J. B. MEHTA, S. H. SHETH, J.

( 1 ) THIS Letters Patent Appeal is directed against the judgment and order recorded by the learned single Judge in First Appeal No. 200 of 1972.

( 2 ) THE facts of the case briefly stated are as under: In Civil Suit No. 54 of 1910 filed under sec. 92 of the Code of Civil Procedure a scheme was settled for the administration of the public trust in question Sunni Muslim Wakf Committee was constituted under it and consisted of five members (hereinafter referred to as the trustees ). The original applicant filed Civil Miscellaneous Application No. 244 of 1970 in the City Civil Court at Ahmedabad in which he prayed that original opponents Nos. I and 2 be removed by the Court as trustees because they did not administer the trust and discharge their duties properly as they suffered from physical and mental incapacity. The original application was filed in the Trial Court without obtaining the consent of the Charity Commissioner in writing as required by sec. 50 of the Bombay Public Trusts Act because according to the original applicant he had a right to do so under Clauses 2 and 3 of the Scheme of the trust in question which provided for appointment and removal of the trustees.

( 3 ) THE original opponents Nos. 1 and 2 inter alia contended in defence that the original application was not maintainable because sec. 50 of the Bombay Public Trusts Act 1950 superseded Clauses 1 and 3 of the Scheme in question and that the only remedy which the original applicant had was to institute a suit after complying with the provisions of sec. 50 of the Bombay Public Trusts Act 1950

( 4 ) THE learned Trial Judge raised the necessary issues and tried issues Nos. 4 5 6 7 and 7-A as preliminary issues He upheld the preliminary defence contention and dismissed the said application. The original applicant challenged that order in First Appeal No. 200 of 1972 which he filed in this Court. The learned Single Judge by this judgment and order dated 23 March 1973 allowed the appeal set aside the order made by the learned Trial Judge and remanded the original application to the Trial Court for decision on merits. He held that the original application filed by the original applicant under Clauses 2 and 3 of the scheme in question was maintainable inspite of the provisions of sec 50 of the Bombay Public Trusts Act 1950

( 5 ) IT is that appellate order which is challenged by the original opponents in this Letters Patent Appeal.

( 6 ) CIVIL Revision Application No. 989 of 1975 also raises a similar question. In that case the original applicants made an application to the learned Assistant Judge at Surat for modification of the scheme settled before the Bombay Public Trusts Act 1950 came into force. They relied upon a clauses in the scheme in question which conferred upon them the right to move the Court for modification of the scheme. They instituted the original application for the purpose stated above. A preliminary contention was raised in that application. It was contended that no such application could be instituted in view of the provisions of sec. 50 of the Bombay Public Trusts Act 1950 and that the only remedy which the original applicants had was to institute a suit under sec. 50 after having obtained the consent of the Charity Commissioner in writing. This contention was tried by the learned Extra Assistant Judge at Surat. After having exhaustively dealt with the arguments raised by the parties he rejected that contention and ordered the original application to proceed further because in his view inspite of the provisions of sec. 50 of the Bombay Public Trusts Act 1950 it was maintainable. That order is challenged by the original opponent in this Civil Revision Application.

( 7 ) IN the Letters Patent Appeal as well as in the Civil Revision Application the question which has arisen for our consideration is as follows:whether an application either for removal of trustees or for modification of the scheme filed under the relevant

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