Research › Search › Judgment

Madhya Pradesh High Court · body

2009 DIGILAW 324 (MP)

Shanker Manchani v. S. D. Singh

2009-03-16

A.K.PATNAIK, AJIT SINGH

body2009
Judgment A. K. PATNAIK, C. J. :- This is an appeal under Order 43, Rule 1 (r) of the Code of Civil Procedure, 1908 (for short 'the CPC') against the order dated 16th January, 2009, passed by the learned 3rd Additional District Judge, Jabalpur, in Civil Suit No. 27-A/2008 allowing the application of the plaintiffs/respondents Nos. 1 and 2 under Order 39, Rules 1 & 2 of the CPC. 2. The facts very briefly are that that respondent No. 3/defendant is a Public Trust registered under the Bombay Public Trusts Act, 1950 (for short 'the Bombay Act') and owns 1.115 acres of land situated in Mauja Gorakhpur, Patwari Halka No. 2472 and Khasra No. 721. The land has been sold on 23-10-2007 to the appellants Nos. 1 and 2/ defendants. The respondent Nos. 1 and 2/ plaintiffs filed Civil Suit No. 27-A/2008 in the Court of the 3rd Additional District Judge, Jabalpur for inter alia a declaration that the sale was void and for permanent injunction. Along with the suit, the respondent Nos. 1 and 2 also filed an application under Order 39, Rules 1 & 2 of the CPC for temporary injunction restraining the appellants No.1 and 2 from carrying out any construction activities on the suit land. The appellants Nos. 1 and 2 opposed the application for temporary injunction by filing an objection. By the impugned order dated 1-61-2009 the learned Additional District Judge inter alia held that under Section 36 of the Bombay Act, no sale of any immovable property which belonged to a public trust was void without the previous sanction of the Charity Commissioner and no such previous sanction of the Charity Commissioner was taken before making the sale of the suit land in favour of the appellants Nos. 1 and 2. After taking the view that the respondent Nos. 1 and 2 had a prima facie case and balance of convenience was in their favour and that an irreparable loss would be caused in case temporary injunction was not granted, the learned Additional District Judge directed the appellants Nos. 1 and 2 not to carry out any construction acitivities on the suit land during pendency of the suit. 3. When this appeal was taken up for hearing today, Mt. 1 and 2 not to carry out any construction acitivities on the suit land during pendency of the suit. 3. When this appeal was taken up for hearing today, Mt. Kishore Shrivastava learned senior counsel for the appellants submitted that the case of the appellants in their objection filed to the application for temporary injunction was that the suit property was not a part of the trust property of the Methodist Church in India inasmuch as the suit property did not find place in the list of trust properties available with the Charity Commissioner, Bombay, but the learned Additional District Judge has taken a view in the impugned order that the suit property cannot be held to be a property of the Trust only because it was not included in the list of properties of the Trust registered with the Charity Commissioner, Bombay. He further submitted that the appellants had also taken a plea in their objection to the application for temporary injunction that the suit was not maintainable. He submitted that Section 50 of the Bombay Act is clear that in any case for any declaration or injunction in favour of or against a public trust or trustee or beneficiary thereof, two or more persons having an interest in the case can file a suit only after obtaining consent in writing of the Charity Commissioner but no such consent of the Charity Commissioner has been taken by the respondents Nos. 1 and 2 before filing such suit. He submitted that Section 51 (3) of the Bombay Act provides that in every suit filed by persons having interest in any case under Section 50, the Charity Commissioner shall be a necessary party, but the Charity Commissioner has not been made a defendant in the instant suit. He further submitted that Section 52 of the Bombay Act clearly states that notwithstanding anything contained in the CPC, the provisions of Sections 92 and 83 of the CPC shall not be applicable to the Public Trusts registered under the Bombay Act and yet the learned Additional District Judge has permitted the respondents Nos. 1 and 2 to institute a suit by an order passed under Section 91 of the CPC. 4. Mr. Alok Aradhe learned counsel appearing for the respondents Nos. 1 and 2 to institute a suit by an order passed under Section 91 of the CPC. 4. Mr. Alok Aradhe learned counsel appearing for the respondents Nos. 1 and 2, on the other hand, submitted that the plea with regard to the bar to the suit without the consent of the Charity Commissioner created under Section 50 of the Bombay Act has not been raised by the appellants Nos. 1 and 2 in their objections to the application for temporary injunction. He further submitted that the suit property according to the case of respondents Nos. 1 and 2 in the suit as well as in the application for temporary injunction, is a trust property of the Methodist Church and this case of the respondents Nos. 1 and 2 has been found to be prima facie correct by the learned Additional District Judge in the impugned order. He further submitted that the bar under, Section 50 of the Bombay Act against a suit being filed by two or more persons having interest in case without the consent of the Charity Commissioner does not apply to the instant suit filed by the respondents Nos. 1 and 2. He submitted that in any case, this plea has not been raised by the appellants Nos. 1 and 2 in their objections to the application for temporary injunction and the appellants have not yet been filed their written statements in the suit raising any of the aforesaid issues now raised in this appeal. 5. It is not disputed before us that the plea of bar to the suit under Section 50 of the Bombay Act and the plea that the Charity Commissioner .was a necessary party under Section 51 (3) of the Bombay Act and further the plea that the provisions of Sections 91 and 93 of the CPC were not applicable to a trust registered under the Bombay Act, have not been raised by the appellants in their objections filed to the application for temporary injunction. The appellants are also yet to file their written statements in the suit. Nonetheless, the aforesaid pleas based on Sections 50, 51 (3) and 52 of the Bombay Act are pleas which go to the root of the matter and have to be decided by the trial Court while also considering the temporary injunction matter. Mr. The appellants are also yet to file their written statements in the suit. Nonetheless, the aforesaid pleas based on Sections 50, 51 (3) and 52 of the Bombay Act are pleas which go to the root of the matter and have to be decided by the trial Court while also considering the temporary injunction matter. Mr. Kishore Shrivastava learned counsel appearing for the appellants submitted that the appellants should be allowed to raise these pleas in their additional objections to the application for injunction. 6. We therefore set aside the impugned order dated 16-1-2009 passed by the learned 3rd Additional District Judge, Jabalpur, in Civil Suit No. 27-A/2008 and remand the temporary injunction matter to the file of the Additional District Judge for a fresh decision in accordance with law. The appellants will file their additional objections raising the aforesaid pleas or any other plea that they may be advised within a week from today and the Additional District Judge will dispose of the temporary injunction matter within a month from the date of filing of the additional objections after giving an opportunity to the respondents Nos. 1 and 2 to file their reply and after hearing the parties. Till the temporary injunction matter is disposed of by the learned 3rd Additional District Judge, status quo will be maintained by the parties with regard to the suit property. Order accordingly.