Bombay High Court
Shivaling Shivacharya Guru Madiwal ... vs The Assistant Charity Commissioner, ... on 12 October, 2022
Author: S.G.Dige
Bench: S.G.Dige
1
3037.16FA+
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO.3037 OF 2016 WITH
CIVIL APPLICATION NO.12130 OF 2022
IN FA/3037/2016 WITH CA/452/2021 IN FA/3037/2016
WITH FIRST APPEAL NO.3038 OF 2016 WITH
CA/453/2021 IN FA/3038/2016
MAHADEV SOMNATH SWAMI (DIED THROUGH L.RS.
BHIMASHANKAR AND OTHERS
VERSUS
SHIVALING SHIVACHARYA GURU MADIWAL
SHIVACHARYA AND OTHERS
...
Mr.N.C. Swami, advocate for appellants.
Ms. Pradnya Talekar for Talekar and Associates, advocate
for respondents.
Mr.S.S. Dande, AGP for respondent/State.
...
CORAM : S.G.DIGE, J.
DATE : 12.10.2022 P.C. :
. This Court by order dated 07.10.2022 has disposed of the appeals filed by the appellant directing Assistant Charity Commissioner, Latur (For short, "the A.C.C.") to decide Inquiry Application No.398/1993 afresh.
2. On last date, the learned counsel for the appellant submitted that he will carry out amendment by Monday, but amendment was not carried out by Monday. This Court has already disposed of the appeals by directing order in open Court, hence matters listed on today's board.
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3. Today, the learned counsel for the appellant present before the Court and submits that the appellant no.1-A has withdrawn Vakilpatra from him. Hence his appearance may be discharged. The learned counsel further submits that his Miscellaneous application for bringing heirs and legal representatives is pending before this Court. There was no application either of the parties before this Court to bring legal heirs of the deceased respondent on record inspite of that this Court has directed to carry out amendment.
4. On last date while dictating the order the learned counsel for appellant did not point out to this Court about pendency of his application, moreover on his and appellant no.1-A's request the matter is remanded to A.C.C. Today the submission made by the learned counsel for the appellant is appearing to be after thought. It appears that the appellants do not want to go on with the matter and prolong the matter as their house property was held as respondent trust property. The order passed by the A.C.C. is dated 18.03.1994, present appeal is of the year 2012 filed by the appellant. The Dy. C.C. Latur has allowed the change report of said trust and held that Shri Kumar Rajshekhar Guru Dr. Shivling Shivacharya is trustee of the said trust.
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5. The Dy.C.C. has power to decide the change report of trustee, there is no stay to the said order. Appellants can not choose who should be trustee of respondent trust. The dispute is regarding house property is trust property or not, hence in my view submissions of the learned counsel for the appellants are only to avoid to go before the A.C.C. This Court has already passed the order in open Court in presence of appellant no.1-A. Issue of pending application was never raised before this Court. If this Court had allowed or dismissed the appeals, it would have been against appellants, hence showing sympathy on appellants this Court had used the word appeals are disposed of so as to get opportunity to the appellants to put their side before the A.C.C., but the appellants do not want respondents as trustees, which is not proper. In respect of discharge of appearance of the learned counsel of the appellants, these appeals are already disposed of.
6. Moreover, Chapter X Rule 17 of the Bombay High Court Appellate Side Rules, 1960 reads as under :-
"17. Withdrawal of appearance. - When an Advocate who has filed a Vakalatnama for a party wishes to withdraw his appearance he shall serve a written notice of his intention to do so on his client at least seven days in ::: Uploaded on - 13/10/2022 ::: Downloaded on - 13/10/2022 23:57:37 ::: 4 3037.16FA+ advance of the case coming up for hearing before the Court. Leave of the Court to withdraw appearance may also be applied for if the client has instructed the Advocate to that effect. The Advocate shall file a note in writing requesting the Court for permission to withdraw appearance and shall also file along with the Note the letter of the client instructing him to withdraw his appearance or a copy of the intimation given to the client as above together with its written acknowledgment by the client. The Court if it is satisfied that no inconvenience is likely to be caused to the Court or the client may permit the Advocate to withdraw his appearance and while permitting the Advocate to do so may also impose such terms and conditions as it may deem proper either in public interest or in the interest of the parties."
7. This rule specifically states that if court is satisfied and no inconvenience is likely to be caused to the Court then permission can be granted as well as this Court can impose such terms and conditions as it may deem proper either in the public interest or in the interest of parties. On 07.10.2022, after dictating the order in open court, it was statement of the learned counsel for the appellant that he will carry out amendment by Monday, but ::: Uploaded on - 13/10/2022 ::: Downloaded on - 13/10/2022 23:57:37 ::: 5 3037.16FA+ it was not carried out and without carrying out the amendment, the learned counsel for the appellant wants to withdraw the appearance, it amounts to prolong of the matter. The original order of the Assistant Charity Commissioner is of the year 1994. As per Chapter X Rule 17 of the Bombay High Court Appellate Side Rules, 1960, this Court permit the learned counsel for the appellant to withdraw his appearance subject to carrying out the amendment within seven days from today. If appellants or the learned counsel for appellants failed to carry out the amendment within stipulated period, as per the view of this Court in the case of Rukmini Dattatraya Naik (Smt.) and others Vs. Parmanand Lalchand Joshi and others reported in 2001 (2) Bom.C.R. 141, the Registry of this Court shall carryout amendment and send matter to the A.C.C. Latur for fresh hearing.
[S.G.DIGE] JUDGE SGA ::: Uploaded on - 13/10/2022 ::: Downloaded on - 13/10/2022 23:57:37 :::