The court emphasized that a cause of action must be established through trial, and the requirement for Charity Commissioner permission is a defense, not a ground for rejecting a plaint at the preliminary stage.

ORAL ORDER

1. This Appeal is filed under Section 96 read with Order 41 of the Code of Civil Procedure, 1908 (for short, “the Code”) challenging the judgment and decree passed by the learned 10th Additional District Judge, Kachchh at Bhuj on 22.3.2021 in Trust Suit No.1 of 2010. Upon joint request of learned Advocates for the parties, present Appeal is taken up for final hearing.

2. Heard learned Advocate Mr. D.K. Puj for the Appellants and learned Advocate Mr. S.K. Patel for the Respondents.

3. Few facts necessary for disposal of this Appeal are as under:-

3.1. Plaintiffs-present Appellants filed Trust Suit No.1 of 2010 before the learned Additional District Judge, Kachchh at Bhuj against the Defendants-present Respondents praying for the decree restraining Defendants from interfering or obstructing in the administration of the Appellants-Trusts. Moreover, it is prayed that Defendants are not entitled to make any illegal use or enjoyment of the Trust properties. Defendants filed an Application Exh.63 under Order VII Rule 11 of the Code for rejection of the plaint on the ground that the suit is filed without the cause of action and for want of prior permission from the Charity Commissioner.

3.2. The said Application was replied by Appellants-Plaintiffs vide Exh.81. Learned Trial Court allowed the said Application Exh.63 on 22.3.2021 and rejected the plaint. Being aggrieved and dissatisfied by the impugned judgment and decree, the present Appellants-Plaintiffs are before this Court.

4. Learned Advocate for Appellants submitted that the suit was filed by the plaintiffs for seeking declaration coupled with a relief of permanent injunction.

4.1. It is submitted that on perusal of averments made in the plaint and the relief sought for in the plaint, declaratory relief is sought for against the Defendants, restraining them from interfering and obstructing in the administration of the Plaintiff Trust together with restraining the Defendants from using the Trust properties. The suit was resisted by the Defendants by filing Written Statement and after a period of five years, an Application in Order VII Rule 11 of the Code came to be filed by the Defendants alleging, inter-alia, that the prior permission of Charity Commissioner as contemplated under Sections 50 & 51 of Bombay Public Trusts Act, 1950 (hereinafter referred to as “the Act”), is not obtained and also on the ground that the suit filed without cause of action.

4.2. It is submitted that Plaintiff Nos.2 & 3 Trust were merged with Plaintiff No.1 pursuant to Resolution dated 31.3.1985.

4.3. It is also pointed out from the averments made in the plaint that Regular Civil Suit No.15 of 1997 came to be filed by present Plaintiff No.1 Trust and this dispute between the parties was settled. It was agreed that the suit property which was known as “Sri Kotda (J) Jyotisdham Mandir Trust” will be of the ownership of “Kotda (J) Patidar Laxminarayan Trust”.

4.4. It is submitted that Defendants, despite the Resolution of 1985, are raising false objections in the administration of the Trust and also Defendants are not fulfilling the Resolutions Nos.17, 18 & 19 of the Trust.

4.5. It is submitted that if Defendants are claiming to be the disciples of “Satpanth community”, in that case, Defendants can never remain as the members of the Plaintiff Trust.

4.6. It is also submitted that the cause of action is a bundle of facts and the cause of action, for filing the suit has been sufficiently pleaded in the plaint. It is further submitted that the cause of action to file the present suit has arisen just before 5 to 6 months prior to the institution of the suit.

4.7. It is submitted that looking to the averments made in the plaint, without entering into the trial and without any opportunity being given to the Plaintiffs to prove their contentions raised in the plaint, the provisions of Order VII Rule 11 of the Co