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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
A.M.KHANWILKAR,J
Kedar Shivkumar Kale.Appellant.
Versus
Digamber Shridhar Mhapsekar and Company Respondents.
APPEAL FROM ORDER NO.56 OF 2007 WITH CIVIL APPLICATION NO.84 OF 2007
Decided on: MARCH 7, 2007.
Advocate Appeared
Mr. Shreekant V. Gavand for appellant.
Mr. M.P. Vashi M/s M.P. Vashi & Co. for respondent No.1.
Mr. S. Wassoodev for respondent Nos. 2 to 5.
Mr. K.S. Bapat Avinash Fatangare for Respondent
The first contention canvassed before the Court is that the suit as instituted by the respondent No. 1/plaintiff was not maintainable. The reasons have been pressed into service in relation to this objection. It is submitted that in terms of Section 80 of the Public Trust Act, such a suit was clearly barred before the Civil Court. It is then contended that the respondent No. 1/plaintiff was obliged to take prior consent of the Charity Commissioner in terms of Section 50 of the Act. Both these arguments have been considered by the trial Court and is Court’s view rightly negatived counsel for the respondent No. 1/plaintiff has placed reliance on the decision reported in 2000 (Suppl.) BCR 582 in the case of Namgaonda Jingonda Patil v. Appasaheb Bapurao Walwekar and others. Similarly contention was considered in the said decision. The Court has held that when the suit is instituted in relation to vindicating civil rights for declaration that the resolution was illegal such suit was neither barred by Section 80 of the Act nor consent of the Charity Commissioner for institution of such suit would be prerequisite. The said exposition in this decision applies on all fours to the case on hand. Even in the present case no prayer is made against the trial as such. The relief is one for declaration that the resolution purportedly passed by the Council against the plaintiff is illegal and infracts civil rights of the plaintiff.
1. Heard counsel for the parties. Admit.
2. Mr.Vashi waives notice for respondent No.1. Mr.S.Wassoodev waives notice for respondent Nos. 2 to 5. Mr.K.S. Bapat waives notice for respondent Nos. 22,27, 28, 30 & 6 to 14.
3. As short question is involved, appeal is taken up for final disposal forthwith by consent.
4. This appeal takes exception to the Judgment and Order date 20th November 2006 in Notice of Motion No.2927 of 2006 in Short Cause Suit No.3714 of 2006, passed by the City Civil Court, Greater Bombay. By this impugned order, the trial Court has granted interim relief in favour of the respondent No.1. The respondent No.1/plaintiff instituted suit before the trial Court for the following relief :
“a) that this Hon'ble Court be pleased to declare and hold further that the conducting of the meeting by the Defendant No.5 to 8 on 8.07.2006 and minutes of the said meeting annexed in Ex-F are absolutely illegal and bad in law.
b) That this Hon'ble Court be pleased 4 to declare that the resolution No.1 (Subject 21) i.e. For removal of the Plaintiff by passing the no confidence motion in the further conducted meeting of the Council of Management of the Defendant No.1 and the resolution No.2 (Subject 21) for appointment of the Defendant No.8 as Chairman of the Council of Management of the Defendant No.1 in the same meeting further illegally conducted on 8.07.2006 is illegal, improper and bad in law. As set out in Exhibit `E' to the Plaint.
c) That this Hon'ble Court be pleased to declare that the resolution No.3 of subject 21 for appointment of seven School Committee Chairman in the meeting held on 08.07.2006 is illegal and void as set out in Exhibit “E” to the Plaint.
d) That pending the hearing and the final disposal of the suit this Hon'ble Court be pleased to stay the enforcement and effect of the said resolution of removal of the Plaintiff by no confidence motion against the Plaintiffs and resolution of the appointment of the Defendant No.8 as the Chairman of Council of Management of the Defendant No.1 in the said further conducted meeting of Council of Management of the Defendant No.1 in the said further conducted meeting of Council of Management of the Defendant No.1 held on 8.7.2006 as set out in Exhibit `E' to the Plaint.
e) that this Hon'ble Court be pleased to grant interim order sand injunction restraining the Defendant No.5,6 & 8 from further proceeding with convening and holding the meeting of Council of Management of the Defendant No.1 on 29.07.2006 or in future until further orders of this Hon'ble Court.
f) Adinterim reliefs in terms of prayer (d) and (e) be granted.
g) Cost of the suit including professional costs be provided for.
h) Such other and further reliefs as the nature and circumstances of the case may require be granted.” During the pendency of the said suit, the respondent No.1/plaintiff took out notice of Motion No.2927 of 2006 for the following reliefs:
“a) That pending the hearing and the final disposal of the suit this Hon'ble Court be pleased to stay the enforcement and effect of the said resolution of removal of the Plaintiff by no confidence motion against the Plaintiffs and resolution of the appointment of the Defendant No.8 as the Chairman of Council of Management of the Defendant No.1 in the said further conducted meeting of Council of Management of the Defendant No.1 held on 8.7.2006 as set out in Exhibit `E' tot he Plaint.
b) that this Hon'ble Court be pleased to grant interim order and injunction restraining the Defendant No.5,6 & 8 from further proceeding with convening and hold the meeting of Council of Management of the Defendant No.1 on 29.7.2006 or in future until further orders of this Hon'ble Court.
c) that adinterim reliefs in terms of prayer (a) and (b) above be granted. d) that Cost of the Notice of Motion be provided for.
e) that such other and necessary reliefs as this Hon'ble Court may deem fit and proper in the circumstances of the case may be granted.” The trial Co
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