MATERNITY HOME Vs. KISHORKUMAR

JUDGEMENT

(1.) Rule. Rule is made returnable forthwith. Heard learned counsel for the parties for final disposal of the application.

(2.) The question that arises for consideration of the Court in this case is whether revision is maintainable against an order of the trial court postponing, decision on the issue of the maintainability of the suit and on the question of bar of limitation, to the trial of the suit.

(3.) The brief facts of the case, which are relevant for deciding the above question, are that the respondent filed Regular Civil Suit No. 70 of 2006 against the applicant, which is a public trust registered with the Charity Commissioner, for specific performance of an agreement of sale and for a mandatory injunction directing the applicant to obtain necessary permission from the Joint Charity Commissioner, Nagpur to sell the suit property to the respondent. Immediately on entering its appearance in the suit, the applicant, on 28th February, 2007 filed an application raising the preliminary objection that the suit as filed is not maintainable for want of prior sanction of the Charity Commissioner for sale of the trust property as Section 36 of the Bombay Public Trust Act restricts alienation of the trust property without prior sanction of the Charity Commissioner. That application was disposed of by the trial court by its order dated 11th October, 2007, holding that since for deciding the issue the Court would have to go into the merits of the suit, it would be proper to decide the issue along with other issues on merit at the final hearing of the suit. Within a few months thereafter i.e. on 31st December, 2007, the applicant filed an application at Exh.20 under Order VII Rule 11 C.P.C. once again raising the earlier contention and adding the contention of bar of limitation thereto. According to the applicant, during the course of arguments, it had also challenged maintainability of the suit for want of sanction under section 50 read with section 51 of the Bombay Public Trusts Act, which was not considered by the court. The trial court by the impugned order dated 27th March, 2008 rejected the application on the ground that the first contention as regards maintainability of the suit was already considered by the court in its order on Exh.6 and that in the facts and circumstances of the case, the question of bar of limitation is a mixed question of law and facts and hence, required to be postponed to the final hearing of the suit.