Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 0418 in SU 38218 : 1 : Date : 23.03.2018
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
NOTICE OF MOTION NO. 04 OF 2018
IN
S.C. SUIT NO. 382 OF 2018
Mehboob Ali Shauqat Ali Khan ...Plaintiff
Versus
1. Mr. Riyaz alias Fauzdar Shaikh
2. Mr. Wahid Khan s/o. Latif Khan
3. Mr. Nasir Nanhe Khan
4. Mr. Latif Khan
5. Mr. Parvez Zabir Khan
6. Mr. Zubair Zahir Khan alias Lallu
7. Mr. Irshad Mobin Khan ...Defendants
Adv. Mr. Pratap Singh for Plaintiff present.
Adv. Mr. Moin Khan for Defendants present.
CORAM : HER HONOUR JUDGE
DR (SMT.) SRISHTY NEELKANTH
(C.R. NO.02)
DATED : 23rd MARCH, 2018.
ORDER
This Notice of Motion has been filed by the plaintiff for a
temporary order of injunction restraining the defendants and their
agents from interfering with the affairs of the administration of the
Trust known as 'M/s. Masjid Mehanadi Gaibon Shah Dargah Sunni
ValJamat Trust'.
2. The plaintiff contends that he was the Trustee of the Trust.
By a Change Report he was appointed as a Chairman of the Trust and
was taking care of the day to day activities of the Trust. The defendants
were the residents of that locality, who used to visit the suit property
for the purpose of offering prayers, etc. The defendants were interfering
-- 1 of 4 --
NM 0418 in SU 38218 : 2 : Date : 23.03.2018
in the affairs of the Trust, forcibly, without having any authority or
entitlement to do so. They were causing nuisance and annoyance to the
plaintiff Trust. They issued threats of dire consequences to the staff of
the Trust and forcibly took away the donation money given by the
donors. The plaintiff had lodged a criminal complaint in the local police
station against the defendants, but to no avail.
3. The learned advocate of the plaintiff submitted that the
plaintiff was the President of the Trust and he had the right to protect
the interest of the Trust. He submitted that the intervention application
had been filed by the defendants before the Charity Commissioner in
Change Report No. 821 of 2003, to which the plaintiff had duly replied.
There were allegations against the plaintiff that he had siphoned off the
money of the Trust. In case the defendants had any grudges or
complaints against the plaintiff, they should approach the Charity
Commissioner. He further submitted that since the present suit was not
filed for a dispute between the Trustees of a Trust interse, Section 51 of
the Bombay Public Trust Act 1950 would not be applicable. Hence,
prayed that in the given circumstances, the Notice of Motion be
allowed.
4. The learned advocate of the defendants filed reply
opposing the adinterim relief claimed by the plaintiff. He submitted
that his reply be treated as a reply to the Notice of Motion No. 04 of
2018 for its final hearing. He submitted that this Court had no
jurisdiction to try this suit as the bar of Section 50, 51 and 53 of
Bombay Public Trust Act, 1950 was applicable. The plaintiff could not
-- 2 of 4 --
NM 0418 in SU 38218 : 3 : Date : 23.03.2018
file the suit in his individual capacity and should have made the Charity
Commissioner a proper and necessary party. This Court had no
jurisdiction to try this suit. The plaintiff had not stated any particulars
about the alleged incident in which the defendants had allegedly taken
away the funds connected with the Trust. The plaintiff had not
approached the Court with clean hands. The plaintiff was falsely
claiming himself to the Chairman of the Trust. The defendants wished
to expose the fraud, misappropriation and misfeasance committed by
the plaintiff. The defendant had filed the complaint before the Police
Authority. He thus prayed that the Notice of Motion be dismissed.
5. Considering the issue of Bar of jurisdiction being raised by
the advocate of defendant, following preliminary issue is thus framed :
“Whether this Court has jurisdiction to try this suit?”
6. Heard both the sides, perused the roznama and
proceedings.
7. It is observed that this suit has been filed by the plaintiff
who claims himself to be the Chairman and Trustee of the Trust.
Surprisingly, the Trust and other trustees have not been made a party to
the suit. As per the documents relied upon by the plaintiff and the
defendants, it is seen that by an earlier order of the Charity
Commissioner the elections of the Trust were to be conducted on an
annual basis but the elections were not so conducted. The Change
Report filed by the plaintiff is also pending and is being opposed by the
defendants. There are allegations against the plaintiff and thus the
-- 3 of 4 --
NM 0418 in SU 38218 : 4 : Date : 23.03.2018
credibility of the plaintiff is in doubt. For the aforesaid reasons, I am of
the opinion that the plaintiff has failed to make any ground for any
relief being granted to him at this stage. Thus, the following order is
passed :
ORDER
Notice of Motion No. 4 of 2018 is dismissed.
(Dr. Srishty Neelkanth)
Judge
City Civil Court,
Date : 23.03.2018. Gr. Bombay.
Dictated on : 23.03.2018.
Transcribed on : 03.04.2018.
Signed on : 07.04.2018.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
09.04.2018 at 5.45 p.m. (Y.M. SAKHARKAR)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
no.)
DR(SMT) SRISHTY NEELKANTH
(C.R. No.02)
Date of Pronouncement of
JUDGMENT/ ORDER
23.03.2018
JUDGMENT/ORDER signed by P.O. on 07.04.2018
JUDGMENT/ORDER uploaded on 09.04.2018
-- 4 of 4 --