Allowed

Shree Kachchh Kadva Patidar Samaj Ankleshwar Trust v. Manilal Khetabhai Patel

Gujarat HC19 Jun 2018SCA/9705/2012

Case brief

AI extract

What is this about?

The High Court allowed a special civil application to quash an order dismissing a petition to reject the plaint under Order 7 Rule 11(d) CPC. The Court held that the civil suit was barred under the Bombay Public Trusts Act as the reliefs sought regarding trust property management were identical to matters excluded for civil court jurisdiction.

What did the court decide?

The order of 30.04.2012 rejecting the application to dismiss the plaint is quashed. The plaint is rejected under Order 7 Rule 11 CPC.

Shree Kachchh Kadva Patidar Samaj Ankleshwar Trust Vs… — Property and Title | Gujarat HC (2018)

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C/SCA/9705/2012 JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CIVIL APPLICATION NO. 9705 of 2012

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE MR.JUSTICE BIREN VAISHNAV

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1 Whether Reporters of Local Papers may be allowed to see the judgment ?

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2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ?

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4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?

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SHREE KACHCHH KADVA PATIDAR SAMAJ ANKLESHWAR TRUST

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Versus

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MANILAL KHETABHAI PATEL

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Appearance:

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MS NIYATI SHAH, ADVOCATE FOR MR.D K.PUJ(3836) for the PETITIONER(s) No. 1,2,3

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MR KH BAXI(150) for the RESPONDENT(s) No. 1

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CORAM: HONOURABLE MR.JUSTICE BIREN VAISHNAV

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Date : 19/06/2018

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ORAL JUDGMENT

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The present petition has been filed by the original defendants. They are aggrieved by the order passed in application below Ex. 13 in Regular Civil Suit No. 114 of 2011

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Page 1 of 7

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C/SCA/9705/2012 JUDGMENT

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whereby the trial court i.e. the learned Additional Senior Civil Judge, Ankleshwar has rejected the application preferred by the petitioners filed below Order 7 Rule 11(d) of the Code of Civil Procedure, 1908.

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The respondent was the original plaintiff who had filed Regular Civil Suit No. 114 of 2011 before the learned Principal Civil Judge, Ankleshwar. The suit was filed against the petitioner no. 1 – a Public Charitable Trust and the petitioners no. 2 and 3 who were the trustees of the trust. It was the case of the plaintiff – respondent herein that the trust had no right or power to give on rent the trust building ‘Uma Bhavan’ either to the registered members or third parties for festivals. The renting of the premises otherwise was against the constitution of the trust.

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Ms. Niyati Shah, learned advocate appearing on behalf of the petitioner has taken me through the contents of the copy of the plaint filed by the respondent herein – original plaintiff. He was the sole plaintiff. Reading of the plaint suggests that it was the case of the plaintiff that he had filed an application being Application No. 19 of 2011 before the Charity Commissioner, Surat for the trust being mismanaged and carrying out activities not in consonance with the constitution of the trust. Drawing my attention to paragraphs no. 3, 4, 6 and 10 of the plaint, Ms. Shah suggested that the cause of action to file such a suit by the plaintiff – respondent herein was that according to the plaintiff, the petitioners were carrying out activities of the trust not in accordance with the constitution of the trust and they were renting the property namely ‘Uma Bhavan’ which was not in consonance with the

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Page 2 of 7

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C/SCA/9705/2012 JUDGMENT

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constitution of the trust.

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3.1 Ms. Shah, learned advocate appearing on behalf of the petitioner also drew my attention to the contents of the application being Application No. 19 of 2011 filed before the Charity Commissioner. Specific attention was drawn to paragraphs no. 5 and 6 of the application and the prayers made therein. This was in support of her stand that the petitioners were justified in making an application under Order 7 Rule 11(d) before the trial Court to suggest that the suit filed by the respondent – plaintiff could not have been filed as the same was not maintainable. Attention was drawn to the provisions of Sections 50 & 80 of The Bombay Public Trusts Act, 1950 (hereinafter referred to as ‘the Act’) in support of her submission.

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3.2 Ms. Shah has also relied on a judgement in the case of Church of North India vs. Lavajibhai Ratanjibhai and Others reported in (2005) 10 SCC 760 and contended that reading of the provisions of the Act leaves no manner of doubt that the Act is a complete code and provides a machinery to put forward a claim before the Charity Commissioner. Since the Act provides an adequate remedy to do what the civil courts would normally do in a civil suit, jurisdiction of the civil court is excluded in the matters covered under Section 80 of the Act.

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As against that, Mr. K.H. Baxi, learned advocate appearing on behalf of the respondent – original plaintiff has taken me to the plaint. Specific attention was invited to the relief claimed by the plaintiff in paragraph 10 of the plaint.

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Page 3 of 7

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C/SCA/9705/2012 JUDGMENT

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Mr. Baxi contended that on reading the prayers in the suit, it was evident that, what was claimed was purely within the domain of a civil remedy and, in accordance with Section 9 of the Code of Civil Procedure, 1908, a civil suit would obviously lie. The suit was not, therefore, barred under the provisions of the Act.

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4.1 Mr. Baxi invited my attention to the affidavit-in-reply filed by the respondent – plaintiff and submitted that the civil suit is only for restraining the petitioners from injuring the civil rights of the Satpanth Samaj. The cause of action in the suit had arisen on account of an ulterior motive to exclude the members of the Samaj and injuring their rights. These averments would, therefore, suggest that the suit had nothing to do with the administration of the trust.

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4.2 Mr. Baxi invited my attention to the definition of the word “court” as provided under Section 2(4) of the Act read with Section 80 to suggest that whatever was not within the domain of the civil court under Section 50 of the Act would normally and legitimately fall within the jurisdiction of “court” which is normally a civil court and therefore the suit was clearly maintainable. According to him, the situation contemplated under clauses (a) to (g) of Section 50 were not the subject matter of the suit and therefore since the suit was not with regard to any order for recovery, removal of any trustee or manager, of taking accounts etc, the provisions of Section 50 of the Act were not applicable.

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4.3 In support of his submissions, Mr. Baxi has relied upon a decision of the Apex Court in the case of Sahebgouda (dead)

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C/SCA/9705/2012 JUDGMENT

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by L.Rs. And others vs. Ogeppa and others reported in

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AIR 2003 SC 2743 . Reliance specifically was placed by Mr. Baxi by reading paragraphs no. 8, 11 and 12 of the judgement. He contended that the question is whether the suit filed by the respondent herein is barred by the provisions of Section 9 of the Code of Civil Procedure. It was his case that it is well settled that the civil court has jurisdiction to try all the suits and that the jurisdiction of civil court ought not to have been lightly interfered with. Taking me through the contents of the plaint, it was the contention that the suit was clearly maintainable.

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Having considered the submissions of learned advocates appearing on behalf of the respective parties, what emerges is as under:

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(a) Reading of the plaint and the application being Application No. 19 of 2011 filed before the Civil Court, Surat would suggest that the reliefs claimed by the respondent – original plaintiff in the suit are substantially the same as claimed in the application filed under Section 41A before the civil Court.

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(b) The averments made in the plaint suggest that the essential reason for filing of the suit was the property namely ‘Uma Bhavan’. When compared with the averments and the reliefs prayed for in the application under the provisions of the Act, what unequivocally comes out is that the reliefs claimed in both these proceedings are not different in nature as contended by Mr. Baxi but are identical.

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C/SCA/9705/2012 JUDGMENT

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(c ) Reading the provisions of Section 50 of the Act, would suggest that if the colour of the relief claimed for a direction authorising the whole or part of the trust property to be let, sold, mortgaged or exchanged or a declaration is sought as to what proportion of the trust property shall be allocated to any particular object of the trust when compared with the averments made in the plaint would suggest that this clearly falls within the provisions of Section 50 of the Act .

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(d) Keeping in mind the provisions of Section 50 of the Act read with Section 80, it would clearly point out to a bar of jurisdiction by the civil Court. The relief claimed is pertaining to the trust property, its management in accordance with the Constitution of the trust which does not fall within the domain of a civil court and therefore though contended by Mr. Baxi, learned advocate appearing on behalf of the respondent that the jurisdiction of civil courts should lightly be interfered with, Section 80 of the Act is a clear bar to such a remedy.

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As is observed in the case of Church of North India (supra) , while dealing with the principles relating to the exclusion of jurisdiction of civil courts, the Supreme Court has specifically held in one of the guidelines as under:

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“(4) A plea of bar to jurisdiction of a civil Court must be considered having regard to the contentions raised in the plaint. For the said purpose, the averments disclosing cause of action and the reliefs sought for therein must be

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Page 6 of 7

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C/SCA/9705/2012 JUDGMENT

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considered in their entirety. The court may not be justified in determining the question, one way or the other, only having regard to the reliefs claimed dehors the factual averments made in the plaint. The court has to consider what, in substance, and not merely in form, is the nature of the claim made in the suit and the underlying object in seeking the real relief therein.”

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Therefore, when the averments disclose the cause of action which has to be considered in its entirety, I am of the opinion that the learned trial court clearly committed an error in rejecting the application under Order 7, Rule 11(d) of the Code of Civil Procedure which was filed by the petitioners. When the plaint is considered in its entirety, the averments disclose the cause of action and the relief sought for therein are similar and identical to that claimed in Application No. 19 of 2011 filed under Section 41A of the Act. The suit was therefore clearly barred in accordance with the provisions of Sections 50 & 80 of the Act.

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For the foregoing reasons, the order dated 30.04.2012 passed in application below Ex. 13 in Regular Civil Suit No. 114 of 2011 is hereby quashed and set aside. In the result, the plaint of the original plaintiff shall stand rejected under Order 7 Rule 11 of the Code of Civil Procedure, 1908. Petition is allowed accordingly. Rule is made absolute accordingly.

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(BIREN VAISHNAV, J)

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DIVYA

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Shree Kachchh Kadva Patidar Samaj Ankleshwar Trust v. Manilal Khetabhai Patel

Case brief

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What did the court decide?

Shree Kachchh Kadva Patidar Samaj Ankleshwar Trust v. Manilal Khetabhai Patel

Case brief

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What did the court decide?

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