1 cra522-1wp4886-11 jpc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.522 OF 2011 Ranjit Vaghani ... Applicant Versus Charu Kishor Mehta and others ... Respondents ... Mr. Sanjay Jain a/w Mr. Durgesh Singh and Ms. Gayatri Athare Patil i/by India Law for the applicant. Mr. Karl Tamboly and Firoz Bharucha i/by Parag Sharma for Respondent No.1 Mr. Sarosh Bharucha I/by Prashant Goyal for respondent Nos. 2 and 3 .... CORAM : R. Y. GANOO, J. DATED : 22nd September, 2011 P.C. 1. Heard learned counsel for the parties. 2. The respondent no.1 herein who claims to be a permanent trustee of The Lilavati Kirtilal Mehta Medical Trust (hereinafter referred to as the 'Trust'). He filed Suit No.363 of 2011 in the City Civil Court at Mumbai seeking a declaration in terms of prayer clause (a) and relief of injunction in terms of prayer clause (b) against the present Applicant. It is the case of the respondent no.1 that the Applicant was 2 cra522-1wp4886-11 appointed as an Advocate to advice the said trust and to render professional services and devote all his time and attention exclusively for the work of the said trust. The plaint narrates as to how according to respondent no.1, the Applicant has violated the terms of his appointment/engagement. The respondent no.1 has sought a declaration that the Applicant has flouted and committed the breach of the said letter of appointment dated 12th September, 2005 and renewed/extended from time to time. The learned counsel for the respondent no.1 stated at the hearing of this application that the respondent no.1 does not wish to seek any damages from the Applicant in the suit. In the suit, by prayer clause (b) an order of injunction is sought against the present Applicant so as to prevent him advising, instrumenting, participating or representing any trustees of the LKMM Trust in the present and future disputes/matters/proceedings etc. inter se between the Trustees/alleged Trustees of the LKMM Trust where the LKMM Trust is not party. 3. After the suit was filed, the present Applicant, while filing affidavit in reply to the Notice of Motion, has raised objection of not obtaining sanction of the Charity Commissioner as set out in Section 51 of the Bombay Public Trusts Act, 1950 (hereinafter referred to as the said Act). It was also sought to be contended by the Applicant while 3 cra522-1wp4886-11 raising objection to the maintainability of the suit that there is bar of section 22 of the said Act. This application was entertained by the learned Judge of the City Civil Court and by his speaking order dated 7th May, 2011, the learned Judge came to the conclusion that the objection raised by the Applicant cannot be accepted and held that the City Civil Court has jurisdiction to try and entertain the suit. This order dated 7th May, 2011 is challenged in this Application. 4. I have heard the learned Advocates appearing in the matter. 5. Learned Advocate Mr. Jain took me through the entire plaint and submitted that if the plaint is perused in proper perspective, certain reliefs appear to have been sought against the trustees and if the suit is entertained by the Court, without prior permission of the Charity Commissioner that would offend the provisions of Section 51 of the said Act as the reliefs claimed in the suit fall within the ambit of Section 50 of the Act. Learned Advocate Mr. Jain submits that in order to see that the bar of provisions of Section 50 is applicable, the case must fall in the first part of section 50 as well as in the later part of section 50 i.e. to say the suit must fall in any one of the four clauses set out in the first part of Section 50 of the said Act and the suit also should fall in any one of those clauses (a) to (q). Mr. Jain submits that according to him, the 4 cra522-1wp4886-11 facts of the present case fall within the ambit of clauses (i) and (iii) and clause (p) of Section 50 of the said Act. The learned Advocate Mr. Jain submits that the learned Judge of the City Civil Court no doubt accepted the stand of the Applicant that the case was covered by clause (iii) but the learned Judge rejected the stand that clause (p) was attracted. 6. With the assistance of the learned Advocates on both the side, I have considered the text of the plaint and I have also perused the scope of sections 50 and 51 of the said Act as also section 22 of the said Act. 7. After having perused the entire claim, it is patently clear that the respondent no.1 has approached the Court with a positive case that the present Applicant who was appointed to work for the benefit of the trust has not performed his job. In order to substantiate this allegation, respondent no.1, in the plaint, has set out various facts. 8. Perusal of the entire plaint would go to show that the allegations are made against the present Applicant and those allegations refer to his function as an advocate of the said trust. The suit is instituted on the part of respondent no.1 for the benefit of the trust. The fact that the respondent no.1 is a trustee cannot be disputed by the Applicant. The word permanent could be treated as qualification which the respondent. 5 cra522-1wp4886-11 no.1 has sought for himself. The fact remains that the respondent No.1 is a trustee. Surely, perusal of the plaint goes to show that respondent no.1 is interested in protection of interest of the trust and that is why the suit is filed. 9. It was argued by the learned advocate for the Applicant that clause (p) of the said Act would come to play where an injunction is sought in favour of the trustee. Surely, in the present case, the suit having been instituted by a trustee, if an order is passed, the said order would operate in favour of trust and it will not be for the benefit of a trustee. The purpose of filing of suit is to protect the interest of the trust. 10. It is was also contended by the learned advocate for the Applicant that the provisions of Section 80 of the said Act are attracted to the facts and circumstances of the present case and to that extent also the objection was raised by the the Applicant. After having considered the plaint it is clear that the dispute is between a person who is a trustee and a person who was appointed as advocate of the trust. In my view, the objection, put forth by the present Applicant by taking recourse to section 80 of the said Act is also not attracted. The cause of action does not fall within the ambit of Section 80 of the said Act. The points raised in the present suit will have to be decided by a Civil Court. 6 cra522-1wp4886-11 11. It is also required to be mentioned that in order to decide the issue which was faced by the learned City Civil Judge, the submissions was made that the parties do not want to lead oral evidence. The present Applicant had tendered a copy of the change report in support of his case as documentary evidence. The present Applicant, thereafter, did not press that point namely, to have that document exhibited for the purpose of court's consideration and this is how the learned judge of the City Civil Court has observed that the parties have not placed documents before the court. No infirmity can be found in the said observation. 12. Taking into consideration the facts and circumstances of the case, I am inclined to observe that the provisions of sections 22, 51 and 80 of the said Act are not at all attracted to the facts of this case. In my view the objection raised by the present Applicant was rightly rejected by the learned Judge of the City Civil Court and therefore, no interference is required in the impugned order. Consequently the Civil Revision Application is rejected. 13. There shall be no order as to costs. 7 cra522-1wp4886-11 14. It is clarified that the order which came to be impugned in this application shall not be looked into by the learned Judge of the City Civil Court for the purpose of conducting the suit hereafter. (R. Y. GANOO, J.)