jpc wp9491-09.sxw 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION NO. 9491 OF 2009 Nilkanth Mahadeo Bal Hanuman Mandir and other ... Petitioners Versus Uday Narendra Bhosle and others ... Respondents Mr. V. S. Kapse for the petitioners Mr. Sachindra B. Shetye and Mr. Uday G. Gajuste for Respondent Nos. 1 and 2 CORAM: R. M. SAVANT, J. DATED : 2nd December, 2011 P.C. : 1. The above petition takes exception to the order dated 21st February, 2009 passed by the learned Judge, Civil Court, Dindoshi, by which order the Court has directed returning of plaint to the plaintiffs for presentation in the proper Court and the plaintiffs are directed to file the suit before the Charity Commissioner within a period of four weeks from that date. 2. The issue as to whether the Civil Court has jurisdiction was one of the issues framed in the said Suit being Special Civil Suit No.6784 of 2002. The said issue was taken up for consideration as a preliminary jpc wp9491-09.sxw 2 issue. The plaintiffs have claimed possession of the property of the plaintiff No.1, which is a trust registered under the Bombay Public Trust Act, 1950, from the defendants. It their case that the defendants are trespassers and have usurped the said property. The defendants filed their written statement and contended that they were elected as trustees in the meeting of the Trust held some time in the year 1999 and they have filed a Change report on 27th September, 1999 in the office of the Charity Commissioner, Mumbai. The said report is pending consideration. In the context of the aforesaid case of the respective parties, the trial Court, whilst considering the suit, rightly formulated the issue, whether the management of day to day affairs of the Temple premises be handed over to the plaintiffs and the defendants be restrained from handing the day of day affairs of the temple or trust, can only be decided after answering a question as to whether the defendants are lawful trustees or not. The trial Court, in the impugned order, has observed that the said issue as to whether the defendants are trustees or not cannot be decided in the civil proceedings and for the said purpose, the plaintiffs would have to approach the machinery provided under the Bombay Public Trusts Act, 1950. The trial Court, considering the acceptance of the fact by the plaintiffs that the defendants are handling day to day affairs of the trust and managing jpc wp9491-09.sxw 3 the trust property, came to the conclusion that the reliefs sought by way of the said suit filed by the plaintiffs devolves upon the authority of the Charity Commissioner. 3. It is required to be noted that the defendants have taken two fold objections in the written statement, firstly, that the said suit has been filed without obtaining the prior permission of the Charity Commissioner under Section 50 and 58 of the said Act and that considering the reliefs sought in the suit, it is barred by section 80 of the said Act. It is in the said context, that the Issue No.5 was tried as preliminary issue and decided. 4. Having considered the reasons mentioned by the learned trial Court in the impugned order dated 21st February, 2009, in my view, the said reasons are unexceptional and do not warrant interference of this Court in its writ jurisdiction. Writ Petition is accordingly dismissed. However, the time to approach the learned Charity Commissioner in terms of the impugned order is extended by a period of eight weeks from date. (R. M. SAVANT, J.)