Vidarbha Kshatriya Mali Shikshan Sanstha v. Mahatma Fuley Shikshan Samiti

1. This is a revision by the defendant against the order of the learned trial Court holding that it has jurisdiction to proceed with the suit filed by the non-applicant plaintiff.

2. Briefly, the facts are that the non-applicant plaintiff is a public trust registered under the provisions of the Bombay Public Trusts Act. Similarly, the defendant is also a public trust registered under the provisions of the Bombay Public Trusts Act.

3. There was an agreement between the parties arrived at on 1-12-1970, according to which, the plaintiff trust was allowed to conduct school classes in some of the rooms in a building belonging to the defendant. It was agreed to between the parties that after the academic session is over, the plaintiff should hand over the class rooms to the defendant for being let out for the marriage or some other functions so as to enable it to get income from the same. However, it was further agreed that after the summer vacation is over, the rooms should be handed over back to the plaintiff for running the school classes. According to the plaintiff, it was the tenant of the suit premises, although the defendant disputed it.

4. It is the case of the plaintiff that after the summer vacation of 1980, the defendant did not hand over the suit premises to the plaintiff for running the school classes, although as per the agreement it was entitled to get them. The plaintiff, therefore, brought the instant suit against the defendant to restrain it from interfering with its right to run the school classes in the suit premises till the summer vacation. The defendant filed its written statement. According to the defendant, the licence of the plaintiff was terminated from the summer vacation of 1980 and, therefore, the plaintiff had no right to claim any injunction against it. It was also urged that in view of the provisions of section 50 of the Bombay Public Trusts Act (for short the Act) the instant suit was not maintainable without the permission of the Charity Commission. Another objection raised in the suit was that it was bad for non-joinder of necessary parties as the Charity Commissioner being a necessary party to be joined as per section 51(3) of the Act was not joined as a party in the suit.

5. After the suit was filed, the plaintiff filed an application for temporary injunction. An ex parte temporary injunction was also granted to the plaintiff. The defendant moved an application under section 9-A of the Code of Civil Procedure for framing a preliminary issue regarding the jurisdiction of the Court and the maintainability of the suit. The learned trial court framed the said issue in the light of the provisions of section 50 of the Act. After hearing the arguments of both the sides, the learned trial court negatived the contention of the defendant that the instant suit was not maintainable and that the Court had no jurisdiction to proceed with the same. Being aggrieved, the defendant has preferred the instant revision in this Court.

6. The learned counsel for the defendant has argued before me that the instant suit is covered by clauses (iv) and (p) of section 50 of the Act. As such, according to him, it was necessary for the plaintiff to obtain permission of the Charity Commissioner before filing the instant suit in the absence of which the instant suit was not maintainable. After examining the provisions of section 50 of the Act, it is clear that the instant suit does fall within the subject matter covered by clause (iv) and (p) of section 50 of the Act. However, the question to be considered is whether it is necessary for a person who is enforcing his civil rights to obtain permission of the Charity Commissioner before filing the suit. Examining section 50 of the Act, it would be clear that in regard to any of the matters provided in the said section, the Charity Commissioner or any two or more persons having interest, with the permission of the Charity Commissioner, can file a suit whether contentions or not in the Court within the local limits of whose jurisdiction the whole or part of the subject matter of the trust is situate. The expression “Court” is defined in section 2(4) of the Act, according to which it means in the Greater Bombay, the City Civil Court and eleswhere, the District Court. The expression “person having interest” is also defined in section 2(10) of the Act. It is worthwhile to notice that the application of section 92 of the Code of Civil Procedure (for short the Code) to suits relating to the public trusts is barred to section 52(1) of the Act.

7. A perusal of the above provisions would show that in relation to the public trusts, a special right is created even in the third person like the “Charity Commissioner” or the “persons having interest” who may not have their own civil rights to enforce to institute a suit in respect of any matter covered by the said section which would not ordinarily be there if their own rights were not involved. It may be seen that such a special suit lies not in the normal forum where any suit under the Code lies but in the special forum of the District Court, as provided the reunder. In my view section 50 of the Act is a section analogous to section 92 of the Code although to a certain extent as regards the subject matter it may be wider than it. However, what is most important is that the definition of the expression “persons having interest” given in section 2(10) of the Act includes only certain classes of persons. The suit contemplated by section 50 can be instituted either by the “Charity Commissioner” or the “persons interested” with his consent. Since all persons who want to enforce their civil rights are not covered by the definition of the expression “persons having interest” they would be left to the mercy of the Charity Commissioner or the persons having interest covered by the definition clause for enforcement of their private rights if the suit can be instituted only in the manner as provided in section 50. Even assuming that such persons are covered by the definition clause, they would still be at the mercy of the Charity Commissioner for enforcement of their personal rights. Such a consequence in my view is not contemplated by section 50 of the Act. The persons who have their own rights to enforce cannot, therefore, be compelled to follow the procedure laid down in the said section. A suit to enforce one's own civil right instituted under the Code in the ordinary forum provided for the same is thus competent.

8. It is in this context and interpretation section 50 bare a civil suit in respect of any public trusts for claiming any of the reliefs specified in the said section except in conformity with the provisions of the said section. If the substantive provisions of section 50 of the Act do not contemplate a suit which is to be filed by a person for enforcing his own right, then in my view, such a suit cannot be barred by the first proviso to section 50 of the Act because in its contextual interpretation and read in the light of the substantive provision, it can only bar a suit which is contemplated by the substantive provision. The instant suit filed by the plaintiff for enforcing its own civil right cannot therefore, be said to be barred by section 50 of the Act.

9. I am supported in the view which I have taken of section 50 of the Act by the Division Bench judgment of this Court in the case of Rajgopal v. Ramchandra (1967 Mh. L.J 799) and in the case of Baliram v. Shri Dnyaneshwar (1974 Mh. L.J Note 31) and of the Gujrat High Court in Nadiad Nagarpalika Nadiad v. Vithalbhai (AIR 1980 Guj. 161). Although the point under consideration in the recent Supreme Court decision in the case of Shree Gollaleshwar Dey v. Gangawwa Kom ((1985) 4 SCC 393 : AIR 1986 SC 231) was different, the observation in part 13 in regard to the interpretation of section 50 of the Act also supports the above view. The Supreme Court has observed that “section 50 of the Act created and regulated a right to institute a suit by the Charity Commissioner or by the two or more persons interested in the trust, in the form of supplementary statutory provisions without defeasance of the right of the manager or a trustee or a shebait of an idol to bring a suit in the name of idol to recover the property of the trust in the usual way.” In the above view of the matter, the contention thus raised on behalf of the defendant deserves to be rejected.

10. In the result, the instant revision fails and is dismissed. However, in the circumstances, there would be no order as to costs.

Revision dismissed.