2001 Supreme(Bom) 898

IN THE HIGH COURT OF BOMBAY
A.M. Khanwilkar, J.
Chembur Trombay Education Society others .... Appellants.
Versus
D.K. Marathe others.... Respondents.
Appeal From Order No. 1260 of 1995 with Civil Application No. 6599 of 2000 with Appeal From Order No. 1256 of 1995, decided on 1-10-2001.
Advocates appeared :
V.M. Kanade, in Appeal From Order No. 1260/1995 with Civil Application No. 6599 of 2000 with Appeal From Order No. 1256 of 1995, for appellants.
R.G. Desai, in Appeal From Order No. 1260/1995 with Civil Application No. 6599 of 2000, for respondent No. 1 and in Appeal From Order No. 1256 of 1995, for respondent No. 2.

Headnote:Bombay Public Trust Act, 1950 - Sections 22 and 80 - Civil Procedure Code, 1908, Section 9-A, Order XXXIX, Rules 1 and 2 - Injunction - Granted by City Civil Court - Juris- diction of - Challenged - Injunction against governing body of trust - Restrained to take action on a reso- lution of general body providing for election to post of President instead of life time President - Held - Dispute regarding functioning of trust - Can be resolved by Appropriate Authority under Section 80 of B.P.T.Act - Question of jurisdiction ought to be decided by Court first - Case remanded. - The next question that emerges is whether the Civil Court will have jurisdiction to examine the controversy raised before it, by reason of bar under Section 80 of the Bombay Public Trusts Act. In another decision reported in AIR 1983 Bom 404; Dinanath Ajabrao Ingale v. Shetkari Shikshan Prasarak Mandal, Wardha, and others, this Court has held that the change reports preferred by the parties were ending for final decision before the Deputy Charity Commissioner. In such a case the suit was not tenable as Civil Court has no jurisdiction to entertain the same. It is not in dispute that the appellants in Appeal No. 1260/1995 in their reply filed before the trial Court had specifically raised objection regarding the jurisdiction of the Civil Court and that of maintainability of the suit. In para 3 of the reply filed before the trial Court the appellants have taken a specific plea that the Civil Court does not have jurisdiction to decide the issue involved in the subject suit as it pertains to matters which are solely within the jurisdiction of the Charity Commissioner, and the Court, therefore, should first decide the preliminary issue about the maintainability of the suit. Although this stand was taken specifically in the reply, and though the trial Court has adverted to this plea in para 16 of the impugned order, however, the trial Court has proceeded to decide the controversy on merits and passed interlocutory orders on the notice of motion. This is obviously in the teeth of the mandate of Section 9-A of the Code of the Civil Procedure an applicable to State of Maharashtra. The law on this point is well settled that Section 9-A of the CPC is a departure from the procedure established for deciding preliminary issue as prescribed under Order XIV, Rule 2 of the CPC and when such question of jurisdiction is raised or arises for consideration the Court shall determine the said issue at the threshold See 1999 (1) Bom CR (OOCJ) 107 : 1998 (4) All MR 536; Meher Singh v. Deepak Sawhny and another. To my mind, the trial Court has completely gone overboard in discussing the merits of the controversy, instead of deciding the issue relating to its jurisdiction at the threshold. Section 9-A of CPC clearly bars the Courts from considering the application for interim relief until the said preliminary issue is decided one way or the other. Even for this reason the impugned order passed by the trial Court, making the subject notice of motion absolute, cannot be sustained in law and the same will, therefore, have to be set aside.

       Civil Procedure Code, 1908

        - Order XXXIX, Rule 2-A - Contempt of Courts Act, 1971, Section 2(c) - Application under - Maintainability of - Suit already disposed of by consent - Notice of motion therein for contempt - Non-compliance of terms of consent contended - Held - Notice of motion not maintainable - Court has no jurisdiction to entertain motion under Order XXXIX, Rule 2-A of Code after disposal of suit - Remedy available to enforce order by execution - Proceedings in contempt under Order XXXIX, Rule 2-A of Code not maintainable. - This notice of motion filed by the respondent No. 1 being notice of motion No. 4572 of 1995 in disposed of suit No. 5935 of 1992, in the first place was not maintainable in law and in any case the trial Court clearly misdirected itself to dwell upon matters which were absolutely not germane to the real controversy that was required to be decided in the subject application. The reason which weighed with the trial Court find place in para 13 of the impugned order. That it will be wholly unnecessary to go into the various aspects of the matter which have found favour with the trial Court while considering the subject notice of motion, for they are inconsequential. The counsel for the respondent Shri-Marathe placed reliance on the decision of the Apex Court in Raje Anandrao v. Shamrao, AIR 1961 SC 1206, to contend that suit filed by the appellants under Section 92 of the Bombay Public Trust Act is a representative suit and decision therein binds not only the parties to that suit but also all those who are interested in the trust. He also relied on another decision reported in Chiranjilal v. T.I. Corporation, AIR 1959 Bom 396, to contend that consent decree in a representative suit would operate as res judicata, these decisions are inapposite to the issue that arises for consideration of the subject notice of motion purported to be filed under Order XXXIX, Rule 2-A of CPC. As observed earlier, the said notice of motion was not maintainable in law.

        Bombay Public Trust Act, 1950 - Sections 22 and 80 - Civil Procedure Code, 1908, Order XXXIX, Rules 1 and 2 - Interim relief - Against amendment of Constitution of Trust - Provision for life time President deleted by resolution passed by general body - Posts to be filled up by election - Resolution referred to appropriate authority under Section 22 of Act - Validity of amendment - Held - Valid - Section 22 of Act provides that change to be notified to authority within 3 months - Change takes effect from date of resolution - Not from date of approval. - Giving the natural meaning to this word in Section 22 of the Act, coupled with the principle enunciated by the Apex Court that when the Act does not require that registration of any change is a condition precedent to come into effect, I have no hesitation in taking the view that the amendment to the constitution as well as subsequent elections of the President and members of the Governing Council, therefore, come into effect from the date of the respective resolutions of the general body. The enquiry postulated under Section 22 is only to ascertain the factum as to whether the change has occurred or not. In the event, the competent authority is satisfied that the change has not occurred in accordance with law, only then that change will have to be undone and status quo ante will have to be restored. A fortiori resolution of the general body of the Society is sufficient to ignite the change of amendment in the constitution as well as of electing new general body for administering the affairs of the Society. The fact that the change report is pending consideration before the Charity Commissioner, would be of no avail. Understood thus, as a necessary corollary, it will have to be held that the respondent Shri-Marathe ceased to be the President of the Society from the date when the General Body elected another President in the its meeting dated June 18, 1995. If this be the position, the respondent Shri-Marathe will have no right whatsoever to continue in the post of president and, there would be no question of granting any mandatory relief at this stage.