Case Note & Summary
The case involves a Notice of Motion filed by defendant trustees (defendant Nos. 1, 3, 4, and 5) in a suit seeking rejection of the plaint under Order VII Rule 11(d) of the Code of Civil Procedure, 1908 (CPC). The plaintiffs, who claim to be Vaishnavs following Pushtimarg Sampradaya, filed Suit No. 806 of 2009 against the trustees of Sheth Chaturbhuj Jivandas Religious and Charitable Trust, a public trust registered under the Bombay Public Trust Act, 1950. The suit sought a declaration that consent terms and/or a consent award permitting the removal of the deity Navnit Priyaji from the Haveli are null and void, or alternatively voidable. The defendants argued that the suit is barred by Section 50 of the Bombay Public Trust Act, 1950, which requires prior consent of the Charity Commissioner before filing a suit against a public trust. The court examined the plaint and found that the suit clearly involves matters relating to a public trust, and the plaintiffs did not obtain the requisite consent. Consequently, the court held that the suit is barred by law and allowed the notice of motion, rejecting the plaint under Order VII Rule 11(d) CPC.
Headnote
A) Civil Procedure - Rejection of Plaint - Order VII Rule 11(d) CPC - Bar by Law - The court considered whether a suit challenging the removal of a deity from a trust property is barred by Section 50 of the Bombay Public Trust Act, 1950, which requires prior consent of the Charity Commissioner for suits against public trusts. The court held that from the statements in the plaint, the suit is clearly barred by law as no consent was obtained, and thus the plaint is liable to be rejected. (Paras 1-5)
B) Trust Law - Public Trust - Section 50 Bombay Public Trust Act, 1950 - Consent of Charity Commissioner - The plaintiffs, claiming to be devotees, filed a suit against trustees of a public trust for declaration that consent terms permitting removal of deity are nullity. The court held that without obtaining the consent of the Charity Commissioner under Section 50, the suit is not maintainable and is barred by law. (Paras 3-5)
Issue of Consideration
Whether the suit filed by the plaintiffs is barred by Section 50 of the Bombay Public Trust Act, 1950, and therefore liable to be rejected under Order VII Rule 11(d) of the Code of Civil Procedure, 1908.
Final Decision
The court allowed the Notice of Motion and rejected the plaint in Suit No. 806 of 2009 under Order VII Rule 11(d) of the Code of Civil Procedure, 1908, as the suit is barred by Section 50 of the Bombay Public Trust Act, 1950.
Law Points
- Order VII Rule 11(d) CPC
- Section 50 Bombay Public Trust Act 1950
- Bar of suit without consent of Charity Commissioner
- Plaint rejection for being barred by law
Case Details
2010 LawText (BOM) (09) 81
Notice of Motion No. 715 of 2010 in Suit No. 806 of 2009
Mr. D.V. Merchant, Senior Advocate with Rohan Cama, Sanjay Udeshi, Mahesh Londhe and Pallavi Dedhia i/b. Sanjay Udeshi & Co. for plaintiffs; Mr. Nitin Thakkar, Senior Advocate with Satish Shetye i/b. R.D. Vora for defendant Nos. 1, 2, 3 and 5; Mr. Chetan Kapadia with D.V. Deokar i/b. P.K. Shroff & Co. for defendant No.6; Mr. Bipin Joshi for intervenors; Mr. V.M. Waghela for applicant in C/S.581 of 2010; Mr. Ramnikbhai Parekh with Parag Shah i/b. Mahesh Shah & Co. for applicant in C/S.1705 of 2009; Ms. D.B. Mistry i/b. D. Mehta & Associates for applicant in C/S.1808 of 2009.
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Nature of Litigation
Notice of Motion by defendants seeking rejection of plaint under Order VII Rule 11(d) CPC on the ground that the suit is barred by Section 50 of the Bombay Public Trust Act, 1950.
Remedy Sought
Defendants sought rejection of the plaint in Suit No. 806 of 2009.
Filing Reason
The plaintiffs filed a suit challenging consent terms/award permitting removal of deity from a Haveli, which the defendants argued requires prior consent of the Charity Commissioner under Section 50 of the Bombay Public Trust Act, 1950.
Issues
Whether the suit is barred by Section 50 of the Bombay Public Trust Act, 1950, for want of consent of the Charity Commissioner.
Whether the plaint is liable to be rejected under Order VII Rule 11(d) CPC.
Submissions/Arguments
Defendants argued that the trust is a public trust registered under the Bombay Public Trust Act, 1950, and the suit involves matters relating to the trust, thus requiring prior consent of the Charity Commissioner under Section 50. Without such consent, the suit is barred by law.
Plaintiffs contended that they are devotees with vested interest in darshan of the deity, but the court did not record their specific arguments on the bar.
Ratio Decidendi
A suit against a public trust or its trustees in respect of any matter relating to the trust is barred by Section 50 of the Bombay Public Trust Act, 1950, unless the prior consent of the Charity Commissioner is obtained. The court, while exercising power under Order VII Rule 11(d) CPC, must look only at the plaint allegations, and if from those allegations the suit appears to be barred by any law, the plaint is liable to be rejected.
Judgment Excerpts
This is a Notice of Motion by defendant Nos. 1, 3, 4 and 5 in the suit for claiming following relief:- (a) that the plaint in above suit be rejected, the same being barred by the provisions of the Bombay Public Trust Act, 1950 and/or on the ground that the plaint does not disclose cause or action.
In effect this is a notice of motion invoking this Court’s power under Order VII Rule 11(d) of the Code of Civil Procedure, 1908 (for short CPC).
It is urged in the affidavit in support of the notice of motion by one Ramesh Mehta that he is one of the Trustee of Sheth Chaturbhuj Jivandas Religious and Charitable Trust.
He further states that the suit is filed inter alia for a declaration that the consent terms and/or consent award permitting removal of deity of Navnit Priyaji from the Haveli is nullity in law...
It is stated that reading of plaint will disclose that section 50 of the Bombay Public Trust Act, 1950 would be attracted and without compliance with the said provision, viz., obtaining consent of the Charity Commissioner, the suit would be barred by law.
Procedural History
The plaintiffs filed Suit No. 806 of 2009 in the Bombay High Court. The defendants (trustees) filed Notice of Motion No. 715 of 2010 seeking rejection of the plaint under Order VII Rule 11(d) CPC. The court heard the motion and delivered judgment on 14th and 15th September 2010, allowing the motion and rejecting the plaint.
Acts & Sections
- Code of Civil Procedure, 1908: Order VII Rule 11(d)
- Bombay Public Trust Act, 1950: Section 50
