Monday, 17 September 2018

Whether application for breach of injunction is maintainable in disposed off suit?

 For the sake of convenience. I, shall first proceed to examine the matter in issue in the Notice of Motion No. 4572 of 1995 (A.O. No. 1256/1995). By this notice of motion the respondent-Shri Marathe wanted appropriate action to be initiated against the appellants in A.O. No. 1256/1995 on the ground that they have violated the terms of the order and decree passed by the City of Civil Court dated April 6, 1994. I have already adverted to all the reliefs claimed in the said Notice of Motion. The moot question that arises for consideration is, whether the said application was maintainable in law? The trial Court has examined various facets of the arguments advanced before it without adverting to this crucial question which, in my view, goes to the root of the matter. Undoubtedly, the suit filed by the appellants in A.O. No. 1256 of 1995, being Suit No. 5935 of 1992, was compromised between the parties and the same was disposed of on April 6, 1994 on the basis of the compromise terms duly signed by the parties. The Court by that order has merely recorded the compromise and disposed of the suit on that basis. Undisputedly, this notice of motion has been filed under Order 39, Rule 2-A of the C.P.C. Unquestionably, Order 39 of C.P.C. essentially deals with matters of temporary injunctions and interlocutory orders to be passed by the Court. Power conferred under Rule 2-A is a part of the said scheme of provisions. It necessarily follows that application under Rule 2-A of Order 39 can be maintained only when the suit is pending and the disobedience/breach of any injunction granted or other order made complained of was one granted by the Court under Rule 1 or Rule 2 of that Order which was naturally to enure during the pendency of the suit or till the application under Rule 1 or 2, as the case may be. Undoubtedly, the order passed by the trial Court dated April 6, 1994 while disposing of the suit is neither an order under Rule 1 or Rule 2 of Order 39, but a decree passed in the suit on the basis of consent terms filed by the parties. In such a situation, the provisions of Rule 2-A will be inapplicable. It is well settled that the Court after passing decree becomes Functus Officio understood thus, the trial Court had no jurisdiction or authority to entertain the subject notice of motion purported to have been filed under Order 39, Rule 2-A, for the same was not maintainable.

IN THE HIGH COURT OF BOMBAY

Appeal From Order No. 1260 of 1995 with Civil Application No. 6599 of 2000 with Appeal From Order No. 1256 of 1995

Decided On: 01.10.2001

 Chembur Trombay Education Society  Vs.  D.K. Marathe and Ors.

Hon'ble Judges/Coram:
A.M. Khanwilkar, J.

Citation: 2002(3) Bom CR 161


1. Both the aforesaid appeals from order can be disposed of together by a common order, for they are between the same parties and are directed against the common order passed by the trial Court dated October 17, 1995. Appeal from Order No. 1260 of 1995 is directed against the order passed below Notice of No. 4762 of 1995 (hereinafter referred to as the former notice of motion for the sake of brevity) in Short Cause Suit No. 5470 of 1995, whereas appeals from Order No. 1256 of 1995 is directed against the order in Notice of Motion No. 4572 of 1995 (hereinafter referred to as the latter notice of motion for the sake of brevity) in Short Cause Suit No. 5935 of 1992. Both the abovesaid notice of motions were filed by the respondent (Shri D.K. Marathe) before the trial Court. By Notice of Motion No. 4762 of 1995 in Short Cause Suit No. 5470 of 1995, the said respondent (Shri D.K. Marathe) prayed for relief of injunction, whereas by Notice of Motion No. 4572 in Suit No. 5935 of 1992 he prayed for initiating appropriate action against the appellants in exercise of power under Order 39, Rule 2-A of the C.P.C. for having violated the decree passed by the trial Court in S.C. Suit No. 5935 of 1992.

2. Briefly stated, the appellants before this Court are the elected members of the Trust known as Chembur Trombay Education Society, which is engaged in various educational activities. The said society was formed by about 110 founder members to cater to the educational requirements of the area. The said Shri D.K. Marathe was one of the founder member of the said society alongwith the appellants. Some time in or around March 24, 1985 General Body of the Society by majority amended the constitution of the society and appointed Mr. Marathe as the life President of the Society. After the said decision, Shri Marathe undisputedly took over the charge as life President of the Society and discharged his functions and obligations in that behalf. It appears that a group of members were opposed to the manner of working of Shri Marathe. However, the said group of seven members were removed at the instance of Shri Marathe from their ordinary membership and also from governing body membership of the society, without consulting the elected Managing Committee or without giving any notice to them. The said seven members, challenged the said action by way of suit before the City Civil Court, Bombay being Short Cause Suit No. 5935 of 1992. It is relevant to note that the said suit was filed challenging their removal from the society, after obtaining prior consent of the Charity Commissioner under section 50 of the Bombay Public Trusts Act. By the said suit, the said seven members, who are appellants before this Court, not only challenged their expulsion but also questioned the authority of Shri Marathe to act as a life President of the Society. However, undisputedly, that suit was eventually disposed of by the City Civil Court on April 6, 1994, on the basis of compromise arrived at between the plaintiffs therein (appellants herein) and Shri Marathe. The compromise arrived at between the parties before the Civil Court reads thus:

"1. Plaintiffs say that they have no grievance against the second defendant and that they have fully acknowledge that the second defendant is life long president of the first defendant and that he has been given a special status under the constitution and they shall not question his tenure as a president of the first defendant.

2. In view of the aforesaid and in view of amicable settlement arrived at between the parties, defendant Nos. 1 and 2 state and declare that from this day onwards plaintiffs shall be entitled to be members of the society as well as the Governing Council of the society and attend the meeting as its members.

3. Plaintiffs and defendants 1 and 2 agree to co-operate with each other towards achieving goals of the first defendant and harmony and co-operation of each other without creating any problems to the defendant Nos. 1 and 2.

4. Allegations made by the plaintiffs against the defendants 1 and 2 hereby withdrawn as well as the allegations made by the defendants 1, 2 and 3 are hereby withdrawn.

Suit is disposed of in terms of the aforesaid consent terms with no order as to costs."

3. After the said compromise, the said seven members (appellants herein) were readmitted as members of the society. Once again, certain differences cropped up between the members of the Committee and Shri Marathe. One of the readmitted members Shri Mahapankar was once again removed from the Governing Council Membership by Shri Marathe. It is not in dispute that some of the members therefore convened meeting by requisition. According, General Body meeting was conveyed on January 7, 1995, wherein various matters were discussed including the restoration of the original constitution of the society. In this meeting a sub-committee was appointed to suggest amendments to the Constitution of the Society. The said sub-committee seems to have deliberated and pondered over the matter and advised amendment of the constitution, inter alia, deleting the provision relating to life Presidentship of Mr. Marathe and instead introducing elections to the Governing Council and to the post of President. The general body was accordingly convened on March 19, 1995 to consider the proposals submitted by the amendment sub-committee. The general body adopted most of the recommendations of the sub-committee with minor modifications wherever required and resolved to amend the constitution by deleting the provisions relating to life Presidentship of Mr. Marathe and instead introduced election to the Governing Council and to the post of President of the Society. In other words, the general body of the Society by majority adopted new constitution which provided for new and different dispensation. Soon thereafter, another general body was convened after giving due notice on June 18, 1995 in which, it was resolved that Shri B.M. Pant, a senior members be elected as President and New Governing Council was also elected in the said meeting in accord with the constitution. It is stated that this newly elected committee immediately took over the reigns of the management of the affairs of the society and are till date managing the affairs of the Society. It is the appellant's case that inspite of notice Mr. Marathe did not attend either of the abovesaid general body meetings. In other words, the general body elected a new President in place of Shri Marathe. It is the case of Shri Marathe that the general body meetings were not convened in accordance with law and, therefore, any decision taken at such meetings was void ab initio. That after the aforesaid amendment to the constitution was carried out pursuant to the general body decision; and after the election of the new President as well as members of the Governing Council, change reports in this regard were submitted to the Charity Commissioner as required under section 22 of the Bombay Public Trusts Act, 1950. Suffice it to point out that Shri Marathe on the other hand filed a substantive suit before the City Civil Court being Short Cause Suit No. 5470 of 1995, praying for the following reliefs:

"(a) that it be declared that impugned action of the defendant Nos. 2 to 21 is illegal, bad in law, null and void and not binding upon the plaintiff.

(b) that it be declared that the plaintiff is entitled to or declaration or declaration that the plaintiff continue to be the life long president as provided by the earlier constitution, and continue to be entitled to the powers which were given by the earlier constitution as life long president.

(c) that pending the hearing and final disposal of the suit the defendant Nos. 2 to 21 and the members of defendant No. 1 office bearers of the defendant No. 2 agents, employees and other person or persons to be permanently restrained by an order of injunction of this Hon'ble Court, from acting the plaintiff as life long president of defendant No. 1 and/or from entering the plaintiff into the premises of defendant No. 1 and it be ordered and directed to allow the plaintiff to act as a life long president of the defendant No. 1, with all powers provided by the constitution of the year 1985, i.e. prior to the illegal amendment of the constitution and as per consent terms filed in the City Civil Court.

(d) that pending the hearing and final disposal of the suit the defendant Nos. 2 to 21 their servants agents, and employees, to be permanently restrained by an order of the injunction of this Hon'ble Court from giving effect to the resolution passed by the illegal general body dated 19-3-1995, amending the constitution.

(e) that pending the hearing and final disposal of the suit, the defendant Nos. 2 to 21 to be permanently restrained by an order of injunction of this Hon'ble Court from acting on the amend illegal constitution.

(f) that pending the hearing and final disposal of the suit the defendant Nos. 2 to 21 and other members of the defendant No. 1, their servants, agents, and employees, to be retained by an order of injunction from proceeding with the change report submitted by the defendant Nos. 2 to 21 before the Charity Commissioner;

(g) Interim and ad interim injunction be granted in terms of prayers (c) to (d) be granted.

(h) cost of the suit be provided;

(i) such other and further reliefs, as this Hon'ble Court may deem fit, be granted."

4. In the above said suit, Mr. Marathe filed Notice of Motion No. 4762 of 1995 praying for interim reliefs during the pendency of the said suit, which reads thus:

"(a) that pending the hearing and final disposal of the suit the defendant Nos. 2 to 21 and the members of defendant No. 1 office bearers of the defendant No. 1 agents, employees and other person or persons to be restrained by an order of injunction of this Hon'ble Court, from acting the plaintiff as life long President of defendant No. 1 and/or from entering the plaintiff into the premises of defendant No. 1 and or it be ordered and directed to allow the plaintiff to act as a life long President, of the defendant No. 1, with all powers provided by the constitution of the year 1985 i.e. prior to the illegal amendment of the constitution and as per consent terms filed in the City Civil Court.

(b) that pending the hearing and final disposal of the suit the defendant Nos. 2 to 21, their servants, agents and employees, to be restrained by an order of injunction of this Hon'ble Court from giving effect to the resolution passed by the illegal general body dated 19-3-1995, amending the constitution.

(c) that pending the hearing and final disposal of the suit, the defendant Nos. 2 to 21, to be restrained by an order of injunction of this Hon'ble Court from acting on the amended illegal constitution.

(d) that pending the hearing and final disposal of the suit the defendants Nos. 2 to 21 and other members of the defendant No. 1, their servants, agents, and employees, to be restrained by an order of injunction from proceeding with the change report submitted by the defendant Nos. 2 to 21 before the Charity Commissioner.

(e) interim and ad interim injunction to be granted in terms of prayers (c) to (d);

(f) cost of the suit be provided;

(g) such other and further reliefs, as this Hon'ble Court may deem fit, be granted."

5. Besides filing of the aforesaid substantive suit, on the same day i.e. August 14, 1995, Shri Marathe took out application purported to be under Order 39, Rule 2-A, being Notice of Motion No. 4572 of 1995, in the disposed of Suit No. 5935 of 1992, for the following reliefs:

"(a). that the plaintiffs Nos. 1 to 7 and defendant No. 3 have committed contempt of Court and liable to be punished under Order 39, Rule 2(a) of the Civil Procedure Code, 1908, and under the Contempt of Court Act for a period of six months and/or their property is liable to be attached and sold for the payment of compensation which may be awarded to be defendant No. 2 for their following act of contempts.

i) that plaintiffs and defendant Nos. 1 to 3 filed consent terms before this Hon'ble Court on 6-4-1995. The plaintiffs and defendant Nos. 1 to 3 agreed to settle the matter they have agreed the terms as under:

(1) Plaintiffs state that they have no grievance against the second defendant and that they have fully acknowledged that the second defendant is life-long President of the first defendant and that he has given a special status under the constitution and that they shall not question his tenure as a President of the first defendant.

(2) In view of the aforesaid and in view of amicable settlement arrived at between the parties, defendant Nos. 1 and 2 state and declare that from this day onwards the plaintiffs shall be entitled to be members of the Society as well, as the Governing Council of Society and attend the meeting as its members.

(3) Plaintiffs and defendants Nos. 1 and 2 agree to co-operate with each other towards achieving goals of the first defendant and harmony and co-operation of each without creating any problems to defendant Nos. 1 and 2.

(4) Allegations made by the plaintiffs against the defendant Nos. 1 and 2 are hereby withdrawn as well as the allegations made by the defendant Nos. 1, 2 and 3 are hereby withdrawn.

ii) that the plaintiffs and defendant No. 3 called illegally the Governing Council meeting on 12-10-1995, without my consent and against the constitution and against the spirit of the consent terms of Clauses (1) and (3) of the consent terms and thereby creating problems of defendant Nos. 1 and 2.

iii) that plaintiffs and defendant No. 3 have again called General Body Meeting on 7-9-1994 without my approval and against the Constitutional provision and against the consent terms the said meeting was called by the plaintiffs and defendant No. 3 to remove me as life member. In the said meeting plaintiff No. 6 have suggested the amendment of the constitution for restrict of the power of the life President. The plaintiffs took part in the General Body Meeting, dated 7-1-1995, and in the said meeting, it was decided at the instance of plaintiff to appoint a constitutional amendment committee. The said was proposed by Mr. Liladhar Dhake, plaintiff No. 4 and it was seconded by Shri Tamble, the plaintiff No. 7. The said committee was appointed at the instance of the plaintiffs to remove me and not to allow me to work as life long President and to create problems to defendant Nos. 1 and 2.

iv) that plaintiffs and defendant No. 3 again called illegally the Governing Body Meeting on 14-2-1995. The said Governing consist of plaintiffs and defendant No. 3 in the said meeting they have illegally decided to remove me as the life president by amending the constitution.

v) The plaintiffs and defendant No. 3 was part of the constitutional amendment committee and has appointed this committee for the purpose of my removal as a life long President and to create problems in the working of defendant Nos. 1 and 2. The said committee was proposed by Liladhar Dhake, plaintiff No. 4 and seconded by Shri Tamble plaintiff No. 7. The Amendment Committee includes, (1) Mr. Tambe, (2) Shri Sarad N. Patil, (3) Mr. Pattabhiraman, and (4) Mr. Bachubhai Chauhan, the plaintiffs. They have recommended to remove me as life-long President by changing the constitution on amending the constitution.

vi) that defendant No. 3 called illegally Governing Body on 14-2-1995. Also called the illegal General Body Meeting on 2-5-1995, and change the constitution or to adopt the new constitution as recommended by the so called constitution amendment committee formed on 7-1-1995. The plaintiffs and defendant No. 3 have taken part in all the meetings.

vii) that plaintiffs and defendant No. 3 themselves appointed for the approval of the Charity Commissioner for change in the constitution.

(viii) that the plaintiffs and defendant No. 3 refused to enter into the defendant No. 1 and allowed to work or allowed to act as life-long President against the consent terms. They refused to co-operate and created problem to defendant Nos. 1 and 2.

ix) that the plaintiffs and defendant No. 3 wrote letter to Charity Commissioner dated 14-1-1995 and 9-12-1995, alleging the same allegation which are withdrawn at the filing of the suit in the consent terms.

x) that the plaintiffs and defendant No. 3 continued the breach of the order of decree passed by not allowing the defendant No. 2 to enter into the defendant No. 1 and thereby refused to act as life President and they continue to create problem in the working of the defendant Nos. 1 and 2. Defendant No. 2 is looking after the day to day management of the school and therefore, the property of the plaintiffs and defendant No. 3 is liable to be attached.

xi) that the plaintiffs have removed the defendant No. 2 as lifelong president of the first defendant and/or taken away the special status under the constitution and/or questioning his tenure as a president of the first defendant, against, or contrary to the consent terms or decree filed on 6-4-1994, in the present suit.

xii) that the plaintiffs have prevented the defendant No. 2 to act as a President of the first defendant and refused to enter into the office of the first defendant forcibly, against or contrary to the consent terms or decree filed on 6-4-1995 in the present suit.

xiii) that the plaintiffs have called the General Body with a mala fide intention to remove the defendant No. 2 as a president of the first defendant. Contrary to the consent terms or decree filed on 6-4-1995, in the present suit.

xiv) that the plaintiffs refused to co-operate with the defendant No. 2 towards achieving goals of the first defendant and harmony and co-operation with defendant No. 1 without creating any problem, by removing or passing the resolution in the Governing Council and in the General Body Meeting and therefore, being part of the meeting.

(b) pending the hearing and final disposals of the notice of motion, the plaintiffs, the members of the defendant No. 1, office bearers of the defendant No. 1, agents, employees or any other person be restrained by an order of injunction of this Hon'ble Court from acting as a life long President of defendant No. 1 and/or from entering into the premises, of the office of the defendant No. 1.

(c) pending the hearing and final disposal of the contempt notice of motion, the plaintiffs, their servants, agents, and employees, be restrained by an order of injunction of this Hon'ble Court from giving effect to the resolution passed by the general body dated 19-3-1995.

(d) pending the hearing and final disposal of the contempt notice of motion, the plaintiffs, their agents, servants, or any members be restrained by an order of injunction from proceeding with the change report submitted by the plaintiffs, before the Charity Commissioner.

(e) ad interim injunction in terms of prayers (b) to (d) be granted.

(f) cost of the notice of motion be provided;

(g) such other and further reliefs may be granted, as this Hon'ble Court may deem fit."

6. The latter notice of motion has been filed in a disposed of suit which essentially proceeds on the premise that the appellants in Appeal No. 1256 of 1995 have violated the compromise order passed by the Civil Court on April 6, 1994 and, therefore, wanted appropriate action to be initiated against them.

7. The City Civil Court has considered and disposed of both the notice of motions together by the impugned order. The appellants herein, in the respective appeals, had filed their reply opposing the said notice of motions. In so far as the former notice of motion, inter alia, the stand is that the matters in issue in the subject suit were exclusively triable by the Charity Commissioner; and, therefore, the jurisdiction of the City Civil Court was barred by the provisions of section 80 of the Bombay Public Trusts Act, 1950. Besides that, even on merits, the appellants resisted the claim of Shri Marathe. It is contended that in view of the amendment to the constitution of the Society, Shri Marathe had no subsisting right and, therefore, he was not entitled for any relief whatsoever. The reply clearly sets out that general body of the Society in its meeting, held on March 19, 1995, has resolved and adopted amendment to the constitution whereunder the post of President is to be filed on the basis of elections and the tenure is fixed for three years from the date of assumption of office. It is also contended that the amendment to the constitution further provides that the post of Governing Council will have to be filled in by election only. Besides relying on the said amendments it is asserted that the general body in its meeting dated June 18, 1995 has elected Shri B.M. Pant, a senior member as a president and also elected new Governing Council, who have taken over the charge of the affairs of the society. Reliance was also placed on the change reports filed in this behalf before the Charity Commissioner. It was specifically contended that in essence the controversy raised in the suit was regarding the legality and validity of the said change reports, which matter could be exclusively adjudicated by the Charity Commissioner. It was further contended that the change has been brought about by the General Body of the Society which is supreme and the same has come into effect from the date of resolutions and consequent to which the said Shri Marathe has ceased to have any right to administer the affairs of the Society. In so far as the latter Notice of Motion No. 4572 of 1995 is concerned, the stand taken by the appellants herein is that, inter alia, the same was not maintainable for the simple reason that the suit has already been disposed of. It is further contended that in any case the decree passed by the City Civil Court, was on the basis of consent terms and such a decree being a consent decree the only appropriate remedy for Shri Marathe, if any, was to get it executed in accordance with law. In other words, it was contended that in such a case no contempt action could be initiated much less any order could be passed on an application purported to be under Order 39, Rule 2-A of C.P.C. Both the Counsel have relied on decisions in support of their respective contentions, to which reference shall be made at appropriate places.

8. The controversy that arises before this Court, therefore, will have to be discussed in two parts. The first relates to the proposed action to be initiated against the appellants in Appeal from Order No. 1256 of 1995, purported to be under Order 39, Rule 2-A of C.P.C. The second relates to the mandatory injunction granted by the trial Court against the appellants in Appeal from Order No. 1260 of 1995.

9. For the sake of convenience. I, shall first proceed to examine the matter in issue in the Notice of Motion No. 4572 of 1995 (A.O. No. 1256/1995). By this notice of motion the respondent-Shri Marathe wanted appropriate action to be initiated against the appellants in A.O. No. 1256/1995 on the ground that they have violated the terms of the order and decree passed by the City of Civil Court dated April 6, 1994. I have already adverted to all the reliefs claimed in the said Notice of Motion. The moot question that arises for consideration is, whether the said application was maintainable in law? The trial Court has examined various facets of the arguments advanced before it without adverting to this crucial question which, in my view, goes to the root of the matter. Undoubtedly, the suit filed by the appellants in A.O. No. 1256 of 1995, being Suit No. 5935 of 1992, was compromised between the parties and the same was disposed of on April 6, 1994 on the basis of the compromise terms duly signed by the parties. The Court by that order has merely recorded the compromise and disposed of the suit on that basis. Undisputedly, this notice of motion has been filed under Order 39, Rule 2-A of the C.P.C. Unquestionably, Order 39 of C.P.C. essentially deals with matters of temporary injunctions and interlocutory orders to be passed by the Court. Power conferred under Rule 2-A is a part of the said scheme of provisions. It necessarily follows that application under Rule 2-A of Order 39 can be maintained only when the suit is pending and the disobedience/breach of any injunction granted or other order made complained of was one granted by the Court under Rule 1 or Rule 2 of that Order which was naturally to enure during the pendency of the suit or till the application under Rule 1 or 2, as the case may be. Undoubtedly, the order passed by the trial Court dated April 6, 1994 while disposing of the suit is neither an order under Rule 1 or Rule 2 of Order 39, but a decree passed in the suit on the basis of consent terms filed by the parties. In such a situation, the provisions of Rule 2-A will be inapplicable. It is well settled that the Court after passing decree becomes Functus Officio understood thus, the trial Court had no jurisdiction or authority to entertain the subject notice of motion purported to have been filed under Order 39, Rule 2-A, for the same was not maintainable.

10. Assuming that the said notice of motion was maintainable. Even then, the next question that arises for consideration is, whether violation of any terms of the order or decree passed by the Court on the basis of compromise between the parties can be actionable within the purport of Order 39, Rule 2-A of the C.P.C.? The Counsel for the respondent (Shri Marathe) no doubt tried to support the decision of the trial Court, but, in my view, the approach of the trial Court is wholly inappropriate. The appellants have rightly relied on the decision of the Apex Court reported in MANU/SC/0053/1979 : 1979CriLJ952 in the matter of Babu Ram Gupta v. Sudhir Bhansin and another. The Apex Court has observed in para 7 of this judgment that there is clear cut distinction between a compromise arrived at between the parties or a consent order passed by the Court at the instance of the parties and a clear and categorical undertaking given by any of the parties. The Apex Court went on to observe that in the former, if there is violation of the compromise or the order, no question of contempt of Court arises, but the party has a right to enforce the order or the compromise by executing the order or getting an injunction from the Court. In para 10 of the same decision, the Apex Court has observed that when the consent order does not incorporate expressly or clearly that any such undertaking had been given either by the appellant or by his lawyer before the Court, it will be difficult to hold that the appellant wilfully disobeyed or committed breach of such an undertaking. This decision was relied upon before the trial Court, but the trial Court has completely misread the same. On plain language of the consent terms and the order passed by the trial Court on April 6, 1994, by no stretch of imagination it is possible to perceive that it would fall in the latter category. In view of the settled position, it is not open for the respondent to contend to the contrary. Besides the abovesaid decision, the appellants have also relied on another decision of this Court reported in MANU/MH/0022/1989 : 1989(2)BomCR592 ; Ahmed R.V. Peermohaned v. Jogi S. Bhar and others, to contend that no action would lie if alleged contemnor gave no undertaking either to the Court or to the petitioner and that no contempt is committed when there is difference between the parties on construction of certain clauses of consent terms. Reliance was placed on this decision obviously in view of the stand taken on behalf of the respondent that an undertaking is given by the plaintiffs, which undertaking would bind the entire general body since the suit filed by them was one in representative capacity. Having regard to this settled position, I have no hesitation in observing that this notice of motion filed by the respondent No. 1 being Notice of Motion No. 4572 of 1995 in disposed of Suit No. 5935 of 1992, in the first place was not maintainable in law and in any case the trial Court clearly misdirected itself to dwell upon matters which were absolutely not germane to the real controversy that was required to be decided in the subject application. The reasons which weighed with the trial Court find place in para 13 of the impugned order. I am of the view that it will be wholly unnecessary to go into the various aspects of the matter which have found favour with the trial Court while considering the subject notice of motion, for they are inconsequential. The learned Counsel for the respondent-Shri Marathe placed reliance on the decision of the Apex Court in Raje Anandrao v. Shamrao MANU/SC/0356/1961 : [1961]3SCR930 , to contend that suit filed by the appellants under section 92 of the Bombay Public Trust Act is a representative suit and decision therein binds not only the parties to that suit but also all those who are interested in the trust. He also relied on another decision reported in Chiranjilal v. L.I. Corporation MANU/MH/0117/1959 : AIR1959Bom396 , to contend that consent decree in a representative suit would operate as res judicata. In my view, these decisions are inapposite to the issue that arises for consideration of the subject notice of motion purported to be filed under Order 39, Rule 2-A of C.P.C. As observed earlier, the said Notice of Motion was not maintainable in law.

11. Now we would revert to the second aspect of the matter regarding the relief of mandatory/injunction claimed against the appellants in A.O. No. 1260 of 1995 emanating from Notice of Motion No. 4762 of 1995 in suit No. 5470 of 1995. The same is pressed essentially on the premise that Shri Marathe still continues to be the life president of the Society. This premise, in my view, is wholly inappropriate. It clearly over looks the fact that the general body of the Society in its meeting dated March 19, 1995 resolved to amend the constitution thereby deleting the provisions which ordained that Shri Marathe shall remain life President of the Society. Besides deleting the said provision, the general body also resolved to amend the constitution by providing that the post of President as well as that of the Governing Council members shall be filled by election only and the term of their office would be upto a period of three years from the date of assuming office. Besides amending the constitution which effected the change, this change has been reported to the competent authority under section 22 of the Bombay Public Trusts Act, 1950. Besides this change, another change that occurred pursuant to the general body decision dated June 18, 1995 is that Shri V.M. Pant, Senior Member was elected as a President and other members were elected to the new Governing Council, who assumed office after the said resolution. Even this change was reported to the appropriate authority as required under section 22 of the Act. The argument, however, advanced on behalf of the respondent-Shri Marathe is that the said change will come into effect only after the same is accepted by the appropriate authority. The Counsel for the respondent further contends that the amendment to the constitution is yet to be approved by the appropriate authority and till such time the question of conducting elections on the basis of such amended constitution, as has been done in the present case, is totally without authority of law. He further submits that the change report with regard to the amendment of the constitution, being change Report No. 1456/1995, was initially rejected by the Assistant Charity Commissioner by order dated June 6, 1998 which order was later on set aside by the Joint Charity Commissioner on June 13, 1998 at the instance of appellants in A.O. No. 1260/1995. He however, contends that the said decision has been interdicted by the City Civil Court in Charity Appeal Application No. 15/1998. According to him, therefore, the said change report relating to amendment of the constitution is still pending consideration and till such time no steps can be taken on the basis of the amended constitution. This submission is totally misplaced and in the teeth of the settled legal position. The law with regard to the efficacy of any change brought about and its application is no more res integra. The Apex Court in decision reported in A.I.R. 1993 S.C.W. 3006; Managing Committee, Khalsa Middle School and another v. Smt. Mohinder Kaur and another, has considered this aspect of the matter. The Apex Court was called upon to examine similar provisions of the Societies Registration Act, 1860. The scheme of section 12-A of that Act is more or less same as section 22 of the Bombay Public Trusts Act. The Apex Court compared the said provision with the provisions of sections 18 and 19 of the Companies Act which mandate that the alteration or amendment to the Memorandum of Association of the Company takes effect from the date of its registration only. In that context the Apex Court in para 11 of the said judgment has observed that in absence of any requirement in the Act that the alteration in the Rules and Regulations must be registered with the Registrar, it cannot be held that registration of the amendment is a condition precedent for such an alteration to come into effect. A priori, any amendment or change brought about in accordance with law would come into effect from the date of resolution of the Society to bring about such a change. This proposition is fortified from the plain language of section 22 of the Bombay Public Trusts Act. The said section requires that where any change occurs in any of the entries recorded in the register kept under section 17, the trustee shall, within 90 days from the date of the occurrence of such change, report such change to the Deputy or Assistant Charity Commissioner, as the case may be. The dictionary meaning of expression "occur" as observed in the Black's Law Dictionary is:

"To happy; to meet one's eyes; to be found or met with; to present itself; to appear; hence, to befall in due course; to take place; to arise."
Giving the natural meaning to this word in section 22 of the Act, coupled with the principle enunciated by the Apex Court that when the Act does not require that registration of any change is a condition precedent to come into effect, I have no hesitation in taking the view that the amendment to the constitution as well as subsequent elections of the President and members of the Governing Council, therefore, came into effect from the date of the respective resolutions of the general body. The enquiry postulated under section 22 is only to ascertain the factum as to whether the change has occurred or not. In the event, the competent authority is satisfied that the change has not occurred in accordance with law, only then that change will have to be undone and status quo ante will have to be restored. A fortiori, resolution of the general body of the Society is sufficient to ignite the change of amendment in the constitution as well as of electing new general body for administering the affairs of the Society. The fact that the change report is pending consideration before the Charity Commissioner, would be of no avail. Understood thus, as a necessary corollary, it will have to be held that the respondent-Shri Marathe ceased to be the President of the Society from the date when the General Body elected another President in its meeting dated June 18, 1995. If this be the position, the respondent-Shri Marathe will have no right whatsoever to continue in the post of president and, there would be no question of granting any mandatory relief at this stage.

12. There is another facet which would arise for consideration in the context of reliefs claimed by the respondent-Shri Marathe. The appellants contend that the nature of reliefs claimed in the subject Notice of Motion No. 4762 of 1995, as already reproduced above, are essentially relating to the matters which could be exclusively decided by the appropriate authority under the provisions of the Bombay Public Trusts Act. Reliance has been placed on the decision of this Court reported in 1980 B.C.R. 837 : 1980 M.L.J. 372; Jagatnarayansingh v. Swarupsingh Education Society and another. In this judgment, this Court has already taken the view that inquiry under section 22 the Bombay Public Trusts Act is not limited to the factum of change but extends to its legality and validity as well. This legal position is not questioned before this Court. If this be so, then, the next question that emerges is whether the Civil Court will have jurisdiction to examine the controversy raised before it, by reason of bar under section 80 of the Bombay Public Trusts Act. In another decision reported in MANU/MH/0247/1983 : AIR1983Bom404 ; Dinanath Ajabrao Ingole v. Shetkari Shikshan Prasarak Mandal, Wardha and others, this Court has held that the change reports preferred by the parties were pending for final decision before the Deputy Charity Commissioner. In such a case the suit was not tenable as Civil Court has no jurisdiction to entertain the same. It is not in dispute that the appellants in Appeal No. 1260/1995 in their reply filed before the trial Court had specifically raised objection regarding the jurisdiction of the Civil Court and that of maintainability of the suit. In para 3 of the reply filed before the trial Court the appellants have taken a specific plea that the Civil Court does not have jurisdiction to decide the issue involved in the subject suit as it pertains to matters which are solely within the jurisdiction of the Charity Commissioner; and the Court, therefore, should first decide the preliminary issue about the maintainability of the suit. Although this stand was taken specifically in the reply, and though the trial Court has adverted to this plea in para 16 of the impugned order, however, the trial Court has proceeded to decide the controversy on merits and passed interlocutory orders on the notice of motion. This is obviously in the teeth of the mandate of section 9-A of the Code of the Civil Procedure as applicable to State of Maharashtra. The law on this point is well settled that section 9-A of the C.P.C. is a departure from the procedure established for deciding preliminary issue as prescribed under Order 14, Rule 2 of the C.P.C. and when such question of jurisdiction is raised or arises for consideration the Court shall determine the said issue at the threshold See MANU/MH/0014/1999 : 1999(1)BomCR107 ; Meher Singh v. Deepak Sawhny & another. To my mind, the trial Court has completely gone overboard in discussing the merits of the controversy, instead of deciding the issue relating to its jurisdiction at the threshold. Section 9-A of C.P.C. clearly bars the Courts from considering the application for interim relief until the said preliminary issue is decided one way or the other. Even for this reason the impugned order passed by the trial Court, making the subject notice of motion absolute, cannot be sustained in law and the same will, therefore, have to be set aside.

13. For the aforesaid reasons, I am of the view that both the notice of motions filed on behalf of the respondent-Shri Marathe ought to have been dismissed by the trial Court. Since the issue of jurisdiction of the Civil Court has been specifically raised by the appellants, the trial Court will have to first frame such issue and decide the same in accordance with the procedure established by section 9-A of the Code before it proceeds to deal with the suit any further.

14. Both the appeals succeed and the impugned order is set aside with costs all throughout.

15. Certified copy expedited.



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