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TMI Blog1986 (4) TMI 369X X X X Extracts X X X X X X X X Extracts X X X X ..... e basis of res judicata; (3) as the previous suit was dismissed on technical ground as the necessary certificates from the Charity Commissioner's office were not produced, therefore there was no decision on merits. As against this, the learned advocate for the respondents vehemently submitted that the decisions given by both the Courts below are legal. He submitted that the plaintiff cannot be permitted to file fresh suit on the same cause of action. 9. In my view, the finding given by the Courts below that the suit is barred by res judicata is on the face of it illegal. Section 79 of the Bombay Public Trusts Act, 1950 provides as under : 79.(1) Any question, whether or not a trust exists and such trust is a public trust or particular property is the property of such trust, shall be decided by the Deputy or Assistant Charity Commissioner or the Charity Commissioner in appeal as provided by this Acl. (2) The decision of the Deputy or Assistant Charity Commissioner or the Charity Commissioner in appeal, as the case may be, shall, unless set aside by the decision of the Court on application or of the High Court in appeal, be final and conclusive. Under S. 80 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is binding to the Civil Court. The said decisions have been followed in the case of Sherasiya Saji Alavadi Momin v. State of Gujarat, 1985 Guj LH 597 : AIR 1985 Guj 180). In view of this settled position of law it cannot (can ?) be said that the decision of the Civil Court in Regular Civil Suit No. 113/71 deciding that the plaintiffs are not trustees and the suit property is not trust property is without jurisdiction null and void. 10. Once it is held that the judgment in previous suit is without jurisdiction, then it cannot be said that the present suit is barred by res judicata for principles of res judicata. This position is clear from the following decisions : (1) Bai Shakri v. Bapusinghji Takhatsinhji, AIR 1958 Bom 30. (2) Bhikhabhai v. J. V. Vyas, (1963) 4 Guj R 873. (3) Gandabhai Jinabhai v. Dalpatbhai, (23(1) Guj LR 531 : AIR 1982 Guj 142). Further, even if any incidental finding is given by the Court while deciding the previous suit , cannot be said that the said finding is binding in the next suit or it can be the basis of res judicata. 11. The Supreme Court in Pragdasji v. lshwarlalbhai, AIR 1952 SC 143, has held as under: A suit under S. 92, Civil P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reply to this is, that in a suit framed under S. 92, Civil P.C., the only reliefs which the plaintiff can claim and the Court can grant are those enumerated specially in the different clauses of the section. A relief praying for a declaration that the properties in suit are trust properties does not come under any of these clauses. When the defendant denies the existence of a trust, a declaration that the trust does exist might be made as ancillary to the main relief claimed under the section if the plaintiff is held entitled to it; but when the case of the plaintiff fails for want of a cause of action, there is no warrant for giving him a declaratory relief under the provision of S. 92, Civil P.C. The finding as to the existence of a public trust in such circumstances would be no more than an obiter dictum and cannot constitute the final decision in the suit. The result is that in our opinion the decision of the High Court should stand, but the decree and the concluding portion of the judgment passed by the trial Court and affirmed by the High Court on appeal shall direct a dismissal of the plaintiffs' suit merely without its being made subject to any declaration as to the cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt has relied upon the following passages from the Law of Estoppel by Everest and Strode : In order to create an estoppel, the adjudication itself must be a final one, and the matter itself must not only have been determined but controverted as well. The rule in chancery was that an order dismissing an action was a bar to a fresh action for the same matter, if the dismissal was upon hearing and was not in terms directed to be without prejudice, and if the Court determined that the plaintiff had no tide to the relief sought so that in pleading a former suit as a bar, i was not sufficient to show that the bill was dismissed; but you must plead further that which will show that the same matter if dispute in the subsequent suit was res judicata in the first; and in para 686 of Caspersz on Estoppel, Edn. 4, it is stated : It is not enough that the former suit has been heard and determined. The cause of action must be heard and determined. 14. Again there is to be found in the same paragraph the observations of Phear, J. in (1874)21 Suth WR 105 : It seems to be clear then that the objection to a suit on the ground of multifariousness or misjoinder of causes of action is an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ided the suit on merits and it cannot be the basis for dismissing the present suit on the ground of res judicata. 16. The learned advocate for the appellants relied on the decision in the case of Subramania v. Vaithilinga, AIR 1931 Mad 641, wherein the Madras High Court has held that if the trustees are negligent in filing written statement and defending the previous suit and the suit is decreed against them because of gross negligence on the part of the then trustees in not putting forward a valid defence, the said decision is not binding on the subsequent trustees. This point is not required to be decided in the present proceedings. The learned advocate for the appellants, however, heavily relied upon the following observations in that judgment : As already stated, it is clear that if the then trustee had defended O.S. No. 550 of 1920, no decree would have been passed in it against the temple. On principle I do not see any reason why an idol of a temple should not be treated in the same manner as a minor with respect to the gross negligence on the part of the trustee in not defending the suit, the trustee representing its interests just in the same way as the guardian repre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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