Important Point
The proceedings u/s. 50A of the Bombay Public Trust Act, 1950 would not abate for not bringing on record the heirs of deceased applicant as CPC is not applicable to the proceedings under this section. The Charity Commissioner has powers to grant substitution even if belated or add parties in the said proceedings.

Headnote:Bombay Public Trust Act, 1950 -Section 50A-Proceeding under for forming a Trust by two-One of applicants dying-His son moving application for substitution after a lapse of long time-Charity Commissioner permitting substitution-Whether proceeding u/s. 50A abated on death of one of the applicants as LRs. of deceased were not brought on record in time as per C.P.C.?-(No)-Whether the Charity Commissioner has power under the Act to grant the belated substitution application made after long delay? (Yes) (Bombay Public Trust Rules, 1951-Rule 7 and Presidency Small Causes Courts Act, 1882-Sections 6 and 9.
       Held : The concept of abatement under Section 50A would never arise, specially in such a situation where for achieving such an objective he in addition is capped with power to initiate suo motu. It is not in dispute that the said two persons have made an application in the prescribed form. The proceeding has been initiated in terms of and in accordance with Section 50A, this cannot be said to be improper or illegal. Once the material is brought before him, he may on the materials or after inquiry or after giving opportunity to the person concerned or trustees may or may not exercise his power depending on facts and circumstances of each case, but his exercise of power cannot be ousted either on the death or withdrawal of any one of the applicants. (Para 9)
       Hence, non-substitution or delayed substitution of such deceased person would make no difference. In this case when initiation of proceedings is in accordance with law which requires consideration for settling a scheme for the better management, in our considered opinion, the proceeding cannot culminate or be defeated on the principle of abatement as provided in Civil Procedure Code. (Para 10)
       It is the High Court by rule to prescribe the procedure to be followed by the Small Causes Court. The procedure is not what is under Civil Procedure Code. Hence, the argument that proceeding before the Charity Commissioner to be what is provided in Civil Procedure Code is without any foundation. The same is accordingly rejected. (Para 14)
       Held finally : So, we hold in view of the aforesaid finding that the proceeding under Section 50A of the Bombay Public Trust Act, 1950 would not abate and he has powers to grant substitution even if belated or add parties in the said proceedings. (Para 15)
       For all the aforesaid reasons, we do not find any merit in this appeal which is accordingly dismissed. Cost on the parties. (Para 15)

Judgment

Misra, J.-The short question for consideration is, whether the proceedings under Section 50A of the Bombay Public Trusts Act, 1950 would abate for the non-substitution of one of the applicants since deceased, and whether the Charity Commissioner has power under the Act to grant the belated substitution application made after long delay.

2. This appeal is directed against the order of the High Court in appeal against the judgment of the learned Single Judge, who summarily dismissed the appellant’s appeal. Earlier, through an application before the Charity Commissioner, a proceeding was initiated for settling a scheme of a public trust in a Proceeding No. 5 of 1973 under Section 50A as aforesaid. Admittedly, the said application was moved in the prescribed form by two persons as per requirement of the said Section. On 23rd January, 1979 one of the original applicants, namely, applicant No. 2 Hasan Bin Abubakar, died. It is true that after a lapse of long time, the son of the deceased applicant moved an application, Ex. 44, on 11th October, 1983 for permitting him to join as a party to the said proceedings as he has interest in the said Trust. Significantly, another set of two persons viz. Hussain Bin Avadhabhai, claiming to be one of the trustees of Hazarat Chhota Edroos Masjid and Durgah Trust and another person made similar application under the same section for being joined also as applicant in the said scheme. The Charity Commissioner allowed both, the substitution of the son of the aforesaid deceased applicant and impleadment of the aforesaid second set of two persons as a party to the said proceedings. The appellant filed a C.M.A. against the said order under Section 72(1) of the said Act before the City Civil Court. The City Civil Court (appellate authority) confirmed the order of the Charity Commissioner. Against that, an appeal was preferred before the learned Single Judge in the High Court who also confirmed the order passed by the City Civil Court. The learned Single Judge recorded that it is not in dispute that the proposed persons are interested in the Trust. Thereafter, a Letter Patent Appeal was filed which was also dismissed. It is against this, the present appeal arises.

3. Learned counsel for the appellant submits with vehemence that in all the aforesaid orders, if Rule 7 of the Bombay Public Trust Rules, 1951 was taken into consideration, the conclusion would have been otherwise. Submission is this. Rule 7 read with Section 6 of the Presidency Small Causes Courts, Act, 1882 (hereinafter referred as ‘1882 Act’) makes it obligatory on the Charity Commissioner to follow the procedure as prescribed by the Civil Procedure Code, so when one of the applicants died and his heirs not being brought on the record within the prescribed time, the proceedings would abate by virtue of provisions under the Civil Procedure Code. The relevant portion of Rule 7, as relied by the appellant is quoted hereunder:-

“7. Manner of inquiries-Except as otherwise provided in that Act and these rules, inquiries under..........or any other inquiry which the Charity Commissioner may direct to be held for the purposes of the Act, shall be held, as far as possible, in the Greater Bombay Region in accordance with the procedure prescribed for the trial of suits under the Presidency Small Cause Courts Act, 1882 and elsewhere under the Provincial Small Cause Courts Act, 1887. In any inquiry a party may appear in person or by his recognised agent or by a pleader duly appointed to act on his behalf.”

Section 6 of the Presidency Small Cause Courts Act, 1882 is quoted hereunder:-

“6. The Small Causes Court shall be deemed to be a Court subject to the superintendence of the High Court of Judicature at Fort William, Madras or Bombay, as the case may be, within the meaning of the Letters Patent, respectively, dated the 28th day of December, 1865, for such High Courts, and within the meaning of the Code of Civil Procedure and to be a Court su

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