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1982 Supreme(Bom) 193
IN THE HIGH COURT OF BOMBAY
V.S. Kotwal, J.
Saikh Husenbi Jansaheb others .... Petitioners.
Versus
Sayyad Latif Sayyad Imam .... Respondents.
Writ Petition No. 24 of 1982, decided on 30-7-82.
Advocates appeared :
R.M. Agarwal, for petitioners.
V.V. Divekar, for respondent No. 1.
D.P. Hegde, A.G.P., for respondent No. 3.
In a suit involving a trust property, the Charity Commissioner is a necessary party.
Headnote:
IMPLEADING CHARITY COMMISSIONER AS NECESSARY PARTY - BOMBAY PUBLIC TRUSTS ACT, 1950 - SECTION 56-B - TRUST PROPERTY - MAINTAINABILITY OF SUIT - JURISDICTION OF CIVIL COURT - REVISION APPLICATION - ERROR APPARENT ON THE FACE OF THE RECORD.
Fact of the Case:
In a rent suit, the defendants contended that the suit property was a trust property and that the Charity Commissioner was a necessary party. The trial court agreed and ordered the Charity Commissioner to be impleaded as a co-defendant. The plaintiffs challenged this order in the District Court, which set it aside. The defendants then filed a petition in the High Court under Article 227 of the Constitution of India.
Finding of the Court:
The High Court held that the trial court's order was correct and that the Charity Commissioner was a necessary party. The court found that there was an error apparent on the face of the record and that the impleading of the Charity Commissioner was essential for the effective adjudication of the issues involved in the suit and in the interest of justice.
Issues: 1. Whether the Charity Commissioner was a necessary party to the suit. 2. Whether the trial court erred in impleading the Charity Commissioner as a co-defendant. 3. Whether the District Court erred in setting aside the trial court's order.
Ratio Decidendi: The court held that the Charity Commissioner was a necessary party to the suit because: (1) the defendants had specifically pleaded that the suit property was a trust property; (2) the Charity Commissioner had filed a say in response to the notice issued by the trial court, in which he denied the plaintiffs' claim to the property and asserted that it was a trust property; (3) the Charity Commissioner had previously declared the suit property to be a trust property; and (4) there was a dispute as to the extent of the trust property, which required an enquiry.
Final Decision: The High Court set aside the District Court's order and restored the trial court's order impleading the Charity Commissioner as a co-defendant.
2. The suit obviously proceeded for sometime though on account of certain developments the further progress came to be arrested. The petitioners who are the defendants contested the suit on all counts, the foremost of which was that they questioned the title of the respondents-plaintiffs to the suit property and further made a specific contention that the said property belongs to a public trust which is known and styled as Shri Bava Bengali Dargha of Ahmednagar and, therefore, the respondents-plaintiffs had no authority or right to file the said suit. Relevant documents in support of, their plea about the suit property belonging to the trust were also tendered before the Court. The other contentions pertained to the contest on the other part of the pleadings including the denial of rental arrears and the necessity for eviction with which we are, however, not much concerned in these proceedings.
3. We may, therefore, skip over on all other features and can directly go to the development that occurred in the year 1980. By Ex. 41 dated January 9, 1980 the petitioners herein in consonance with the written statement applied to the trial Court that the Charity Commissioner was a necessary party as per the provisions contained in section 56-B of the Bombay Public Trusts Act, and in the absence of such necessary party the liable suit to be dismissed. A notice came to be issued to the plaintiffs in response to which the plaintiffs put in their say at Ex. 42 on January 22,1980 refuting these contentions and maintaining that the Charity Commissioner was not a necessary party at all. However, a notice came to be issued to the Charity Commissioner in response to which the Charity Commissioner filed the say which is styled as written statement on September 10, 1980 which is at Ex. 64 under which he denied the allegations of the plaintiffs specifically about the plaintiffs title. It is on January 13, 1981 that a formal order came to be recorded by the learned Judge by which he directed to implead the Charity Commissioner as a co-defendant and the plaintiff was directed to amend the plaint accordingly.
4. It is against that order that the respondents-plaintiffs preferred a revision application in the District Court at Ahmednagar, being Civil Revision Application No. 1 of 1981 wherein it was contended that the order passed by the Court below was unjustified and it was also submitted that the provisions of section 56-B were misconstrued.
5. A contention was raised in the said Court on behalf of the petitioners herein about the lack of jurisdiction and according to the petitioners the revision was not maintainable. On merits the petitioners tried to substantiate and support the order of the lower Court.
6. The learned Extra Assistant Judge, Ahmednagar, held that the revision was competent and, therefore, he entertained the same on merits. However, the District Court disagreed with the finding of the trial Court on merits and held that the Charity Commissioner was not a necessary party and accordingly the trial Courts order below Ex. 64 was set aside. This order dated October 23, 1981 is being placed under challenge in this petition on behalf of the original defendants under Article 227 of the Constitution of India.
7. Shri R.M. Agarwal, the learned Counsel for the petitioners has mainly contended that there are voluminous documents and an array of circumstances in support of this plea that the suit property is a trust property and not of the private ownership of the plaintiffs, and, therefore, the impleading of the Charity Commissioner as a nec
