1 C.A. NO.5566/2009 IN SA NO. 1592/2004 WITH R.A.ST NO.8598/2009 in SA No.1592/2004 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD 919. CIVIL APPLICATION NO.5566/2009 In SA/1592/2004 (Mohd. Musa s/o Mohd. Ibrahim through Mrs. Farheen Begum w/o Mohd.Musa vs. Shri Muktanand Seva Mandal) WITH RAST/8598/2009 (Mohd. Musa s/o Mohd.Ibrahim Mrs.Farheen Begum w/o Mohd.Musa vs. Shri Muktanand Seva Mandal) In SA/1592/2004 -------------------------------------------------- Office notes, office Memoranda of Court’s or Coram,appearances, Court’s orders Judge’s or directions and Registrar’s orders Orders Mr. R.R.Shaikh, Adv., for the applicant. Mr. S.J.Salunke, Adv., for respondent nos. 1 and 2. ... CORAM: K.U.CHANDIWAL, J. DATE:1/4/2011 1. Heard Mr.Shaikh and Mr. Salunke for the respective parties in the review. Considering the difficulties explained, the delay of 54 days in making the review is condoned. Application allowed. Office to register the review. 2 C.A. NO.5566/2009 IN SA NO. 1592/2004 WITH R.A.ST NO.8598/2009 in SA No.1592/2004 2. Heard the Review finally. By the present application the orders in Second Appeal No.1592/2004 dt.23rd Jan.,2009, are sought to be reviewed or recalled. 3. The fact material for the present controversy is Special Civil Suit No. 406/1997, was filed by respondent no.1 Muktanand Seva Mandal through its Chairman Govindrao and Suresh Govindrao seeking declaration that sale deeds dt. 14.10.1996 and 14th Jan.,1997 are null and void and for its cancellation. Said suit was partly decreed. Consequently, the plaintiff in the said suit as also the defendant moved the learned District Judge in Regular Civil Appeal No.73/2002 and Cross Objection. 4. As stated above, the decree in the First Appeal in R.C.A. No.73/2002 was questioned by original defendant ( Review Applicant in the Second Appeal). One of the ground was filing of the suit by Muktanand Sewa Mandal was without the prior permission of the Charity Commissioner in terms of Section 50 of the Bombay Public Trusts Act. 3 C.A. NO.5566/2009 IN SA NO. 1592/2004 WITH R.A.ST NO.8598/2009 in SA No.1592/2004 5. Mr.Shaikh submits that though this was a ground raised in the Second Appeal, while dismissing the appeal at admission stage, this Court did not venture to the said objection and, therefore, the order of dismissing the Second Appeal, for want of substantial question of law, invites recalling. 6. In fact, identical issue to the maintainability of the suit in terms of bar created by Section 50 of the Bombay Public Trusts Act was raised in the appeal and the appellate Court had, while answering point No.4, in appeal No. 73/2002, answered in paragraph nos. 12 and 13 as under: "(12) Appellants side has raised objection about tenability of the suit U/S 50 of Bombay Public Trusts Act. Plaintiffs/respondents Advocate objected this objection, documents by the appellants side and in support of his case, he rely on 1988 Mah.Law Reporter page 1483. (2) Maharashtra Law Reporter 2002(3) Bombay High Court page 790 and (3) Mah.Law Reporter (2002(1)Bombay, High Court page 18. In all these authorities, it is held, when a trust filed a suit 4 C.A. NO.5566/2009 IN SA NO. 1592/2004 WITH R.A.ST NO.8598/2009 in SA No.1592/2004 about its property against stranger as outsider, then permission of the Charity Commissioner will not be required to file its suit. In the instant case, plaintiff trust, has filed this suit against outsider about trust property and the subject matter of the trust is not about the subject as defined U/S 50 of the B.P.T.Act. In my view, this objection raised by the appellants side is not correct. (13) Appellants side has raised objection that suit of the trust can not be filed by one of the trustees of the trust. All its members will have to be joined in the suit, so the suit is not tenable. In lower court, copy of the resolution passed by the trust by its Chairman to file the suit was produced. If the trust authorised some of its trustees to file a suit on behalf of the trust, then that person alone can file, prosecute suit on behalf of the trust. So this objection also is not correct. " 7. At the time of hearing the Second Appeal all the aspects between the parties were commented, considered and since there was no substantial question of law to be formulated, the Second Appeal of Review Applicant was dismissed. 5 C.A. NO.5566/2009 IN SA NO. 1592/2004 WITH R.A.ST NO.8598/2009 in SA No.1592/2004 8. The law on the point of review of the judgment is well indicated in the matter of State of West Bengal and others Vs. Kamal Sengupta & Anr ( 2008 AIR SCW 4294). The Hon'ble Apex Court was considering scope and powers of review in terms of Order 47 Rule 1 of Code of Civil Procedure in the light of Administrative Tribunals Act ( XIII of 1985). In the said Judgment Hon'ble Lordships have referred to a Five Judges Bench judgment of the Federal Court ( Sir Hari Shankar Pal and another Vs. Anath Nath Mitter and others ( 1949 FCR 36) wherein the Federal Court has observed as under: “That a decision is erroneous in law is certainly no ground for ordering review. If the Court has decided a point and decided it erroneously, the error could not be one apparent on the face of the record or even analogous to it. When, however, the Court disposes of a case without adverting to or applying its mind to a provision of law which gives it jurisdiction to act in a particular way, that may amount to an error analogous to one apparent on the face of the record sufficient to bring the case within the purview of Order XLVII, Rule 1, Civil Procedure Code.” 9. The legal position, thus, 6 C.A. NO.5566/2009 IN SA NO. 1592/2004 WITH R.A.ST NO.8598/2009 in SA No.1592/2004 enumerated, in the light of Order 47 Rule 1 of C.P.C. the application for review would be maintainable not only upon discovery of a new and important piece of evidence but upon pointing a mistake going to the root of the case. The review petition has a limited purpose and cannot be allowed to be an appeal in disguise. This Court is not expected to ponder upon the points which have been canvassed and dealt with. Even if there was a mistake, the powers under Order 47 Rule 1 of Code of Civil Procedure, will not germane to be showered in favour of the review applicant. The first and foremost requirement of entertaining a review petition is that the order, review of which is sought, suffers from any error apparent on the face of the order and permitting the order to stand will lead to failure of justice. In the absence of any such error, finality attached to the judgment/order cannot be disturbed. 10. In the matter of Inderchand Jain (D) through L.Rs. vs. Motilal (D) through L.Rs.( 2009 DGLS (Soft) 940: 7 C.A. NO.5566/2009 IN SA NO. 1592/2004 WITH R.A.ST NO.8598/2009 in SA No.1592/2004 2009(14) SCC 663 and Rajendra Kumar Vs. Rambai ( AIR 2003 SC 2095), the Apex Court held: “It is beyond any doubt or dispute that the review court does not sit in appeal over its own order. A re- hearing of the matter is impermissible in law. It constitutes an exception to the general rule that once a judgment is signed or pronounced, it should not be altered. It is also trite that exercise of inherent jurisdiction is not invoked for reviewing any order.” 11. Survey of above facts, coupled with re-reading of the orders of the learned District Judge, Aurangabad, I find that the observations of non existence of substantial questions of law in terms of Section 100 of Code of Civil Procedure does not call for any interference. Review lacks merit, dismissed. 12. During the course of submission, it was pointed out by Mr.Shaikh that inspite of there being a decree in favour of the plaintiff, however, there is concurrent findings of two courts in favour of the review applicant to be in possession of the suit property. Even the decree for perpetual injunction sought was refused by both the Courts. He reiterated, the 8 C.A. NO.5566/2009 IN SA NO. 1592/2004 WITH R.A.ST NO.8598/2009 in SA No.1592/2004 review applicant is in possession and his possession should be protected for at least three months to ensure to challenge the orders in the Second Appeal before the Apex Court. 13. Mr.Salunke, learned Counsel for the respondent in the review submits that after the judgment of First Appellate Court in the Second Appeal, there are sale transactions and the title is divested with permission of the Charity Commissioner. 14. Due to pendency of present review a Regular Civil Suit No. 267/2009 was moved by the review applicant before learned Civil Judge, Junior Division, Paithan, for perpetual injunction and below Exh.5 moved for temporary injunction. Said application is yet to be decided. Mr.Shaikh has reiterated, till at least decision on Exh.5 in RCS No.267/2009, his possession be protected. 9 C.A. NO.5566/2009 IN SA NO. 1592/2004 WITH R.A.ST NO.8598/2009 in SA No.1592/2004 15. Learned Judge seized with the above suit, shall expeditiously decide Exh.5 in said RCS No.267/2009 on its own merits. The observations are prima facie in nature. (K.U.CHANDIWAL) JUDGE ... AGP/5566-09ca