Bombay High Court
The Charity Commissioner, Maharashtra ... vs Rahandrasigh Anandrao Jadhao, And Anr. on 27 July, 1984
Equivalent citations: AIR1984BOM478, AIR 1984 BOMBAY 478, (1984) MAH LJ 806
JUDGMENT Qazi, J.
1. The present Letters Patent Appeal arises out of the judgment in a. O. 26 of 1975 decided by the Single Judge of this court Palshikar J. as he then was, rejecting the paryar of the palintiff-appellant for appointment of a receover.
2. The facrs which gave rise to the present Letters Patent Appeal may be stated, in brief, as under:
There is a public trust known awe "Shri Balaji sansthan" Deulgaon Raja, in Buldana district. On 25-10-1961. The district Judge, Buldana, framed a scheme for adminstration of the said trust. Under the scheme prsent respondent No. 1 was appointed as herditary trustee and also a Managing. Trustee as per the scheme and in accordance with the directions of the district Judge, Buldana, given to him form time to time. However, it appears that there were complanits about the management of the trust, which led to filing of a civil suit by the appellant charity Commissioner, under section ;50 of the Bombay Public Trusts Act, claiming the relief of removazl of trustee and appointment of a new trustee and frming of a fresh scheme for managing the trust. The Charity Commissioner filed tow applications one for temporary injuction restraing the managing trustee from interfering wih the management of th etrust, and the second for appointment of a Receiver.
3. Initially, both these applicants were granted by lteh District Judge, Buldana, lbut later on the Highcourt transferred the suit from the file of the district Judgd to the file of the Joint district Judge. However, the High Court directed that till the applications are decided afresh by the Joint District Judge, theinjunction and appointment of Receiver should continue. Ultimately, the joint district Judge byhis order dated 12 th March 1975 dismissed bothe the applications. The Charity Commissioner challenged that order before the High court by wasy or appeal agsint order. It was registered as a. O. No. 26 of 1975. The matter came up for hearing kbdfore ;Palshikar j., as he than was. It appers that the only question that was agitated before the single Judge wasbout the appontment of Receiver. The learned singel Judge came to the conclusion that there was not much substance in the application of the charity Commissioner for appointment of a Receiver. The learned single Judge recorded a dinding that the Charity Commissioner was unable to point out any act of misappropriation or wastage of property and hence according to the learned songle Judge the circumstances did not warrant appointment of a Receiver. The learned single Judge also referred ot the Audit Report, which, according to him, clearly shows, that the accouonts were properlymaintaned. This he confirmed the order of the Joint district dismmsed the appeal over the charge to the Managing Rustee within a month from the date of the order. It is this order which is being challenged by way of letters patent.
4. It is not necessay for us to enter into the merits since the appeal can obe disposed of on a preliminary gouond raised by Mr. Kukdey about its tenability. He has invited out attention to the decision of this Court , Obedure Rahman v. Ahmedali Bharucha. According to Mr. Kuday, the appeal which was filed before the single Judge of this court was under s. 104 read with O. 43 r. 1 of the code of Civil Procedure (hereinafter referred to as 'the code' for short) and hence the bar of s. 104(2) would apply.
5. Mr. Jaiswal has vehemently argue that the Letters Patent Appeal is maintainable. He has relied onl the decisions , Shah Babulal Khimji v. Jayaben D. Kania, Mohindra aupply co.) According to Mr. Jaiswal, letters Patent is a Special Law which is not ocntrolled by the provisions of the code and, therefore, the bar of section 104(2) would not applyto the Letters Parent Appeals. Mr. Kukday has heavily relied on the decision reported in AIR 1981 SC 1979 (cited supra). We may reproduce the relevant portions from paras 43 and 79, which, no out view, clinch the issue:
"43. Thus, in these two cases it was clearly held that where a Trial Judge had passed an order in an appeal against an order passed bythe District Judge under O. 43, R. 1 a further appeal under the Letters Patent wasnot maintaiinable. This view is fully supported bythe express language in which clause 15 of the Letters Patent had been couched, as referre to above."
"79. Thus, after considering the argument of counsel for the parties on the first two limbs of the questions our conclusion are:-
that there is no inconsitenct between s. 104 read with O. 43 R. 1 and the appeals under the Letters Patent and the application of s. 104 read with O. 43, r. 1 show rhat these provisions would not apply to internal appeals within the High Court."
6. There is no dispute that the appeal which was filed by the Charity commissioner before the single Judge of this court was filed under s. 104(1) read with O. 43, R. 1 (s) of the Code and, therefore, byno stretch of imagination it can be said that the impugned order is not an order passed iin appeal under s. 104 of the Code. Hence the bar in the matter of appeal as provided under sub-sec. (2) of s. 104 must apply. This issue is already concluded by the decision of lthe court reported in 1982 Mah LJ 283. In that decision, this court has referred to the decision . This court has held-
"As far as clause 15 of the Lettes Patent is concerned in our opinion , the provisions of s. 104 are attracted and it is applicable to the letters patent Appeals also. Because the Letters Patent Appeals cannot be said to be an exception ;and override the provisions of the Code of Civil Procedure."
The decision also refers to clause 37 of the Letters Parent, which provides that the Letters Patent will be guided by Code of Civil Procedure, while making the rules by kthe High court and can be altered by the competent Legislature. It has been further observed that the right of appeal is not linherent right the aggrieved party. It is the creature of stature and, therefore, it can be taken away by statute.
7. Mr. Jaiswal has invited our attention to s. 100A of the Code, which reads as under:--
"Notwithstantding anything contained in any Letters Patent for any High court or in any other instrument having the force of law of law kor in any other law for the time being in force, where any appeal from an appellante decree or order is heard and decided by a single Judge of a High court, no further apeal shall lie from the judgment, decision or order of such single judge in such appeal or form any decree passed in such appeal."
8. Relying on lthese observations, Mr. Jaiswal has argued that had the Legislature intended to exclude clause 15 of the Letters Patent in regard to s. 104 of the code, then the provisions similar to the ones quoted supra wouldhave been added to S. 104 of the Code. In our view, this analogy is wholloy irrelevant. Section 100A of the Code bars Letters Patent Appeals against the decision in secone appeal. Under the Letters Patent, appeals lie in certan cases against the decision of a single Judge in a second appeal. Such appeals in effect amouont to third appeal and, thereforee, section 100a is added so that there shall be no third appeal in any case. tHe same purpose is sought to tbe achieved by sub-section (2) of s. 104 of the Code that in no case an appeal under S. 104 of the code nugatory and such interpretation would be contrary to all canons of interpretation. We see no substance in the appeal and the same is dismissed. It appears that this court while admitting the appeal the granted stay for continuance of Receiver. Since the appeal is being dismissed, the stay order passed by this Court also stands vacated. No order as tocosts.
9. Appeal dismissed.