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GUJARAT HIGH COURT
Rajesh H. Shukla, J.
Nuruddin Badamiya Saiyed
and Ors. —Applicants
versus
Imamshah Bawa Roza Committee
and Ors. —Respondents
Civil Application (Leave To Appeal) No.7759 of 2014 in First Appeal (Stamp Number) No. 2493 of 2014
Decided on 6.3.2017
Counsel for the Parties:
For the Applicant Nos.1 to 5:Mr. MTM Hakim with Mr. S.S. Saiyed, Advocate
For the Respondent No.3: Mr. P.P. Banaji, Asst. Government Pleader
For the Respondent No.4:Mr. M.I. Merchant, Advocate
For the Respondent No.2:Mr. K.G. Vakharia, Senior Advocate, with Mr. S.K. Patel, Advocate
For the Respondent No.1: Notice Served BY DS
IMPORTANT POINT
While exercising discretion under section 5 of the Limitation Act what needs to be emphasised is that even if liberal approach is required, it cannot be oblivious of the fact that a successful litigant has also acquired certain right coupled with the fact that the litigation cannot be kept alive indefinitely.
Headnote:Civil Procedure Code, 1908—Order 7 Rule 11—Limitation Act, 1963—Section 5—Application seeking leave to appeal to prefer appeal under Section 72(3) of Bombay Public Act, 1950—Respondent Trust was registered as category ‘E’ long time ago was sought to be registered as category ‘B’ on plea that it was religious trust and applicants were trustees and beneficiaries but were not party to the proceedings—Respondents in those proceedings raised the point of locus-standi as well as delay as applicants had approached Charity Commissioner after more than 50 years—Court allowed application under Order 7 Rule 11 CPC—In application for leave to appeal aspect of limitation as well as locus-standi arose for consideration—Application had not explained their locus-standi as to the right or the basis on which they could claim such prayer and could claim leave to appeal after such belated stage—Even if liberal approach was required under Section 5 of Limitation Act, it was to be kept in consideration that successful litigant had acquired certain rights and that litigation could not be kept alive indefinitely—Application for leave to appeal was liable to be dismissed.
Held: That would again require consideration of the aspect of limitation as well as locus standi. The main emphasis of learned advocate Shri Hakim that after the Wakf Act has been brought into force it could have been registered under the Wakf Act and further as it is a religious trust it should have been registered under category “B” and not “E” as originally registered much earlier about 50 years back. These submissions on a little scrutiny sounds that persons like the applicants desire to indulge in legal proceedings not only by way of abuse of process but it appears that there is an impression that by pursuing legal proceedings it can be a gainful proposition which is reflected from the attitude and the averments. As the background has been referred to and discussed hereinabove while recording the submissions the things which have taken place 50 years back pursuant to the scheme framed as per the order passed in Civil Suit No. 118/31, the trust which is said to have been registered under the Bombay Public Trusts Act as category “E” is now sought to be claimed that it is a religious trust and therefore it should be in a particular category of “B”. As recorded hereinabove, the office of the Charity Commissioner seems to have explained which has also been quoted in the order where the Charity Commissioner has clarified that there is no such provision under the Act for change of nature as well as status of the trust but it is only for the convenience of the office the categories were classified. Apart from this, the applicants have not explained their locus standi as to the right or the basis on which they can claim any such prayer and can claim the leave to appeal to file the appeal after such a belated stage challenging the orders which have been passed much earlier. Again, the order which is sought to be challenged below exh. 11 passed under Order 7, Rule 11 itself refers to the aspect of limitation contending that there is no cause of action and therefore the court is under an obligation to consider the plaint at the face value. The provisions of Order 7, Rule 11(d) provide:
“Where the suit appears from the statement in the plaint to be barred by any law.” In other words, Order 7, Rule 11 (d) itself casts an obligation upon the court to verify and satisfy itself whether any such proceedings are barred by law which would include the law of limitation.
The law of limitation is founded on a public policy that an issue could be kept alive for a specified period and the concept of judicial discretion is governed by the rules of reasons and justice.
It is required to be stated that while exercising discretion under section 5 of the Limitation Act what needs to be emphasised is that even if liberal approach is required, it cannot be oblivious of the fact that a successful litigant has also acquired certain right coupled with the fact that the litigation cannot be kept alive indefinitely. Therefore, it is the sufficient cause or the justification offered for the delay which is relevant for the purpose of exercise of discretion under section 5 of the Limitation Act while considering such aspect of delay. The word ‘sufficient cause’ should be understood in proper perspective referring to the fact-situation which has been prevailing. Thus, there cannot be any straitjacket formula as it will have to be considered on case to case basis depending upon the explanation or justification. It is in these circumstances the broad guidelines laid down by the Hon’ble Apex Court in the case of Esha Bhattacharjee (supra) have to be considered while exercising discretion.
It is in this background the legislature has by Order 7, Rule 11 (d) provided that such litigations which are sought to be pursued dishonestly for other purposes should not be encouraged and should be disposed of.
One more aspect which has been emphasised by both the sides relying upon the observations made by the Hon’ble Apex Court in the case of Shiromani Gurudwara Parbandhak Committee v. Mahant Harnam Singh C. (dead), M.N. Singh and ors. (supra) is that the judgment of the court would be a judgment in rem as observed in the aforesaid judgment. On one hand the applicants seek leave to appeal contending that they are beneficiaries and having some interest. On the other hand, the judgment which is delivered and which would bind all including the beneficiaries cannot be brushed aside. Therefore, the applicants who seek to challenge the order which is hopelessly time barred and again without any locus standi cannot be granted any such leave. Therefore, it is not only the aspect of limitation or delay, but the applicants have to first satisfy about the locus standi itself which as discussed above they have failed to show any locus standi to pursue such proceedings which has attained finality. It is also required to be noted that if the applicants claim that they are interested, it would be for them to explain why the proceedings were not initiated in time or pursued when orders were passed as back as in the year 2006 or 2000 having attained finality. It appears that the applicants are trying to catch a straw to suit their requirement and make the submissions without any basis or foundation. The person who claims any right, title, interest must come and show the court that he has been vigilantly pursuing the remedy within the time frame and even if there is some delay he can explain the delay that he was not negligent or careless or indifferent. It is in these circumstances the applicants desire to pursue such proceedings by abusing the process by filing such proceedings under some misconception or ignorance. Therefore, if such leave is granted it would be counter productive to the established principles and it would amount to endorsing perpetuity in the litigation. Therefore, no leave could be granted and such application deserves to be dismissed with cost. (Paras 13, 14, 15, 16 & 17)
Result: Application dismissed.
Rajesh H. Shukla, J.—The present civil application is filed by the applicants seeking leave to appeal to the applicants to prefer an appeal under section 72(3) of the Bombay Public Trusts Act, 1950 (hereinafter referred to ‘as the Act’) challenging the impugned judgment and order in Revision Application No. 10 of 2003 passed by the Charity Commissioner, Gujarat State, Ahmedabad, dated 9.11.2004 and also the judgment and order in Civil Misc. Application No. 83 of 2004 passed by the Fast Track Court, Ahmedabad (Rural), allowing the application, exh. 11 under Order 7, Rule 11 as well as Civil Misc. Application No. 83 of 2004 on the grounds stated in the application.
2. Heard learned advocate Shri MTM Hakim for learned advocate S.S. Saiyed for the applicants, learned Sr. Counsel Shri KG Vakharia appearing with learned advocate Shri SK Patel for respondent No. 2, learned AGP Shri PP Banaji for respondent No. 3 and learned advocate Shri MI Merchant for respondent No. 4.
3. Learned advocate Shri Hakim referred to the background of facts and the impugned order at Annexure-A with the First Appeal, that is, the order in Revision Application No. 10/2003 passed by the Charity Commissioner, Gujarat State, Ahmedabad. The applicants filed an application under section 70-A before the Charity Commissioner that respondent No.1 Trust which has been registered as category “E” in the register of the trust may be registered as category “B”. Learned advocate Shri Hakim submitted that as contended in the application the applicants are the trustees and beneficiaries who were not party to the proceedings either before the Charity Commissioner or the District Judge. He submitted that both the proceedings before the Charity Commissioner, Ahmedabad as well as before the District Judge are seriously prejudicial to the rights of the applicants and other beneficiaries of the trust. He submitted that the people are having religious faith in Dargah of Hazrat Pir Saiyed Imamshah Bawa Roja and therefore the present application has been filed seeking leave to appeal challenging the impugned order. He emphasised that as the applicants were not a party to the proceedings the present first appeal is sought to be filed as opponent No. 4 original applicant has not challenged the impugned order. Learned advocate Shri Hakim submitted that respondent No.1 is a religious trust and therefore it should be registered in “B” category. He tried to submit that as per the order passed in Civil Suit No. 168 of 1931 it is a religious institution and it has been registered as category “E” trust and therefore the application is made seeking leave to appeal the aforesaid appeal. It is also contended that the respondent trust was registered as a wakf in the year 1952 as at that time the trust was registered as a wakf under the provisions of the Act. However, when Wakf Act 1955 was brought into force the proceedings were required to be conducted under the Wakf Act.
4. Learned advocate Shri Hakim submitted that the trust has been set up for the benefit of the heirs and other beneficiaries. He also tried to submit that as per the provisions of section 2(13) of the Act, Wakf is included and therefore any such Muslim religious trust could be formally registered under the Act. However, as the Wakf Act has been enacted it could be registered. He also submitted that the orders passed below Annexure-A as well as the application exh. 11 in Civil Misc. Application No. 83 of 2004 refer to the aspect of delay. However, he submitted that both the Charity Commissioner and the Court below have failed to appreciate that the applicants are interested and any person aggrieved by the decision of the Charity Commissioner regarding the nature of the trust whether it is a public trust or not an application could prefer an application and there cannot be any limitation or there is no question of any res judicata also. He emphasised that the application should have been read as a whole and the
