On this background, if we turn to the contents of the plaint itself, then it is apparent that under the guise of getting established his civil rights given under the settlement deed, the plaintiff has also surreptitiously added certain aspects which indeed touch the business and working of the trust itself. For example, in paragraph 16 of the plaint, he has stated that the defendants are obstructing him from supervising the construction work of the new temple. In fact, this act of so called supervision over the construction of new temple is not at all the right given to the plaintiff under the settlement deed and the new construction is the sole matter within the discretion of the trustees under the registered trust and if any relief is sought for that purpose, then it will definitely require interference from this Court. It is well settled law as laid down by the Apex Court in the case of Church of North India v. Lavajibhai Ratanjibhai and Ors. wherein, it is laid down that a plea of bar to jurisdiction of a civil court must be considered having regard to the contentions raised in the plaint. For the said purpose, the averments disclosing cause of action and the reliefs sought for therein must be considered in their entirety. The court may not be justified in determining the question, one way or the other, only having regard to the reliefs claimed dehors the factual averments made in the plaint. The court has to consider what, in substance, and not merely in form, is the nature of the claim made in the suit and the underlying object in seeking the real relief therein. If we follow this ratio vis-a-vis the contents and letter & spirit of the plaint itself, there is no doubt whatsoever that the plaintiff has very cleverly blended his private rights in the affairs of the trust which cannot be allowed in law.
Bombay High Court
Datta Devasthan Trust, Through ... vs Milind Govind Kshirsagar And Ors. on 28 February, 2007
Equivalent citations: 2007 (5) BomCR 460, 2007 (3) MhLj 148
Bench: P Kakade
1. This is an application against the omnibus order passed by the 7th Jt. Civil Judge (J.D.), Ahmednagar whereby the application (Exh.20) filed by the defendants No. 1 to 3 - trustees under Order 7, Rule 11 of the Code of Civil Procedure came to be rejected and the plaintiffs application (Exh.5) for temporary injunction came to be allowed, restraining the defendants from obstructing the plainntiff for performing the Puja and other rituals in respect of the deities and idols mentioned in paragraph 1 of the plaint, pending the suit.
2. The plaintiff - respondent No. 1 filed the suit for injunction against the defendants out of which the defendant No. 1 is the public trust registered under the Bombay Public Trust Act, 1950 and the defendants No. 2 to 5 are trustees thereof. In the course of the suit, an application under Order 7, Rule 11 of the CPC came to be filed by the defendants taking objection for maintainability of the suit for want of permission of the Charity Commissioner before filing of the suit as contemplated under Sections 50 and 51 of the B.P.T. Act. The plaintiff, on the other hand, filed application for temporary injunction against the defendants - trustees submitting that they were obstructing him from performing Puja and other rituals in respect of the deities and other idols in the trust temple, which right was endowed on the plaintiff by the settlor of the trust.
3. The learned trial Judge thought it fit to hear both the parties conjointly on both the applications and adjudicated and disposed of both the interim applications by the common order rejecting the defendants application under Order 7, Rule 11 of the CPC and allowing the application for temporary injunction filed by the plaintiff.
4. It is an admitted as well as evident position that Shri Datta Devsthan Trust is a registered public trust, located at Ahmednagar and the defendants No. 2 to 5 are the trustees, duly recognized under the provisions of the B.P.T. Act. The plaintiff is one of the hereditary trustee who is bestowed with certain rights in respect of the deity and hence, the suit came to be filed. The defendants challenged the suit on the ground that the allegations made by the plaintiff were unfounded. According to the defendants, they had never obstructed the plaintiff from performing the religious rites which were specifically bestowed over the plaintiff by the settlor of the trust. However, it was submitted on behalf of the appellants defendants that the plaintiff was overstepping his limits as a hereditary trustee and in fact, interfering in the work of the trust and as such, the suit itself was touching the business of the trust and, therefore, permission of the Charity Commissioner was necessary before filing the suit. This argument was met with the submission on behalf of the respondent that no permission of the Charity Commissioner was required for the plaintiff to get his civil right established which had nothing to do with the functioning of the trust.
5. Now, it is an admitted position that in the settlement deed (Arrpanpatrika), Shri Kshirsagar Maharaj had categorically listed the names of the deities in Schedule "A". Schedule "B" consisted of pedigree of the entire family, Schedule "C" consisted of the list of other religious miscellaneous items and Schedule "D" consisted of religious festivities to be observed during the course of the year. The learned Counsel for the petitioner submitted that they had no quarrel with the rights which were bestowed upon the plaintiff and they had no reason to obstruct him in performing the same. However, it was specifically contended that the plaintiff was interfering in the activities of the trust. The trust has undertaken construction of new temple structure in the nearby old temple with which the plaintiff has no concern whatsoever under the settlement deed and still, his interference in the matter is cause of concern for the trust as it unnecessarily hampers the work of the trust.
6. Now, perusal of the order passed by the trial Court shows that omnibus adjudication of application under Order 7 Rule 11 of the CPC and the application under Order 39, Rule 1 of the CPC, has confused the issues. There is material difference between the nature of hearing in respect of an interim relief and in respect of an issue regarding jurisdiction. A summary procedure has been prescribed for deciding an application Under Order 39. The nature of evidence required to be placed before the Court when the Court is considering the grant or refusal of interim relief under Order 39 is different from the nature of evidence required to be placed before the Court when the Court considers the question of jurisdiction. There being difference in the nature of inquiry, it would always be desirable that both questions are not heard together. However, the trial Court has done so and, therefore, the petitioner took strong exception to such procedure adopted by the learned trial Judge. However, in my considered view, though the procedure breeds confusion, it cannot be said to be fatal to the adjudication of the applications.
7. The learned trial Judge has come to the conclusion that there is no necessity to get prior sanction of the Charity Commissioner to institute the present suit because the plaintiff has claimed injunction in respect of his own rights to perform Puja and other rituals, which has nothing to do with the functioning of the trust. He has also come to the conclusion while deciding the application for temporary injunction that the plaintiff has established, prima facie, case regarding his existing right to perform Puja and other rituals in the suit premises in respect of deities and idols kept therein.
8. On this background, if we turn to the contents of the plaint itself, then it is apparent that under the guise of getting established his civil rights given under the settlement deed, the plaintiff has also surreptitiously added certain aspects which indeed touch the business and working of the trust itself. For example, in paragraph 16 of the plaint, he has stated that the defendants are obstructing him from supervising the construction work of the new temple. In fact, this act of so called supervision over the construction of new temple is not at all the right given to the plaintiff under the settlement deed and the new construction is the sole matter within the discretion of the trustees under the registered trust and if any relief is sought for that purpose, then it will definitely require interference from this Court. It is well settled law as laid down by the Apex Court in the case of Church of North India v. Lavajibhai Ratanjibhai and Ors. wherein, it is laid down that a plea of bar to jurisdiction of a civil court must be considered having regard to the contentions raised in the plaint. For the said purpose, the averments disclosing cause of action and the reliefs sought for therein must be considered in their entirety. The court may not be justified in determining the question, one way or the other, only having regard to the reliefs claimed dehors the factual averments made in the plaint. The court has to consider what, in substance, and not merely in form, is the nature of the claim made in the suit and the underlying object in seeking the real relief therein. If we follow this ratio vis-a-vis the contents and letter & spirit of the plaint itself, there is no doubt whatsoever that the plaintiff has very cleverly blended his private rights in the affairs of the trust which cannot be allowed in law. At the same time, I must note that certain rights of the plaintiff are, in fact, involved. The learned Counsel for the petitioner assured this Court in the course of arguments that those rights under the settlement deed are not being affected by the trustees at all. However, the respondent plaintiff appears to be apprehensive. Under the circumstances, the only course available for us would be to set aside the impugned order and remand the matter to the trial Court. The trial court may give option to the plaintiff to choose or elect either to seek permission of the Charity Commissioner as contemplated under the B.P.T.Act, if he wants to proceed against the trust regarding its working or to restrict himself to his sole private civil rights.
9. In view of this position, the revision application is allowed. The order passed by the trial Court dated 27.7.2006 below Exh.5 along with Exh.20 in RCS No. 197/2006 is set aside in its entirety. The matter is remanded to the trial Court for adjudication of the application under Order 7, Rule 11 as well as application under Order 39 Rule 1 of the Code of Civil Procedure, in view of the observations made herein above. With these observations, the revision application stands disposed of with no order as to costs.
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