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2014 Supreme(Bom) 1958
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
S.B. Shukre, J.
Sheikh Yusuf - Appellants
Vs.
Haji Mohammad Jamil - Respondent
Second Appeal No. 441 of 2011
Decided On: 23.04.2014
For Appellant/Petitioner/Plaintiff:J.T. Gilda and N.W. Kalwaghe, Advocates
For Respondents/Defendant:M.G.V.V. Bhangde and V.P. Panpalia, Advocates
Headnote:Civil Procedure Code, 1908 - Section 100 Second appeal. - Concurrent findings of facts, based on evidence on record, cannot be interfered with in second appeal. The substantial question of law does arise and the Courts of Assistant Charity Commissioner and District Judge have ignored the conduct of the two objectors, still the finding concurrently recorded by them that notice of the meeting was not received by the objectors can not be interfered with by the Court in exercise of its power under Section 100, Civil Procedure Code, as it is based upon the consideration of entire evidence available on record and is not perverse. Only because another view is possible, it would not be open to this Court exercising jurisdiction in Second Appeal to substitute the view of lower Courts by its own view, unless the view taken is so absurd that it cannot be taken at all. Such is not the case here. Law in this regard is well-settled and it has been developed to the extent that even an erroneous finding of fact, howsoever grave in nature, as long as it is based upon consideration of evidence on record, could not be interfered with in second appeal.
Civil Procedure Code, 1908 - Section 100, Order I, Rule 9 Second appeal. - Plea of non-joinder of parties raised for first time in second appeal is maintainable. In the case of Ram Swarup Saroj, 2000 (3) SCC 699, the Hon’ble Apex Court, in paragraph 9, has held that the plea as to non-joinder of party cannot be permitted to be raised for the first time before the Hon’ble Apex Court, if the same was not taken before the High Court and had not occasioned a failure of justice. This case has been relied upon by the counsel for the appellants, but it helps more the case of the respondents, than the case of the appellants. The reason being that without impleadment of two objectors, Haji Ismail and Hamid Khan, in the appeal proceedings before the Joint Charity Commissioner, no order of setting aside of the order of the Assistant Charity Commissioner could have been made against only five of the objectors, as the order of the Assistant Charity Commissioner operated commonly and inseparably in favour of all the seven objectors. So, the order passed by the Joint Charity Commissioner, in the absence of these two objectors, has occasioned a failure of justice and resultantly the objection of non-joinder could have been taken for the first time before the High Court or at the appellate stage.
Civil Procedure Code, 1908 - Order XLI, Rule 20 Impleadment of party. - If remedy of appeal against person concerned is barred by limitation, said person cannot be impleaded as party respondent in exercise of power under Order XLI, Rule 20 of CPC. The appellate Court has the power to direct impleadment of a party as respondent, if it is satisfied that such party is interested in the result of the appeal and that the expression "interested in the result of the appeal" has to be understood with reference to the time for which the party was not impleaded as a respondent. In other words, a person cannot be impleaded as a party respondent in exercise of power under Rule 20, Order XLI, if the remedy of appeal against that party is barred by limitation. In the instant case, it appears that necessity of impleadment of the two objectors was not brought to the notice of the Joint Charity Commissioner and it was argued only before the High Court in second appeal.
The order of Assistant Charity Commissioner was passed on 18.8.2008 and it was set aside by the Joint Charity Commissioner on 30.7.2009, which was challenged before Additional District Judge. The said application was dismissed by the Additional District Judge by his order dated 20.1.2010, which order was challenged before the High Court in second appeal. This second appeal was disposed of by the Court on 14.12.2010, by directing the remand of the case to the Additional District Judge, for a decision afresh on merits. In the remand order, the Court also directed the Additional District Judge to consider as to whether or not said two objectors were necessary parties to the appeal filed before the Joint Charity Commissioner. So, from 18.8.2008 till filing of the Second Appeal in the year 2010, no question as regards impleadment of the said two objectors came up for consideration and the result was that the order passed on 18.8.2008 became final with remedy against it getting barred by limitation, so far as these two objectors were concerned. Therefore, applying the above referred principles of law, it has to be said that these two objectors were no longer the parties interested in the result of the appeal. As such, there was no scope for their being considered to have been joined as party respondents in the proceedings before the lower Courts.
Even the Joint Charity Commissioner at the time of deciding the appeal which was decided by him on 30.7.2009 could not have exercised the power under Rule 20, Order XLI directing impleadment of these objectors, with the remedy of appeal available against them having become barred by limitation.
S.B. Shukre, J.
1. This appeal is preferred against the judgment and decree passed in M.J.C. No. 42/2009 by District Judge-1, Yavatmal on 17/09/2011.
2. The relevant facts of the case are briefly stated as under:
There is an Anjuman Urdu Education Society, Ner Parsopant, Tq. Ner, District Yavatmal, registered under the Registration of Societies Act of 1980 and also the Bombay Public Trust Act, 1950 ('BPT Act', for short). As per the constitution of the Society, general body is required to be convened in every 5 years for election of the Managing Committee. The society has 13 members. By a notice issued on 30/09/2002, by the then President of the society, a meeting of the general body was convened on 12/10/2002 for electing the members of the Managing Committee. Accordingly, elections were held and elected members, through appellant no. 1, the reporting trustee, filed a change report under Section 22 of the BPT Act, upon which inquiry bearing no. 267/2002 was instituted. The matter was heard and the learned Assistant Charity Commissioner, by his order passed on 18/08/2008, rejected the change report.
3. Dissatisfied with the said order of Assistant Charity Commissioner, the reporting trustee filed an appeal under Section 70 of the BPT Act before the Joint Charity Commissioner, Amravati. Joint Charity Commissioner, after hearing both sides, by his order dated 30/07/2009 allowed the appeal and set aside the order of rejection passed by the Assistant Charity Commissioner.
4. Being aggrieved by the said order, the respondents herein challenged the said order of Joint Charity Commissioner by filing an application under Section 72 of the BPT Act before the Court of District Judge, Yavatmal. The learned District Judge, by his order passed on 20/01/2010, rejected the application and, therefore, the respondents in the present appeal, who were objectors in the inquiry before the Assistant Charity Commissioner, preferred a Second Appeal in the High Court bearing Second Appeal No. 230/2010. The High Court, on 14/12/2010 partly allowed the Second Appeal and set aside the judgment and order dated 20/01/2010 and remanded back the matter to the Court of District Judge for deciding the M.J.C. No. 42/2009 on merits, in accordance with law.
5. After remand of the matter, the learned District Judge reheard the case and by his order passed on 17/09/2011, allowed the application and set aside the order passed by the Joint Charity Commissioner, Amravati on 30/07/2009, thereby maintaining the order of the Assistant Charity Commissioner, Yavatmal in inquiry no. 267/2002 passed on 18/02/2008. It is this order which has been challenged in the present appeal.
6. I have heard Shri J.T. Gilda, learned Counsel for the appellants, Shri V.V. Bhangde, learned Counsel for respondents no. 1 & 2 and Shri V.P. Panpalia, learned Counsel for respondent no. 3. With their assistance, I have carefully gone through the impugned judgment and order and also the judgments and orders of the lower Courts and paper book of this appeal.
This Court, while admitting the appeal on 3/09/2013, formulated two substantial questions of law and also formulated on 18/10/2013 three more substantial questions of law. These substantial questions of law, having regard to the arguments canvassed, however, would have to be rearranged in an order so that those are taken up first for answers on which the others are dependent for being resolved. These substantial questions of law, arising for my consideration in the re-arranged order, are:
1) Whether the learned lower appellate Court has committed an error of law by holding that two objectors namely 1) Haji Ismail s/o. Haji Musa Seth and 2) Hamid Khan s/o. Majid Khan were necessary parties in the Appeal No. 42/2008 filed by the appellant No. 1 before the learned Joint Charity Commissioner, as none of the objectors/respondents had raised the said ground of non-joinder of party to appeal before the learned lower appellate Court?
2) Whether two object
