JUDGMENT
H.L. Gokhale, J.
1. Heard Mr. Borkar for the petitioners. Mr. Ingale appears for the respondents.
2. The respondent Nos. 1 to 4 have filed a suit in the Court of Civil Judge, Junior Division at Jaysingpur for a declaration that the meetings of the respondent No. 5 Trust (an educational institution) held on 26.1.1997, 31.5.1997, 30.6.1997 and 25.12.1997 were non est and that the resolutions passed in those meetings be held to be non-enforceable and an injunction to act thereon. The petitioner herein is defendant Mo. 4 in that suit and in that suit specific allegations are made principally against the petitioner. It is stated in para 4 of the plaint that though respondent No. 4 herein was not well and not present in the meeting, his signatures were taken by the petitioner subsequently at various places on the resolutions. The signatures were sought from respondent No. 1 in similar manner, but he declined to sign since he had undergone an operation. The respondent Nos. 2 and 3 also have a similar grievance. It is in this context to ventilate their civil rights that they chose to file the above referred suit and in that suit sought an injunction as above.
3. After filing of the suit, an objection to the jurisdiction of that Court was raised by the petitioner herein and the same has come to be decided in favour of respondent Nos. 1 to 4. Being aggrieved by that order passed on 14.1.2000, this Revision has been filed.
4. Mr. Borkar, learned Counsel appearing for the petitioner, submitted that this is a suit which is essentially concerning the management of a Public Trust. In his submission, the declaration and injunction sought would be covered under Section 50(iv) of the Bombay Public Trusts Act (“the Act” for short) and hence a notice to the Charity Commissioner and his consent under Section 51 of the Act as also a notice under Section 80 of Civil Procedure Code was necessary. His alternative submission was that in any case since according to him it was a dispute concerning an item which was covered under Section 50 of the Act, the Court contemplated under that section would mean the District Court and the proceeding would not be entertainable in the Court of Civil Judge, Junior Division, Mr. Borkar relied upon a judgment of a Single Judge in the case of Dinanath v. Shetkari Shikshan Prasarak Mandal AIR 1983 Bom. 404 in that behalf.
5. On the other hand, Mr. Ingale, learned Counsel appearing for respondent Nos. 1 to 4, pointed out that the suit was essentially for ventilating the civil rights of respondent Nos. 1 to 4. The grievance was not against the Trust or against the Charity Commissioner. The grievance was with respect to the personal conduct of the petitioner herein in the manner in which he had tampered with the record and tried to create a false record through which a large number of his relatives were sought to be pushed in as members of the Trust, Mr. Ingale in that behalf drew my attention to the record of those proceedings which has been produced in the Trial Court also. Thus, for example, in the record of the meeting of 26.1.1997 (which is one of the meetings in dispute), respondent Nos. 1 to 3 are shown to be absent at the place where record is made with respect to the persons present in the meeting and yet when it comes to resolution No. 1, the name of respondent No. 3 is shown as the seconder of the resolution. Mr. Ingale submits that this is not a suit which could be said to be a suit in the nature of a declaration or injunction which is contemplated against a Public Trust or its trustees under Section 50(iv) of the Act. Even for that matter the judgment, which Mr. Borkar has relied upon, clearly states that for deciding whether the bar of Section 80 of the Bombay Public Trusts Act is attracted in a given case, one must consider what is the substance and not merely in form the nature of the claim made in the suit and the real relief sought therein. Mr. Ingale also drew my attention to the observation of a Division Bench of this Court in the case of Amirchand v. Vasant, 1992 (1) Mh. L.J. 275 : 1992 (2) Bom C.R. 22 wherein in para 7 after referring to the judgment of the Supreme Court in Shree Gollaleshwar Dev and Ors. v. Gangawwa Kom Shantayya Math and Ors. AIR 1986 SC 231 : (1985) 4 SCC 393 : (1986) 1 Supreme 328 : 1986 Mah. L.R. 214 : 1986 Cur. Civil J. 35 (SC) the Division Bench has observed that the right of a trustee to bring a suit in the usual way, is in exercise of his rights under the common Law and is not affected by provisions of Section 50 of the Public Trusts Act.
6. Mr. Borkar relied upon a judgment of the Andhra Pradesh High Court in the case of Union of India v. Eastern Match Co. AIR 1964 A.P. 172, to contend that Section 80 of Civil Procedure Code would be attracted when a notice to a public functionary is required.
7. Having considered the rival submissions, I am not inclined to accept the submissions of Mr. Borkar. By looking to the plaint and the resolution which is tendered by the petitioner in the Trial Court, the nature of the controversy is clear inasmuch as it is essentially to vindicate the civil rights of the respondent Nos. 1 to 4 that the record against their names ought not to be a false one. There is no prayer against the Trust as such and therefore following the dicta of the learned Single Judge in 1983 M.L.J. 404 when the totality of the controversy is examined, it cannot be said that it is one within the scope of Sections 50 or 51 of the Act to require either a notice or a permission of the Charity Commissioner or that the proceedings ought to be filed in the District Court.
8. Needless to state that it has been laid down by the Supreme Court right from Dhulabhai’s case AIR 1969 SC 78 that ouster of Civil Courts jurisdiction is not to be easily inferred. In my humble opinion, the approach of the learned Judge was right. There is no reason to interfere with the impugned order. Revision Application is rejected.
A copy of this order duly authenticated by the Personal Secretary of this Court be made available to the parties.
