Dismissed

Shri. Martand Kashinath Patil and Ors. v. Shri. Mohanrao Nathuram Adhikari and Ors.

Bombay HC23 Oct 2012WP/7788/2012

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging the rejection of a preliminary objection regarding suit maintainability. Holding that since the trial court adjudicated the application on merits, the writ petitioners could not now claim prejudice from the lack of a framed jurisdiction issue.

What did the court decide?

The Writ Petition was dismissed as no case of interdiction was made out.

Shri. Martand Kashinath Patil and Ors. Vs… — Civil Procedure and Limitation | Bombay HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.7788 OF 2012

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Martand Kashinath Patil and ors. : Petitioners. Versus Mohanrao Nathuram Adhikari and ors. : Respondents.

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Mr. P M Arjunwadkar for the Petitioners. Ms. Neeta P Karnik for the Respondent No.1.

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CORAM : R. M. SAVANT, J. DATE : 23^rd October 2012

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P.C.

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1 The Writ Jurisdiction of this Court under Article 227 of the Constitution of India is invoked against the order dated 21/7/2012 passed by the learned Civil Judge, Junior Division, Palghar by which the Application Exhibit 27 filed by the Petitioners came to be rejected.

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2 The Petitioners herein are the original Defendant Nos.1 to 7 in Regular Civil Suit No.56 of 2012. The said suit has been filed by the Respondent No.1 herein for a declaration that he is the President of the trust in question; and that the Managing Committee Meeting held by the Defendant No.1 and others on 20/1/2011 is illegal and against the constitution of the trust, and is not binding on the Plaintiff; and that the decisions taken by the Defendants after 20/1/2011 by ignoring the Plaintiff as President are illegal and against the constitution of the trust. The Defendant Nos.1 to 7 filed

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Application Exhibit 27 and raised a preliminary issue as regards the maintainability of the said suit. It was the case of the Defendants that the said suit is not maintainable in view of Section 50 of the Bombay Public Trust Act, 1950 as also Section 80 of the said Act. In so far as Section 50 is concerned, it postulates the consent of the Charity Commissioner to be obtained for a suit to be filed by or against a trust in the eventualities mentioned in the said section. In so far as Section 80 is concerned, same bars the jurisdiction of the Civil Court to decide or to deal with any question which is by or under the said Act to be decided by the authorities under the said Act.

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3 The said Application Exhibit 27 was considered by the Trial Court, and by the impugned order dated 21/7/2012 the said Application has been rejected. In so far as maintainability of the suit is concerned, the Trial Court relied upon the judgment of a learned Single Judge of this Court reported in 2007 (6) ALL MR 65 in the case of Kedar Shivkumar Kale v/s Digamber Shridhar Mhapsekar and ors . It has been held by the learned Single Judge of this Court that if the reliefs in the suit do not involve any relief claimed against the trust, then a suit filed is maintainable. It has been held that a suit filed for enforcing a civil right, for a declaration that the resolution passed was illegal, such a suit is barred neither by Section 80 of the said Act nor the permission of the Charity Commissioner for institution of such a suit was a pre-requisite. The Trial Court considering the nature of the reliefs sought in the instant Suit,

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reached a conclusion that considering the said reliefs, the judgment in Kedar Kale’s case (supra) would cover the case, and therefore, rejected the application.

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4 It appears that the said Application Exhibit 27 was heard earlier in point of time on the said day, and thereafter Application Exhibit 5 for interim relief was taken up and decided by the order passed on the same day i.e. 21/7/2012. It appears that against the order passed on Application Exhibit-5, the Petitioners have filed a substantive Appeal challenging the said order.

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5 The impugned order rejecting the Application under Section 9A of the Code of Civil Procedure is challenged principally on the ground that in view of the objection to the jurisdiction raised, the Trial Court ought to have framed a preliminary issue and then adjudicated upon the same. The learned counsel appearing for the Petitioners sought to rely upon the judgment of the Division Bench of this Court reported in 2011(3) Mh.L.J. 340 in the matter of Associated Bombay Cinemas Pvt. Ltd Mumbai v/s Jamni S Ramchandani The Division Bench of this Court has held that Section 9A is mandatory and of an imperative nature and therefore where at the hearing of an application inter alia for granting interim relief an objection to the jurisdiction of the Court to entertain a suit is taken by any of the parties to the suit the Court is under an obligation to determine the issue of jurisdiction as a preliminary issue before

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granting interim relief. The said judgment refers to a judgment reported in 1998(3) Mh.L.J. 940 in the matter of Meher Singh V/s. Deepak Sawhny &

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anr. which is also a judgment of the Division Bench of this Court and which is the first in line of the judgments wherein imperativeness of section 9A and the need for deciding preliminary objection at the out set has been held. Relying upon the said judgment it is the submission of the learned counsel for the Petitioners that the court out to have framed preliminary issue and ought to have given an opportunity to the parties to lead evidence. In my view, the said submission cannot be countenanced, after the Trial Court has decided the said issue of its jurisdiction on merits. It seems that the Application Exhibit 27 was pending for some length of time and the Petitioners could have raised said objection of the issue not being framed, before the Trial Court had taken up the Application Exhibit 27 for consideration on merits. After having participated in the adjudication of the said Application Exhibit 27 on merits, it is now not open for the Petitioners to contend that they have been prejudiced as the issue as regards the jurisdiction was not framed. In participating in the adjudication of the Application Exhibit 27, the Petitioners can be said to have acquiesced in the adjudication of the said Application Exhibit 27 in the manner done by the Trial Court. In so far as the judgment in Associated Bombay Cinemas Pvt. Ltd . is concerned, the facts in the said case were that the preliminary issue was not framed by a learned Single Judge of this Court and the learned Judge had proceeded to consider the Notice of Motion for interim relief. Such is not the

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case in the instant matter. Though no issue has been framed, the Application Exhibit 27 has been adjudicated upon on merits.

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6 In so far as the challenge on other points is concerned, the learned counsel for the Petitioners Shri Arjunwadkar tried to make submissions as regards applicability of the judgment in Kedar Kale ’s case (supra). However, the said submissions were not made with any deal of conviction. In my view, considering the reliefs sought in the present suit, the same would be covered by the judgment in Kedar Kale's case (supra). The impugned order passed on the Application Exhibit 27 whereby the Trial Court has rejected the objection as regards the jurisdiction of the Civil Court albeit without framing the issue therefore cannot be taken exception to. No case of interdiction is made out. The above Writ Petition is accordingly dismissed.

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[R.M.SAVANT, J]

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Shri. Martand Kashinath Patil and Ors. v. Shri. Mohanrao Nathuram Adhikari and Ors.

Case brief

What is this about?

What did the court decide?

Shri. Martand Kashinath Patil and Ors. v. Shri. Mohanrao Nathuram Adhikari and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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