1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO.1761/2010 ( Shri Ajitnath Jain Shwetambar Mandir Trust, Nagpur -: VERSUS :- M/s. Shyamlalji Ganeshlalji Kesarwani ) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. DATED : JULY 22, 2010. Heard Adv. Shri M.G. Sarda for petitioner/plaintiff, Adv. Shri Dangre with Adv. Shri Ansari for respondent. Adv. Sarda states that change report showing the names of trustees elected in 2003 elections came to be accepted in 2006. However, the body continues to administer the affairs since 2003 and filed various suits in accordance with law against the tenants. In R.C.S. No.211/2005 the respondent – tenant raised objection and contended that as name of elected trustees do not figure in Schedule-I they cannot file the suit. By relying upon an unreported judgment Trial court accepted that contention and dismissed the suit. The petitioners had filed Regular Civil Appeal No.449/2007 and pointed out subsequent judgments which are in favour of petitioner. However, Ad-hoc District Judge, Nagpur on 12/11/2009 has dismissed that appeal erroneously. He further states that in other similarly filed suits said judgments are pointed out to Trial Court and thereafter the Trial Court has found the suits to be maintainable. Learned counsel for respondent was seeking time to assist 2 the Court. However, as Adv. Sarda pointed out that twice accommodation was granted, his request came to be refused. Learned counsel contends that view taken by Courts below in the present matter is just and proper. Subsequent acceptance of change report by the office of Assistant Charity Commissioner is not relevant at all. The facts clearly show that the petitioners submitted the change report and their change report has been accepted on 3rd April 2006. It, therefore, shows that the petitioners are administering the affairs of the trust from the date of election i.e. 7/5/2003. In this view of matter, the application of mind by Trial court and Appellate Court cannot be sustained. Adv. Shri Sarda has pointed out that all these documents were produced before the Trial Court. Adv. Shri Dangre is disputing this position. However, in the facts and circumstances of this case, I find that suit filed by petitioner/plaintiff came to be dismissed on preliminary ground and issues on merits are not looked into. The proceedings in R.C.S. No.211/2005 are required to be restored back to the file Principal Small Causes Court, Nagpur. The petitioner can invite attention of Trial Court to all judgments and documents to show that his suit is maintainable. However, the Trial Court shall consider the issue of tenability along with other issues on merit and decide all issues together. The impugned orders dated 17/7/2007 and 12/11/2009 are quashed and set aside accordingly. Writ petition is thus allowed. No order as to costs. JUDGE Tambaskar.