1 rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.1252 OF 2008 CIVIL APPLICATION NO.1252 OF 2008 CIVIL APPLICATION NO.1252 OF 2008 IN IN IN FIRST APPEAL NO. 871 OF 2006 FIRST APPEAL NO. 871 OF 2006 FIRST APPEAL NO. 871 OF 2006 Dhanaji Appasaheb Nagne & Ors. .. Applicants V/s. Shivaji Sahebrao Gaikwad & Ors. .. Respondents Ms.Jai Mhaskar h/w.Mr.G.S.Godbole for the Applicants. Mr.M.M.Sathe for Respondents No.1. CORAM : S.S.SHINDE, J. CORAM : S.S.SHINDE, J. CORAM : S.S.SHINDE, J. DATE : 2ND MAY, 2008. DATE : 2ND MAY, 2008. DATE : 2ND MAY, 2008. P.C. :- P.C. :- P.C. :- Rule. Heard forthwith by consent of the parties. 2. This Civil Application is filed by the Appellant/Original Respondent for vacating ad-interim order passed by this Court. 3. On 24th April, 2006 this Court passed the following order :- 2 . "The learned Advocate for the Caveator seeks time. Stand over till 14th June, 2006. In the meantime the order passed by the learned Additional District Judge will not be acted upon subject to condition that the Appellant will not take any major policy decision till then." 2. The above interm order was continued time to time." On 12th April, 2007 the Appeal was admitted. 4. On 27th September, 2007 the Civil Application No. 2083 of 2006 filed by the Appellant praying for interim relief was placed for hearing. This Court after hearing respective parties to the application passed detailed order. Paragraph 4 of the said order reads thus :- 4. Even otherwise after considering the rival contentions as raised by both the parties, I am also of the view that pending the enquiry to avoid further complications in the matter, it is necessary that the interim order as granted by this Court shall continue till the decision of this first appeal. However, liberty is granted to Respondent Nos. 1 to 4 to apply for necessary order including for vacating of stay after the decision of change report no. 1361 of 2005 pending before the Assistant Charity Commissioner, Solapur. 5. The present civil application is filed for vacating interim relief in pursuant to the liberty 3 granted by this Court by order dated 29th September, 2007. 6. The main contention of the Appellant in this application is that when the interim order was passed by this Court on 29th September, 2007, the Revision Petition No.35 of 2005 which was filed by the Applicants for challenging the Judgment and order dated 22nd September, 2005 in change Report No.1361 of 2005 was pending. The learned Joint Charity Commissioner remanded the matter to the learned Assistant Charity Commissioner, Solapur for fresh hearing. The order passed by the Joint Charity Commissioner, Latur attended finality since the same was not challenged by the present Respondents in the Civil Application. 7. It is further stated in the said application that by Judgment and order dated 8th February, 2008, the learned Assistant Charity Commissioner, Solapur has rejected the Change Report no.1361 of 2005. Thus, the very basis of filing of Scheme Application no.25 of 2005 and allowing the same in favour of Respondent Nos. 1 to 11 ceased to exist. In view of such change in the circumstances and inview of the clear findings recorded by the learned Assistant Charity Commissioner, Solapur 4 Region, Solapur while dismissing the Change Report No.1361 of 2005, it is just and necessary to immediately vacate the interim order operating in favour of Respondent Nos. 1 to 11 herein. 8. It is further submitted that very basis of claim of Respondent No.1 to 11 to be Trustees of the said Guruji Shikshan Prasarak Mandal, Ozewadi, Taluka Pandharpur, District Solapur having vanished on account of aforesaid development which are taken place subsequent to the passing of the orders in Civil Application No. 2083 of 2006, it is fit case where the interim relief granted earlier deserves to be vacated. 9. I have heard learned Advocate appearing for the Apellants/original Respondents and Appellants at length. 10 In my considered view, since the Change Report No. 1361 of 2005 is rejected by the Assistant Charity Commissioner, Solapur vary basis of the claim of the Respondent Nos. 1 to 11 original appellants to be Trustees of the said Guruji Shikshan Prasarak Mandal, Ozewadi, Taluka Pandharpur, District Solapur having vanished the interim relief deserves to be vacated. 5 11. Since, I am inclined to vacate interim relief, in case if any contingency / vacuum arise because of vacation of interim relief, in the interest of Trust the Assistant Charity Commissioner himself will take proper steps and care to protect the interest of the trust in accordance with law. 12. The Advocate appearing for the Appellant made a statement that he has filed appeal before the Joint Charity Commissioner, Solapur challenging the order passed by the Assistant Charity Commissioner on 5th February, 2008 in Enquiry No.1361 of 2005. However, he fairly submits that till date no any interim order is passed in favour of his client staying the order dated 8th February, 2008 passed by the Assistant Charity Commissioner, Solapur in Enquiry No. 1361 of 2005. He however submits that in case if any order is passed in his appeal either stying the order dated 8th February, 2008 passed by the Assistant Charity Commissioner, Solapur or his appeal is allowed, in that case he may be given liberty for filing application for restoration of interim orders. The liberty to apply for restoration of interim orders is granted in case order dated 8th February, 2008 passed by the Assistant 6 Charity Commissioner in Enquiry No. 1361 of 2005 is stayed in the appeal or appeal is allowed in favour of the Appellants. Hence, the following order : :: O R D E R :: :: O R D E R :: :: O R D E R :: 1. Ad-interim order dated 24th April, 2006 passed by this Court in Civil Application NO. 2083 of 2006 in First Appeal No. 871 of 2006 as confirmed by order dated 29th September, 2007 is vacated with liberty to the Appellants to file application in case they succed in the Appeal against order dated 8th February, 2008. 2. The Civil Application is allowed and disposed of in the above terms. (S.S.SHINDE,J.) (S.S.SHINDE,J.) (S.S.SHINDE,J.)