1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 313 OF 2010 Shivshankar s/o Ganpatappa Shete .. APPELLANT VERSUS Guru Mahaling Guru Chanbasav Shivacharya Maharaj & others .. RESPONDENTS Shri U.N. Shete, Advocate for the appellant. Shri Dhananjay Deshpande, Advocate for respondent nos. 1 and 2. ===== CORAM : P. R. BORKAR, J. DATE : 25 th JUNE, 2010. PER COURT : 1 Heard Mr. U.N. Shete, Advocate for the appellant and Shri Dhananjay Deshpande, Advocate for respondent nos. 1 and 2. None present for respondent no.3. 2 After hearing both the sides for a considerable time, it was revealed that in the plaint following two prayers are made :- 2 i It may kindly be declared that, the mode of appointment of successor of Mathadhipati in respect of the Math Sansthan Shri Guru Mahaling Swai Math, at Bardapur, Tq. Ambajogai is by way of “Guru Shishya Parampara” and not hereditary. ii That, the defendant no. 1 to 3 and any other person interested therein though there may kindly be permanently restrained from be illegally appointing defendant no. 2 as Mathadhipati of Guru Mahalingeshwar Math Sansthan”, Bardapur, by passing decree of perpetual injunction against the defendant no. 1 to 3. . However, we do not find any averment in the body of the plaint to support the prayer clause (ii). When this defect was pointed out, learned advocate for the appellant, Shri Shete sought time and today he has submitted that he may be permitted to withdraw the suit with permission to file fresh suit. 3 Shri Dhananjay Deshpande, Advocate for respondent nos. 1 and 2 has a very strong objection to allow withdrawal with liberty to file fresh suit. He concedes that in the body of the plaint there are no necessary averments on the basis of which prayer clause (ii) could be allowed. He submits that defect is not a formal defect. He relied upon observations made in paragraph no. 4 in the case of M.L. Chaturvedi Vs. M/s Sanjay Finance Corporation reported in 1998(1) Bom. C.R. 782. Observations in 3 paragraph no. 4 are as follows :- 4 Order XXIII, Rule 1(3) provides that where the Court is satisfied that a suit must fail by reason of ‘some formal defect’ or that there are “other sufficient grounds” for allowing the plaintiff to institute a fresh suit for the same subject matter the Court may, on such terms as it thinks fit grant the plaintiff permission to withdraw from such suit with liberty to institute a fresh suit in respect of the subject-matter of such suit. In Ramrao v. Babu Appanna, AIR 1940 Bom 121, a Full Bench of this Court held that the words “formal defect” in Rule 1(2) of Order XXIII mean defect which does not affect the merits of case whether that defect is fatal to suit or not. It was held that the plaintiff would be allowed to withdraw from the suit if there is defect of form as distinguished from a defect of substance. In view of the law laid down by the Full Bench it is settled position that the expression “Formal defect” has to be given a wide and liberal meaning and must be deemed to connote every kind of defect which does not affect the merits of the case. Now the question is whether, non-registration of the firm is a formal defect or a defect affecting the merits of the case. . Adv. Shri Dhananjay Deshpande also submits that granting liberty to file fresh suit on same cause of action will be also holding that the civil court has jurisdiction. It is pointed out that neither the trial court nor the first appellate court has discussed the effect of sections 50 and 51 of the Bombay Public Trust Act and it has been the contention of the defendants that permission under section 51 of the Bombay Public Trust Act is required for filing of the suit. 4 4 At the same time, we have also to bear in mind that the matter was disposed of on preliminary point as to whether the civil court has jurisdiction to decide the issue as to the succession of Mathadhipati of Shri Guru Mahalilng Swami Math Sansthan, Bardapur. It is the case of the defendant that such issue can be decided by the authorities under the Bombay Public Trust Act or in suit filed under section 50 of the Act after obtaining permission under section 51 by the District Court. On the other hand, Adv. Shri Shete has submitted that the jurisdiction is with the civil court. It is a matter of Guru- Shishya Parampara and interpretation of the scheme of the trust, amendment to which was not challenged at any time. 5 After giving anxious thought to the submissions made by both the sides, one thing is very clear that the issue raised in this case by both the sides needs to be decided and if prayer clause (ii) is to be allowed or to be considered, there should be foundation in the plaint itself by way of necessary averments. After hearing both the sides particularly considering the written statement, it does not appear that the parties are not aware of the actual controversy. So we can say that it is a formal defect. In my opinion, there are sufficient grounds for allowing withdrawal of the suit with liberty to file fresh suit. In these circumstances, appellant / plaintiff is allowed 5 to withdraw the suit with liberty to file fresh proceeding under appropriate provisions of law. This court has not decided any question of law at this stage but simply permitted withdrawal of the suit with liberty to file fresh proceeding keeping all the questions open. Interim relief granted by this court to continue for a period of one week. 6 Authentic copy of the order be supplied to the parties. ( P. R. BORKAR, J.) dyb/office/sa313.10.odt 6 FARAD CONTINUATION SHEET NO.__________ IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGBAD. CIVIL APPLICATION NO. 6776 OF 2010 IN SECOND APPEAL NO. 313 OF 2010 Office Notes, Office Memoranda of | Coram, appearances, Court’s orders | Court’s or Judge’s orders or directions and Registrar/s orders | and Registrar’s orders | CORAM : P. R. BORKAR, J. DATE : 25 th JUNE, 2010. . In view of disposal of second appeal itself, instant civil application does not survive. Application stands disposed of. ( P. R. BORKAR, J.) dyb / office /sa313.10.odt