1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 714 OF 2010 Oswal Bandhu Samaj, a public charitable trust and ors .. Appellants. Vs. Kundanlal Chunilal Khinvasara and ors .. Respondents. Mr.S.S.Kanetkar, for the appellants. Mr D.B.Lonkar, for respondent nos 1 and 2. CORAM : D.B.BHOSALE, J. DATED : 22/12/2010. PC: 1. Heard learned counsel for the parties. 2. This Second Appeal is directed against the judgment and order passed by the appellate court dated 11.11.2008 in Civil Appeal No.384 of 2007 filed by the respondents-plaintiffs challenging the judgment and order dated 23.4.2007 passed by 9th Jt civil Judge, Sr.Dn, Pune on the application at Exhibit-75 in Regular Civil Suit No.1338 of 2007. The application at Exhibit-75 was filed by the appellants under Order VII rule 11 of the Code of Civil Procedure seeking rejection of the plaint on two grounds : firstly, that consent of the Charity Commissioner under section 51 of the Bombay Public Trusts Act was not obtained by the respondents-plaintiffs before filing of the suit, T 2 and secondly, on the ground that the civil court has no jurisdiction to entertain the suit under section 80 of the Act. The trial court, however, allowed the application filed by the appellants only on the ground that consent of the Charity Commissioner as contemplated by section 51 of the Act was not obtained. This order was carried in appeal by the plaintiffs only and the appeal was allowed and hence the defendants have filed the instant Second Appeal. 3. Learned counsel for the respondents-plaintiffs, however, fairly submits that the plaintiffs ought to have obtained consent of the Charity Commissioner under section 51 of the Act and their suit, without obtaining such permission, was not maintainable. In view thereof, he prays for withdrawal of their suit being Regular Civil Suit No.1338 of 2007 with liberty to the respondents-plaintiffs to file fresh suit after obtaining permission of the Charity Commissioner under section 51 of the Act. Mr Kanetkar, learned counsel for the appellants, has no objection for allowing the respondents-plaintiffs to withdraw the suit and to file fresh suit only after obtaining permission of the Charity Commissioner. In the circumstances, I pass the following order: The respondents-plaintiffs are allowed to withdraw the suit with liberty as prayed and as a consequence thereof the 3 judgments impugned in the present appeal dated 11.11.2008 passed by the appellate court in Special Civil Appeal No.384 of 2007 is set aside and the judgment of the trial court renders ineffective. Insofar as the ground of jurisdiction of civil court is concerned, Mr Kanetkar, learned counsel for the appellants, submits that now they will not raise such objection in the fresh suit that will be filed by the respondents. All contentions of the parties on merits are kept open. It is open to the appellants to oppose the application that will be filed by the respondents- plaintiffs for seeking permission under section 51 of the Act before the Charity Commissioner and the Charity Commissioner shall decide the same on merits in accordance with law. With these observations, the Second Appeal is, disposed of. (D.B.Bhosale, J.)