1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.126 OF 2010 WITH FIRST APPEAL NO.127 OF 2010 Shrirang Narsinha Inamdar ..Appellant Vs. Milind Rajaram Jadhav ..Respondent ......... Mr.G.H.Keluskar, for appellant. ......... CORAM: R.G.KETKAR, J. RESERVED ON : 15 th JULY, 2010 PRONOUNCED ON : 20 th SEPTEMBER, 2010. JUDGMENT: These two First Appeals are directed against the judgment and decree dated 5 th October, 2010 passed by the learned District Judge­2, Sangli in Misc. Application (Trust) No.259 of 2008 and Misc. Application (Trust) No.260 of 2008. Since both these appeals are in respect of the same Trust and arise from a common impugned judgment and decree, these appeals can conveniently be disposed of by a common judgment. Controversy in both these appeals arise from the change reports filed 2 by appellant and respondent no.1. The facts, giving rise to filing of these appeals, are as under. 2] Respondent No.1 – Milind Rajaram Jadhav filed Change Report No.601 of 2001 on 26 th July, 2001 before the Assistant Charity Commissioner, Sangli. He prayed for deleting names of the members of old body and recording names of newly elected members in a meeting held on 18 th July, 2001. Appellant Shrirang Narasinha Inamdar also filed Change Report No.717 of 2001 on 31 st August, 2001 before the Assistant Charity Commissioner, Sangli for recording names of newly elected members pursuant to the elections conducted by Mr.M.H.Nadaf, Advocate, in the meeting held on 19 th August, 2001. The controversy is in respect of a Society for the Welfare of Mentally handicapped, Miraj, District Sangli which is a registered public trust bearing registration P.T.R. No.F­775 (Sangli). 3] After holding enquiry, by judgment and order dated 16 th August, 2006 the Assistant Charity Commissioner accepted the Change Report No.601 of 2001 filed by respondent No.1 and rejected Change Report No.717 of 2001 fled by appellant. Appellant and Respondent No.2 herein preferred Appeal No.31 of 2006 and Appellant preferred Appeal No.32 of 2006 against the order of Assistant Charity Commissioner dated 16 th August, 2006 before the Joint Charity Commissioner, Kolhapur Region, Kolhapur. By judgment and order dated 6 th November, 2006, the Joint Charity Commissioner, Kolhapur allowed the appeal preferred by appellant and set aside the order passed by the 3 Assistant Charity Commissioner, Sangli accepting Change Report No. 601 of 2001 and remanded the matter for fresh enquiry. By separate judgment and order dated 6 th November, 2006, the Joint Charity Commissioner allowed the appeal and set aside the order dated 16 th August, 2006 passed by the Assistant Charity Commissioner, Sangli in Change Report No.717 of 2001 and remanded the matter for fresh enquiry. 4] After disposal of the appeals, respondent no.1 filed applications (exhibit 16 and 17) in Appeal Nos.32 of 2006 and 31 of 2006 before the Joint Charity Commissioner with a request that the Assistant Charity Commissioner may be directed to decide the Change Reports within a period of one month. After hearing both sides, the Joint Charity Commissioner allowed applications by order dated 21 st November, 2006 and directed the Assistant Charity Commissioner, Sangli to decide Change Reports as expeditiously as possible and positively within a period of four months from the date of receipt of Record and Proceedings. Parties were directed to appear before the Assistant Charity Commissioner, Sangli on 4 th December, 2006. 5] Roznama in Change Report No.717 of 2001 indicates that on 28 th November, 2006, the office of the Assistant Charity Commissioner received a letter dated 27 th November, 2006 for expeditious disposal of the Change Report. On 4 th December, 2006, the parties gave purshis duly signed by their Advocates. On 24 th January, 2007, the appellant filed affidavit of Mr.Nadaf (exhibit 77) in lieu of the examination­in­chief. 4 Respondent No.1 completed his cross­examination on 1 st March, 2007. On the same date, respondent no.1 gave purshis exhibit 78 requesting that the evidence led by him in Change Report No.601 of 2001 and documents filed therein may be considered while deciding Change Report No.717 of 2001. Respondent No.1 filed purshis on 16 th August, 2007 at exhibit 79 stating therein that he did not wish to lead evidence in Change Report No.717 of 2001. 6] In so far as Change Report No.601 of 2001 is concerned, respondent no.1 filed affidavit of one Mr.Nandkumar Bhimrao Mane exhibit 51 who was cross­examined by appellant on 30 th April, 2007. Respondent no.1 also filed affidavit of Avinash Rajaram Jadhav exhibit 52 who was cross­examined by appellant on 25 th May, 2007. On 16 th August, 2007, appellant gave an application at exhibit 56 for examining one Anna Acharya. The Assistant Charity Commissioner rejected the said application on the ground that no specific point/reason, on which appellant wishes to examine said witness, was mentioned in the application. Appellant did not challenge the said order. However, he made another application on 27 th September, 2007 at exhibit 59 once again requesting to issue witness summons in the name of said Anna Acharya. The learned Assistant Charity Commissioner rejected the said application in view of the earlier order dated 16 th August, 2007 below exhibit 56. It seems that thereafter the matter was kept for arguments on 4 th October, 2007. On 23 rd October, 2007, appellant once again filed application at exhibit 60 for issuing witness summons to said Anna Acharya. By order dated 29 th October, 2007, the 5 Assistant Charity Commissioner recorded that in view of the order passed below exhibit 1 on 27 th September, 2007, the matter was posted for final arguments of the parties. By order dated 21 st November, 2006, the Joint Charity Commissioner directed the Assistant Charity Commissioner to decide the Change Reports within four months. Resultantly, the Assistant Charity Commissioner came to the conclusion that the application was groundless and not justified and, accordingly, rejected the same on 29 th October, 2007. On 31 st October, 2007, appellant made application requesting for 15 days time to study the case and file written arguments. It seems that the said application was rejected and eventually, by judgment and order dated 31 st October, 2007, the Assistant Charity Commissioner, Sangli accepted the Change Report No.601 of 2001 filed by respondent no.1 and rejected Change Report No.717 of 2001 filed by appellant herein. 7] Being aggrieved by these judgments, appellant and respondent no.2 herein preferred Appeal No.92 of 2007 and appellant preferred Appeal No.93 of 2007 before the Joint Charity Commissioner, Kolhapur. By judgment and order dated 16 th August, 2008, the Joint Charity Commissioner allowed these appeals and set aside the common judgment and order dated 31 st October, 2007 passed by the Assistant Charity Commissioner in Change Report Nos.601 of 2001 and 717 of 2001 and remanded the matters to the Assistant Charity Commissioner for fresh enquiry by giving full and fair opportunity to appellant and for deciding the case in accordance with law within two months from the date of receipt of copy of the said judgment and order. It is against 6 these orders, respondent no.1 preferred Misc. Application (Trust) No. 259 of 2008 and Misc. Application (Trust) No.260 of 2008 under Section 72 of the Bombay Public Trust Act, 1950 (fort short “the Act”). By the impugned judgment and decree, the learned District Judge­2 allowed the applications and set aside the judgment and order dated 16 th August, 2008 passed by Assistant Charity Commissioner in Appeal Nos.92 of 2007 and 93 of 2007 and restored the judgment and order dated 31 st October, 2007 passed by the Assistant Charity Commissioner in Change Report Nos.601 of 2001 and 717 of 2001. The net result is, Change Report No.601 of 2001 filed by respondent No.1 is accepted and Change Report No.717 of 2001 filed by appellant stands rejected. 8] Mr.Keluskar, learned counsel for appellant, strenuously contended that the learned District Judge committed serious error in allowing the applications. He submitted that by judgment and order dated 16 th August, 2008, the Joint Charity Commissioner, Kolhapur remanded the matter to the Assistant Charity Commissioner for fresh enquiry, as full and fair opportunity was not given to appellant. He submitted that the order dated 31 st October, 2007 accepting Change Report No.601 of 2001 and rejecting Change Report No.717 of 2001 is vitiated as the appellant requested to issue witness summons to Anna Acharya. The Assistant Charity Commissioner wrongly rejected these applications whereby the appellant was deprived of opportunity to examine said Anna Acharya. The said order was also not passed considering the merits of the case. He further submitted that the 7 application dated 31 st October, 2007 at exhibit 61 for adjournment of 15 days, was made for studying the case and filling written arguments. Even that request was not accepted which resulted into miscarriage of justice. 9] Before considering the submissions advanced by the learned counsel for appellant, one has to bear in mind the provisions of Section 72(4) of the Act. Provisions of Section 72(4) of the Act were construed by the Division Bench of this court in the case of Shivprasad Shankarlal Pardeshi Vs. Leelabai Badrinarayan Kalwar, 1998(1)Mh.L.J. 444 and it was held that an appeal under Section 72(4) is a Second Appeal and is subject to the restrictions and limitations imposed on a Second Appeal as prescribed under Section 100 of the Code of Civil Procedure, 1908. Such appeal would be teneble only if it involves substantial question of law. Bearing in mind this, the question that arises is whether these appeals involve any substantial question of law. 10] As indicated earlier, by judgment and order dated 6 th November, 2006 in Appeal Nos.31 of 2006 and 32 of 2006, the Joint Charity Commissioner directed the Assistant Charity Commissioner, Sangli to hear and decide the Change Report Nos.601 of 2001 and 717 of 2001 by holding enquiry and decide the matter afresh. By subsequent order dated 21 st November, 2006, the Assistant Charity Commissioner was directed decide Change Reports within four months from the date of receipt of Record and Proceedings. Parties were directed to appear before the Assistant Charity Commissioner on 4 th December, 2006. In 8 so far as Change Report No.601 of 2001 is concerned, respondent no.1 filed affidavits at exhibits 51 and 52 and those witnesses were cross­ examined by appellant on 30 th April, 2007 and 25 th May, 2007. Appellant made application on 16 th August, 2007 at exhibit 56 for issuing witness summons to Anna Acharya. On the same date, the Assistant Charity Commissioner rejected the said application. This order, however, was not challenged by the appellant. Subsequently, on 27 th September, 2007 appellant filed application at exhibit 59 once again requesting to issue witness summons for examining said Anna Acharya. Said application was rejected and, in fact, the order was passed below exhibit 1 keeping the matter for final arguments on 4 th October, 2007. Again on 23 rd October, 2007 appellant made application for issuing witness summons. The said application was rejected on 29 th October, 2007. Appellant, thereafter, again made application on 31 st October, 2007 requesting 15 days time for studying the case and filing written arguments, which request was not accepted and by the judgment and order dated 31 st October, 2007 the Change Report No.601 of 2001 submitted by respondent no.1 was accepted and Change Report No.717 of 2001 was rejected by the Assistant Charity Commissioner. 11] The learned District Judge in paragraph No.10 of the impugned judgment and decree recorded that the applications made by appellant for issuing notice to Anna Acharya was lame excuse for delaying the disposal of Change Reports. Appellant had not filed list of witnesses in any of the Change Reports. Learned Assistant Charity Commissioner 9 rightly rejected the applications. In paragraph No.11 of the impugned order, learned District Judge recorded that counsel for appellant herein refused to argue the matter and, consequently, Change Reports were decided by the Assistant Charity Commissioner on 31 st October, 2007. The leaned District Judge, therefore, observed that appellant herein had not availed opportunity of adducing evidence at the appropriate time and, therefore, he cannot be permitted to take advantage of his own wrong and mistakes. 12] On merits, the learned District Judge in paragraph no.13 observed that Mr.M.H.Nadaf admitted in cross­examination that there is no provision in the Constitution of Trust to appoint an Election Officer. Consequently, the election held by Mr.Nadaf in the meeting dated 19 th August, 1991 cannot be said to be a valid election. Considering these circumstances, the learned District Judge allowed the Misc. Applications and restored the judgment and order dated 31 st October, 2997 passed by the Assistant Charity Commissioner, Sangli. 13] I do not find that the learned District Judge committed any error in passing the impugned judgment and decree. No substantial question of law arises and the appeals are devoid of substance and the same are, accordingly, dismissed. In the circumstances of the case, there shall be, however, no order as to the costs. [R.G. KETKAR, J.]