2005 Supreme(Bom) 1561
IN THE HIGH COURT OF BOMBAY
ARUN KESHAVRAO MONE
VERSUS
RAMESH BALVANT BAXI
Decided no: November 16, 2005
Headnote:Bombay Public Trusts Act, 1950 - Section 72(2) and (4) Civil Procedure Code, Order XLIII, Rule 1(u) and Order XLI, Rule 23 The remedy of filing appeal against decision of Court in proceedings under Section 72(2) of the Bombay Public Trust Act is not available The appellant has to file a regular appeal as contemplated by Section 72(4) thereof. An appeal was filed against order under Order XLIII, Rule 1(u) of Civil Procedure Code, challenging the judgment of remand passed by Additional District Judge. Respondents raised objection about its maintainability and according to them, appeal under Section 72(4) of Bombay Public Trust Act, 1950 which is in the nature of Second Appeal as per Section 100 of Civil Procedure Code is alone tenable. From the definition of term "Court", it is clear that Additional District Judge who decided appeal and delivered impugned judgment, is covered thereunder. However, an appeal lies to High Court against the decision/ judgment delivered under sub-section (2) of Section 72 as if such decision is a decree from which an appeal ordinarily lies to High Court. Thus, appeal before High Court is in view of deeming fiction created by Section 72(4). It is to be noted that such judgment of District Court has been artificially treated as decree with further provision of appeal against it. The appeal comes to High Court not because of Section 100 of Civil Procedure Code but because of Section 72(4) as the appeal from decree of District Court lies to it. It is registered under Section 96, Civil Procedure Code as first appeal and treated/heard as second appeal. Section 76 does not permit enlarging of this position because it expressly protects and saves it. To attract provisions of Order XLI, Rule 23 or Rule 23-A, appellant has to demonstrate that the Additional District Judge was considering validity or otherwise of "decree". In other words, the order dated 30.9.1998 delivered by Joint Charity Commissioner which was impugned before Additional District Judge, must be shown to be a "decree" and, in that event only, appeal against order can be held that to be maintainable. However, in view of provisions of Section 72(4) such an exercise also cannot be undertaken as that would amount to overlooking the express words therein and would also amount to reading something more in Section 72 which Legislature did not find fit to enact. Not only this, Section 76 permits use of only those provisions of Civil Procedure Code which are not inconsistent with provisions of the Bombay Public Trust Act and in case of such inconsistency, provisions of the Bombay Public Trust Act are to prevail. Hence, provisions of Section 72 read with Section 76 expressly bar treating the order passed by Joint Charity Commissioner as decree. Hence, recourse to Order XLI, Rule 23 or Rule 23-A is not permitted and appeal against order is not maintainable. Civil Procedure Code is applicable only for limited purpose before such authorities and by accepting such arguments, it cannot be made applicable because that will be unduly enlarging the scope of deeming fiction and Section 76. For some reasons, language of Section 76 cannot be used to permit filing of appeal against order under Order XLIII, Rule 1 (u), Civil Procedure Code because Section 72(4) does not make any distinction between a judgment of remand and a judgment on merits. The said distinction made by Civil Procedure Code is alien to the scheme of the Bombay Public Trust Act. Moreover, perusal of impugned order reveals that it is not only an order of remand but the appeal has been partly allowed and some portion of order of Joint Chairty Commissioner is set aside while rest of it is maintained. Thus, a retrial as required by Order XLI, Rule 23-A is not warranted in the facts and circumstances of the case. Remedy of filing appeal against order against decision of Court in proceedings under Section 72(2) of the Bombay Public Trust Act is not available. The appellant has to file a regular appeal as contemplated by Section 72(4) thereof. AIR 2002 SC 2308; AIR 1953 SC 837; 1998 (1) Mh LJ 444; 2001 (1) Mh LJ 654; 1998 (4) SCC 343; AIR 2002 SC 2308; AIR 1953 SC 357; AIR 1998 SC 1624; 1988 (1) Mh LJ 444 Referred.
( 1 ) THIS is an Appeal against Order under Order 43 Rule 1 (u) of civil Procedure Code, challenging the Judgment of remand passed by First Ad hoc Additional District Judge, Nagpur, dated 19-8-2005 in Miscellaneous Civil appeal No. 785 of 1998. The respondents have raised objection about its maintainability and according to them, Appeal under section 72 (4) of Bombay public Trust Act, 1950 (hereinafter referred to as B. P. T. Act) which is in the nature of Second Appeal as per section 100 of Civil Procedure Code is alone tenable. I have heard parties on this issue on various dates and on 25-10-2005, case was closed for passing orders on this objection. Parties were directed to maintain status quo as existing on that date till today.
( 2 ) BARE facts necessary for determination of this controversy can now be stated. The impugned judgment is delivered on an application under section 72 of b. P. T. Act and said application, in turn, was challenging the order dated 30-9-1998 passed by Joint Charity Commissioner, Nagpur in Appeal No. 32 of 1998. This appeal before Joint Charity Commissioner was against the order dated 26-6-1998 passed by Deputy Charity Commissioner in Inquiry No. 1042 of 1995. The first Ad hoc Additional and District Judge, Nagpur, by impugned judgment allowed the proceedings before him partly and the orders dated 26-6-1998 as also 30-9-1998 passed by both lower authorities have been set aside to the extent of issuing certificate of classification in the name of one Shri V. G. Senad. The rest of the order has not been disturbed. The original order dated 26-6-1998 passed by deputy Charity Commissioner in inquiry Case No. 1042 of 1995 under section 19 of B. P. T. Act declares that present Appellant No. 4 is a Public Trust and directs issuance of Certificate of Registration with classification as "f" in above name with further direction to take necessary entry in Schedule-I, the appeal before Joint Charity Commissioner vide Appeal No. 32 of 1998 was under section 70 of B. P. T. Act.
( 3 ) I have heard Advocate S. R. Deshpande for appellants and Advocate n. D. Khamborkar for respondents.
( 4 ) ADVOCATE S. R. Deshpande has contended that appeal under section 72 (4) is viewed as Second Appeal under section 100, Civil Procedure Code in view of provisions of section 76 of B. P. T. Act. He further states that, Second appeal will lie if there is no remand by Appellate Court. He invites attention to impugned judgment dated 19-8-2005 to demonstrate that it is in fact a remand and as such, in view of section 76 of the B. P. T. Act, Order 43. Rule 1 (u), Civil procedure Code will apply and Appeal Against Order is the only remedy. He has relied upon the judgments reported at AIR 2002 SC 2308 and AIR 1953 SC 837 in this respect.
( 5 ) AS against this, Advocate N. D. Khamborkar has invited attention to provisions of Order 41 Rule 23 of Civil Procedure Code to point out when remand is possible. He states that by the impugned judgment here, the learned additional District Judge has not in Appeal before him interfered with the "decree" passed by lower Court and as such, provisions of Order 43, Rule 1 (u) are not attracted. He states that appeal before this Court is in view of section 72 (4) of the B. P. T. Act and not in view of section 100, Civil Procedure Code. He also relies upon 1998 (1) MH. LJ. 444 and 2001 (2) Mh. L. J. 654 as also 1998 (4) scc 343 in support.
( 6 ) IN AIR 2002 SC 2308, I. T. I. Ltd. vs. M/s Siemens Public communications Network Ltd. , it is held by Honble Apex Court that order passed by Civil Court in appeal filed under section 37 of Arbitration and conciliation Act (26 of 1996) is revisable by High Court under section 115 of civil Procedure Code. A revision petition under section 115 of the Civil procedure Code lies to the High Court as against an order made by a Civil Court in an appeal preferred under section 37 of the Arbitration Act. In that Act there was no such specific exclusion of the Civil Procedure C
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