Advocates:
['SHRI VAIBHAV PATANKAR', 'SHRI S M OAK', '', 'SHRI MAYURESH MODGI', '', '', '', 'TO']

1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 511 OF 2008

The Secretary,

M/s. Gautam Sindhu CHS Ltd. ........ Petitioner

versus

Thana Acchalgachha Hain Sangh

Through its trustees & anr ........Respondent.

Mr. R.S. Apte Sr. counsel with Vaibhav Patankar adv. for the

Petitioner

Mr. Sagar Joshi i/b. S.M.Oak adv. for the Respondent no.2.

Mr. Mayuresh Mogi for Respdts. 1,2,5,6,7 to 9.

CORAM: A. P DESHPANDE, J.

DATED : 25th November, 2009.

P. C.:

1.

Rule. Rule made returnable forthwith. By consent of

parties taken up for final hearing.

2.

The present petitioner is a Co-operative Housing Society and

is original defendant no.2 whereas the respondent no.1 is a Public

Trust which is a plaintiff in the suit. Suit has been filed by the

Public Trust claiming the relief of declaration that the trust alone

has a right to construct the suit property and an injunction is also

sought against the defendant. The present petitioner society has

constructed a structure and the members of the society are in

occupation thereof. By filing a written statement, the petitioner

2

raised amongst others two contentions : (1) that the present suit is

not tenable in view of the bar under sections 50 and 51 of the

Bombay Public Trust act without prior permission/consent of the

Charity Commissioner and (2) that the suit is not maintainable in

absence of a notice being served on the petitioner as is mandate by

section 164 of the Maharashtra Co-operative Societies Act 1960.

Based on the said pleas, issues came to be framed and the issue

touching sections 50 and 51 of B.P.T.Act is issue no.3 whereas the

plea touching maintainability of the suit for want of notice under

section 164 is issue no.4 as framed. After framing of the issue, the

respondent no.1 herein moved an application purportedly under

Order 14 Rule 5 of CPC seeking deletion of issue nos. 3 and 4 on

the ground that the said issues are already decided and are

rendered redundant. The said application was opposed by the

present petitioner, however, by the impugned order the trial court

has directed deletion/striking of issue nos.3 and 4. The reasoning

adopted by the trial court are two fold: (1) that in the Misc. Civil

Appeal bearing No. 204/01 which was preferred by the present

petitioner against the order passed below Exh.5. the first appellate

court has held that no notice under sec. 164 of Maharashtra Co-

operative Societies Act would be necessary as the relief claimed in

the suit does not pertain to the business of the society and as the

suit is not touching the business of the society the suit is

maintainable. The learned counsel for the petitioner has

submitted that the observations made by the first appellate court

in a Misc. Civil Appeal arising out of an order passed below Exh. 5

3

are prima facie in nature and the said observations in no way

conclude the issue. The observations obviously are prima facie in

nature and does not decide the issue. Thus it can be safely said

that the trial court has committed a patent illegality in holding that

as the question is already decided by the first appellate court,

while hearing the Misc. Civil Appeal, the issue no.4 is rendered

redundant.

3.

Another line of reasoning so far as issue no.3 is concerned, is

to the effect that as the petitioner had earlier moved an application

under section 9(A) of CPC for framing of preliminary issue about

the maintainability of the suit for want of consent or permission of

the Charity Commissioner as is envisaged by sections 50 and 51 of

the B.P.T.Act, and as the said application was rejected, the same

amounts to rejection of the plea on merit. The order passed below

Exhs. 14 and 17 was on an application moved by the petitioner

urging the trial court to frame a preliminary issue under section

9(A) and the rejection of the said application would only me