Gujarat High Court
Shital Omprakash Agrawal vs The Gujarat Research And Medical ... on 28 January, 2022
Author: A.G.Uraizee
Bench: A.G.Uraizee
C/FA/142/2022 ORDER DATED: 28/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 142 of 2022
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In
R/FIRST APPEAL NO. 142 of 2022
================================================================
SHITAL OMPRAKASH AGRAWAL
Versus
THE GUJARAT RESEARCH AND MEDICAL INSTITUTE
================================================================
Appearance:
ARJUN R SHETH(7589) for the Appellant(s) No. 1
for the Defendant(s) No. 10,11,15,18,19,21,22,23,24,25,26,27,28,29,30,4,7,9
MR MI MERCHANT(479) for the Defendant(s) No. 1,12,13,14,16,17,20
MR VISHAL T. PATEL(6518) for the Defendant(s) No. 2,3,5,6,8
SHAILI A SHAH(8832) for the Defendant(s) No. 2,3,5,6,8
================================================================
CORAM:HONOURABLE MR. JUSTICE A.G.URAIZEE
Date : 28/01/2022
ORAL ORDER
1. The present appeal under Section 72(4) of the Bombay Public Trust Act, 1950 ('Trust Act' for short) read with Section 96 of the Code of Civil Procedure, 1908 ('CPC' for short) to assail the order dated 07.01.2022 passed by the City Civil Court, Ahmedabad below Exhibit- 1 in Civil Misc. Application No.465 of 2021 whereunder the Civil Misc. Application is permitted to be withdrawn by the respondent Nos. 2 to 8.
2. With the consent of learned advocates for the parties the appeal is taken up for final disposal.
3. The background facts giving rise to this appeal are that the respondent No.1 is registered charitable trust governed by the memorandum of association and article of association as amended from time to time.
Page 1 of 13 Downloaded on : Tue Feb 01 20:31:34 IST 2022C/FA/142/2022 ORDER DATED: 28/01/2022
4. The respondent No.9 filed scheme application No.45 of 2019 under Section 50(A) of the Trust Act before the charity commissioner, Ahmedabad for new scheme to manage the respondent No.1-Trust. The charity commissioner, Ahmedabad by order dated 31.07.2019 framed new scheme which propose to hold elections of the managing committee of respondent No.1 - Trust only by voting in person and drop the cloth of voting by proxy.
5. The respondent Nos. 2 to 8 herein filed CMA No.465 of 2021 under Section 72 of the Trust Act in the City Civil Court, Ahmedabad to challenge the new scheme framed by the charity commissioner. The respondent Nos. 2 to 8 also preferred exhibit-13 application for stay of the new scheme framed by the charity commissioner. The City Civil Court by order dated 14.10.2021 directed the respondent No.1 to whole election vide agenda dated 01.10.2021 in terms of provisions regarding election mentioned in clause 10(e) of the memorandum of association that existed prior to passing of the impugned order dated 31.07.2021 by the charity commissioner and permitted voting by proxy as well.
6. By notice dated 14.12.2021 schedule of election to be held on 30.01.2021 for board of management is notified. Thereafter by notice dated 28.12.2021 the details relating to proxy forms and submission thereof is intimated to the members of respondent No.1 - Trust.
7. After the commencement of the process of election as aforesaid, the respondent Nos. 2 to 8 have unconditionally withdrawn CMA No.465 of 2021 on 7.01.2022 vide Page 2 of 13 Downloaded on : Tue Feb 01 20:31:34 IST 2022 C/FA/142/2022 ORDER DATED: 28/01/2022 impugned order. Hence, present appeal.
8. The petition is resisted by respondent No.8 by filing affidavit-in-reply.
9. I have heard Mr. Sudhir Nanavati, learned senior advocate assisted by Mr. Arjun Sheth, learned advocate for the appellant-applicant, Mr. Mihir Thakore, learned senior advocate assisted by Mr. Vishal T. Patel, learned advocate for respondent Nos. 2, 3, 5, 6 & 8, Mr. M.I. Marchant, learned advocate for respondent Nos.1, 12 to 14, 16, 17 and 20 and Ms. Urmila N. Desai, learned AGP for respondent No.31.
10. Mr. Sudhir Nanavati, learned senior advocate vehemently submits that election for the managing committee of respondent No.1 - Trust was notified on 14.12.2021 in terms of the interim orders dated 14.10.2021 passed by the City Civil Court below Exhibit-13 in CMA No.465 of 2021. He submits that respondent Nos. 3 and 8 who are the two of the original applicant of CMA have collected the proxy forms to vote in the ensuing election. He further submits that the respondent No.8 has filed Misc. Application No.58 of 2021 dated 25.12.2021 before the charity commissioner for direction to conduct the ensuing election with proxy in terms of interim order dated 14.10.2021. He submits that the respondent Nos. 2 to 8 herein suraptitiously withdrawn CMA No.465 of 2021 unconditionally without informing the learned advocate for the respondents of the CMA. Relying upon the decision of Supreme Court in the case of Saiyad Mohammad bakar el- edroos v. Abdulhabib hasan arab and others reported in Page 3 of 13 Downloaded on : Tue Feb 01 20:31:34 IST 2022 C/FA/142/2022 ORDER DATED: 28/01/2022 1998 (4) SCC 343, he submits that charity commissioner is the master of the trust and the proceedings under Section 72 of the Trust Act are in continuation of the proceedings, and therefore, the Court below ought to have heard the respondent of CMA before passing the impugned order to find out whether any other person was interested in the proceedings with CMA. He submits that by withdrawal of CMA and vacation of the interim order, the operation of the scheme has framed by the charity commissioner by his order dated 31.07.2019 is revived in the midst of the election process wherein voting by proxy was also permitted vide notice dated 28.12.2021. Relying upon the decision of Supreme Court in the case of Vice Chairman & Managing Director, City and Industrial Development Corporation of Maharashtra Ltd. And another v. Shishir Realty Private Limited and other reported in 2021 SCC Online 1141, in the case of K. Manjushree v. State of Andhra Pradesh and another reported in 2008 SCC 512 and in the case of Rajendra Bhimrao Mandve & others reported in 2001 (10) SCC 51, rules of game cannot be changed once the game has started. It is his further submission that the respondent Nos. 2 to 8 have withdrawn the CMA by suppressing material facts, and therefore, the impugned order needs to be set aside.
11. Mr. M.I. Merchant, learned advocate for the respondent Nos.1, 12 to 14, 16, 17 & 20 has supported the appeal. He has adopted the arguments canvassed by Mr. Nanavati, learned senior advocate for the appellants. He additionally submits that the order under Section 50(A) of the Trust Act passed by the charity commissioner is an order inrem are not an order in personam. He submits that Page 4 of 13 Downloaded on : Tue Feb 01 20:31:34 IST 2022 C/FA/142/2022 ORDER DATED: 28/01/2022 the respondent Nos. 2 to 8 had filed the CMA in the City Civil Court to challenge the order of the charity commissioner in representing capacity, and therefore, in view of the decision of the Supreme Court in the case of Singhai Lal Chand Jai (Dead) v. Rashtriya Swayamsewak Sangh, Panna and others reported in 1996 (3) SCC 149, the Court below ought to have permitted to withdraw civil application in view of the order 23(1A) of the Code.
12. Mr. Mihir Thakore, learned senior advocate has raised preliminary objection about the maintainability of the present appeal. He submits that in view of Section 72 (2 of the Trust Act), the present appeal under Section 72(4) of the Trust Act is not maintainable. Elaborating his submission, he submits that under Section 72(2), the Court made confirmation, revoke or modify the decisions of the charity commissioner rendered under Section 50(A) of the Trust Act. He further submit that an appeal under Section 72(4) lies to this Court against the decision of the Court under sub section 2 of Section 72 of the Trust Act. He submits that by the impugned order, the learned trial Judge has permitted unconditionally withdrawal of the CMA which does not fall within the preview of decision as contemplated under Section 72(4) of Trust Act. He submits that as per Section 76 of the Trust Act, the provisions of CPC are applicable to all proceedings before the Court under the Trust Act. According to his submission, provisions of order 23 rule 1 are applicable to the proceedings of application under Section 72(1) of the Trust Act preferred before the Civil Court. Relying upon the decision of the Supreme Court in the case of Bijayananda Patnaik v. Satrughna Sahu and other , reported in AIR Page 5 of 13 Downloaded on : Tue Feb 01 20:31:34 IST 2022 C/FA/142/2022 ORDER DATED: 28/01/2022 1963 SC 1566 and in the case of M/s Hulas Rai Baij Nath v. Firm K.B. Bass and Company reported in AIR 1968 SC 111, he submits that right of plaintiff to withdraw the proceedings unconditionally is absolute and Court cannot refuse unconditional of the suit. He submits that at most the Court can impose costs while permitting withdrawal of the suit. Relying upon the decision of this Court in the case of Patel Dineshbhai Mohanbhai v. Naranbhai Ramdas and in the case of Narendrabhai Thakershibhai Thakkar v. Vishalbhai Yogeshbhai Parmar & another, reported in 2012 (4) GLR 3220 he submits that unconditional withdrawal under order 23 rule 1 of the code cannot be refused by the court even if impleadment application or transposition application is pending.
13. Mr. Sudhir Nanavati, learned senior advocate in the rejoinder submits that Section 50(A) of the Trust Act is inclusive in nature relying upon the decision of the Supreme Court in the case of State of Bombay and others v. The Hospital Mozdoor Sabha & others reported in AIR 1960 SC 610, in the case of NDP Namoodripad (Dead) by Lrs v. Union of India and others reported in 2007 (4) SCC 502 and in the case of Ramlalbhai and others v. State of Gujarat reported in 2008 (5) SCC 449. He submits that where the courts are dealing with an inclusive definition it would not be appropriate to put a restrictive interpretation upon terms of wider denotation. He further submits that the expression "decision" appearing in sub section 2 and sub section 4 of Section 72 included a scheme framed or modified under Section 50(A) by the charity commissioner as per explanation appended to Section 72 of the Trust Act. It is his further submission that interim order dated Page 6 of 13 Downloaded on : Tue Feb 01 20:31:34 IST 2022 C/FA/142/2022 ORDER DATED: 28/01/2022 14.10.2021 below Exhibit-13 is based on the arguments canvassed on behalf of the contesting parties, and therefore, it would fall within the sweep of the term "decision". He submits that this interim order is inclusive in view of the explanation to Section 72 of the Trust Act. He, therefore, submits that the learned trial Judge ought to have afford an opportunity of hearing to the appellants before permitting withdrawal of the CMA and vacating the interim relief. He, therefore, submits that the present appeal under Section 72(1) of Trust Act is maintainable.
14. I have given my thoughtful consideration to the rival submissions. Perused the record of CMA No.465 of 2021.
15. Before adverting to the contentions canvassed by learned counsels on either side on the merits of the case, it would be apposite to dealt with the temporary objection regarding maintainability of the appeal raised by Mr. Mihir Thakore, learned senior advocate.
16. It is an undisputed fact that the respondent Nos.2 to 8 herein had assailed the scheme framed by respondent No.31 charity commissioner vide his order dated 31.07.2019 as per the new scheme inter-alia the earlier practice of permitting voting by proxy for the election of managing committee of respondent No.1 Trust was deleted. During the pendency of the CMA, the respondent No.1 Trust had announced the election vide agenda dated 01.10.2021. The respondent Nos. 2 to 8, therefore, took out Exhibit-13 application in the CMA for stay of the impugned order of the charity commissioner. The trial Court instead of staying the entire scheme passed an Page 7 of 13 Downloaded on : Tue Feb 01 20:31:34 IST 2022 C/FA/142/2022 ORDER DATED: 28/01/2022 interim order on 14.10.2021 whereunder the respondent No.1 was permitted to hold elections to the boar of management of respondent No.1 Trust declared vide agenda dated 01.10.2021 and permitted voting by proxy also as per the old scheme which existed before the new scheme framed by respondent No.31 by the impugned scheme.
17. It is also an undisputed fact that the respondent Nos. 2 to 8 submitted Exhibit-37 purshis for withdrawal of CMA No.465 of 2021 on 07.10.2022 and the trial Court permitted to withdrawal of CMA and vacated the interim relief if any. The appellants have been made a serious grievance that neither copy of Exhibit-37 was served on them nor any endorsement of their learned advocate was obtained on the said purshis for withdrawal. The record reveals that Exhibit-37 withdrawal purshis bares an hand written endorsement in the left hand side margin by learned advocate for respondent Nos. 2 to 8 herein that the concerned learned advocate for the other side is informed.
18. Be that as it may, the moot question is whether the impugned order fall within the definition of "decision" and whether the provisions of the Code are applicable to the proceedings under the Trust Act to bring the impugned order within the sweep of order 23 rule 1 of the Code.
19. Mr. Nanavati, learned senior advocate vehemently submitted that in application under Section 72(1) of the Trust Act is continuation of the proceedings under Section 50(A) of the Trust Act and the learned trial Judge has in Page 8 of 13 Downloaded on : Tue Feb 01 20:31:34 IST 2022 C/FA/142/2022 ORDER DATED: 28/01/2022 his interim order clearly observed that that "if the changes enwishesed in the new scheme referred to above are inductive of defects considered a charity commissioner in old scheme I am afraid that I will held for the defects were if at all, so trifle that action on the part of learned charity commissioner under Section 50(A) was prima facie not justified." It is his submission that vacation of this order is also the decision of the trial Court which would be covered by explanation to Section 72 of the Trust Act is not sustainable.
20. Section 76 of the Trust Act provides as under:-
"Section 76. Save in so far as they may be inconsistent with anything contained in this Act, the provisions of the Code of Civil Procedure, 1908, shall apply to all proceedings before the court under this Act."
21. In view of the above provision in the Trust Act, the proceedings of CMA under Section 72 (1) of the Trust Act were clearly governed by the provisions of the Code.
22. Section 72(2) of the Trust Act reads as under:-
"Section 72(2). The Court after taking evidence if any, may confirm, revoke or modify the decision or remit the amount of the surcharge and make such orders as to costs as it thinks proper in the circumstances."
23. Section 72(4) of Trust Act reads as under:-
Page 9 of 13 Downloaded on : Tue Feb 01 20:31:34 IST 2022C/FA/142/2022 ORDER DATED: 28/01/2022 "Section 72(4). An appeal shall lie to the High Court against the decision of the court under sub-section(2) as if such decision was a decree from which an appeal ordinarily lies."
24. It is thus eminently clear that the Court may confirm, revoke or modify the decision of the charity commissioner under Section 40, 41, 50(A), 70 or 70(A) and as per sub section 4 this decision of the Civil Court can be challenged by way of appeal in the High Court.
25. By the impugned order the Court below has neither confirm nor revoke nor modify the impugned order dated 31.07.2019 passed by charity commissioner, Ahmedabad framing a new scheme for respondent No.1 Trust. I am, therefore, of the view that the impugned order permitting respondent Nos. 2 to 8 to withdraw the CMA cannot be termed as a decision as enwishesed under sub Section 2 and sub Section 4 of Section 72 of the Trust Act.
26. The Supreme Court and this Court has in various decision relied upon by Mr. Thakore, learned senior advocate unequivocally terms held that unconditionally withdrawal of the suit is the prerogative of the plaintiff under order 23 rule 1 of the Code in the facts of particular case at the most the Court can impose costs while permitting the plaintiff to withdraw the suit.
27. Supreme Court in the case of M/s. Hulasrai (supra) has held as under in para-2:-
Page 10 of 13 Downloaded on : Tue Feb 01 20:31:34 IST 2022C/FA/142/2022 ORDER DATED: 28/01/2022 "2. The short question that, in these circumstances, falls for decision is whether the respondent was entitled to withdraw from the suit and have it dismissed by the application dated 5th May, 1953 at the stage when issues had been framed and some evidence had been recorded, but no preliminary decree from rendition of accounts had yet been passed. The language of Order 23, Rule 1, sub-Rule (1), C.P.C., gives an unqualified right to a plaintiff to withdraw from a suit and if no permission to file a fresh suit is sought under sub-rule (2) of that Rule, the plaintiff becomes liable for such costs as the Court may award and becomes precluded from instituting any fresh suit in respect of that subject-matter under sub-Rule (3) of that Rule. There is no provision in the Code of Civil Procedure which requires the Court to refuse permission to withdraw the suit in such circumstances and to compel the plaintiff to proceed with it. It is, of course, possible that different considerations may arise where a set-off may have been claimed under Order 8, C.P.C. or a counter-claim may have been filed, if permissible by the procedural law applicable to the proceedings governing the suit."
28. So far as the contention of Mr. Merchant, learned advocate that the order of charity commissioner framing scheme under Section 50(A) of the Trust Act is order in rem and no in personam as it affects the Trust and public at large is devoid of substance. His further contention that Page 11 of 13 Downloaded on : Tue Feb 01 20:31:34 IST 2022 C/FA/142/2022 ORDER DATED: 28/01/2022 since proceedings under Section 72 sub Section 1 of the Trust Act is continuation of proceedings of Section 50(A), the Court below ought to have afford an opportunity to the parties to apply for transposition as applicants are also without merit. Under Section 72 of the Trust Act only person aggrieved by the order of charity commissioner under Section 50(A) of the Trust Act can file an application in the Civil Court to set aside such an order, therefore, it is not necessary for the Civil Court while dealing with an application/purshis for withdrawal of an application to afford an opportunity to the opponents to make an application for transposition in any case as has been held by this Court in the case of Narendrabhai Thakershibhai Thakkar (supra) that even if an application for transposition is pending, the Court cannot refuse unconditional withdrawal of the suit. The decision of the Supreme Court in the case of Singhai Lal Chand Jai (Dead) (supra) is not applicable to the facts of the case.
29. Considering the position of law regarding the right of the plaintiff to unconditionally withdraw the suit under order 23 rule 1 of the Code, the order impugned permitting unconditional withdrawal of the CMA of respondent Nos. 2 to 8 by the trial Court would not vitiated on the ground of the same being passed without affording an opportunity of hearing to the respondents of CMA or their learned advocate as the Court below has no other option but to permit withdrawal even if there was an objection for the same.
30. The offshoot of the above discussion is that the present appeal under Section 72(4) of the Trust Act against Page 12 of 13 Downloaded on : Tue Feb 01 20:31:34 IST 2022 C/FA/142/2022 ORDER DATED: 28/01/2022 the impugned order permitting unconditional withdrawal of CMA is not maintainable as the impugned order does not fall within the term "decision" as enwishesed under sub section 2 sub section 4 of the Trust Act.
31. For the foregoing reasons, the appeal fails and is hereby dismissed. However without costs. Notice discharged. Interim relief stands vacated.
33. In view of the order passed in the main appeal, connected Civil Applications do not survive and stands disposed of accordingly.
33. Record and Proceedings be transmitted to the trial Court forthwith.
(A.G.URAIZEE, J) Manoj Page 13 of 13 Downloaded on : Tue Feb 01 20:31:34 IST 2022