{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD LETTERS PATENT APPEAL NO.149 OF 2009 IN WRIT PETITION NO.2482 OF 2009 Chetna Shikshan Prasarak Mandal, Vaijapur and others APPELLANTS VERSUS Dr.Maya D/o Limbaji Ladwani & others RESPONDENTS ....... Mr.Vivek Dhage, Advocate for the appellants Mr.Shripad Kulkarni, Advocate for respondent No.2. ....... [CORAM : P.V.HARDAS, and A.V.POTDAR, J.J.] DATE : 28th August 2009 PER COURT: 1. This letters patent appeal takes exception to the order passed by the learned Single Judge of this Court dated 8th July 2009 in writ petition No.2482/2009 filed at the behest of the appellants. The aforesaid writ petition came to be filed by the appellants challenging the order dated 20th March 2009 passed by the District Judge, Aurangabad by which the District Judge framed two issues namely - {2} (i) Whether the reporting trustees prove the genuineness, authenticity, correctness and execution of notice book? (ii) Whether the reporting trustees prove the genuineness, authenticity and execution of the proceeding book? 2. The aforesaid power was exercised by the District Judge, Aurangabad in an application u/s 72 of the Bombay Public Trust Act. 3. The principal challenge which was advanced before the learned Single Judge of this Court was that the District Judge, exercising powers u/s 72 of the Bombay Public Trust Act, is not an appellate court and, therefore, could not have exercised the powers of remand under Order 41 Rule 23 of the Civil Procedure Code. For advancing the aforesaid proposition, the judgment of the learned Single Judge rendered in “Vasantrao Vishwanathrao Mane and others V/s Apparao Baibanna Sidore and others” 2008 (3) Mh.L.J. 242 was relied upon. It was brought to the notice of the learned Single Judge of this Court that the judgment of the Supreme Court in “Ramchandra Goverdhan Pandit V/s Charity Commissioner of State of Gujrat” AIR 1987 SC 1598 was a clear proposition on the fact that the District Judge, while entertaining an application u/s 72 of the Bombay Public Trust Act, was an appellate court and, therefore, could exercise all the powers of the appellate court. The learned Single Judge of this Court, by {3} relying on the judgment of the Supreme Court, dismissed the writ petition. 4. Before we advert to the submissions advanced before us by Mr.Dhage, learned counsel for the appellants, it would be useful to refer to the judgment of the Supreme Court in “Ramchandra Goverdhan Pandit (supra). The Supreme Court, in no uncertain terms, held as follows- “The power of the District Court in exercising jurisdiction under S.72 is a plenary power. It is true that the Commissioner is not subordinate to the District Court but the District Court has powers to correct, modify, review or set aside the order passed by the Commissioner. All the characteristics of an appeal and all the powers of an appellate Court are available to the District Court while deciding an application under S.72. In such a case one must be guided not only by the nomenclature used by the section for proceedings but by the essence and content of the proceedings. Consequently, it must be held that the proceedings before the District Court under S.72 (1) are in the nature of an appeal and that District Court exercises appellate jurisdiction while disposing of a matter under S.72 (1).” 5. Mr.Dhage, learned counsel for the appellants has urged before us that the judgment of the Supreme Court is not a ratio decidendi on the point as to whether the District Judge is an appellate Court and, therefore would be a court exercising all the powers of an appellate court, but the Supreme Court was examining whether the order passed by the learned Single Judge, {4} while deciding the appeal from the order of the District Judge u/s 72 (1) of the Bombay Public Trust Act, was a District Judge who had exercised the powers in exercise of an appellate jurisdiction by the court which was said to be superintendence of the High Court and, therefore, clause 15 of the Letters Patent was attracted. 6. It is also urged before us that the provisions relating to the remand of the matter to the trial court for fresh consideration of the issues is not strictly made out in terms of the provisions of the Civil Procedure Code. It is also urged before us that one of the parties would be deprived of the right of the appellate court i.e. of moving the Joint Charity Commissioner against the order of the Assistant Charity Commissioner. 7. According to us, the law laid down by the Supreme Court in Ramchandra Goverdhan Pandit (supra) is explicit. The Supreme Court was certainly dealing with the question as to whether the District Court, while entertaining an application u/s 72 (1) of the Bombay Public Trust Act, was a District Judge and, therefore, was exercising the appellate jurisdiction. The Supreme Court in no uncertain terms has stated that the District Court would have the powers to correct, modify, review or set aside the orders passed by the Commissioner and all the characteristics of an appeal and all the powers of an appellate court are available to the District Judge while dealing with an application u/s 72 of the Bombay Public Trust Act. In the light of the aforesaid observations {5} of the Supreme Court, it is idle to contend before us that the Supreme Court has not dealt with the question as to whether the District Court, while exercising the powers u/s 72 (1) of the Bombay Public Trust Act, exercised powers of an appellate court or not. In the light of that, therefore, according to us, the ratio laid down by the Single Judge in the Judgment of Vasantrao Vishwanathrao Mane (supra), does not lay down a correct law. In any event, it appears that this judgment was not brought to the notice of the learned Single Judge. 8. We have, therefore, no hesitation in holding that the District Judge, while entertaining an application u/2 72 (1) of the Bombay Public Trust Act, exercises the powers of an appellate court and, therefore, would have all the powers available to the appellate court under the Code of Civil Procedure. 9. The District Judge had called for the record and upon perusal, he found that for the just decision of the case it would be necessary to remit the matter back to the trial authority for recording evidence in respect of the issues, which were framed by the District Judge. The powers exercised by the District Judge was in tune with the exercise of the powers of an appellate Court. We do not found any irregularity in exercise of powers by the District Judge. Since the matter had been remitted back to the trial authority for recording of evidence, there is no question of deprivation of the right of appeal. With the assistance of learned {6} counsel for the parties, we have perused the findings recorded by the learned Single Judge of this Court and upon such perusal, we do not notice any infirmity in the judgment of the learned Single Judge to warrant any interference in the Letters Patent Appeal. In the light of that, therefore, there are no merits in the Letters Patent Appeal and, therefore, the appeal is dismissed summarily with no order as to costs. [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/lpa149-09 {7} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION NO.8249 OF 2009 IN LETTERS PATENT APPEAL NO.149 OF 2009 IN WRIT PETITION NO.2482 OF 2009 Chetna Shikshan Prasarak Mandal, Vaijapur and others APPELLANTS VERSUS Dr.Maya D/o Limbaji Ladwani & others RESPONDENTS ....... Mr.Vivek Dhage, Advocate for the appellants Mr.Shripad Kulkarni, Advocate for respondent No.2. ....... [CORAM : P.V.HARDAS, and A.V.POTDAR, J.J.] DATE : 28th August 2009 PER COURT: 1. In the light of dismissal of the Letters Patent Appeal, this application does not survive and accordingly dismissed. [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/lpa149-09