Case Note & Summary
The petitioners, original plaintiffs in Regular Civil Suit No.1532 of 2000, challenged an order dated 3.1.2004 passed by the 5th Joint Civil Judge, J.D., Kolhapur, which allowed an application (Exhibit 56) filed by defendant nos.2 to 4 to be transposed as plaintiffs in the suit. The suit was filed under Section 50 of the Bombay Public Trust Act, 1950, for recovery of trust property, after the petitioner obtained consent from the Charity Commissioner under Section 51 of the Act. The defendant nos.2 to 4 had also applied for consent, but their application was rejected by the Deputy Charity Commissioner on 19.8.2004, and an appeal against that rejection was pending. During the suit, the defendants sought to be impleaded as plaintiffs, but initially they were only added as defendants. Subsequently, they filed Exhibit 56 seeking transposition as plaintiffs, which the trial court allowed, holding that their interest was not different from the plaintiffs and that transposition could be ordered using inherent powers. The High Court examined the statutory scheme under Sections 50 and 51 of the Bombay Public Trust Act, 1950, and held that the requirement of obtaining the Charity Commissioner's consent before instituting a suit under Section 50 is mandatory. The Charity Commissioner has the exclusive jurisdiction to decide who may file such a suit. Since the defendant nos.2 to 4 had not obtained consent (their application having been rejected), they could not be transposed as plaintiffs, as that would circumvent the statutory requirement. The High Court set aside the trial court's order, allowing the writ petition.
Headnote
A) Civil Procedure - Transposition of Parties - Statutory Bar - Bombay Public Trust Act, 1950, Sections 50, 51 - The trial court allowed transposition of defendant nos.2 to 4 as plaintiffs in a suit for recovery of trust property, despite the fact that only the original plaintiff had obtained consent from the Charity Commissioner under Section 51. The High Court held that the requirement of consent under Section 51 is mandatory and cannot be circumvented by transposition. The order of transposition was set aside. (Paras 6-9) B) Trust Law - Suit for Recovery of Trust Property - Consent of Charity Commissioner - Bombay Public Trust Act, 1950, Sections 50, 51 - A suit under Section 50 can only be instituted by a person who has obtained the consent of the Charity Commissioner under Section 51. The Charity Commissioner has the jurisdiction to decide in whose favour consent is granted. If consent is refused, the remedy is an appeal under Section 51(2). Transposition of a defendant as a plaintiff without such consent is impermissible. (Paras 6-8)
Issue of Consideration
Whether the trial court could allow transposition of defendants as plaintiffs in a suit under Section 50 of the Bombay Public Trust Act, 1950, without the consent of the Charity Commissioner under Section 51 of the said Act.
Final Decision
The High Court allowed the writ petition and set aside the order dated 3.1.2004 passed by the learned 5th Joint Civil Judge, J.D., Kolhapur, allowing application Exhibit 56 for transposition of defendant nos.2 to 4 as plaintiffs.
Law Points
- Consent of Charity Commissioner is mandatory for instituting suit under Section 50 of Bombay Public Trust Act
- 1950
- Transposition of defendants as plaintiffs cannot bypass statutory requirement of consent
- Inherent powers cannot override statutory provisions
