2014 Supreme(Bom) 352

In the High Court of Bombay at Nagpur
S.B. SHUKRE, J.
Ravindra Nanasaheb Deshmukh & Another
Versus
Shankarrao Dashrath Ingle & Others
Second Appeal Nos. 76 of 2011 & 77 of 2011
Decided On : 12-02-2014

Headnote:Bombay Public Trust Act, 1950 - Section 22 - Application under for effecting change. - Held, since Director of Trust entrusted with job to look after administration and Management of Trust, hence application under Section 22 of Act filed by him for effecting change is maintainable. So far as issuance of notice convening meeting of managing body is concerned, there is absolutely no provision made in that regard in the entire constitution of the Society. In the absence of any express provision in this regard, what has been interpreted for convening of the general meeting, would also have to be applied to convene the meeting of the managing body of the Society. With more administrative powers having been vested in the Director and also presence of power in the Director to issue notice for convening special general meeting, and absence of any administrative power in the Vice President together would lead to only an interference that in the absence of the President, it would be the Director, who would be the right person to have authority to issue notice calling for meeting of the managing body of the Society. Such power, upon overall reading of the rules and regulations of the constitution of the Society, cannot be inferred to be present in the Vice President of the Society. He has been assigned the role of a neutral authority i.e. to preside over the meetings of the managing body of the Society in the absence of the President and nothing more. Therefore, the Assistant Charity Commissioner as well as District Judge have committed serious error of law in reading in the office of the Vice President presence of power to issue notice to convene the meeting of the managing body of the Society and absence of that power in the office of the Director.

       Bombay Public Trust Act, 1950 - Section 22 - Power to convene meeting of general body. - Held, since power to convene meeting includes power to cancel meeting, hence cancellation of a meeting conducted by an unauthorised person is justified. The Director had invalidly cancelled the meeting called on 7.7.1996 in pursuance of the notice issued by the Vice President of the Society as no reasons were stated. It has come on record that the cancellation of the said meeting was not for any specific reason. It was only stated that meeting was cancelled due to technical difficulty. Once it is found that the Director has power to issue notice calling for a meeting and also cancel the meeting already called and that such power is absent in the office of the Vice President, the Vice President of the Society cannot issue notice convening the meeting of the managing body and if he does, it would be an illegal notice. Therefore, it would be well within the powers of the Director to stall that meeting by issuing another notice. This is what has been done in the instant case by the Director and, therefore, even though no specific reasons have been stated for cancellation of the meeting dated 07/7/1996, the action of the Director to cancel the meeting cannot be said to be invalid or illegal.

       Civil Procedure Code, 1908 - Section 100 - Second appeal. - Since issue in appeal rendered only academic hence case cannot be rendered to First Appellate Court. - In the case of G. Amalorpavam 2006 (2) All MR 136 (SC), it has been held by the Hon’ble Supreme Court that while examining the question of making compliance with the provisions of Order XLI, Rule 31, CPC, what has to be seen is whether or not there is substantial compliance with the requirements of the provisions and if it is possible to make out from the judgment of the appellate Court that there is such substantial compliance and no prejudice has been caused to the parties, the Court must hold that the requirements of these provisions have been fulfilled. In the instant case, District Judge has framed the points for determination, has given his decision on each of the points framed and has also recorded his reasons for deciding those points. This shows that in the judgment there is compliance with the requirements of Order XLI, Rule 31 of CPC in form. The reasons recorded by District Judge are very cryptic and do not indicate any application of mind on his part to the evidence brought on record by the rival parties. So, there is no compliance in substance with the requirements of Order XLI, Rule 31 of CPC. At the same time, it must be held; the evidence being available before this Court, this Court can exercise its own discretion and decide the appeal instead of remanding it to the District Judge as held in the case of Ashwinkumar K. Patel, 1999 (2) All MR 412 (SC). There is also a question of propriety. Since the issue regarding election of the President is now rendered only academic, as rightly submitted by counsel for the respondents and as held in the case of Jaganarayansingh 1980 Mh LJ 372, remand of the matter is unwarranted.