1 IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CIVIL JURISDICTION APPEAL FROM ORDER NO.217 OF 2010 Shri Pankaj S. Parakh ...Appellant. v. Shri Dattatraya W. Shul & Ors. ...Respondents. Mr. M.M.Sathaye, adv. For the Appellant. Mr.Ajay S. Patil, adv. For the Respondent Nos.1 and 2. CORAM : J.H. BHATIA, J. DATED : MAY 5, 2010 P.C. 1 Heard. Matter is taken up immediately for final hearing and disposal. 2 Respondents had filed regular civil suit no.185 of 2009 in the Court of Civil Judge Junior Division, Yeola seeking declaration that the meeting of the trust called on 30.12.2009 by the defendant was illegal because the defendant had no right to act as president of the said trust. According to them, plaintiff no.1 was a vice-president , plaintiff no.2 was secretary and plaintiff no.3 was director of the said trust. It is contended that the earlier president had illegally appointed the defendant as president of the trust. It was contended that in absence of the original president, plaintiff no.1, being the vice-president, was entitled to function as president of the trust. Defendant contested the suit and 2 contended that the suit was not tenable without prior permission of the charity commissioner as required under Section 51 of the Bombay Public Trust Act. The trial Court by an order dated 27th January, 2010 held that the Civil Court had no jurisdiction to entertain and decide the suit in absence of the consent of the charity commissioner as contemplated under Section 71 of the Bombay Public Trust Act. That order was challenged by the plaintiffs in Regular Civil Appeal No.12/10. In that appeal, application, Ex.5 was filed by the plaintiffs. On that application, the learned ad-hoc District Judge-I, Nifad passed the impugned order dated 3.2.2010 restraining the defendant/respondent no.1 from acting as president of the trust till the disposal of the appeal. That order is challenged in the present appeal by the original defendant. The learned counsel for the plaintiffs/respondents relied upon Namgonda Jingonda Patil v. Appasaheb B. Walvekar & Ors. 2000 Supplementary Bombay C.R. 582 as well as Kedar Shivkumar Kale v. Digamber S. Mhapsekar and others 2007(4) Mh.L.J. wherein it was held that when the suit is filed for declaration of the civil rights of the trustee and not against the trust, suit is not bad for want of consent of the Charity Commissioner. The learned counsel for the defendant/appellant points out 3 that on 2.9.2009 a meeting of all the members was held, which was also attended by the plaintiffs and defendant and in that meeting, there was subject no.2 to discuss the illegal activities of the vice-president and secretary of the trust and in that meeting after discussion, whole body was dissolved with consent of the members and the president alone was authorised to carry on functions of the trust. It may noted that the learned counsel for the plaintiffs/respondents denies that any such meeting was held or any such decision was taken. However, it is a question of fact whether such a meeting was held or not held. The learned counsel for the appellant points out that former president Girishchandra Narayan Patel appointed present defendant as president on 15.12.2009 and thereafter , it was decided to hold the next meeting for the election to the post of vice-president, secretary, joint secretary, etc. That meeting was to take place on 30.12.2009. Before that, the plaintiffs filed the suit. At this stage, it is not necessary to enter into question whether the appointment of defendant as president was valid or not. If the plaintiff no.1 was holding the post of vice-president on 15.12.2009, when the former president Girishchandra Patel resigned from that post, plaintiff no.1 would be entitled to function as president. However, if it is believed that in the meeting 2.9.2009 whole body except president, was dissolved and 4 from that date onwards, plaintiff no.1 was not holding the post of vice- president, he will not be entitled to function as president unless he is so elected. These are all questions, which need to be examined. Whether the civil Court has jurisdiction to entertain the suit without consent of the charity commissioner will depend on most of these facts. Appeal is still pending before the First Appellate Court. Taking into consideration these circumstances, in my considered opinion, First Appellate court should not have granted temporary injunction against the defendant no.1 pending the appeal. On the other hand, he would have better decided the appeal itself after hearing the parties on the facts as well as question of law. 2 For the aforesaid reasons, appeal is allowed. Impugned order is set aside. The learned Ad-hoc District Judge, Nifad is hereby directed to hear the parties and decide the appeal as early as possible and preferably before the end of June, 2010. Appeal shall be decided on its own merits without being influenced by any observations made in this appeal. (J.H. BHATIA,J.)