mp -1- AO1081_10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 1081 OF 2010 IN NOTICE OF MOTION NO. of 2010 IN S.C.SUIT NO. 1890 of 2010 Charu Kishor Mehta and another .. Appellants Versus Chetan P. Mehta and others .. Respondents Mr. Mahesh Jethmalani, Senior Advocate with Raj Patel, Karl Tamboli, H. N. Thakare, Amir Ariswala i/b. M/s. Thakare Jariwala & Associates for Appellants. Mr. I. M. Chagla, Sr. Advocate with Mr. Prateek Sevsari, Mr. Jay Kansara i/b. Vidhi Partners for Respondent Nos. 1 to 3 and 13. Mr. S. U. Kamdar, Sr. Advocate with Snehal Shah, Kunal Vajani, Kunal Vaishnav i/b. Wadia Ghandy & Co. for Respondent No. 5. Mr. Abhishek Singh i/b. Mulla & Mulla for Respondent Nos. 10 to 12. CORAM : B.R. GAVAI, J. THURSDAY, JANUARY 20, 2011 P.C. : The appeal challenges the order dated 27th August 2010 in Suit No. 1890 / 2010 passed by the learned City Civil Judge thereby refusing to grant ad-interim injunction, at that stage. The plaintiffs have filed the suit challenging the appointment of respondent no. 13 as a permanent trustee of Lilawati Kirtilal Mehta Medical Trust (hereinafter referred to as the “said Trust”). mp -2- AO1081_10 2. Alongwith the said suit, a notice of motion praying for a temporary injunction restraining the respondent nos. 1 to 3 and 5 to 9 from implementing the resolution dated 19th August 2010 regarding appointment of respondent No. 13 as a permanent trustee came to be filed. In the said notice of motion, ad-interim injunction was prayed for. The same is rejected. Hence the present appeal. 3. Heard Shri Jethmalani, learned Senior Counsel appearing on behalf of the appellants, Shri Chagla, learned Senior Counsel appearing on behalf of respondent Nos. 1 to 3 and 13 and Shri Kamdar, learned Senior Counsel appearing on behalf of respondent No. 5. 4. Since the order impugned is purely against an ad-interim order and since I was not inclined to interfere in the appeal, I had asked learned counsel for the appellants as to whether the appeal should be dismissed only on the ground that it challenges the ad- interim order or since the arguments were advanced on merits, the appeal should be decided on merits. Since the learned counsel for the appellants has insisted upon the decision on merits; though the appeal challenges only an ad-interim order, I am required to consider the rival submissions made at the Bar. 5. Shri Jethmalani, learned Senior Counsel for appellants submits that the perusal of trust deed would reveal that it is only the permanent trustees who have the authority to appoint another mp -3- AO1081_10 permanent trustee. It is, therefore, submitted that the act of respondent Nos. 1 to 3 and 5 to 9 in appointing respondent No. 13 as a permanent trustee is beyond the scope of the powers and is nothing else but a fraud on the trust document. It is further submitted that the learned Trial Court has basically refused the ad-interim order on the ground that since the main relief of injunction is not prayed in plaint, an ad- interim injunction cannot be granted. The learned Counsel submits that the said finding is totally without substance. He relies on the judgment of the Apex Court in Smt. Rajnibai alias Mannubai Vs. Smt. Kamla Devi and others reported in AIR 1996 SC 1946 in support of the contention that even in a suit for declaration of title simpliciter, the court has power under Order 39 Rule 1, 2 or even under Section 151 to grant ad-interim injunction pending suit. 6. Shri Chagla, learned Senior Counsel appearing on behalf of the Respondents submits that, if the trust deed is read in its entirety along with the definition of the ‘trustees’ under the Bombay Public Trust Act, 1950 (hereinafter referred to as the “said Act” for short), then the position that would reveal is that all the trustees have a power to appoint a trustee. The learned Counsel submits that in view of section 50 r/w section 80 of the said Act, the suit itself is not tenable. It is further submitted that the Division Bench of this Court, in the proceedings between the parties to the present lis, has also considered that unless the trust deed was construed at the stage of final hearing of the suit, it was not proper for the court to grant an ad-interim injunction. mp -4- AO1081_10 7. It appears from the material placed on record that there has been a series of litigation between the trustees of the said trust. The matters have reached upto this court also in earlier rounds of litigation. It also appears from the order dated 27th February 2009 passed in First Appeal No. 266 of 2007 along with the other matters that the concession was made on behalf of the appellant therein (i.e. the appellant No. 1 herein) with regard to the jurisdiction of the Civil Court. The said concession was made in view of the legal position and particularly having regard to the judgment of the Supreme Court in the case of Church of North India Vs. Lavajibhai Ratanjibhai reported in 1 (2005) 10 SCC 760 to the effect that the City Civil Court had no jurisdiction, to entertain and try the suit in view of the pendency of the change reports under Section 22 of the said Act before the Charity Commissioner. 8. In earlier round of litigation, the present appellant had moved a Notice of Motion in S.C. Suit No. 1511 of 2008 in the City Civil Court (Dindoshi Branch) on 31st July 2008. From the perusal of the reliefs claimed in the said notice of motion, it can be seen that the prayers made therein pertain to the authority of the defendants therein regarding appointment of the trustees under clause 17 and 20 of the trust deed dated 5th July 1978. Against refusal of the ad-interim order, an appeal was preferred before the learned Single Judge of this Court, being Appeal from Order No. 22 of 2009. Some interim orders were passed by the learned Single Judge of this Court in the said A.O. It appears that the matter went to the Apex Court and the Apex Court mp -5- AO1081_10 directed this court to hear the appeal itself. While deciding the appeal, the Division Bench observed thus: “24. The suit is for declaration and interpretation of clauses 17 and 20 of Trust Deed dated 5th July, 1978 and interim relief / injunction. The prayers of interim relief / injunction are based upon the same. These clauses need to be interpreted first before granting any declaration or injunction in favour of the Appellant. It is a case of interpretation of clauses of the documents. The whole documents need to be considered along with surrounding circumstances to understand and to give clear meaning to those clauses including the intention and object of the documents. We need to be considered the intent and object of the clauses independently and jointly also. This document is of the year 1978. Therefore, rival pleadings with other documents and evidence with regard to the same is necessary to be gone into in detail. In these circumstances, in our view, the grant of only interim relief by interpreting these clauses at such interlocutory stage without due trial, will affect the rights of the both the parties. 25. Even the maintainability of the Suit is raised in defence in view of Section 50 / 80 of the BPT Act. Therefore, we are of the view that unless the Suit itself is decided, there is no question of interpreting any clauses of such document at such interlocutory stage without trial of the Suit, which has the potential of deciding the Suit itself. Let the main Suit be decided expeditiously.” 9. I am in respectful agreement with the aforesaid view taken by the Division Bench. The serious question regarding the interpretation of the entire trust deed arises for consideration. Unless the trust deed is interpreted, it cannot be decided as to whether the mp -6- AO1081_10 contention of the appellant is right or as to whether the contention of respondent is right. Apart from that, a serious issue with respect to the jurisdiction of the City Civil Court to entertain the suit itself arises for consideration. 10. Applying the tests of prima-facie case, balance of convenience and irreparable injury, I find that no error could be found with the order passed by the learned City Civil Court in refusing ad- interim relief. The learned Judge has rightly observed that unless replies were filed by the defendants, it was not possible to consider the prayer for interim injunction as prayed for. I am also of the considered view that since the serious issues regarding interpretation of trust deed are required to be considered, an ad-interim relief, without considering the rival pleadings, could not have been granted. In any case, even applying the tests of prima-facie case, balance of convenience and irreparable injury, an ad-interim relief could not have been granted. At least, prima-facie, the majority of trustees have passed resolution appointing Respondent No. 13 as permanent trustee. It is not in dispute that out of ten members present in the meeting, five members have supported the resolution, three members have opposed and two members have abstained from the voting. Though it is the contention of the appellant that all the permanent trustees have opposed, the question as to whether, which of the trustees are entitled to appoint the new trustees is required to be considered. At ad-interim stage, I find that such an issue could not have been considered. When five of the ten trustees have supported the resolution appointing Respondent No. 13, I find that the test of balance of convenience mp -7- AO1081_10 would lie in favour of the contesting respondents. If the consideration of the grant of ad-interim relief was postponed till filing of the reply, no irreparable injury could have been said to be caused to the plaintiff. 11. In that view of the matter, no merit is found in the appeal. The appeal is, therefore, dismissed. 12. Needless to state that the observations made by this court are limited for the purpose of considering the prayer of the appellants for grant of ad-interim injunction and that the learned Trial Judge would decide the notice of motion on its own merits without being influenced by the observations made herein. (B. R. GAVAI, J)