filed for cancellation of the Sale Deed dated 2/7/2012 executed in favour of
the Defendant No.7 by the Defendant Nos. 2 to 6. In pursuit of the said reliefs,
the Plaintiffs have made averments in the plaint as to how a fraud has been
practiced upon them by the Defendant No.7 by getting the Sale Deed executed
in his sole name when there was a Memorandum of Understanding entered
into between the Trustees and the Plaintiffs and the Defendant No.7 in respect
of the suit property. No doubt the Sale Deed has been executed after the
sanction order was granted by the Charity Commissioner, however, what is
required to be borne in mind is the fact that after the Sale Deed is executed,
the property no more remains the property of the Trust, and in fact has become
the property of the Defendant No.7. Since the Plaintiffs have a grievance in
respect of the Sale Deed which has been executed solely in favour of the
Defendant No.7, the Plaintiffs in seeking the relief of cancellation of the Sale
Deed can be said to be agitating their civil rights. Though the Sale Deed is
executed pursuant to the order passed under Section 36 of the said Act,
however the fact of execution of the Sale Deed, has over taken the order of the
Charity Commissioner granting sanction under Section 36 of the said Act.
Hence there is no merit in the contention of the learned counsel appearing on
behalf of the Applicant that the Plaintiffs in challenging the Sale Deed are in
fact challenging the order passed by the Joint Charity Commissioner under
Section 36 of the said Act. Considering the reliefs which are sought in the
Plaint, it may be that some of the reliefs cannot be granted by the Civil Court,
however, as rightly held by the Trial Court in the impugned order, the Suit is
maintainable before it in respect of some of the reliefs. Hence prerequisites for
attracting the bar under Section 80 of the said Act are nonexistent. It is
required to be noted that the challenge to the Sale Deed interalia on the
ground of fraud cannot be raised before the Charity Commissioner and the
same can only be raised by way of a Civil Suit. The Trial Court therefore can be
said to have correctly held that the Suit in respect of some of the reliefs was
maintainable before it. Hence though some of reliefs cannot be granted by the
Civil Court in view of the bar under Section 80 of the said Act, at the same
time the Authorities under the said Act, cannot grant the relief by way of
prayer clause (a) and the said prayer can only be granted by a Civil Court. The
Trial Court has also taken into consideration the fact that for setting aside the
order passed under Section 36 of the said Act, the Plaintiffs have filed an
application under Section 36(2) of the said Act as the same obviously cannot
be challenged by way of a Suit. As regards the contention of the learned
counsel for the Applicant that the Trial Court has erroneously proceeded on the
basis of the maintainability of the Suit whereas the question was about its
jurisdiction. In my view, in some cases the issue of maintainability of Suit and
the issue of jurisdiction of Court eclipse each other, one such case can be said
to be the present one. Therefore, the order passed by the Trial Court ruling that
it has jurisdiction is well founded. It cannot be said that the Trial Court has
acted with material irregularity or in excess of its jurisdiction whilst holding
that it has jurisdiction to try and entertain the Suit. In that view of the matter,
no case for exercise of the revisionary jurisdiction is made out.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO.785 OF 2013
Pratap Shivaji Chumbale
Versus
Deepak Vishanath Pingale,
CORAM : R. M. SAVANT, J.
Pronounced on : 13th December 2013
Citation; 2015 (7) ALLMR349
1 Admit, with the consent of the learned counsel for the parties
taken up for hearing forthwith.
2 The revisionary jurisdiction of this Court under Section 115 of the
Code of the Civil Procedure is invoked against the order 25/9/2013 passed by
the learned 5th Joint Civil Judge, Senior Division, Nashik. By the said order the
Trial Court has held that the said Court would have jurisdiction to try and
entertain the Suit in question.
3 The Applicant herein is the original Defendant No.7 and the
Respondent Nos.1 and 2 herein are the original Plaintiffs in the Suit in question
being Special Civil suit No.433 of 2012. The said Suit has been filed by the
Respondent Nos.1 and 2 for cancellation of the Sale Deed dated 2/7/2012
executed in favour of the Defendant No.7, and that the Defendant Nos. 1 to 6
be directed to execute the Sale Deed jointly in favour of the Plaintiffs and the
Defendant No.7. A further declaration is sought that the Sale Deed executed
between the Defendant Nos. 2, 3 and Defendant No.7 dated 2/7/2012 is not
binding on the Plaintiffs. An exhaustive reference to all the prayers in the
Plaint would be made in the latter part of this order.
4 The background facts giving rise to filing of the Suit in question
can be stated thus :
The suit property bears Gat No.30/1+2+3/3 and admeasures 1
Hectare 30 Ares situated at village Moharam Belatgavhan in Nashik. The said
property belonged to the Defendant No.1 i.e. Dwarkadas Pragji Vrindavan
Charitable Trust. In view of the fact that the Trust was not in a position to look
after the said property, a decision was taken in the meeting of the Trust dated
1/7/2010 to sell the said property. A resolution accordingly came to be passed
on the said day. In terms of the said resolution, notice came to be issued in the
daily newspaper “Day View” and “Dainik Gavkari” on 24/7/2010 and
29/7/2010 calling for offers in a sealed envelope, and the condition was that a
D.D. for Rs.10,00,000/ was to be submitted along with the offer which in turn
was to be submitted within 30 days. The Plaintiffs and the Defendant No.7
having come to know of the said advertisement decided to jointly put an offer
for the said plot of land and in terms of the said tender notice paid an amount
of Rs.15,00,000/ in the following manner.
Sr.No. Name Amount Date DD No.
1 Shri Pratik Balasaheb Rahade 3,35,000/ 25/8/2010 658187
2 Shri Dipak Vishwanath Pingle 3,32,000/ 25/8/2010 921752
3 Shri Dipak Vishwanath Pingle 5,00,000/ 10/06/07 919807
4 Shri Pratap Shivaji Chumble 3,33,000/
The Plaintiffs and the Defendant No.7 submitted their offer of
Rs.1,20,00,000/. Since the offer given by the Plaintiffs and the Defendant
No.7 was the highest offer received, the Defendant Nos.1 to 6 i.e. the Trustees
accepted the offer given by the Plaintiffs and Defendant No.7. It appears that
the Trust had got the property valued for ascertaining the market value of the
property prior to the advertisement being issued. The Defendant Nos.2 to 6
thereafter in the meeting dated 2/9/2010 passed a resolution accepting the
offer given by the Plaintiffs and the Defendant No.7, and accordingly entered
into a Memorandum of Understanding on 17/9/2010. The said Memorandum
of Understanding was between the Defendant Nos.2 to 6 and the Plaintiffs and
the Defendant No.7. Since the sanction was required under Section 36 of the
Bombay Public Trust Act, 1950 (hereinafter referred to as “the said Act”), the
Defendant No.1 Trust submitted an application for sanction which was
numbered as Inquiry Application No.113 of 2011 and which was filed on
17/9/2010. During pendency of the said Inquiry Application No.113 of 2011
one Ali Ahmad Ramzan Ali Choudhari submitted an offer of Rs.1,30,00,000/
for the said plot of land along with deposit of Rs.10,00,000/ in the office of
the Charity Commissioner, Mumbai. In the said inquiry proceedings under
Section 36 of the said Act, in view of the higher offer received of
Rs.1,30,00,000/, the Charity Commissioner passed an order for open bidding
between the parties. In the said open bidding the Plaintiffs and the Defendant
No.7 hiked their offer to Rs.1,32,01,000/ in the meeting held on 24/4/2012
for the said purpose. Since the said offer of the Plaintiffs and the Defendant
No.7 of Rs.1,32,01,000/ was higher than the offer of the said Choudhari, the
Charity Commissioner closed the bids. Thereafter an order came to be passed
under Section 36 of the said Act granting approval to the offer of
Rs.1,32,01,000/ which was made by the Plaintiffs and the Defendant No.7,
significantly, the sanction order was only in favour of the Defendant No.7. The
said sanction order came to be challenged before this Court by way of Writ
Petition No.5836 of 2012 which Writ Petition came to be dismissed by a
learned Single Judge of this Court by order dated 30/10/2012. In the
interregnum, a Sale Deed came to be executed in favour of the Defendant No.7
on 2/7/2012. In view of the said Sale Deed, a Change Report came to be filed
by the Trustees for deleting the said property from the properties of the Trust.
The said Change Report came to be allowed by the Assistant Charity
Commissioner by order dated 9/7/2013. The said property accordingly came
to be deleted from the Schedule of the Properties of the Trust. The Plaintiffs
aggrieved by the order passed by the Assistant Charity Commissioner filed an
Appeal before the Charity Commissioner. However, prior to filing of the
Appeal, the Plaintiffs had filed the Suit in question, as indicated above, which
was for cancellation of the Sale Deed and for a declaration that the said Sale
Deed was not binding upon the Plaintiffs. The Appellate Authorities in view of
the Suit filed by the Plaintiffs, dismissed the Appeal on the ground that it is in
the said Suit where the cancellation of the Sale Deed is sought that the issues
connected with the Sale Deed would be adjudicated upon.
5 The Suit in question as indicated above has been filed for the
reliefs which have been adverted to earlier in this order. However, for the sake
of ready reference the prayers of the Suit in question are reproduced herein
under (English Translation) :
“(a) That the Sale Deed dated 2/07/2012 in respect of the
suit property mentioned in Para 1 of the plaint be
cancelled & the Defendant Nos. 1 to 6 be directed to
executed the Sale Deed, along with possession in the
joint name of the Plaintiffs and the Defendant No.7.
(b) Declared that the Sale Deed executed between the
Defendant Nos. 2 and 3 with the Defendant No.7 dated
2/07/2012 is not binding on the Plaintiffs.
(c) Declare that the Resolution dated 30/06/2012 passed
by the Defendant Nos.2 and 3 for execution of the Sale
Deed dated 2/07/2012 is illegal.
(d) Pending the hearing and final disposal of the present
Suit injunction restraining the Defendants their agents
from creating any third party interest in respect of the
suit property.
(e) The cost of the Suit be paid by the Defendants.
(f) Any other further prayer that may be deem fit and
proper be granted.”
6 In the Suit in question averments have been made alleging fraud
against the Defendant No.7. The said averments can be found in Paragraphs
17 and 18 of the plaint, the English translation of which Paragraphs can be
gainfully reproduced herein under (English Translation) :
“17. The Plaintiffs through their Advocate's notice
dated 10072012 informed the Defendants that the
sale deed executed in favour of Defendant No.7 is
illegal and fraud has been played by Defendant No.7.
The Defendant Nos.4, 5 and 6 replied the said notice
through their Advocate Shri Pradip Mhatre dated 20
072012 by which they admitted that the resolution
dated 30062012 is illegal. After the receipt of the said
reply dated 20072012, the Plaintiffs came to know
that the Defendant No.2 in collusion with Defendant
No.7 has executed fraudulent and illegal Sale Deed.
18. In the proceedings i.e. Application No.113 of
2011 the Plaintiffs and Defendant No.7 were shown as
joint purchasers (Shri Pradip Chumbale & others).
Name of the Plaintiffs is mentioned in the evidence, in
the Application for permission from the Authorities and
the M.O.U. Dated 17092010 showing therein as joint
purchasers. Even in the Order dated 11052012 passed
by the Charity Commissioner, it is mentioned as Pradip
Chumbale and Others but however while passing the
Order, it is a mistake made by the Authority by which
the names of the Plaintiffs is not written and the name
of Defendant No.7 was only mentioned in his order.
Taking the advantage of the said mistake made by the
Charity Commissioner while passing the order in which
the name of the Defendant No.7 was only written and
on the basis of the illegal resolution dated 30062012,
the Defendant Nos.2, 3 and 7 fraudulently executed the
illegal sale deed dated 02/07/2012. Because of the said
illegal sale deed the Plaintiffs have suffered a loss
which cannot be compensated in terms of money. On
the day when the Charity Commissioner passed the
order i.e. on 11052012 out of 1,32,01,000/ the
Plaintiffs initially to the extent of their share, deposited
an amount of Rs.11,67,000/ with Defendant No.1
Trust and after the Order was passed the Plaintiffs to
the extent of their share, the amount of Rs.78,00,000/
was deposited with the Defendant No.1 Trust.”
The Plaintiffs have in Paragraph 12 mentioned the amount which they have
deposited with the Defendant No.1 Trust. It is the case of the Plaintiffs that
prior to the sanction they have deposited an amount of Rs.11,67,000/ and
after the sanction, they have deposited an amount of Rs.78,00,000/. It is their
case that they have totally deposited an amount of Rs.89,67,000/ with the
Defendant No.1 Trust. The Plaintiffs have made averments in the Suit as to
how the Plaintiffs have been short changed by the Defendant No.7 and how a
fraud has been practiced upon them. The Plaintiffs have therefore sought
cancellation of the Sale Deed and for execution of a Sale Deed in their favour
jointly with the Defendant No.7.
7 The Defendant No.7 raised a preliminary issue as regards the
jurisdiction of the Civil Court to try the Suit considering the reliefs which are
sought in the Plaint. The objection to the jurisdiction raised by the Defendant
No.7 is on the touchstone of Sections 50 and 80 of the said Act. The Trial Court
accordingly framed a preliminary issue which is to the following effect :
“Whether this court has jurisdiction to try, entertain and
decide present suit?”
In respect of the said issue, the parties were allowed to lead their evidence.
The Plaintiffs led the evidence of Plaintiff No.1, however, no evidence was led
on behalf of the Defendants. The Trial Court has by the impugned order ruled
that it has jurisdiction to entertain the suit. The Trial Court considered the
prayers sought in the Suit, and having regard to the provisions of Sections 50
and 51 as also Section 80 of the said Act, held that though some of the reliefs
could not be granted, the Suit was maintainable in respect of some of the
reliefs, meaning thereby that it had jurisdiction to entertain the Suit in so far as
some of the reliefs sought in the Suit are concerned. As indicated above, it is
the said order dated 25/09/2013 which is taken exception to by way of the
above Civil Revision Application.
8 Heard the learned counsel for the parties. The learned counsel
appearing on behalf of the Applicant Shri Godbole would contend that though
the above Suit ostensibly lays a challenge to the Sale Deed dated 2/7/2012,
what in effect the Plaintiffs are challenging is the sanction order passed by the
Charity Commissioner under Section 36 of the said Act and which is not
permissible as by operation of law the said order has been made conclusive.
The learned counsel would submit that the challenge to the resolution dated
30/6/2012 is also misconceived. The Plaintiffs are admittedly not “persons
having interest”. The learned counsel would contend that the relief sought
vide prayer clause (a) relates to an act of Defendant No.1 Trust and the relief
sought vide prayer clause (b) is relating to the permission granted by the
Charity Commissioner and therefore in view of bar of Section 80 of the said
Act, the Civil Court would not have jurisdiction. The learned counsel would
next contend that the Trial Court has erroneously proceeded on the basis of
maintainability of the Suit rather than whether the Civil Court would have the
jurisdiction to entertain the Suit considering the subject matter of the Suit. The
learned counsel would contend that since the Trial Court has observed that
some of the reliefs cannot be granted by the Civil Court, it would not have
jurisdiction to entertain the Suit.
9 Per contra, the learned counsel appearing on behalf of the
Respondent No.1 Shri Gavnekar would contend that the Plaintiffs are agitating
their civil rights in respect of the Sale Deed dated 2/7/2012 which has been
executed by the Trustees in favour of the Defendant No.7. The learned counsel
would contend that the said Sale Deed being a subsequent event has thereby
over taken the sanction order passed by the Charity Commissioner, and
therefore, the Suit filed for cancellation of the Sale Deed was maintainable.
The learned counsel would contend that the Charity Commissioner would not
have the power to cancel the Sale Deed, and that only the Civil Court could do
so. The learned counsel would contend that the Suit is founded on the
allegation of fraud made by the Plaintiffs against the Defendant No.7 which
could be adjudicated upon only by the Civil Court. The learned counsel for the
Respondent No.1 sought to rely upon the judgment of a learned Single Judge
of this Court reported in 2013(3) Mh. L.J. 83 in the matter of Shree
Hanuman Mandir, Alibag Public Trust and others v/s. Satishchandra
Bhalchandra Gurjar and others in support of his contention that to invite the
bar under Section 80 of the said Act, the conditions prerequisites for the same
must be strictly established before an ouster of jurisdiction can result. The
learned counsel would contend that the Appeal filed by the Plaintiffs against
deletion of the Suit property from the Schedule of the properties of the Trust
was dismissed principally on the ground that the Plaintiffs have filed the Suit
in question and it is in the said Suit that the issue can be decided. Hence the
Plaintiffs cannot have worst of both the bargains.
10 The learned counsel appearing on behalf of the Respondent No.2
Shri P N Joshi would support the submissions made on behalf of the
Respondent No.1.
11 Having heard the learned counsel for the parties, I have bestowed
my anxious consideration to the rival contentions. In the context of the issue
raised, it would be apposite to refer to Section 50 and Section 80 of the said
Act which for ready reference are reproduced herein under :
“50. Suit by or against or relating to public trusts
or trustees or others
In any case,
i) where is alleged that there is a breach of a public
trust, negligence, misapplication or misconduct on the
part of a trustee or trustees,
(ii) where a direction or decree is required to recover
the possession of or to follow a property belonging or
alleged to be belonging to a public trust or the proceeds
thereof or for an account of such property or proceeds
from a trustee, extrustee, alienee, trespasser or any
other person including a person holding adversely to
the public trust but not a tenant or licensee,
(iii) Where the direction of the Court is deemed
necessary for the administration of any public trust, or
(iv) for any declaration or injunction in favour of or
against a public trust or trustee or trustees or
beneficiary thereof,
the Charity Commissioner after making such enquiry as
he thinks necessary, or two or more persons having an
interest in case the suit is under subclauses (i) to (iii),
or one or more such persons in case the suit is under
subclause (iv) having obtained the consent in writing
of the Charity Commissioner as provided in section 51
may institute a suit whether contentious or not in the
Court within the local limits of whose jurisdiction the
whole or part of the subject matter of the trust is
situate, to obtain a decree for any of the following
relief's :
(a) an order for the recovery of the possession of such
property or proceeds thereof;
(b) the removal of any trustee or manager;
(c) the appointment of a new trustee or manager;
(d) vesting any property in a trustee;
(e) a direction for taking accounts and making certain
enquiries;
(f) an order directing the trustees or others to pay to
the trust the loss caused to the same by their breach of
trust, negligence, misapplication, misconduct or willful
default;
(g) a declaration as to what proportion of the trust
property or of the interest therein shall be allocated to
any particular object of the trust;
(h) a direction to apply the trust property or its income
cypres on the lines of section 56 if this relief is claimed
along with any other relief mentioned in the section;
( i ) a direction authorising the whole or any part of the
trust property to be let, sold, mortgaged or exchanged
or in any manner alienated on such terms and
conditions as the court may deem necessary;
(j) the settlement of scheme, or variation or alteration
in a scheme already settled,
(k) an order for amalgamation of two or more trusts by
framing a common scheme for the same;
(l) an order for winding up of any trust and applying
the funds for other charitable purposes;
(m) an order for handing over of one trust to the
trustees of some other trust and deregistering such
trust;
(n) an order exonerating the trustees from technical
breaches, etc;
(o) an order varying , altering, amending or
superseding any instrument of trust;
(p) declaring or denying any right in favour of or
against, a public trust or trustee or trustees or
beneficiary thereof an issuing injunctions in appropriate
cases; or
(q) granting any other relief as the nature of the case
may require which would be a condition precedent to
or consequential to any of the aforesaid relief's or is
necessary in the interest of the trust:
Provided that no suit claiming any of the reliefs
specified in this section shall be instituted in respect of
any public trust, except in conformity with the
provisions thereof;
Provided further that, the Charity Commissioner may
instead of instituting a suit make an application to the
Court for a variation or alteration in a scheme already
settled :
Provided also that, the provisions of this section and
other consequential provisions shall apply to all public
trusts, whether registered or not or exempted from the
provisions of this Act under subsection (4) of section
1]”.
“80. Bar of jurisdiction :
Save as expressly provided in this Act, no Civil
Court shall have jurisdiction to decide or deal with any
question which is by or under this Act to be decided or
dealt with by any officer or authority under this Act,
and in respect of which the decision or order of such
officer or authority has been made final and
conclusive”.
The aforesaid provisions therefore postulate the permission of the
Charity Commissioner to be obtained in respect of the cases mentioned in
Section 50 and the bar of jurisdiction of the Civil Court to decide or deal with
any question which is to be decided or dealt with by any officer or authority
under the said Act. It is in the context of the aforesaid provisions that the suit
in the instant case would have to be considered.
12 In the instant case, as indicated above, the Suit has inter alia been
filed for cancellation of the Sale Deed dated 2/7/2012 executed in favour of
the Defendant No.7 by the Defendant Nos. 2 to 6. In pursuit of the said reliefs,
the Plaintiffs have made averments in the plaint as to how a fraud has been
practiced upon them by the Defendant No.7 by getting the Sale Deed executed
in his sole name when there was a Memorandum of Understanding entered
into between the Trustees and the Plaintiffs and the Defendant No.7 in respect
of the suit property. No doubt the Sale Deed has been executed after the
sanction order was granted by the Charity Commissioner, however, what is
required to be borne in mind is the fact that after the Sale Deed is executed,
the property no more remains the property of the Trust, and in fact has become
the property of the Defendant No.7. Since the Plaintiffs have a grievance in
respect of the Sale Deed which has been executed solely in favour of the
Defendant No.7, the Plaintiffs in seeking the relief of cancellation of the Sale
Deed can be said to be agitating their civil rights. Though the Sale Deed is
executed pursuant to the order passed under Section 36 of the said Act,
however the fact of execution of the Sale Deed, has over taken the order of the
Charity Commissioner granting sanction under Section 36 of the said Act.
Hence there is no merit in the contention of the learned counsel appearing on
behalf of the Applicant that the Plaintiffs in challenging the Sale Deed are in
fact challenging the order passed by the Joint Charity Commissioner under
Section 36 of the said Act. Considering the reliefs which are sought in the
Plaint, it may be that some of the reliefs cannot be granted by the Civil Court,
however, as rightly held by the Trial Court in the impugned order, the Suit is
maintainable before it in respect of some of the reliefs. Hence prerequisites for
attracting the bar under Section 80 of the said Act are nonexistent. It is
required to be noted that the challenge to the Sale Deed interalia on the
ground of fraud cannot be raised before the Charity Commissioner and the
same can only be raised by way of a Civil Suit. The Trial Court therefore can be
said to have correctly held that the Suit in respect of some of the reliefs was
maintainable before it. Hence though some of reliefs cannot be granted by the
Civil Court in view of the bar under Section 80 of the said Act, at the same
time the Authorities under the said Act, cannot grant the relief by way of
prayer clause (a) and the said prayer can only be granted by a Civil Court. The
Trial Court has also taken into consideration the fact that for setting aside the
order passed under Section 36 of the said Act, the Plaintiffs have filed an
application under Section 36(2) of the said Act as the same obviously cannot
be challenged by way of a Suit. As regards the contention of the learned
counsel for the Applicant that the Trial Court has erroneously proceeded on the
basis of the maintainability of the Suit whereas the question was about its
jurisdiction. In my view, in some cases the issue of maintainability of Suit and
the issue of jurisdiction of Court eclipse each other, one such case can be said
to be the present one. Therefore, the order passed by the Trial Court ruling that
it has jurisdiction is well founded. It cannot be said that the Trial Court has
acted with material irregularity or in excess of its jurisdiction whilst holding
that it has jurisdiction to try and entertain the Suit. In that view of the matter,
no case for exercise of the revisionary jurisdiction is made out. The above Civil
Revision Application is accordingly dismissed.
[R.M.SAVANT, J]
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