1.0. Present Second Appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellant-original plaintiff to quash and set aside the impugned judgment and order dated 28.4.1986 passed by the learned 2nd Extra Assistant Judge, Junagadh passed in Regular Civil Appeal No.113 of 1984, by which the learned trial Court has allowed appeal preferred by the respondent herein-original defendant and has quashed and set aside the judgment and decree passed by the learned trial Court - learned 4th Joint Civil Judge (S.D.), Junagadh by which the learned trial Court dismissed the said suit.
2.0. The facts leading to the present Second Appeal in nutshell are as under:
2.1. That the appellant herein- original plaintiff instituted Regular Civil Suit No. 312 of 1979 in the Court of learned Civil Judge, (S.D) Junagadhfor declaration and permanent injunction declaring that his father was "Khalifa" by succession and also for declaration that the settlement by the government dated 22.9.1978 as illegal. The suit was resisted by the defendants and it was also contended that Civil Court has no jurisdiction to entertain the suit for the reliefs ans as such issue no.4 was framed however no specific issue was framed how the Civil Court would not have jurisdiction. Without deciding the said question/ issue with respect to the jurisdiction of the Civil Court, the learned trial Court allowed the suit by judgment and decree dated 5.5.1984 passed in Regular Civil Suit No.312 of 1979. Being aggrieved and dissatisfied judgment and decree passed by the learned trial Court, the respondent herein
-original plaintiff preferred Regular Civil Appeal No.113 of 1984 and the learned Appellate Court framed the following point for determination.
1.Whether the appellant proves that respondent is not entitled to be declared as Khalifa ?
2. Whether the learned Trial Judge erred in granting decree of declaration in favour of the respondent as Khalifa by heirship and consequential relief of perpetual prohibitory injunction ?
3. Whether the learned Trial Judge erred in not framing proper issues?
4. Whether the decision of the learned Trial Judge deserves to be interfered with and set aside ?
5. What order ?
2.2. However, the learned Appellate Court allowed the said appeal on the ground that the suit was required to be dismissed in absence of any notice under Section 80 of the Code of Civil Procedure as well as on the ground that before filing of the suit the consent of the Charity Commissioner as required under Section 51 of the Bombay Public Trust Act has not been obtained. Therefore, the learned Appellate Court considered the issue with respect to the jurisdiction which were neither framed by the learned trial Court and even framed by it. Therefore, the learned Appellate Court by impugned judgment and order allowed the said appeal and quashed and set aside the judgment and decree passed by the learned trial Court. Being aggrieved and dissatisfied with the impugned judgment and order passed by the learned Appellate Court, the appellant -herein original plaintiff has preferred the present Second Appeal under Section 100 of the Code of Civil Procedure.
3.0. Shri S.M. Shah, learned advocate for the appellant has vehemently submitted that the learned Appellate Court has allowed the said appeal mainly on the ground that suit was not maintainable in absence of notice under Section 80 of the Code of Civil Procedure as well as for want of prior permission of the Charity Commissioner as required under Section 51 of the Bombay Public Trust Act. It is submitted that as such it was the specific case on behalf of the defendant before the learned Appellate Court that no proper issue has been framed by the learned trial Court. It is submitted that as such without framing any issue and / or point for determination by the learned Appellate Court with respect to the jurisdiction of the Civil Court and / or maintainability of suit in absence of any notice under Section 80 of the Code of Civil Procedure and / or in absence of prior permission of the Charity Commissioner as provided under Section 51 of the Bombay Public Trust Act before filing of the suit, the learned trial Court could not have and ought not to have decided such issue. It is submitted that if the learned Appellate Court was of the opinion that proper issue has not been framed, more particularly, with respect to the jurisdiction, which came to be decided by the learned Appellate Court, the learned Appellate Court was required to remand the matter to the learned trial Court to frame proper issue with respect to jurisdiction and / or maintainability of the suit and ought to have directed the learned trial Court to decide and dispose of the same in accordance with law and on merits and / or could have framed the issues and referred the matter the trial Court for deciding the same.
4.0. Shri Mithani, learned advocate for the respondent is not in a position to dispute the above. He is also not in a position to dispute that as such learned Appellate Court has given the finding with respect to the maintainability of the suit and / or jurisdiction of the Civil Court without framing proper issue on the same. He is also not in a position to dispute that learned Appellate Court has held that the suit was not maintainable in absence of notice under Section 80 of the Code of Civil Procedure and even in absence of prior permission of the Charity Commissioner under Section 51 of the Bombay Public Trust Act, without framing issue on the same.
5.0. In view of above undisputed fact, it appears to the Court that learned Appellate Court is not justified in deciding the aforesaid issues i.e. maintainability of the suit without notice under Section 80 of the Code of Civil Procedure and maintainability of the suit without obtaining prior permission of the Charity Commissioner as provided under Section 80 of the Code of Civil Procedure, without framing proper issue on the same and / or without framing proper point for determination, more particularly, when the learned trial Court had not framed such issue. Under the circumstances, the impugned judgment and order passed by the learned Appellate Court as well as learned trial Court deserves to be quashed and set aside and the matter is to be remanded the learned trial Court to decide the same afresh in accordance with law and on merits after framing the following additional issues;
(1). Whether the suit filed by the plaintiff is not maintainable in absence of notice required under Section 80 of the Code of Civil Procedure ?
(2). Whether the suit filed by the plaintiff for the relief sought is maintainable in absence of any permission obtained by the Charity Commissioner as provided under Section 51 of the Bombay Public Trust Act before filing the suit ?
(3). Whether the Civil Court has jurisdiction to grant relief which are sought in the present suit ?
6.0. In view of the above and for the reasons stated above, the present Appeal succeeds. The impugned judgment and order dated 28.4.1986 passed by the learned 2nd Extra Assistant Judge, Junagadh passed in Regular Civil Appeal No.113 of 1984 as well as impugned judgment and decree dated 5.5.1984 passed in Regular Civil Suit No.312 of 1979 passed by the learned 4th Joint Civil Judge (S.D.), Junagadh are hereby quashed and set aside and the matter is remanded to the learned trial Court to decide and dispose of the suit being Regular Civil Suit No.312 of 1979 afresh in accordance with law and on merits after framing additional issued as stated hereinabove and on the basis of the evidence which is already led. It is agreed by and between the learned advocates for the parties that the parties are not required to be lead any fresh evidence and learned trial Court shall decide and dispose of aforesaid issues in accordance with law and on merits and on the basis of the evidence which is already led. In the facts and circumstances of the case, the learned trial Court is directed to decide and dispose of the suit on remand at the earliest but not later than 31.3.2013. All concerned are directed to cooperate the learned trial Court in early disposal of the suit withing stipulated time as stated above herein. The learned Principal District, Junagadh is hereby directed to see that aforesaid suit on remand is decided and disposed of the suit within stipulated time as stated above. Present Second Appeal is allowed to the aforesaid extent only. It is made clear that this Court has not expressed anything in favour of either parties while allowing the present appeal. No costs.
sd/-
( M. R. Shah, J. ) "kaushik"
Top