- (1.) Leave granted.
(2.) On an application filed by the respondents herein before the Assistant Charity Commissioner a declaration was granted to the effect that the Balaji Temple was a public trust. That declaration was granted despite the objection raised by the two appellants herein claiming the temple to be their private property and not the property of the public trust. After granting the declaration, the Assistant Charity Commissioner granted permission to register the property as the property of the public trust. The order was challenged before the Deputy Charity Commissioner who however confirmed the finding of the Assistant Charity Commissioner. The matter was taken up before the District Judge in an application under Section 72 of the Bombay Public Trusts Act, 1950 (hereinafter the 'act') and a finding was returned holding the temple to be a public trust. An appeal to the High court by the appellants failed, with the result that the findings of the Assistant Charity Commissioner declaring the. templeproperty to be a public trust stood confirmed. Pursuant to the findings recorded by the authorities, the temple was registered as a public trust. A scheme for 3 better management and administration of the temple came to be framed and the scheme was settled by the Joint Charity Commissioner, Aurangabad by his order dated 23/7/1985. After the framing of the scheme, the appellants moved the Joint Charity Commissioner, Aurangabad to stay the enforcement and operation of the scheme but failed. Subsequently, it appears, that in 1993, the appellants filed a suit in the court of Civil Judge, Senior Division, Aurangabad for a declaration that Balaji Temple, Chelipura, Aurangabad is the personal and private temple of the appellants and the property belonging to the temple is not the property of the public trust. The appellants also sought a perpetual/temporary injunction restraining the respondents not to disturb or interfere with their possession, enjoyment and ownership of the temple and its property. The injunction was refused by the civil court. The suit however is pending disposal. Finding that the appellants were causing hindrance in the implementation of the scheme framed by the Joint Charity Commissioner, the respondents filed Civil Suit No. 394 of 1993 in the court of Civil Judge, Senior Division, Aurangabad against the appellants claiming the following reliefs: "A.suit of the plaintiffs may be decreed with costs with the following reliefs. B. Defendants 1 and 2, their agents, or anybody claiming through them may be perpetually restrained by an order of injunction from interfering and obstructing the implementation of the scheme framed, settled and approved by Joint Charity Commissioner, Aurangabad on 23/7/1985 in respect of Trust Panchvati Shri Balaji Mandir [h. No. 1036 (old) /l-29-l (new) situated at Chelipura, Aurangabad having Registration No. A-3241 (Au. ) ]. C. The defendants be restrained perpetually from prohibiting the plaintiffs, trustees and the Devotees of Lord Balaji from entering the suit temple i. e. Shri Panchvati Shri Balaji Mandir Chelipura, Aurangabad and offering prayers and performing festivals like Gokul Ashtami, Ganesh Chaturthi, Ram Navami, Holi etc. D. Defendants 1 and 2 be directed to render the accounts of the income which they have received from the suit property/trust since 1973 till the date of Filing of the suit. E. The mesne profits for the period of last 3 years and the future mesne profits be determined and awarded to the plaintiffs. The cost of the suit and such other just and equitable relief may be granted and oblige. "
(3.) The appellants filed an application before the trial court tinder Section 9-A of the Code of Civil Procedure and claimed that since the respondents (plaintiffs in the suit) had not obtained permission of the Charity Commissioner, as envisaged by S. 50/51 of the Act for the institution of the civil suit, the suit was not maintainable. The learned Civil Judge rejected the application and the matter was carried to the High court in a civil revision. The High court directed the trial court to frame a preliminary issue in that regard and decide that issue before proceeding further in the case. Accordingly the following preliminary issue was framed: "Whether defendant prove that this court has no jurisdiction for want of permission under S. 50 and 51 of Bombay Public Trust Act, 1950. ";