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2014 (3) TMI 1216 - BOMBAY HIGH COURTRejection of plaint in suit under the provisions of Order VII Rule 11 of Code of Civil Procedure, 1908 - whether this suit filed by the plaintiff is by or against or relating to the said trust, trustees and others falling under any of the categories provided in section 50 of the Bombay Public Trusts Act, 1950 or under section 51? - whether prior consent of the charity commissioner was required before institution of this suit? - HELD THAT:- On perusal of the plaint as a whole and on meaningful reading of the averments and prayers in the plaint, it is clear that the plaintiff who claims to be one of the trustee has alleged a breach of public trust, negligence, misapplication or misconduct on the part of some of the trustees, has applied for an order and decree against some of the defendants who are admittedly trustees of the said trust and some of them are joined as alleged trustees and also against some of the companies which are alleged to be under control of some of the trustees. The plaintiff has applied for money claim against all the defendants alleging loss caused to the trust by virtue of alleged breach of trust, negligence, misapplication, misconduct or willful default - the case of the plaintiffs falls under sections 50(i), (ii) (a), (d), (f). Whether suit filed by the plaintiff is for enforcement of the personal civil rights of the plaintiff or is on behalf of the trust and acting as trustee of the said trust? - HELD THAT:- The averments made in the plaint along with the prayers in the suit clearly indicates that the plaintiffs have filed the suit claiming to be a trustee and seeks an order and decree against the defendants that various amounts be paid by the defendants to the plaintiffs as trustee or to the said trust. Plaintiff has thus not claimed any personal rights or has not filed the suit which can be considered as a suit for enforcement of the rights of a private nature - A perusal of the averments in the plaint and prayers clearly indicates that the suit and the reliefs claimed relate to the working of the trust and its trustees and therefore, permission of the Charity Commissioner would be required when a suit is instituted by a person having interest of a nature provided in section 50 of the Bombay Public Trust Act. In the facts of this case, one more question which arises for consideration of this court is that since status of the plaintiff as trustee itself is in dispute and that question is pending before charity commissioner admittedly, whether this court can consider such question in this suit which is pending adjudication before the charity commissioner - In case of SOPAN SUKHDEO SABLE AND ORS. VERSUS ASSISTANT CHARITY COMMISSIONER AND ORS. [2004 (1) TMI 726 - SUPREME COURT], Supreme Court has held that for instituting a suit of the nature specified in section 50 of the Bombay Public Trusts Act, prior consent of the charity commissioner is necessary under section 51. Supreme Court in case of CHURCH OF CHRIST CHARITABLE TRUST & EDUCATIONAL CHARITABLE SOCIETY, REPRESENTED BY ITS CHAIRMAN VERSUS PONNIAMMAN EDUCATIONAL TRUST REPRESENTED BY ITS CHAIRPERSON/MANAGING TRUSTEE [2012 (7) TMI 1029 - SUPREME COURT] has held that if the allegations are vexatious and meritless and not disclosing a clear right or material to sue, it is the duty of the trial judge to exercise his power under Order 7 Rule 11. The Supreme Court has adverted to the earlier judgment of that court delivered by the Bench presided by Shri Justice Krishna Iyer which had held that if clever drafting has created the illusion of a cause of action, it should be nipped in the bud at the first hearing by examining the parties under Order 10 of the court. The cause of action is a bundle of facts which taken with the law applicable to them gives the plaintiff the right to relief against the defendant. Every fact which is necessary for the plaintiff to prove to enable him to get a decree should be set out in clear terms. It is held that a cause of action must include some act done by the defendant since in the absence of such an act, no cause of action can possibly accrue - the plaint in no manner whatsoever discloses any cause of action against defendant nos. 12, 15 and 16 and plaint is rejected against defendants nos. 12, 15 and 16 on this ground also. Plaint rejected.
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