1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.879 OF 2010 Saiyad Abdul Hasrat Bharkat Ahmed and 10 others PETITIONERS. V E R S U S Raisoddin Husnoddin Shaikh and 7 others RESPONDENTS. --- Mr. V.D. Hon, Advocate for the petitioners --- CORAM : S. B. DESHMUKH, J. DATE : 4th FEBRUARY, 2010. PER COURT :- 1. Heard learned counsel Mr. Hon for the petitioners. 2. The petitioners in this writ petition takes an exception to the Judgment and order passed by the learned Joint Charity Commissioner, Nashik Region, Nashik dated 03.12.2009 in Misc. Civil application No.15/2009. By this order learned Joint Charity Commissioner, Nashik Region, Nashik condoned the delay in filing the appeal and directed the registration of the appeal under section 70 of the Bombay Public Trusts Act, 1950 (herein after referred to as ‘said Act’). 3. The respondents No.1 to 5 in this writ petition had filed Misc. Civil Application No.15/2009 before learned Joint Charity Commissioner, Nashik Region, Nashik seeking for condonation of delay occurred in filing an appeal under section 70 of the said Act. Copy of the said application is on record (annexure ‘B’). Counsel for the petitioners, points out from this copy of the application that said 2 application was filed on 03.07.2009. With the assistance of counsel Mr. Hon for the petitioners, I have read application in its entirety since which consists of 8 to 9 paragraphs. It is pleaded in paragraph No.4 that there was a discussion in the city of Nandurbar about the new Managing Committee, appellants received knowledge, then they rushed to the office of learned Assistant Charity Commissioner, Dhule, and got the knowledge that application was filed on 10.11.2008 i.e. change report No.1359/2008 and decided on 11.11.2008 by the authority concerned, and change is accepted. In paragraph No.5 it is further pleaded by respondents No. 1 to 5 (original applicants) that on May 19,2009 there was an advertisement given by respondent No.1 on behalf of the trust. In paragraph No.6, it is contended that certified copies were received on 26.05.2009 and there after the respondents No. 1 to 5 discussed, decided and accordingly filed appeal with an application for condonation of delay. 4. On behalf of respondents (original appellants) reply was filed in trial court annexure ‘C’. Counsel for the petitioners read paragraph No.5, wherein it has been contended that delay of 132 days which is mentioned in the application is wrong. More delay is occurred in filing the appeal. Further statement is made that delay is more than seven months. Application was filed for obtaining certified copies on 05.05.2009. Time period from 11.11.2008 till 05.05.2009 is around seven months was not considered while calculating the delay. According to these petitioners, delay has been calculated by the respondents No.1 to 5 from 26.05.2009 and therefore, it is incorrect. Paragraph No.10 is also pointed out, but then I am not reproducing it. 3 5. Counsel for the petitioners Mr. Hon pointed out Sub section 2 of section 70 which is reproduced herein below :- 70. Appeals from findings of Deputy or Assistant Charity Commissioner : (2) No appeal shall be maintainable after the expiration of sixty days from the recording of the finding or the passing of the order, as the case may be. 6. Submission made on behalf of the petitioners is that sub section 2 of section 70 provides that no appeal is maintainable after expiry of sixty days from recording of finding. It is not in dispute that order passed under section 22 by the authority competent under the Act is made appellable under section 70 (b). Argument is that after 60 days, no appeal is provided and/or maintainable. There is no power vested with the appellate authority to entertain appeal the beyond period of 60 days in view of section 70 of the said Act. So far ‘sufficient cause’ is concerned, it has been submitted that there is no sufficient cause for condoning the delay contended in application and substantiated. In support of the submissions, reliance is placed on the Judgment of learned Single Judge of this Court in the matter of Shri Victor Albuquerque V/s Saraswat Co-operative Bank Ltd., and others reported in 1998 (3) All MR 393. I have carefully considered the facts and ratio of the judgment. 7. At the outset, it is not possible for me to consider the submission of the learned counsel for the petitioners that section 5 of the Limitation Act does not apply to the facts. According to him, 60 days limitation is provided under section 70 (2) of the Act, and beyond that period, there is a legal mandate, not to entertain 4 the appeal. Section 5 of the Limitation Act is very well available. In the case on hand, present petitioners are opponents before the trial court. They were called upon to file reply. Annexure ‘C’ is the copy of reply on record. In their reply, it is not contended that section 5 of the limitation act is not applicable. All averments that is made is that delay of 132 days is not legal and proper. Further contentions in the reply, I have referred to in foregoing paragraphs. 8. In my view, it is a case where in section 5 of the Limitation Act squarely applies. 9. ‘Sufficient cause’ is an expression used in section 5 of the Limitation Act. Sufficient cause may differ from case to case. Here, I am considering a case of trust registered and controlled by the authorities under Charity Organization or under the said Act. I was surprised to read observation of the learned judge that application for change report was filed on 10.11.2008, was accepted on 11.11.2008. Reading that part of the order, I was not ready to believe observation of the trial court, and that is how with the assistance of learned counsel Mr. Hon, I have gone through the copy of change report. Mr. Hon, fairly points out annexure ‘A’ copy of the change report allegedly submitted by the petitioners to the office of the Learned Assistant Charity Commissioner, Dhule on 10.11.2008. Order passed by the learned Assistant Charity Commissioner, Dhule on this application i.e. C.R.No.1359/2008 dated 10.11.2008 is dated 11.11.2008. This order ends at page 20 of the compilation. Date is marked as 11.11.2008 and place mentioned in Dhule. I take it reasonably that office of Learned Assistant Charity Commissioner functions during the course of normal office hours i.e. around 10.00/11.00 am till evening around 05.30 or 06.30 p.m. i.e. official time. If, such an application was 5 filed on 10.11.2008 during the course of the day, it appears from the record that said application was accepted, registered by the officials working under the control of the Assistant Charity Commissioner on the same day. Thus, working speed of the office of Assistant Charity Commissioner is dizzying. You may say that it can be compared with Internet speed. I am placing all these things on record for the reason that this Court, now a days is experiencing flood of litigation arising under said Act. Various orders passed by the authorities under the Act are being challenged before this Court by the aggrieved litigants. 10. One of the ground or contention raised by the respondents No.1 to 5 in their application is that they were not aware of the meeting, they heard some discussion in the town, went to the office of Learned Assistant Charity Commissioner, Dhule and acquired knowledge that change report No.1359/2008 was filed on 10.11.2008, accepted on 11.11.2008 and thereafter they have further contended that they read the news i.e. advertisement published in some newspaper. 11. Learned Judge Joint Charity Commissioner Nashik Region, Nashik, has referred to judgment of Honourable Supreme Court which can be said to be landmark judgment interpreting section 5 of the Limitation Act and laying down six guide lines. This Judgment has been subsequently considered and re-affirmed by the Honourable Supreme Court in the matter of N. Balkrishnan V/s M. Krishnamurthy reported in AIR 1998 S.C. page 3222. Discretion under section 5, while considering the ground raised as ‘sufficient cause’ needs to be exercised by the Court concerned on sound judicial principles. Discretion to be exercised to 6 advance justice rather to defeat the same. If, the subordinate court or quasi judicial authorities are not exercising this discretion in view of the mandate laid down by the Supreme Court, it is for the Superior Court to apply its mind to pass appropriate orders. Honourable Supreme Court says that delay is condoned by exercising discretion by the subordinate court, who was quasi judicial authority, superior court shall not upset the order however vice versa may be the case meaning thereby if the trial court rejected the application without exercising such discretion, superior court may exercise discretion and condone the delay. “9. It is axiomatic that condonation of delay is a matter of discretion of the Court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometime delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. Once the Court accepts the explanation as sufficient it is the result of positive exercise of discretion and normally the superior Court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first Court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior Court to come to its own finding even untrammeled by the conclusion of the lower court.” 7 12. In the case on hand, learned Joint Charity Commissioner referred judgment of Honourable Supreme Court reported in 1987 (II) CLR Page 92 SC and condoned the delay. 13. Submission of the learned counsel for the petitioners that delay is not properly worked out, is also considered by me. I do not find any substance in the writ petition. Writ petition stands dismissed. Registrar (Judicial), shall transmit copy of this Judgment to the Charity Commissioner, State of Maharashtra, Mumbai. ( S. B. DESHMUKH ) JUDGE ..... aaa/879.10