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2018 DIGILAW 67 (GUJ)

SUMANBHAI BHANGIYABHAI NAIKA v. VALSAD PARSI ANJUMAN TRUST TEMPLE THRO MANAGIND

2018-01-10

A.J.SHASTRI

body2018
JUDGMENT : 1. The present Civil Revision Application is filed by the original defendant being aggrieved by the order dated 18.12.2015 passed by the learned 3rd Additional Civil Judge, Valsad in Special Civil Suit No.76 of 2012 below Exh.112 whereby an application under Order VII Rule 11A of the Civil Procedure Code, 1908 (‘the CPC’, for short) came to be rejected. 2. The facts, in nutshell, are that Valsad Parsi Anjuman Trust through its Managing Trustee Saam Rushi Chothiya has filed the suit for the purpose of seeking physical and peaceful possession of hut which is situated at Valsad on the premise that the plaintiff trust is having several properties including the present hut, which is the subject matter of the suit. It is the case of the original plaintiff that, for the purpose of looking at and taking care of the properties belonging to the trust one Mangla Bhangya – predecessor of defendant was allowed to put hut at relevant point of time but then the same was not on ownership basis and later on, when there was a mala fide intent to occupy the said place, false cases were lodged against the trust, in which he lost. The properties, which are described, are very much reflecting in the name of plaintiff – Parsi Trust and the revenue record consisting of 7/12 abstracts Form No.6 and 8A also reflect the name of plaintiff trust and revenue cess is also being paid by the plaintiff trust. The possession and occupation over the properties is in the hands of the plaintiff trust which is utilised for the purpose of religious activities. The case of the plaintiff is that some tenancy proceedings were also initiated before the Mamlatdar by original occupant Mangla Bhangya being Tenancy Case No.19 of 1965, which came to be dismissed vide order dated 20.05.1965, and there was no right of whatsoever nature on tenancy basis of the defendants. Despite the aforesaid fact, on several occasions, attempts were made to enter the name into relevant record of Nagarpalika as well as before the Government Authorities to create a right but throughout failed. During the passage of time, one employee, who was working in the trust named Bachubhai Bhangya – a deceased, as a salaried employee, voluntarily tendered his resignation on 31.01.2006 and the defendants herein viz. During the passage of time, one employee, who was working in the trust named Bachubhai Bhangya – a deceased, as a salaried employee, voluntarily tendered his resignation on 31.01.2006 and the defendants herein viz. Defendant nos.2 to 5 are the legal heirs and representatives of said deceased Bachubhai Bhangya who already tendered resignation way back on 31.01.2006. 3. It is the further assertion of the plaintiff in the suit that defendants, on expansion of their family, made an attempt to put up some construction and thereby enlarged the area of their hut which resulted into filing of Regular Civil Suit No.40 of 2007 which fact was established by the Commissioner reporting panchnama which has been drawn on the premise that these properties are running in the name of Chothiya charity funds, however, administration of these properties are at the end of plaintiff – Parsi Trust and the defendants have no connection with these properties. Even Survey No.75/A is a land acquired by the Government over which a ground of RPF is situated which land was also originally belonging to the trust. Earlier, the defendants have filed suit being Regular Civil Suit No.40 of 2007 against the Managing Trustee of the trust in individual capacity by making false and frivolous allegations. The defendants having no right, title and interest over these suit hut, they are unauthorised occupants of this suit property and are not entitled to seek any injunction. This suit property is roughly evaluated at market value of Rs.4/- lakhs and, therefore, when defendants have threatened to encroach further lands of the trust, on 01.05.2012 plaintiff trust has initiated the present suit proceedings. Out of several properties which are mentioned in the plaint, this controversy entangled is only with respect to hut situated over the Survey Nos.100 / 1, 100 / 2 and Survey No.100 / 3 roughly admeasuring 3029.76 sq ft and, therefore, relying upon some of the documents placed on record of Regular Civil Suit No.40 of 2007, the plaintiff has come forward with the present suit which was registered as Special Civil Suit No.76 of 2012 filed in the Court of learned Principal Judge (S.D.) Valsad. The trust has entrusted all powers in the Managing Trustee Sam Rushi Chothiya for the purpose of conducting cases in the cases of trust and after securing proper authorisation based upon the relevant resolution on behalf of Valsad Parsi Anjuman Trust Fund, suit came to be filed leading documentary evidence as much as 26 in numbers at Exh.3 with a view to indicate that entire administration is in the hands of plaintiff trust and there is no other right of any third party. 4. Upon receipt of summons of the suit proceedings, the defendants appeared and submitted their written reply at Exh:7 denying the stand taken by original plaintiff. The said written reply was submitted on 16.06.2012 since the proceedings are pending in the Court of learned 3rd Additional Senior Civil Judge, Valsad. 5. During the pendency of the suit proceedings, the defendants have filed an application under Order VII Rule 11A of the CPC in the suit below Exh.112 on 23.10.2015. The said application was submitted mainly on the premise that there is no cause of action of the plaintiff against the defendants herein with respect to property in question. It was further submitted that on the basis of documents on record, the plaintiff trust has nothing to do with either of the property or the house and the plaintiff trust is not the owner of the said property and thereby it was contended that there is no locus standi to lodge the proceedings. It was also contended that the land and the houses which are situated to be of trust are in possession and the same are utilised since 1963 by the defendants and though there is no nexus with the suit property, without any just reason after almost a period of 54 years the suit has been filed and, therefore, the present suit having no cause of action at all, it deserves to be rejected in exercise of jurisdiction under Order VII Rule 11A of the CPC. 6. This application appears to have been objected by the original plaintiff trust by submitting that there is a definite cause cropped up for the plaintiff to bring the suit as a specific threat was given to further encroach the land of Survey No.100/1, 100/2 and 100/3. 6. This application appears to have been objected by the original plaintiff trust by submitting that there is a definite cause cropped up for the plaintiff to bring the suit as a specific threat was given to further encroach the land of Survey No.100/1, 100/2 and 100/3. The written arguments were also tendered by the plaintiff trust to oppose the application Exh.112 submitted by the defendant and after considering and after hearing at length, the learned 3rd Additional Senior Civil Judge, Valsad having found that the issue which has been raised can be examined only after leading the evidence before the Court and, therefore, no plaint can be rejected. It was also specific conclusion arrived at by the learned judge that original suit proceedings are of the year 2012 and from the record it has been found by learned judge that on frequent occasions such kind of interlocutory applications, one after another, are being filed with a view to drag the proceedings and, therefore, the Court notices that such practice deserves to be curbed and on the contrary that attempt is to be discouraged by imposing costs. It was also found by learned judge that on the basis of plain reading of plaint, it was not found by learned judge to accept the application – Exh.112 filed by defendants as a result of which by the order dated 18.12.2015, the said application Exh.112 rejected with cost of Rs.2,000/- and it is this order is made the subject matter of present revision application under Section 115 of the CPC. 7. This Court, on 26.02.2016, had issued notice making it returnable on 28.03.2016 and in the meantime granted interim relief in terms of para:14(B) till the next date of haring and thereafter it has been observed from the ordersheet that time to time either with the consent or for some reason, the matter is adjourned from time to time and lastly it has come up for consideration before this Court on 15.11.2017. 8. Heard Mr.Shaswat Shukla, learned advocate for Mr.S.P.Majmudar, learned advocate for the applicants nos.1 to 10 and Mr.Jal S.Unwala, learned advocate for Ms.Tejal Vashi, learned advocate for the respondents – contesting plaintiffs. 8. Heard Mr.Shaswat Shukla, learned advocate for Mr.S.P.Majmudar, learned advocate for the applicants nos.1 to 10 and Mr.Jal S.Unwala, learned advocate for Ms.Tejal Vashi, learned advocate for the respondents – contesting plaintiffs. On 15.11.2017 at the request of both learned advocates, matter was heard for final disposal and extensive hearing has taken place and the matter is placed for orders on 11.02.2017 and with this background, present Civil Revision Application has been dealt with by this Court at length. 9. Learned advocates appearing for the applicants had submitted that essentially Order VII Rule 11A of the CPC has been invoked by the applicants – original defendants that there is a clear non-compliance on the part of the plaintiff trust about Section 50 of the Bombay Public Trusts Act and another main ground upon which application is submitted is that plaint, on the bare reading, does not disclose any cause of action and, therefore, these two issues were agitated and pressed into service. It was obligatory on the part of learned trial judge to deal with the same instead of brushing aside the contention in such summary manner and, therefore, the order passed by the learned trial judge deserves to be quashed in the interest of justice. It has been contended by Mr.Shukla, learned advocate appearing for the applicants that there is no whisper about the ownership of the land in question belonging to the plaintiff trust and, therefore especially when no title vests in the plaintiff trust, there is hardly any cause or locus for the plaintiff trust to bring the suit and the bare reading of the prayer clause of the suit reflecting on page:14 is sufficient enough to indicate that the possession is sought for of the suit premises which is not belonging by way of ownership of the plaintiff trust and therefore, there is no cause of action against the defendant i.e. present petitioners. 9.1 Mr.Shukla, learned advocate appearing for the applicants has drawn the attention of the Court that basically averments contained in the plaint and the documents attached with it, are relevant circumstance to be kept in mind whether any cause of action available to the original plaintiff or not. 9.1 Mr.Shukla, learned advocate appearing for the applicants has drawn the attention of the Court that basically averments contained in the plaint and the documents attached with it, are relevant circumstance to be kept in mind whether any cause of action available to the original plaintiff or not. To substantiate this contention, Mr.Shukla, learned advocate has made attempt to rely upon following decisions: (i) Church of Christ Charitable Trust and Educational Charitable represented by its Chairman vs. Ponniamman Educational Trust represented by its Chairperson / Managing Trustee, (2012) 8 SCC 706 , para:18; (ii) Central Provident Fund Commissioner, New Delhi and others vs. Lala J.R. Education Society and others, (2016) 14 SCC 679 , para:5, (iii) Rame Gowda (dead) by Lrs. vs. M.Varadappa Naidu (dead) by Lrs., (2004) 1 SCC 769 , paras: 7 and 8. It is contended that the property is not to be given to a person who is not having title of the same and, therefore, there is no cause of action available with the plaintiff trust to seek any relief against the present petitioners – original defendants. Mr.Shukla, learned advocate appearing for the applicant has further relied upon the decision in the case of Liverpool and London S.P. & I. Association Ltd. vs. M.V.Sea Success I and another reported in (2004) 9 SCC 512 and contended that when there is no cause of action, suit proceedings to be dismissed. The observations made by Hon’ble the Apex Court, in para:140, since relevant is reproduced herein after. “140. A cause of action is a bundle of facts which are required to be pleaded and proved for the purpose of obtaining relief claimed in the suit. The observations made by Hon’ble the Apex Court, in para:140, since relevant is reproduced herein after. “140. A cause of action is a bundle of facts which are required to be pleaded and proved for the purpose of obtaining relief claimed in the suit. For the aforementioned purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleading relies on any misrepresentation, fraud, breach of trust, willful default, or undue influence.” 9.2 Yet another decision which has been brought to the notice of this Court in the case of reported in case of Exphar Sa and another vs. Eupharma Laboratories Ltd. And another reported in (2004) 3 SCC 688 and by referring to paras:9 and 10, it has been contended that, in such a situation, when cause of action is not established from the plain reading of the plaint, then it is obligatory on the part of learned judge to exercise jurisdiction under Order VII Rule 11 of the CPC. Paras:9 and 10 of the said decision read thus: “[9] Besides when an objection to jurisdiction is raised by way of demurrer and not at the trial, the objection must proceed on the basis that the facts as pleaded by the initiator of the imupgned proceedings are true. The submission in order to succeed must show that granted those facts the Court does not have jurisdiction as a matter of law. In rejecting a plaint on the ground of jurisdiction, the Division Bench should have taken the allegations contained in the plaint to be correct. However, the Division Bench examined the written statement filed by the respondents in which it was claimed that the goods were not at all sold within the territorial jurisdiction of the Delhi High Court and also that the respondent No. 2 did not carry on business within the jurisdiction of the Delhi High Court. Having recorded the appellants' objections to these factual statements by the respondents, surprisingly the Division Bench said : "Admittedly the goods are being traded outside India and not being traded in India and as such there is no question of infringement of trademark within the territorial limits of any Court in India what to of Delhi". Having recorded the appellants' objections to these factual statements by the respondents, surprisingly the Division Bench said : "Admittedly the goods are being traded outside India and not being traded in India and as such there is no question of infringement of trademark within the territorial limits of any Court in India what to of Delhi". [10] Apart from the ex-facie contradiction of this statement in the judgment itself, the Division Bench erred in going beyond the statements contained in the plaint.” 9.3 Mr.Shukla, learned advocate has further contended that the plaint is only with regard to the hut situated over the property and, therefore, plaint cannot be partially rejected qua other properties except hut as there is no concept of partial rejection of plaint under Order VII Rule 11 of the CPC. It has also been contended that suit proceedings are barred by provisions of Bombay Public Trusts Act and by referring to Section 50(ii) of the Act, a contention is raised that learned Judge, in exercise of powers under Order VII Rule 11 of the CPC, ought to have rejected the suit. There is a clear bar of Civil Court jurisdiction under the provisions of Bombay Public Trusts Act and, therefore, the order in question is required to be quashed. It has also been pointed out that suit is submitted in the year 2012 and on 11.05.2012 under Order XIV Rule 2 of CPC, preliminary objections were raised with regard to maintainability and the same was rejected vide order dated 05.10.2015, against which a writ petition being Special Civil Application No.4320 of 2015, was moved, which was withdrawn with a view to submit fresh application and by referring to the said order passed by this Court in Special Civil Application No.4320 of 2015, the application under Order VII Rule 11 has been submitted on 23.10.2015 which came to be rejected on 18.12.2015 and, therefore, by making a reference of several decisions, which will be dealt with at an appropriate stage in the present order, as mentioned earlier, a request is made to allow the present Civil Revision Application and set aside the impugned order. No other submissions have been made. 10. No other submissions have been made. 10. To meet with the stand taken by learned advocate for the applicants, Mr.Jal Soni Unwala, learned advocate appearing for Ms.Tejal Vashi, learned advocate for opponent no.1 has vehemently contended that the order passed by the learned Court below is perfectly just and proper and within the four corners of provisions of law and, therefore, in absence of any irregularity of any nature or illegality or perversity, revisional jurisdiction may not be exercised. Mr.Unwala, learned advocate has further contended that the case is having a chequered history and the detailed facts which are related to the controversy have not been brought to the notice of the Court. It has been pointed out that way-back in the year 2008, the Regular Civil Suit No.40 of 2007 pertaining to the very same land and the said suit proceedings came to be disposed of. For the purpose of submitting in detail, Mr.Unwala, learned advocate has drawn the attention of this Court to an affidavit-in- reply filed in detail from page:83 onwards and has submitted that the order in question may not be interfered with. In fact, it has been pointed out by Mr.Unwala, learned advocate that the fact of challenge to an order passed below Exh.110 in Special Civil Suit No.76 of 2012 ought to have been brought to the notice of the Court and when this Court while dealing with the Special Civil application No.4320 of 2016 passed an order on 31.03.2016 in which the very same learned advocate sought permission to withdraw the petition with a liberty to move appropriate application with specific details and specific question to be framed as ‘preliminary issue’ to be framed by the learned trial judge in lieu of application below Exh.110 and the petition was permitted to be withdrawn. Had this fact been brought to the notice, possibly this Court would not have entertained the present Revision Application as the said Special Civil Application No.4320 of 2016 appeared to have been confirmed on 29.01.2016 and only after getting the order on 26.02.2016 the said petition came to be withdrawn in the aforesaid context. Page:90 is an order placed along with the affidavit-in-reply and, therefore, in view of this conduct of the petitioner only the revision petition is required to be dismissed. 11. Page:90 is an order placed along with the affidavit-in-reply and, therefore, in view of this conduct of the petitioner only the revision petition is required to be dismissed. 11. Mr.Unwala, learned advocate has further contended that, apart from the aforesaid order passed in Special Civil Application No.4320 of 2016, a further stand which is taken by the applicant is diametrically opposite to the order passed by this Court to proceed with the trial of the main proceedings and having suppressed the material fact, the present revision application, on this ground alone, may be dismissed. Mr.Unwala, learned advocate has submitted that the application, which was under Order VII Rule 11 of the CPC, wherein also an issue has been raised with regard to bar of Sections 50, 51 and 80 of the Bombay Public Trust Act. The said controversy having been rejected at Exh.112 which order was passed on 18.12.2015 and it was duty on the part of learned counsel appearing for the applicant to bring it to the notice of this Court and having not done so, this conduct is sufficient enough to oust the applicant from revisional jurisdiction of this Court. It has further been contended that one suit, in the form of Regular Civil Suit No.40 of 2007, was filed by the very applicants for declaring them as owner of the land and sought permanent injunction injuncting defendants trust from interfering with the suit land. The Trail Court, upon examination of material of the said proceedings, was pleased to dismiss the suit by judgment and order dated 24.04.2015 and thus, the declaration which was sought by the applicant qua disputed land is the very portion of the land, which is the subject matter of present Special Civil Suit No.76 of 2012. Thus, this fact has also been suppressed by the applicants in the present revision application. It was bounden duty on the part of the applicant to fully disclose all the material facts and to come with the clean hands and having not done so, on this ground alone revision, petition may be dismissed. Mr.Unwala, learned advocate has further submitted that the Trial Court has categorically found on the basis of material and evidence available on record that, applicants are not legal owners of disputed land and had miserably failed to prove their ownership and, therefore, their possession are not backed by any lawful force. Mr.Unwala, learned advocate has further submitted that the Trial Court has categorically found on the basis of material and evidence available on record that, applicants are not legal owners of disputed land and had miserably failed to prove their ownership and, therefore, their possession are not backed by any lawful force. It has been pointed out that the judgment and order passed by the learned Trial Court in Regular Civil Suit No.40 of 2007 was assailed by way of Regular Civil Appeal No.24 of 2015 wherein also an injunction order was sought for, however, vide order dated 20.11.2015, the said request was turned down. This fact has also not been placed on record of the present Revision Application and as such according to Mr.Unwala, learned advocate an attempt is made to conceal material fact from the record and thereby to obtain the favbourable order. It has also been mentioned by Mr.Unwala, learned advocate that the tower of silence, which is popularly known as “dokhma” on the suit land and where religious rites of Zoroastrian community are being performed regularly. It has been contended by Mr.Unwala, learned advocate that bar of Sections 50, 51 and 80 of the Bombay Public Trust Act cannot be allowed to be raised in the present revision application as the applicant himself sought permission to withdraw the earlier proceedings from this Court with a view to file detailed application with specific details and questions to be framed by way of preliminary issue before the trial Court, which is quite visible from the order, which has been passed by this Court and as such also it is not open for the applicant to re-agitate said issue once having withdrawn with a view to raise a preliminary issue. It has also been canvassed by learned advocate Mr.Unwala, that Section 50 of Bombay Public Trust Act could not have been imposed an embargo on general power of trustees to file suit for recovery of possession of suit property either from the tenants or licensee or from the trespassers and as such the said embargo would not come in the way of respondent. With a view to substantiate this contention, Mr.Unwala, learned advocate, by referring to a judgment delivered by the Division Bench of this Court, in the case of The Trust of Shri Laxmi Narayan Dev Temple and its Subordinate Temple vs. Ajendrapasadji Narendraprasadji Pande reported in 2013 (2) GLH 559, and has contended that Section 50 embargo would not come in the way so mechanically so as to non-suit the litigant at the stage of Order VII Rule 11 of the CPC. Mr.Unwala, learned advocate has specifically contended that this is nothing but a serious attempt on the part of the applicant to mislead the Court and by taking out one ground or other, the main proceedings being thwarted so as to achieve the oblique motive and as such the revision petition being devoid of merits, the same deserves to be dismissed. 12. Mr.Unwala, learned advocate has further contended that ultimately the order, which has been passed, is passed in exercise of jurisdiction vested in Court and the said order is backed by cogent reasons and further it is not the case that there is any non-consideration of submissions made by applicant before the Court concerned. Even the entire material has been considered, which has been brought to the notice at the time when order is passed including the effect of Section 50 of Bombay Public Trust Act, and, therefore, in absence of any perversity or material irregularity, revisional jurisdiction may not be exercised in the peculiar set of circumstance. Mr.Unwala, learned advocate has further contended that it is settled position of law that revisional jurisdiction is not such like an appeal and as such unless and until there is some perversity in exercising revisional jurisdiction is appearing, only under such circumstance, the revisional jurisdiction may be exercised and this is not a fit case in which such jurisdiction can be allowed to be invoked at the behest of the petitioner. In view of this submission, Mr.Unwala, learned advocate has requested the Court to dismiss the revision petition with costs. 13. In view of this submission, Mr.Unwala, learned advocate has requested the Court to dismiss the revision petition with costs. 13. Having heard learned advocates appearing for the parties and having perused the material attached to the present petition compilation and in the context of the order dated 05.10.2015 if to be read, it is not established that there is any material irregularity crept in by the learned trial judge in exercising the jurisdiction under Order VII Rule 11 of the CPC while passing the order dated 18.12.2015. 13.1 It is appearing from the record that a clear conclusion is arrived at by the trial Court, that by submitting application Exh.112, no details are provided as to by virtue of which statutory provisions, the suit is barred by law. On the contrary, a clear assertion has come out from a bare reading of the order that the applicant herein has filed one after another such kind of interlocutory applications and trying to intercept further process of main suit proceedings and upon notice of such things from the record, learned trial judge was constrained to reject the application with cost. If this be the conduct, it is hardly possible to come to the conclusion that there is any irregularity committed by the Court concerned. Apart from this exercise of jurisdiction, the perverse proceedings are also to be taken note of which are not in dispute and the same appears to have been concealed from the Court. It has been noticed by the Court that undisputedly the earlier suit i.e. Regular Civil Suit No.40 of 2017 is dismissed by judgment and order dated 21.04.2015. 13.2 It is also reflecting from the affidavit-in-reply filed before this Court in the present proceedings, a specific contention has been raised that in an earlier round of litigation, the very applicants have filed an application Exh.110 in Special Civil Suit No.76 of 2012 in which an issue related to Section 50 of the Bombay Public Trust Act has been agitated and the said application Exh.110 was rejected vide order dated 05.10.2015 after considering the relevant submissions and against this order below Exh.110 filed by the applicants, this very applicants have filed writ petition being Special Civil Application No.4320 of 2016 on 27.01.2016 and this Court, on 31.03.2016, passed the order, which is, since worth to be taken note of, reproduced herein after. “Learned advocate Mr.Shashvata Shukla seeks permission to withdraw the present petition with a liberty to move an appropriate application with specific details and specific question to be framed as preliminary issue to be framed by the learned trial Court in lieu of application below Exh.110. In light of this statement made at bar, present petition stands disposed of with above liberty. Learned trial Judge shall decide such application independently and uninfluenced by the observations recorded in the impugned order.” 13.3 From a bare reading of this order, it clearly transpires that a specific permission to withdraw the petition was sought which was granted so as to enable the petitioner to move an appropriate application with specific details and specific question to be framed as preliminary issue to be framed by the learned trial court in lieu of application Exh.110. Meaning thereby, this very issue with regard to bar of Civil Suit by virtue of Section 50 of the Bombay Public Trust Act is not entertained by this Court and with more detail the same was allowed to be agitated by raising and requesting the Court as preliminary issue. Now, this order, which has been passed on 31.03.2016, appears to have been concealed even from the Court below while submitting application Exh.112 under Order VII Rule 11A of the CPC and as it appears that despite the fact that this application was very much filed in the month of October, 2015, the same was concealed from this Court in Special Civil Application No.4320 of 2016. However, be that as it may, under the said circumstance, intermittently permitting to raise one after the other contention in a piecemeal manner is nothing but a clear attempt on the part of applicants to challenge proceedings of Special Civil Suit No.76 of 2012 and this fact has been noticed by learned trial judge as well that applicant is coming out with one application and another with an intent to delay the proceedings and, therefore also this conduct is sufficient enough to indicate the intention of present applicants. 13.4 Further, apart from these issues, a bare perusal of the Special Civil Suit No.76 of 2012, a specific cause of action has been mentioned in para:16 of the plaint that when an attempt is made to encroach further land belonging to the trust on 01.05.2012 there was necessity arose to prefer the suit which is essentially for claiming possession of the hut situated over the land and for that purpose suit had been filed. 13.5 Mr.Shukla, learned advocate appearing for Mr.Majmudar, learned advocate for the applicant, at one point of time, made an attempt to create a confusion that plaintiff Saam Rusi Chothiya has no locus standi to present the suit on behalf of Valsad Parshi Anjuman Trust Funds as the land is not belonging to the trust itself. Now, this submission if to be examined from the record, which has been attached with affidavit-in-reply, at page:118, along with plain reading of Regular Civil Suit No.40 of 2017 is indicating that this very applicant i.e. Suman Bhangiya Nayka defendant no.1 herein was plaintiff no.1 in the said proceedings and the sole defendant is the plaintiff of the present suit and that suit has been allowed to be adjudicated upon and the said proceedings were terminated by way of final order as stated hereinabove, and, therefore, the issue with regard to locus of the plaint is of no consequence and the same will be taken care of during the adjudication of the main suit i.e. Special Civil Suit No.76 of 2012. 13.6 It is also emerging from the record of the present case that with respect to title, possession etc. of the land in question, the same is a matter of evidence and in view of the reasons which are assigned by learned judge and visualising the conduct of the petitioner the Court is of the considered opinion that the suit proceedings are required to be adjudicated in detail in accordance with law and it is not fit case in which the said suit can be threshed out at the stage of the Order VII Rule 11 of the CPC. Of course, the powers can be exercised at any stage of the suit of Order VII Rule 11 of the CPC, however, in opinion of this Court the aforesaid circumstances are not permitting the Court to accept the submission of applicant to reject the plaint. Of course, the powers can be exercised at any stage of the suit of Order VII Rule 11 of the CPC, however, in opinion of this Court the aforesaid circumstances are not permitting the Court to accept the submission of applicant to reject the plaint. 13.7 By referring to some of the pages from the present revision compilation, an attempt is made by learned counsel for the applicant that land is not standing in the name of plaintiff trust and revenue record also indicates names of other account holders and, therefore, these documents are not vesting any title in the plaintiff and, therefore, there is no cause of action, but in view of circumstance that cause of action is nothing but a bundle of of acts, these issues of facts are not possible to be taken up as if the suit is to be tried and, therefore, conjoint reading of documents attached with the revision petition and attached with the affidavit-in-reply, it is not the case where the suit of the year 2012 is to be disposed of too technically by resorting to powers under Order VII Rule 11 of the CPC. From the overall material on record, this Court is of the opinion that, no perversity is reflecting in an order dated 18.12.2015 and looking to the conduct which is visualised from the record of the case and the submissions made before this Court, there appears to be no illegality in conclusion arrived at by the Court below and, therefore, this being revisional jurisdiction, Court is not inclined to accept the revision petition by exercising the same. 13.8 The Apex Court has propounded a well-defined propositions on exercise of jurisdiction under Order VII Rule 11 of the CPC and has held that such drastic power has to be exercised in a sphere circumstance. Looking to this entire scenario of present civil suit, it is not reflecting that any revisional jurisdiction deserves to be exercised. The revision being found devoid of merits the same needs to be dismissed. 14. Looking to this entire scenario of present civil suit, it is not reflecting that any revisional jurisdiction deserves to be exercised. The revision being found devoid of merits the same needs to be dismissed. 14. Mr.Shukla, learned advocate appearing for Mr.Majmudar, learned advocate for the petitioner has cited several decisions which are referred to above, but the Court, while examining the same, has also kept in mind that if facts are different then the ratio laid down may not be mechanically applied as one additional fact or change of fact would make a world of difference in applying precedent. Now, if the decision, which has been sought before the Court, is looked into the same can in a distinct facts as is appearing. 14.1 The first judgment which has been relied upon in the case of Central Provident Fund Commissioner, New Delhi vs. Lala J.R.Education Society and ors. reported in (2016) 14 SCC 679 in which the Apex Court has laid down a distinction between rejection of plaint and dismissal of suit at a pre-trial stage on the ground of maintainability. In dismissal on preliminary issue, the Court is entitled to an look into entire documents including those furnished by defendant but while exercising jurisdiction under Order VII Rule 11 of CPC only averments and the pleadings in the plaint to be looked into and not the written statement. This Court is in complete respectful agreement of the said proposition of law and bound by the same, however, is of the considered opinion that even from a bare reading of the plaint here in the present circumstance clearly indicates that there appears to be a cause of action in favour of plaintiff and as such looking to the details which are provided in the plaint along with the plaint itself the reliefs sought in para:18 deserves to be adjudicated in detail, hence the said judgment is taken note of by this Court. 14.2 Yet another decision which has been produced to the notice is in the case of Rame Gowda (dead) By Lrs. vs. M.Varadappa Naidu (dead) By Lrs. 14.2 Yet another decision which has been produced to the notice is in the case of Rame Gowda (dead) By Lrs. vs. M.Varadappa Naidu (dead) By Lrs. and another reported in (2004) 1 SCC 769 in which by referring to para:7, it has been contended that a person in possession of the land is assumed character of owner and exercising piecemeal the ordinary rights of ownership has perfectly co-title against all the world, but the rightful owner and by referring to this, contention is raised that no case is reflecting from the bare reading of the plaint in favour of plaintiff. However, further reading of this very judgment clearly indicates that if an trespasser is in settled possession of property belonging to the rightful owner, the rightful owner shall have to take recourse of law and he can not take law in his hands, and as such the observations which are made in para:8 of the said decision if to be taken note of even as per the submission of counsel for the applicant, this issue requires some element of leading evidence to adjudicate and as such Order VII Rule 11 of the CPC may not be allowed to be resorted to. As said by even series of decisions that judgment of the Apex Court or any Court to be well read as a whole and not in isolation. The joint reading of the same on the contrary led to situation where background of this fact on hand, will not permit the Court to accept the exercise of Order VII Rule 11 of the CPC. 14.3 Referring the case of Liverpool and London S.P. & I. Association Ltd. vs. M.V.Sea Success I and another (supra), a contention is raised in support of applicant that order in question is not just and proper but as can be seen from the cache-note of this judgment on internal page-519, it has been spelt out by Apex Court that cause of action is bundle of fact which are required to be pleaded and proved for the purpose of obtaining the relief claimed in the suit and for aforesaid purpose, ‘material facts’ are required to be stated but not ‘the evidence’ except in certain cases where pleading raised on any misrepresentation, fraud, breach of trust or undue influence etc. It has further been referred by the Apex Court that it may be true that Order VII Rule 11 of the CPC, although authorise the Court to reject the plaint on failure on the part of plaintiff to disclose cause of action but the same would not mean that averments made therein or a document upon which reliance has been placed although discloses a cause of action, plaint would be rejected on the ground that such averments are not sufficient to prove the facts stated therein for the purpose of obtaining relief claimed and further more a fact which is within the special knowledge of the defendant need not be pleaded in the plaint. Now, on the contrary this decision is not clearly in favour of applicant’s stand and peculiar background of this fact would indicate that for a meaningful reading of plaint in addition to the plaint documents attached therewith are also to be looked into to ascertain as to whether any cause of action has arisen and as such, the said judgment is not possible to be taken in aid in favour of applicant. It appears from the conduct of submitting number of judgments by this Court and attempt is made to come out from the conduct of the applicant shows in litigating a clear case of misrepresentation and concealment of material fact is emerged from the record of the present Revision Application. At the instance of the applicant, the Court has examined the documents on record of the present case which are undisputedly referred to, to examine the order. The Court is mindful of a situation that Order VII Rule 11 of the CPC, application can be submitted at any stage of the suit but that would not preclude the applicant from concealing material fact from the Court. Taking out one issue and the other intermittently issue is not a conduct to thwart main proceedings but would tantamount to be systematic design to evade the Court from main controversy to be examined and as such judgment which have been cited are since not exactly on similar facts and circumstances, the Court, with respectful agreement that the said decisions is of the opinion not to apply in peculiar background of this fact. 14.4 Another decision of this Court rendered in Special Civil Application No.11649 of 2012 dated 25.09.2012 is submitted on the ground that present suit is barred by Section 50 of the Bombay Public Trust Act and in September, 2012 has held that since no prior permission was obtained of Charity Commissioner before instituting suit, the suit itself is not maintainable. With respectful agreement of this ratio laid down by this Court, the same is not in dispute, however, the very fact that this bar of Section 50 of the Bombay Public Trust Act has been agitated by this very applicants in the previous proceedings and the proceedings have been withdrawn with a view to file appropriate application with proper details to raise preliminary issue and as such the said issue is rightly objected to be raised by respondent herein from being agitated. Apart from this, a later decision reported in case of The Trust of Shri Laxmi Narayan Dev Temple and its Subordinate Temple (supra), a Division Bench of this Court, while examining this issue of Section 50 of Bombay Public Trust Act, has clearly opined in the context of exercising powers under Order VII Rule 11 (d) of the Code that the permission of Charity Commissioner is not of essence of the cause of action but it has been made essential, however, since this issue of Section 50 is to be raised as a preliminary issue as permitted by this Court without opining any further on the same, a contention raised on that issue is not accepted by this Court and hence taking note of aforesaid decision of Division Bench of this Court referred to above, the Court in respectful agreement that the said binding judgment is of the opinion that such contention is not amenable at this stage to the petitioner. 14.5 A bare reading of an application at Exh.112 under Order VII Rule 11(a) of the CPC has clearly indicated that same was with respect to the contention about the cause of action, however, at the time of hearing of this Revision Application, the Court has been taken up on the issue of Section 50 bar contained in the Bombay Public Trust Act and the judgments have been pointed out substantially on that issue. This is again found to be a serious conduct of the applicant which cannot be unnoticed by this Court. 15. This is again found to be a serious conduct of the applicant which cannot be unnoticed by this Court. 15. Under this peculiar set of circumstances, all the documents which are attached along with the present Civil Revision Application coupled with the affidavit-in-reply, Court is of the opinion that no case is made out by the applicant and the order dated 18.12.2015 is not possible to be set at naught. 17. In view of the aforesaid set of circumstance, the present Revision Application is found to be devoid of merits and it deserves to be dismissed hereby. 18. While parting with the present order, the Court is constrained to refer to earlier order passed in this very Revision Application i.e. the order dated 26.02.2016 wherein relying upon the submissions made by learned advocate with regard to non-compliance of Section 50 of the Bombay Public Trust Act, the Court was constrained to issue notice, however, this order is passed upon suppression of earlier proceedings in which the very issue has been dealt with by way of application at Exh.110 and order passed thereon and with regard to this very issue of Section 50 from this Court, the applicants have withdrawn the petition so as to allow the same to be raised by way of preliminary issue and, therefore, first order is also passed based upon misleading the Court, the Court is not inclined to exercise revisional jurisdiction on this ground also. Apart from this, a plain reading of plaint is not sounding any confidence in favour of applicant in any manner and as such for meaningful reading of the plaint, this material which has been placed on record by both the sides is considered at length and only thereafter Court comes to the conclusion that this is not a case in which revisional jurisdiction deserves to be exercised. Hence also this Revision Application requires to be dismissed. 19. Hence also this Revision Application requires to be dismissed. 19. Looking to the undisputed order of earlier proceedings dated 31.03.2016 in which very learned advocate has appeared in which also Section 50 of the Bombay Public Trust Act was the subject matter of controversy and here also though in Order VII Rule 11 of the CPC application no such contention is visible, however, at the time when the present Revision Application is taken up for hearing, essentially the Court has been persuaded to issue notice and grant interim relief on this very issue of Section 50 of the Bombay Public Trust Act it appears that such submission based upon concealing of material fact at the time when notice was issued by this Court, present Revision Application is required to be dismissed on the ground of such conduct, with a cost of Rs.25,000/-. 20. With the above observations, the present Revision Application is dismissed, with cost, as referred above. Application dismissed.