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2016 Supreme(Bom) 431

R.M.BORDE, SUNIL P.DESHMUKH, RAVINDRA V.GHUGE
Prabhakar Sambhu Chaudhary – Appellant
Versus
Laxman Baban Mali – Respondent


Advocates:
Advocate Appeared:
Shri R.N. Dhorde, Senior Counsel i/by Shri V.R. Dhorde, advocate for the Appellant.
Shri P.M.Shah, Senior Counsel i/by Shri S.P. Brahme, advocate for Respondents No.1 to 3.
Shri A.B.Girase, Government Pleader for Respondent No.5.

Judgement Key Points

The facts of the case involve a dispute over the management of a public trust, where two groups—the Chaudhary group and the Mali group—each claimed to be the duly elected office bearers of the Managing Committee. The Assistant Charity Commissioner initially accepted the Change Report presented by the Chaudhary group, while the Charity Commissioner rejected the Change Report submitted by the Mali group. The Mali group appealed this decision to the District Judge, who reversed the lower authority's order and set aside the Assistant Charity Commissioner's decision. Subsequently, the Chaudhary group filed an appeal before the High Court under Section 72(4) of the Bombay Public Trusts Act, 1950, challenging the order of the District Judge.

The core legal issue concerns the scope and extent of the appeal under Section 72(4) of the Act. The question is whether such an appeal is subject to the restrictions and limitations imposed under Section 100 of the Civil Procedure Code, which generally restricts second appeals to questions of law involving substantial questions. The legal reasoning clarifies that the appeal under Section 72(4) is not a "second appeal" in the traditional sense and is not subjected to the limitations of Section 100 of the CPC. Instead, it is a broader, re-hearing type appeal that allows the High Court to reconsider both questions of law and fact, with the authority to reverse, modify, or remand the decision to the lower forum for a fresh decision (!) (!) .

The legal principle established is that the scope of such an appeal extends beyond mere questions of law, providing a comprehensive review of the lower court's decision. The appeal is not confined by the restrictions typically associated with second appeals, and there is no obligation for the appellant to specify substantial questions of law in the memorandum of appeal. The High Court is also not bound to formulate such questions before hearing the appeal, thus affording a broader scope of judicial review (!) .

In summary, the facts revolve around a management dispute of a public trust, and the legal ratio concludes that appeals under Section 72(4) are not limited by the restrictions of Section 100 of the CPC. They encompass a full rehearing on both questions of law and fact, with the jurisdiction to reverse, modify, or remand, and do not require the appellant to specifically state substantial questions of law in the appeal documentation.


ORDER :

(Per R.M.Borde, J.):

1. Heard Shri R.N. Dhorde, Senior Counsel i/by Shri V.R.Dhorde, advocate for the Appellant in Second Appeal No.700 of 2008 and for Respondent No.1 in Second Appeal No.793 of 2008 with and i/by Shri P.S.Dighe, advocate; Shri P.M.Shah, Senior Counsel i/by Shri S.P.Brahme, advocate for Respondents No.1 to 3 in Second Appeal No.700 of 2008 and for the Appellant in Second Appeal No.793 of 2008 with and i/by Shri N.B.Suryawanshi, advocate; and Shri A.B.Girase, Government Pleader for Respondent No.5 in both the appeals.

2. These Second Appeals have been presented objecting to the judgment and order dated 29.04.2008, passed by Ad hoc District Judge-2, Shahada in Trust Applications No.1 of 2007 and 2 of 2007.

3. Although there is a chequered history of the litigation, it would suffice to note that after elections to the Managing Committee were held, Change Report No.207 of 2003 was presented by Choudhary group i.e. appellant in Second Appeal No.700 of 2008, whereas, Change Report No.208 of 2003 was Presented by Mali Group i.e. Respondents in Second Appeal No.700


































































































































































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