public Trust Act, 1950 (hereinafter referred to as 'the Act'). 2. 2 The learned trial judge by the impugned order rejected this application under Order 7, Rule 11 on the ground that the present suit was filed only with a view to stop illegal construction of a temple on the land of the trust and was hit by the provisions of the Act. The trial Court observed that from a bare reading of the plaint, the facts suggest that none of the provisions of the Act are attracted and therefore the application below Ex. 17 was rejected.

(3.) Mr. K.B. Pujara, learned advocate appearing on behalf of the petitioner has assailed this order rejecting the Ex. 17 application. He has invited my attention to the averments in the plaint at Annexure 'A'. Reading of the averments in the plaint suggest that it is the contention of the respondent plaintiff that there is a land owned by one Shri Chhottergol Prajapati Sabha-a public trust of which the petitioners are trustees. The close reading of the plaint further suggests that this land was purchased by the trust and the trust is so registered before the Charity Commissioner. It is the case of the respondent-plaintiff in the plaint that the petitioners and the respondent are the members of such trust and the property in question is to be used in accordance with the bye-laws and Constitution of the trust. According to the plaintiff, building of a temple on the land in question without the permission of the competent authorities is only illegal but against the bye-laws and the Constitution of the trust. Thus, the prayer accordingly is made that the original defendants-petitioners be restrained from acting in contravention of the Constitution of the trust and its bye-laws and be further restrained from constructing a temple on the land in question. 3. 1 It is on this count that an application under Order 7, Rule 11 was made by the petitioners-original defendants suggesting that the suit was barred in accordance with the provisions of Sections 50, 51 and 80 of the Act. Mr. Pujara has drawn my attention to the provisions of Sections 50 and 51 to suggest that only was the suit maintainable, because in accordance with Section 50 of the Act it ought to have been filed by two or more persons having an interest in the trust and having obtained the consent in writing of the Charity Commissioner as provided under Section 51 of the Act. Admittedly, the suit was by a sole plaintiff and without the permission of the Charity Commissioner. In addition thereto, Mr. Pujara has invited my attention to sub-section (3) of Section 51 of the Act which mandates that in every suit filed by the persons having interest in the trust, the Charity Commissioner shall be a necessary party. He submitted that on both these defects, the suit admittedly could have been filed by the respondent-plaintiff. Moreover, Section 80 of the Act expressly bars a Civil Court to deal with any question which is to be decided or dealt with by any officer or authority under the Act. 3. 2 In support of his submissions, Mr. Pujara has relied on a decision of the Supreme Court in the case of Church of North India v. Lavajibhai Ratanjibhai reported in (2005) 10 SCC 760 wherein the Supreme Court has held that with a view to determine the question as regards exclusion of jurisdiction of the civil court in terms of the provisions of the Bombay Public Trust Act, 1950, the Court has to consider what, in substance, and merely in form, is the nature of the claim made in the suit and the underlying object in seeking the real relief therein.