2012 Supreme(Bom) 2122

High Court of Judicature at Bombay
D.Y. CHANDRACHUD & A.A. SAYED, JJ.
Charu K. Mehta & Others
Versus
Lilavati Kirtilal Mehta Medical Trust & Others
APPEAL (L) No.234 of 2012 IN ORIGINATING SUMMONS NO.2029 OF 2011 IN SUIT NO.2964 OF 2011 WITH APPEAL (L) NO.253 OF 2012
Decided on : 06-11-2012

Headnote:BOMBAY HIGH COURT (ORIGINAL SIDE) RULES, 1980 - Chapter XVII, Rule 238 - Nature of proceedings in Originating Summons.

       Institution of proceedings through an originating summons, considered as a simple and efficacious procedure that would be applied in resolution of simple and straight forward issues of construction and interpretation. - The institution of proceedings through an Originating Summons was considered as a simple and efficacious procedure that would, be applied in the resolution of simple and straightforward issues of construction and interpretation. Though the ambit of the issues that could be decided in an Originating Summons came to be expanded over time, the principle underlying the invocation of the procedure remained relatively constant. Fundamentally, the rules confer a wholesome discretion on the Court or the Judge in Chambers on whether a question of construction should or should not be determined on an Originating Summons. Rule 246 emphasizes that the Court shall not be bound to determine such a question if it is of the opinion that it ought not to be determined on an originating summons.

       The plaint in an originating summons is a plaint without a prayer (Rule 249), and there is no obligation on the defendant to file a written statement or affidavit in answer to the plaint unless the Court otherwise directs (Rule 253), Similarly, if the parties are not agreed as to the correctness of the facts set forth in the plaint, the Judge has a discretion to order the summons to be supported by such evidence as he may think necessary (Rule 254), A Judge hearing the Summons is empowered to adjourn it into Court. If the Judge considers that the matter in respect of which relief is sought cannot be conveniently and properly disposed of on an Originating Summons, he may dismiss the summons and refer the parties’ to a suit in the ordinary course (Rule 255).

       These provisions indicate that a Judge is not bound to entertain an Originating Summons or to adjudicate upon the issues which are sought to be raised. Whether and to what extent evidence should be allowed to be adduced is again a matter which is in the discretion of the Court. Ultimately, a judicial discretion is conferred on whether an Originating Summons should be entertained. The provisions in BOMBAY HIGH COURT (ORIGINAL SIDE) RULES, 1980 - Chapter XVII of the Rules on the Original Side which embody the procedure for an Originating Summons have to be interpreted broadly and liberally. However, must he emphasized that the procedure envisages a summary remedy which is available to determine issues of construction or interpretation. Though a determination of a factual issue is not barred on an Originating Summons, conventional learning in this area is that where complexities of evidence and of fact arise, parties should be relegated to the remedy of a suit in the ordinary course.

       Bombay Public Trusts Act, 1950 - Section 22(3) - Scope of.

       Since entries made by Deputy or Assistant Charity Commissioner are a consequence of finding of Deputy or Assistant Commissioner hence finality cannot attach to one without other. - The view that what is made final and conclusive under the provisions of Section 22(3) are the entries made by the Assistant Charity Commissioner and not the findings on the basis of which those entries are made. Overlooks that under sub-section (3) of Section 22, the entries which the Deputy or Assistant Charity Commissioner makes have to be in accordance with the findings which require an amendment or deletion of the entries. The findings of the Deputy or Assistant Charity Commissioner constitute the foundation while the entries which he makes are consequential. Section 22(3) makes an amendment of the entries "so made" final and conclusive subject to an amendment on occurrence of a change or cancellation of the entries. The entries made are a consequence of the finding and finality cannot attach to one without the other. To hold otherwise would be to defeat the legislative intent. Decision in Originating Summons No. 2029 of 2011 dated 5.3.2012 Overruled.

       To hold that the Assistant Charity Commissioner cannot entertain an application in the nature of an Originating Summons for construction of a deed of trust is to beg the question. The bar under Section 80 attaches to a Civil Court dealing with or deciding a question which the Assistant Charity Commissioner is required to decide or deal with, and with finality. Once the two requirements of Section 80 are fulfilled, the bar is attracted.

       Bombay Public Trusts Act, 1950 - Sections 22(3) and 80 - Bombay High Court (O.S.) Rules, 1980, Chapter XVII, Rule 238 - Change reports.

       Reports about change of Trustees, pending before Assistant Charity Commissioner, cannot be brought before Court in guise of Originating Summons. - In every one of the change reports which have been filed before the Assistant Charity Commissioner, the interpretation of the relevant provisions of the deed of trust is directly in issue and is a question which is required to be decided or dealt with by him in pursuance of the enquiry under Section 22(3). The mode of succession to the office of trustees under the deed of trust and the validity of the appointments made is in issue. These are questions which have to be dealt with and decided by the Assistant Charity Commissioner in the course of his enquiry in the change reports. The entries which the Assistant Charity Commissioner would make in consequence of his findings on whether or not a change has taken place in the office of trustees are made final and conclusive. An overall reading of the plaint would also make it abundantly clear, that what the plaintiff seeks is not - as suggested by counsel - a pure or abstract question of interpretation of the clauses of the Deed of Trust. There are live disputes between the parties - disputes over the appointment of trustees, the mode of succession and the validity of meetings - which are the subject-matter of change reports, which are pending.

       For the purpose of determining jurisdiction, it is evident from a bare reading of the averments contained in the plaint that the change reports are pending. The Originating Summons does not raise only questions of interpretation. Matters which are pending before the Assistant Charity Commissioner are sought to be brought before this Court in the guise of an Originating Summons. In this view of the matter, the jurisdiction on an Originating Summons under Rule 238 would attract the bar under Section 80 of the Bombay Public Trust Act, 1950 in respect of the questions which are required to be decided or dealt with by the Assistant Charity Commissioner and to which finality attaches.

       Rule 246 of the High Court (Original Side) Rules makes it clear that the Court or the Judge in chambers shall not be bound to determine any such question of construction if in its or his opinion it ought not to be determined on an Originating Summons. The Single Judge has held that the questions sought to be raised cannot appropriately be addressed in an Originating Summons and in the circumstances, came to the conclusion that this was not a fit and proper case for the exercise of the discretion. Since the bar under Section 80 was attracted, the question as to whether discretion should or should not be exercised to entertain the Originating Summons would not survive.

       Bombay Public Trusts Act, 1950 - Section 80 - Bar to jurisdiction of Civil Court.

       Jurisdiction of a Civil Court is expressly barred by Section 80 of Act, subject to satisfaction of dual conditions. - The explicit bar in Section 80 would consequently apply to a suit on the Original Side in which the questions to be decided fall within the ambit of the bar created by the statute. The bar under Section 80 would extend to the procedure of an Originating Summons on the Original Side. Where a question is required to be decided or dealt with by an officer or authority under the Bombay Public Trusts Act, 1950 and in respect of which his determination has been made final and conclusive, the procedure envisaged on an Originating Summons would be subject to the bar created by Section 80 of the Bombay Public Trusts Act, 1950. The bar under Section 80 extends to every Civil Court.

       Bombay Public Trusts Act, 1950 - Section 80 - Bar to jurisdiction of Civil Court.

       Test under Section 80 is whether question which is raised before Civil Court is a question which is required by Act to be decided or dealt with by an officer or Authority constituted under it. - The salient features of Section 80 are the following :

       (i) The bar under Section 80 is subject to an express provision to the contrary in the Act;

       (ii) No Civil Court shall have jurisdiction to decide or deal with any question where

       (a) such a question is required by or under the Act to be decided or dealt with by any officer or authority under the Act; and

       (b) where a decision or order of such officer or authority has been made final and conclusive by the Act.

       The test under Section 80 is whether the question which is raised before the Civil Court is a question which is required by the Act to be decided or dealt with by an officer or authority constituted under it. Where that and such a decision of an officer or authority is made final and conclusive under the provisions of the Act, the jurisdiction of the Civil Court would stand barred.

       Where there is in view of the provisions of Section 9 of the Code of Civil Procedure, 1908, the ouster of jurisdiction of a Civil Court is not readily assumed or lightly inferred. Ouster of jurisdiction has to be either explicit or necessarily implied. In Dhulabhai v. State of Madhya Pradesh, AIR 1969 SC 78, which is the locus classicus on the subject, the Supreme Court has held that where the statute gives a finality to the orders of special tribunals, the jurisdiction of the Civil Courts must be held to be excluded if there is adequate remedy to do what the Civil Courts would normally do in a suit. Where there is an express bar of the jurisdiction of the Court, an examination of the scheme of the particular Act to find th e adequacy or the sufficiency of the remedies provided may be relevant, but is not decisive to sustain the jurisdiction of the Civil Court. But where there is no express exclusion, an examination of the remedies and the scheme of the Act to find out the intendment becomes necessary and the result of the enquiry may be decisive.

       Bombay Public Trusts Act, 1950 - Section 80 - Bar of jurisdiction under.

       Bar under Section 80 of Act, extends to procedure of an originating summons on original side of High Court. - Section 80 of the Bombay Public Trusts Act, 1950 contains an express bar to the jurisdiction of a Civil Court, but that is subject to the satisfaction of dual conditions. The existence of those conditions must be strictly established before an ouster of jurisdiction can result. The correct test in law to apply is whether the controversy which is sought to be raised before the Civil Court requires an adjudication of a matter or question which has to be decided or dealt with by an officer or authority under the Act while exercising his power under the Act and whether such a decision is made final or conclusive. In determining this issue, the Court has to consider the substance and not merely the form in which the claim before the Civil Court is made and the underlying object of seeking the real relief.

       Civil Procedure Code, 1908 - Sections 122 and 129 - Letters Patent and High Court Rules.

       Procedure under High Courts Rules, must be consistent with letters patent which constitutes special law under which High Court derives its powers.

       LIMITATION ACT, 1963 - Article 137 - Limitation under.

       When right to apply accrues, limitation under Article 137 commences and not when right to sue accrues. - The Single Judge extracted the provision of Article 113 of the Schedule to the Limitation Act, 1963 which governs a suit for which no period of limitation is provided elsewhere and for which the period of limitation of three years commences when the right to sue accrues. While extracting Article 137, the judgment of the Single Judge contains an inadvertent error, in that, the period from which limitation begins to run is described as "when the right to sue accrues". Actually limitation under Article 137 commences when the right to apply accrues. The Single Judge held that in an Originating Summons, the question of a right to sue does not arise since there is no us between the parties and the right under Rule 238 to seek an interpretation is a continuing right.