TRIBHOVANDAS KALYANJI KARELIA Vs. JAGDISHBHAI KANJIBHAI KARELIA

JUDGEMENT

(1.) Heard learned Counsel for the parties.

(2.) These two Appeals from Order challenge orders passed on two separate notices of motion taken out in the same suit. The Appellant in Appeal from Order No.26636 of 2019 is one of the plaintiffs in the suit. The suit has been filed for a perpetual injunction restraining the defendants, who are respectively, trustees of a trust by the name of Shree Luhar Sutar Gnati Hitechhak Mandal, Mumbai, which is a public charitable trust registered under the Bombay Public Trusts Act, 1950 ("Trusts Act"), from holding elections to the managing committee. It has been the grievance of the plaintiffs in their suit that fresh elections of the managing committee of the trust proposed to be conducted by the defendants are without authority and illegal. It has been their case inter alia that some of the defendants, who are acting as trustees, are not bonafide trustees; they should be suspended from the membership of the trust. The plaintiffs have prayed for interim relief in their motion in terms of the perpetual injunction sought in the suit. The court was of the view, firstly, that the suit had been filed without the consent of the Charitable Commissioner under Section 51 of the Trusts Act. The court was also of the view that in the facts of the case, no temporary injunction could be granted, since the effect of such injunction would have been to continue the existing managing committee, whose term had come to an end, for an indefinite period, since the suit would take a long time. So far as the suspension of some of the trustees is concerned, the court was of the view that such relief could appropriately be granted, in the facts of the case, by Charity Commissioner under Section 41D of the Trusts Act, and not by the court. The court was, accordingly, of the view that the plaintiffs had failed to make out a prima facie case on merits ; the balance of convenience was also not in their favour ; and there was no case of any irreparable loss to the plaintiffs. The court observed that instead, it was the defendants, who would suffer irreparable loss, if the relief prayed for were to be granted in favour of the plaintiffs; such loss could not be compensated in terms of money.

(3.) There is no infirmity to be found in the trial court's order on the notice of motion. Learned Counsel for the Appellant (plaintiff) relies on the case of Mohamed Hassan Samru Vs. Peer Hazarath Diwanshah Dargah Trust, 2002 3 AllMR 66 decided by this court. What this court had held in that case is that merely because relief prayed for in the suit is for a declaration or injunction, that would not per se attract the requirement of a prior permission within the meaning of Section 51 of the Trusts Act. That was a case, where a declaration was sought that the lease deed executed by the plaintiff in favour of the defendant was null and void and the defendant was not entitled to any nonagricultural permission in respect of the property. The court, after examining various clauses of Section 50 of the Trusts Act, held that the declaration as well as the injunction sought in the suit was not a relief covered by any of sub-clauses (a) to (q) of Section 50 of the Trusts Act. The opponent's counsel in the case had fairly accepted that no relief in the suit would fall within sub-clauses (a) to (p) of Section 50. The contention was that the relief would fall within clause (q) of Section 50. Sub-clause (q) is a residuary clause, covering "any other relief as the nature of the case may require, which would be condition precedent to or consequent to any of the aforesaid reliefs or is necessary in the interest of trust." The court was of the view that the provision of clause (q) was to be invoked only for granting of a relief in aid of any of the reliefs specified in sub-clauses (a) to (p) of Section 50; it could not be interpreted to mean a clause covering all other suits, in which substantive or main reliefs were not covered by any of clauses (a) to (p) referred to above. The court held that, accordingly, clause (q) of Section 50 would have no application to the facts of the case before it.