IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1352 OF 2009 Ibrahim Pir Bhai Shaikh & Ors. ...Petitioners V/s. Babu Miya Ismail Sheikh & Ors. ...Respondents ...... Mr.P.S.Dani i/b Kiran Jain & Co. for Petitioners. Ms.Sindha Shreedharan for Respondents. ...... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. MARCH 20, 2009. MARCH 20, 2009. MARCH 20, 2009. P.C. 1. Heard Counsel for the parties. 2. Rule. Rule made returnable forthwith, by consent. Ms.Shreedharan waives notice for Respondents. 3. As short question is involved, Petition is taken up for final disposal forthwith, by consent. 4. This Writ Petition under Article 227 of : 2 : the Constitution of India takes exception to the order dated 15th February 2008 passed by the Bombay City Civil Court in S.C.Suit No.6775/2000 while dealing with preliminary issue framed in the said Suit. The Trial Court essentially relied on the fact that the issue regarding ownership of the suit property whether belongs to the Trust or otherwise is already answered by the Assistant Charity Commissioner in his decision dated 12th April 2005 in change report No.ACC/IV/5597/98. However, it transpires that the said decision of the Assistant Charity Commissioner has been later on set aside by the Joint Charity Commissioner in an appeal and matter remanded for reconsideration on 7th February 2008. However, that decision was not brought to the notice of the City Civil Court when it proceeded to answer the controversy regarding preliminary issue on 15th February 2008. The Petitioners, therefore, filed Review Petition before the same Trial Court bearing Review Petition No.1/2008. But the said Review Petition has been dismissed on curious reasoning recorded that the matter has merely been remanded. : 3 : 5. The fact that the order of the Assistant Charity Commissioner dated 12th April 2005 has been set aside though noticed by the lower Court has been discarded on the premiss that the matter is remanded back. The fact that matter is remanded, presupposes that the issue regarding ownership of the property - whether of the Trust or otherwise, is a matter which is still to be considered by the Charity Commissioner who has exclusive jurisdiction in that behalf. 6. In the circumstances, for the aforesaid reasons neither the decision dated 15th February 2008 nor the impugned decision in Review Petition dated 18th October 2008 can be sustained. Both these decisions of the lower Court are set aside and instead the parties are relegated before the Trial Court for reconsideration of the preliminary issue after the decision of the Charity Commissioner regarding ownership of the suit property of the Trust or otherwise attains finality. 7. Both the parties agree that they would : 4 : cooperate the Charity Commissioner for early decision on the said issue. Assurance so given by the parties through their Counsel appearing before this Court is accepted. It will be open to the parties to approach the Charity Commissioner before whom the matter is pending with regard to issue of ownership of the suit property of the trust or otherwise, who in turn, shall proceed with the said case in accordance with law and finally dispose of the said issue preferably within two months from today. 8. Writ Petition succeeds on the above terms. 9. The parties shall appear before the Trial Court on 20th April 2009, on which date, the Trial Court may proceed with the hearing on preliminary issue subject to the decision of the Charity Commissioner. Ordered accordingly. A.M.KHANWILKAR, J.