SCA/12581/2008 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 12581 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= DILIPBHAI RAMNIKLAL SHAH & 2 - Petitioner(s) Versus RAJAN GOVINDBHAI ZINABHAI & 1 - Respondent(s) ========================================================= Appearance : MR DHAVAL D VYAS for Petitioner(s) : 1 - 3. NOTICE SERVED for Respondent(s) : 1 - 2. MR MURALI N DEVNANI for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 24/12/2008 ORAL JUDGMENT 1. Rule. Shri Murli Devnani, learned advocate waives service of notice of Rule on behalf of respondents-original SCA/12581/2008 2/8 JUDGMENT plaintiffs. With the consent of learned advocates appearing for the respective parties, the petition is taken up for final hearing today. 2. By way of this petition under Article 227 of the Constitution of India, petitioners-original defendants have prayed for an appropriate writ, order or direction, quashing and setting aside the impugned order dated 14.8.2008 passed by the learned 9th Additional Senior Civil Judge, Nadiad below Exh.11 in Civil Suit No.136 of 2008 by which the trial court has rejected the said application submitted by the petitioners- plaintiffs submitted under Order 7 Rule 11 of the Code of Civil Procedure to dismiss the said suit. 2.1 Respondents herein-original plaintiffs had instituted Civil Suit No.136 of 2008 in the Court of learned Principal Senior Civil Judge, Nadiad under Section 92 of the Code for declaration that the petitioners-defendants are not the trustees of the public trust i.e. Sharda Kanya Kelvani Trust and also for SCA/12581/2008 3/8 JUDGMENT permanent injunction against the defendants from dealing in any manner with the properties of the trust, and for restraining the defendants from any way interfering with or undertaking the administration of the said trust. That thereafter the petitioners immediately filed the application Exh.11 dated 4.6.2008 under Order 7 Rule 11 of the CPC inter-alia praying for rejection of the suit contending that in light of the averments in the plaint, the jurisdiction of the civil court is barred under the provisions of the Bombay Public Trusts Act, 1950 (hereinafter referred to as “the said Act”). That thereafter the respondents herein-original plaintiffs submitted the application Exh.13 under Order 6 Rule 17 of the CPC on 11.6.2008 praying for deletion of number 2 from Section 92 and consequently for the suit to be treated under Section 9 of the CPC. It appears that the said application came to be allowed vide order dated 14.8.2008 and consequently treating the said suit under Section 9 of the CPC. That thereafter the application Exh.11 came to be decided and disposed of by the trial court by the impugned order dated 14.8.2008 and the SCA/12581/2008 4/8 JUDGMENT learned 9th Additional Senior Civil Judge, Nadiad rejected the said application submitted by the petitioners-defendants to dismiss the suit under Order 7 Rule 11 of the CPC. 2.2 Being aggrieved and dissatisfied with the impugned order dated 14.8.2008 passed by the learned 9th Additional Senior Civil Judge, Nadiad below Exh.11 in Civil Suit No.136 of 2008, petitioners-original defendants have preferred present petition under Article 227 of the Constitution of India. 3. Shri Dhaval D.Vyas, learned advocate appearing on behalf of the petitioners-original defendants has vehemently submitted that looking to the relief sought in the suit, considering the provisions of the said Act, the civil court has no jurisdiction to deal with the issue raised in the aforesaid suit and grant the relief in the said suit. It is submitted that the declaration sought to the effect that the defendants are not the trustees of the public trust i.e. Sharda Kanya Kelvani Trust cannot be granted by the civil court as the same is to be SCA/12581/2008 5/8 JUDGMENT considered by the Charity Commissioner under the Act. It is further submitted that even other reliefs with respect to administration and management of the said trust also can be considered by the Charity Commissioner under Section 41-A of the Act. Therefore it is submitted that considering the various provisions of the said Act for the relief sought in the suit the civil court has no jurisdiction and therefore the trial court ought to have allowed the application Exh.11 and ought to have dismissed the suit. 4. Shri Murli Devnani, learned advocate appearing on behalf of the original plaintiffs while supporting the impugned order passed by the trial court has submitted that in the facts and circumstances of the case more particularly when the suit was filed under Section 9 of the CPC, the trial court has rightly rejected the application Exh.11 by not dismissing the suit. Therefore it is requested to dismiss the present petition. 5. Heard the learned advocates appearing on behalf of SCA/12581/2008 6/8 JUDGMENT the respective parties. 6. As stated above, the original plaintiffs had instituted the aforesaid suit for declaration that the defendants are not the trustees of the public trust i.e. Sharda Kanya Kelvani Trust and also for injunction against the defendants from dealing in any manner with the properties of the trust, and for restraining the defendants from any way interfering with or undertaking the administration of the said trust. The declaration that the defendants are not the trustees of the public trust, the same is to be considered by the Charity Commissioner and/or Deputy Charity Commissioner under the said Act and considering the various provisions of the Act more particularly Section 80 of the said Act, the civil court has no jurisdiction to grant such declaration. Even with respect to the administration and management of the trust, the Charity Commissioner has jurisdiction under Section 41-A of the Act to issue direction with respect to administration and management of the trust. Considering Section 80 of the Act no suit claiming any of the SCA/12581/2008 7/8 JUDGMENT reliefs specified in the said section shall be instituted in respect of any public trust except in conformity with the provisions thereof. Even otherwise, as stated above, the dispute with respect to who is the trustee is required to be considered and decided by the Charity Commissioner under the provisions of the said Act. Considering the above the trial court ought to have allowed the application Exh.11 and ought to have dismissed the suit by holding that the civil court has no jurisdiction to grant such a relief and/or relief sought in the suit is barred under the provisions of the said Act. Under the circumstances, the impugned order passed by the trial court deserves to be quashed and set aside and the application Exh.11 deserves to be allowed. 7. For the reasons stated above, the petition succeeds. The impugned order dated 14.8.2008 passed by the learned 9th Additional Senior Civil Judge, Nadiad below Exh.11 in Civil Suit No.136 of 2008 is quashed and set aside and the said application Exh.11 is hereby allowed and the suit preferred by SCA/12581/2008 8/8 JUDGMENT the respondents herein-original plaintiffs being Civil Suit No.136 of 2008 is dismissed under Order 7 Rule 11 of the CPC. Rule is made absolute accordingly. There shall be no order as to costs. ( M.R. SHAH, J. ) syed/