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Section 36 in The Indian Penal Code, 1860
Section 80 in The Indian Penal Code, 1860
Section 50 in The Indian Penal Code, 1860
Section 51 in The Indian Penal Code, 1860
The Indian Penal Code, 1860

Bombay High Court
C vs Mumbai - 400 092 on 13 December, 2013
Bench: R.M. Savant

cra-785.13

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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CIVIL REVISION APPLICATION NO.785 OF 2013 ou

Pratap Shivaji Chumbale ] Age 23 years, ] Occupation : Agriculture ] C

Residing at Pandurang Niwas ] Sunderban Colony, Lekhanabar, ] CIDCO, Nashik ].... Applicant. h

Versus

1]

Age 33 years,

ig

Deepak Vishanath Pingale, ] ]

Occupation : Agriculture, ] H

Residing at Samshan Bhoomi Road ] Near Jagdamba Mandir ] Makhmalabad, Nashik-1 ] ]

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2] Pratik Balasaheb Rahade ] Age 26 years ] ba

Occupation : Agriculture ] Residing at Devayali Co-operative ] Housing Society, Jakat Naka ] No.6, Lam Road, Devayali Camp, ] om

Nashik Road, ] Tal. & Dist. Nashik. ] ]

3] Dwarkadas Pragaji Vrundavan ] Charitable Trust, ] B

Through the Managing Trustee ] Dr.Nalin M. Kapadia, residing at ] Chowpatty Uphar Co-operative Housing ] Society, 5th floor, Flat No.15, ] Siri Road, Near Babulnath, ] Chattaranjani Marg, ] MUMBAI - 400006 ] ]

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4] Dr.Nalin M Kapadia ] Age 65 years, ] Occupation : Medical ] rt

residing at Chowpatty Uphar ] Co-operative Housing Society ] ou

5th Floor, Flat No.15, ] Siri Road, Near Babulnath, ] Chattaranjani Marg, ] MUMBAI - 400006 ] ]

C

5] Smt. N. N. Kapadia ] Age 62 years, ] Occupation : Housewife ] residing at Chowpatty Uphar ] h

Co-operative Housing Society ] 5th Floor, Flat No.15, ig ] Siri Road, Near Babulnath, ] Chattaranjani Marg, ] MUMBAI - 400006 ] H

]

6] Dr.Narendra P Mehta ] Age 65 years, ] Occupation : ] y

Residing at 304, Shiripuri Tower ] Soniwadi, Simpoli road ] ba

Borivali (West), ] MUMBAI - 400 092 ] ]

7] Mulraj Nanavati ] om

Age 60 years, ] Occupation : Business ] Residing at 404, C-Tulip, ] Eksar Road, ] Borivali (West) ] B

MUMBAI - 400 092 ] ]

8 Balmukund Pandya ] Age 62 years, ] Occupation _____________ ] Residing at Gopal Niwas ] Kamla Nehru Road No.3 ] Near Fire Brigade, Kandivali ] MUMBAI - 400 067 ].... Respondents. lgc 2 of 18 ::: Downloaded on - 14/12/2013 01:02:28 ::: cra-785.13

Mr. G S Godbole with Mr. Ketan Joshi i/by Mr. S A Sawant for the Applicant.

Mr. C G Gavnekar with Mr. Suhas S Deokar for the Respondent No.1. rt

Mr. P N Joshi with Mr. R M Haridas i/by Mr. Kishor Patil for the Respondent No.2.

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CORAM : R. M. SAVANT, J.

Reserved on : 05th December 2013

Pronounced on : 13th December 2013

C

JUDGMENT

1 Admit, with the consent of the learned counsel for the parties h

taken up for hearing forthwith. ig H

2 The revisionary jurisdiction of this Court under Section 115 of the Code of the Civil Procedure is invoked against the order 25/9/2013 passed by y

the learned 5th Joint Civil Judge, Senior Division, Nashik. By the said order the ba

Trial Court has held that the said Court would have jurisdiction to try and entertain the Suit in question.

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3 The Applicant herein is the original Defendant No.7 and the Respondent Nos.1 and 2 herein are the original Plaintiffs in the Suit in question B

being Special Civil suit No.433 of 2012. The said Suit has been filed by the Respondent Nos.1 and 2 for cancellation of the Sale Deed dated 2/7/2012 executed in favour of the Defendant No.7, and that the Defendant Nos. 1 to 6 be directed to execute the Sale Deed jointly in favour of the Plaintiffs and the Defendant No.7. A further declaration is sought that the Sale Deed executed lgc 3 of 18 ::: Downloaded on - 14/12/2013 01:02:28 ::: cra-785.13

between the Defendant Nos. 2, 3 and Defendant No.7 dated 2/7/2012 is not binding on the Plaintiffs. An exhaustive reference to all the prayers in the rt

Plaint would be made in the latter part of this order. ou

4 The background facts giving rise to filing of the Suit in question C

can be stated thus :-

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The suit property bears Gat No.30/1+2+3/3 and admeasures 1 ig

Hectare 30 Ares situated at village Moharam Belatgavhan in Nashik. The said property belonged to the Defendant No.1 i.e. Dwarkadas Pragji Vrindavan H

Charitable Trust. In view of the fact that the Trust was not in a position to look after the said property, a decision was taken in the meeting of the Trust dated y

1/7/2010 to sell the said property. A resolution accordingly came to be passed ba

on the said day. In terms of the said resolution, notice came to be issued in the daily newspaper "Day View" and "Dainik Gavkari" on 24/7/2010 and om

29/7/2010 calling for offers in a sealed envelope, and the condition was that a D.D. for Rs.10,00,000/- was to be submitted along with the offer which in turn B

was to be submitted within 30 days. The Plaintiffs and the Defendant No.7 having come to know of the said advertisement decided to jointly put an offer for the said plot of land and in terms of the said tender notice paid an amount of Rs.15,00,000/- in the following manner. lgc 4 of 18 ::: Downloaded on - 14/12/2013 01:02:28 ::: cra-785.13

Sr.No. Name Amount Date DD No. 1 Shri Pratik Balasaheb Rahade 3,35,000/- 25/8/2010 658187 rt

2 Shri Dipak Vishwanath Pingle 3,32,000/- 25/8/2010 921752 3 Shri Dipak Vishwanath Pingle 5,00,000/- 10/06/07 919807 ou

4 Shri Pratap Shivaji Chumble 3,33,000/- The Plaintiffs and the Defendant No.7 submitted their offer of C

Rs.1,20,00,000/-. Since the offer given by the Plaintiffs and the Defendant No.7 was the highest offer received, the Defendant Nos.1 to 6 i.e. the Trustees h

accepted the offer given by the Plaintiffs and Defendant No.7. It appears that ig

the Trust had got the property valued for ascertaining the market value of the H

property prior to the advertisement being issued. The Defendant Nos.2 to 6 thereafter in the meeting dated 2/9/2010 passed a resolution accepting the offer given by the Plaintiffs and the Defendant No.7, and accordingly entered y

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into a Memorandum of Understanding on 17/9/2010. The said Memorandum of Understanding was between the Defendant Nos.2 to 6 and the Plaintiffs and om

the Defendant No.7. Since the sanction was required under Section 36 of the Bombay Public Trust Act, 1950 (hereinafter referred to as "the said Act"), the Defendant No.1 Trust submitted an application for sanction which was B

numbered as Inquiry Application No.113 of 2011 and which was filed on 17/9/2010. During pendency of the said Inquiry Application No.113 of 2011 one Ali Ahmad Ramzan Ali Choudhari submitted an offer of Rs.1,30,00,000/- for the said plot of land along with deposit of Rs.10,00,000/- in the office of the Charity Commissioner, Mumbai. In the said inquiry proceedings under lgc 5 of 18 ::: Downloaded on - 14/12/2013 01:02:28 ::: cra-785.13

Section 36 of the said Act, in view of the higher offer received of Rs.1,30,00,000/-, the Charity Commissioner passed an order for open bidding rt

between the parties. In the said open bidding the Plaintiffs and the Defendant ou

No.7 hiked their offer to Rs.1,32,01,000/- in the meeting held on 24/4/2012 for the said purpose. Since the said offer of the Plaintiffs and the Defendant C

No.7 of Rs.1,32,01,000/- was higher than the offer of the said Choudhari, the Charity Commissioner closed the bids. Thereafter an order came to be passed h

under Section 36 of the said Act granting approval to the offer of ig

Rs.1,32,01,000/- which was made by the Plaintiffs and the Defendant No.7, significantly, the sanction order was only in favour of the Defendant No.7. The H

said sanction order came to be challenged before this Court by way of Writ Petition No.5836 of 2012 which Writ Petition came to be dismissed by a y

learned Single Judge of this Court by order dated 30/10/2012. In the ba

interregnum, a Sale Deed came to be executed in favour of the Defendant No.7 on 2/7/2012. In view of the said Sale Deed, a Change Report came to be filed om

by the Trustees for deleting the said property from the properties of the Trust. The said Change Report came to be allowed by the Assistant Charity B

Commissioner by order dated 9/7/2013. The said property accordingly came to be deleted from the Schedule of the Properties of the Trust. The Plaintiffs aggrieved by the order passed by the Assistant Charity Commissioner filed an Appeal before the Charity Commissioner. However, prior to filing of the Appeal, the Plaintiffs had filed the Suit in question, as indicated above, which lgc 6 of 18 ::: Downloaded on - 14/12/2013 01:02:28 ::: cra-785.13

was for cancellation of the Sale Deed and for a declaration that the said Sale Deed was not binding upon the Plaintiffs. The Appellate Authorities in view of rt

the Suit filed by the Plaintiffs, dismissed the Appeal on the ground that it is in ou

the said Suit where the cancellation of the Sale Deed is sought that the issues connected with the Sale Deed would be adjudicated upon. C

5 The Suit in question as indicated above has been filed for the h

reliefs which have been adverted to earlier in this order. However, for the sake ig

of ready reference the prayers of the Suit in question are reproduced herein under (English Translation) :-

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"(a) That the Sale Deed dated 2/07/2012 in respect of the y

suit property mentioned in Para 1 of the plaint be cancelled & the Defendant Nos. 1 to 6 be directed to ba

executed the Sale Deed, along with possession in the joint name of the Plaintiffs and the Defendant No.7. (b) Declared that the Sale Deed executed between the om

Defendant Nos. 2 and 3 with the Defendant No.7 dated 2/07/2012 is not binding on the Plaintiffs. (c) Declare that the Resolution dated 30/06/2012 passed by the Defendant Nos.2 and 3 for execution of the Sale B

Deed dated 2/07/2012 is illegal.

(d) Pending the hearing and final disposal of the present Suit injunction restraining the Defendants their agents from creating any third party interest in respect of the suit property.

(e) The cost of the Suit be paid by the Defendants. lgc 7 of 18 ::: Downloaded on - 14/12/2013 01:02:28 ::: cra-785.13

(f) Any other further prayer that may be deem fit and proper be granted."

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6 In the Suit in question averments have been made alleging fraud ou

against the Defendant No.7. The said averments can be found in Paragraphs 17 and 18 of the plaint, the English translation of which Paragraphs can be C

gainfully reproduced herein under (English Translation) :- "17. The Plaintiffs through their Advocate's notice dated 10-07-2012 informed the Defendants that the h

sale deed executed in favour of Defendant No.7 is illegal and fraud has been played by Defendant No.7. ig

The Defendant Nos.4, 5 and 6 replied the said notice through their Advocate Shri Pradip Mhatre dated 20- 07-2012 by which they admitted that the resolution H

dated 30-06-2012 is illegal. After the receipt of the said reply dated 20-07-2012, the Plaintiffs came to know that the Defendant No.2 in collusion with Defendant No.7 has executed fraudulent and illegal Sale Deed. y

18. In the proceedings i.e. Application No.113 of ba

2011 the Plaintiffs and Defendant No.7 were shown as joint purchasers (Shri Pradip Chumbale & others). Name of the Plaintiffs is mentioned in the evidence, in the Application for permission from the Authorities and om

the M.O.U. Dated 17-09-2010 showing therein as joint purchasers. Even in the Order dated 11-05-2012 passed by the Charity Commissioner, it is mentioned as Pradip Chumbale and Others but however while passing the Order, it is a mistake made by the Authority by which B

the names of the Plaintiffs is not written and the name of Defendant No.7 was only mentioned in his order. Taking the advantage of the said mistake made by the Charity Commissioner while passing the order in which the name of the Defendant No.7 was only written and on the basis of the illegal resolution dated 30-06-2012, the Defendant Nos.2, 3 and 7 fraudulently executed the illegal sale deed dated 02/07/2012. Because of the said illegal sale deed the Plaintiffs have suffered a loss which cannot be compensated in terms of money. On lgc 8 of 18 ::: Downloaded on - 14/12/2013 01:02:28 ::: cra-785.13

the day when the Charity Commissioner passed the order i.e. on 11-05-2012 out of 1,32,01,000/- the Plaintiffs initially to the extent of their share, deposited rt

an amount of Rs.11,67,000/- with Defendant No.1 Trust and after the Order was passed the Plaintiffs to ou

the extent of their share, the amount of Rs.78,00,000/- was deposited with the Defendant No.1 Trust." The Plaintiffs have in Paragraph 12 mentioned the amount which they have C

deposited with the Defendant No.1 Trust. It is the case of the Plaintiffs that prior to the sanction they have deposited an amount of Rs.11,67,000/- and h

after the sanction, they have deposited an amount of Rs.78,00,000/-. It is their ig

case that they have totally deposited an amount of Rs.89,67,000/- with the H

Defendant No.1 Trust. The Plaintiffs have made averments in the Suit as to how the Plaintiffs have been short changed by the Defendant No.7 and how a y

fraud has been practiced upon them. The Plaintiffs have therefore sought ba

cancellation of the Sale Deed and for execution of a Sale Deed in their favour jointly with the Defendant No.7.

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7 The Defendant No.7 raised a preliminary issue as regards the jurisdiction of the Civil Court to try the Suit considering the reliefs which are B

sought in the Plaint. The objection to the jurisdiction raised by the Defendant No.7 is on the touchstone of Sections 50 and 80 of the said Act. The Trial Court accordingly framed a preliminary issue which is to the following effect :- "Whether this court has jurisdiction to try, entertain and lgc 9 of 18 ::: Downloaded on - 14/12/2013 01:02:28 ::: cra-785.13

decide present suit?"

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In respect of the said issue, the parties were allowed to lead their evidence. ou

The Plaintiffs led the evidence of Plaintiff No.1, however, no evidence was led on behalf of the Defendants. The Trial Court has by the impugned order ruled that it has jurisdiction to entertain the suit. The Trial Court considered the C

prayers sought in the Suit, and having regard to the provisions of Sections 50 and 51 as also Section 80 of the said Act, held that though some of the reliefs h

could not be granted, the Suit was maintainable in respect of some of the ig

reliefs, meaning thereby that it had jurisdiction to entertain the Suit in so far as H

some of the reliefs sought in the Suit are concerned. As indicated above, it is the said order dated 25/09/2013 which is taken exception to by way of the y

above Civil Revision Application.

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8 Heard the learned counsel for the parties. The learned counsel om

appearing on behalf of the Applicant Shri Godbole would contend that though the above Suit ostensibly lays a challenge to the Sale Deed dated 2/7/2012, what in effect the Plaintiffs are challenging is the sanction order passed by the B

Charity Commissioner under Section 36 of the said Act and which is not permissible as by operation of law the said order has been made conclusive. The learned counsel would submit that the challenge to the resolution dated 30/6/2012 is also misconceived. The Plaintiffs are admittedly not "persons having interest". The learned counsel would contend that the relief sought lgc 10 of 18 ::: Downloaded on - 14/12/2013 01:02:28 ::: cra-785.13

vide prayer clause (a) relates to an act of Defendant No.1 Trust and the relief sought vide prayer clause (b) is relating to the permission granted by the rt

Charity Commissioner and therefore in view of bar of Section 80 of the said ou

Act, the Civil Court would not have jurisdiction. The learned counsel would next contend that the Trial Court has erroneously proceeded on the basis of C

maintainability of the Suit rather than whether the Civil Court would have the jurisdiction to entertain the Suit considering the subject matter of the Suit. The h

learned counsel would contend that since the Trial Court has observed that ig

some of the reliefs cannot be granted by the Civil Court, it would not have jurisdiction to entertain the Suit.

H

9 Per contra, the learned counsel appearing on behalf of the y

Respondent No.1 Shri Gavnekar would contend that the Plaintiffs are agitating ba

their civil rights in respect of the Sale Deed dated 2/7/2012 which has been executed by the Trustees in favour of the Defendant No.7. The learned counsel om

would contend that the said Sale Deed being a subsequent event has thereby over taken the sanction order passed by the Charity Commissioner, and B

therefore, the Suit filed for cancellation of the Sale Deed was maintainable. The learned counsel would contend that the Charity Commissioner would not have the power to cancel the Sale Deed, and that only the Civil Court could do so. The learned counsel would contend that the Suit is founded on the allegation of fraud made by the Plaintiffs against the Defendant No.7 which lgc 11 of 18 ::: Downloaded on - 14/12/2013 01:02:29 ::: cra-785.13

could be adjudicated upon only by the Civil Court. The learned counsel for the Respondent No.1 sought to rely upon the judgment of a learned Single Judge rt

of this Court reported in 2013(3) Mh. L.J. 83 in the matter of Shree ou

Hanuman Mandir, Alibag Public Trust and others v/s. Satishchandra Bhalchandra Gurjar and others in support of his contention that to invite the C

bar under Section 80 of the said Act, the conditions pre-requisites for the same must be strictly established before an ouster of jurisdiction can result. The h

learned counsel would contend that the Appeal filed by the Plaintiffs against ig

deletion of the Suit property from the Schedule of the properties of the Trust was dismissed principally on the ground that the Plaintiffs have filed the Suit H

in question and it is in the said Suit that the issue can be decided. Hence the Plaintiffs cannot have worst of both the bargains. y

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10 The learned counsel appearing on behalf of the Respondent No.2 Shri P N Joshi would support the submissions made on behalf of the om

Respondent No.1.

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11 Having heard the learned counsel for the parties, I have bestowed my anxious consideration to the rival contentions. In the context of the issue raised, it would be apposite to refer to Section 50 and Section 80 of the said Act which for ready reference are reproduced herein under :- lgc 12 of 18 ::: Downloaded on - 14/12/2013 01:02:29 ::: cra-785.13

"50. Suit by or against or relating to public trusts or trustees or others

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In any case, ------

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i) where is alleged that there is a breach of a public trust, negligence, misapplication or misconduct on the part of a trustee or trustees,

(ii) where a direction or decree is required to recover C

the possession of or to follow a property belonging or alleged to be belonging to a public trust or the proceeds thereof or for an account of such property or proceeds from a trustee, ex-trustee, alienee, trespasser or any h

other person including a person holding adversely to the public trust but not a tenant or licensee, ig

(iii) Where the direction of the Court is deemed necessary for the administration of any public trust, or H

(iv) for any declaration or injunction in favour of or against a public trust or trustee or trustees or beneficiary thereof,

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the Charity Commissioner after making such enquiry as ba

he thinks necessary, or two or more persons having an interest in case the suit is under sub-clauses (i) to (iii), or one or more such persons in case the suit is under sub-clause (iv) having obtained the consent in writing om

of the Charity Commissioner as provided in section 51 may institute a suit whether contentious or not in the Court within the local limits of whose jurisdiction the whole or part of the subject matter of the trust is situate, to obtain a decree for any of the following B

relief's :

(a) an order for the recovery of the possession of such property or proceeds thereof;

(b) the removal of any trustee or manager; (c) the appointment of a new trustee or manager; (d) vesting any property in a trustee; lgc 13 of 18 ::: Downloaded on - 14/12/2013 01:02:29 ::: cra-785.13

(e) a direction for taking accounts and making certain enquiries;

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(f) an order directing the trustees or others to pay to ou

the trust the loss caused to the same by their breach of trust, negligence, misapplication, misconduct or willful default;

(g) a declaration as to what proportion of the trust C

property or of the interest therein shall be allocated to any particular object of the trust;

(h) a direction to apply the trust property or its income h

cypres on the lines of section 56 if this relief is claimed along with any other relief mentioned in the section; ig

( i ) a direction authorising the whole or any part of the trust property to be let, sold, mortgaged or exchanged H

or in any manner alienated on such terms and conditions as the court may deem necessary; (j) the settlement of scheme, or variation or alteration y

in a scheme already settled,

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(k) an order for amalgamation of two or more trusts by framing a common scheme for the same; (l) an order for winding up of any trust and applying om

the funds for other charitable purposes; (m) an order for handing over of one trust to the trustees of some other trust and deregistering such trust;

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(n) an order exonerating the trustees from technical breaches, etc;

(o) an order varying , altering, amending or superseding any instrument of trust; (p) declaring or denying any right in favour of or against, a public trust or trustee or trustees or beneficiary thereof an issuing injunctions in appropriate lgc 14 of 18 ::: Downloaded on - 14/12/2013 01:02:29 ::: cra-785.13

cases; or

(q) granting any other relief as the nature of the case rt

may require which would be a condition precedent to or consequential to any of the aforesaid relief's or is ou

necessary in the interest of the trust: Provided that no suit claiming any of the reliefs specified in this section shall be instituted in respect of C

any public trust, except in conformity with the provisions thereof;

Provided further that, the Charity Commissioner may h

instead of instituting a suit make an application to the Court for a variation or alteration in a scheme already ig

settled :

Provided also that, the provisions of this section and other consequential provisions shall apply to all public H

trusts, whether registered or not or exempted from the provisions of this Act under subsection (4) of section 1]".

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"80. Bar of jurisdiction :

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Save as expressly provided in this Act, no Civil Court shall have jurisdiction to decide or deal with any question which is by or under this Act to be decided or dealt with by any officer or authority under this Act, om

and in respect of which the decision or order of such officer or authority has been made final and conclusive".

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The aforesaid provisions therefore postulate the permission of the Charity Commissioner to be obtained in respect of the cases mentioned in Section 50 and the bar of jurisdiction of the Civil Court to decide or deal with any question which is to be decided or dealt with by any officer or authority under the said Act. It is in the context of the aforesaid provisions that the suit lgc 15 of 18 ::: Downloaded on - 14/12/2013 01:02:29 ::: cra-785.13

in the instant case would have to be considered. rt

12 In the instant case, as indicated above, the Suit has inter alia been ou

filed for cancellation of the Sale Deed dated 2/7/2012 executed in favour of the Defendant No.7 by the Defendant Nos. 2 to 6. In pursuit of the said reliefs, C

the Plaintiffs have made averments in the plaint as to how a fraud has been practiced upon them by the Defendant No.7 by getting the Sale Deed executed h

in his sole name when there was a Memorandum of Understanding entered ig

into between the Trustees and the Plaintiffs and the Defendant No.7 in respect of the suit property. No doubt the Sale Deed has been executed after the H

sanction order was granted by the Charity Commissioner, however, what is required to be borne in mind is the fact that after the Sale Deed is executed, y

the property no more remains the property of the Trust, and in fact has become ba

the property of the Defendant No.7. Since the Plaintiffs have a grievance in respect of the Sale Deed which has been executed solely in favour of the om

Defendant No.7, the Plaintiffs in seeking the relief of cancellation of the Sale Deed can be said to be agitating their civil rights. Though the Sale Deed is B

executed pursuant to the order passed under Section 36 of the said Act, however the fact of execution of the Sale Deed, has over taken the order of the Charity Commissioner granting sanction under Section 36 of the said Act. Hence there is no merit in the contention of the learned counsel appearing on behalf of the Applicant that the Plaintiffs in challenging the Sale Deed are in lgc 16 of 18 ::: Downloaded on - 14/12/2013 01:02:29 ::: cra-785.13

fact challenging the order passed by the Joint Charity Commissioner under Section 36 of the said Act. Considering the reliefs which are sought in the rt

Plaint, it may be that some of the reliefs cannot be granted by the Civil Court, ou

however, as rightly held by the Trial Court in the impugned order, the Suit is maintainable before it in respect of some of the reliefs. Hence pre-requisites for C

attracting the bar under Section 80 of the said Act are non-existent. It is required to be noted that the challenge to the Sale Deed inter-alia on the h

ground of fraud cannot be raised before the Charity Commissioner and the ig

same can only be raised by way of a Civil Suit. The Trial Court therefore can be said to have correctly held that the Suit in respect of some of the reliefs was H

maintainable before it. Hence though some of reliefs cannot be granted by the Civil Court in view of the bar under Section 80 of the said Act, at the same y

time the Authorities under the said Act, cannot grant the relief by way of ba

prayer clause (a) and the said prayer can only be granted by a Civil Court. The Trial Court has also taken into consideration the fact that for setting aside the om

order passed under Section 36 of the said Act, the Plaintiffs have filed an application under Section 36(2) of the said Act as the same obviously cannot B

be challenged by way of a Suit. As regards the contention of the learned counsel for the Applicant that the Trial Court has erroneously proceeded on the basis of the maintainability of the Suit whereas the question was about its jurisdiction. In my view, in some cases the issue of maintainability of Suit and the issue of jurisdiction of Court eclipse each other, one such case can be said lgc 17 of 18 ::: Downloaded on - 14/12/2013 01:02:29 ::: cra-785.13

to be the present one. Therefore, the order passed by the Trial Court ruling that it has jurisdiction is well founded. It cannot be said that the Trial Court has rt

acted with material irregularity or in excess of its jurisdiction whilst holding ou

that it has jurisdiction to try and entertain the Suit. In that view of the matter, no case for exercise of the revisionary jurisdiction is made out. The above Civil C

Revision Application is accordingly dismissed. [R.M.SAVANT, J]

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