1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL JURISDICTION WRIT PETITION NO.2210 OF 2008 1. Mr.Sadulla S. Peerjade & ors. Petitioners vs. 1. Dargah Khwaja Makhdum Shaikh Salasuddin Siddiqui Chazi Chisti Nizami (RA) alias Shaikh Salla Dargah & ors. Respondents Mr.L.S.Gaikwad for the petitioners. Mr.S.M.Gorwadkar for respondent no.2. CORAM : R.V. MORE,J. DATED : 23rd July, 2008 P.C. Heard the learned counsel for the petitioner and the learned counsel for respondent no.2. 2. By the order dated 1.4.2008 notice was issued to the respondents. None appears for the respondents except respondent no.2. Therefore again fresh notice was issued to remaining respondents on 8.7.2008 with intimation that the petition will be disposed of at the stage of admission. Office endorsement shows that this notice is served on all the respondents, but none appears for the respondents except respondent no.2. 3. Rule. By consent of respondent no.2, rule is made returnable forthwith. 4. By the impugned order, the learned District Judge No.6, Prune rejected the petitioner’s Misc.Civil 2 Application No.792/2007 filed for condonation of delay of 133 days occurred in filing the appeal under section 72 of the Bombay Public Trusts Act,1950. 5. Few facts for the purpose of disposal of this petition are as follows: . Respondent no.1 is a Religious Trust registered under the Bombay Public Trust Act. There is a Trust Deed which provides the mode of appointment of Board of Trustees for managing the Trust. The petitioner no.1 claims to be hereditary trustee of respondent no.1-Trust and petitioner nos. 2 and 3 claim to be the heirs of hereditary Trustee by name Shaikh Sadulla. 6. It is the allegation of the petitioner that respondents 2 to 6 have no concern with the Trust, however, by keeping hereditary trustees in dark, fraudulently obtained some orders and got themselves appointed as Trustees. These respondents also filed Change Report and got the same approved. It is further alleged that the respondents filed application under Section 50-A(3) of Bombay Public Trust Act for modification of scheme without impleading the petitioners as party respondents and by order dated 15.6.2006 the Deputy Charity Commissioner, Pune Region, Pune allowed the above application. 3 7. When the petitioners came to know about the aforesaid order dated 15.6.2006 passed by Deputy Charity Commissioner, they applied for certified copy of the order and thereafter filed appeal in the Court of District Judge No.6, Pune under section 72 of BPT Act. However, there occurred delay of 133 days and, therefore, they filed application for condonation of delay. The learned District Judge No.6, Pune by order which is impugned in the present petition rejected the petitioner’s application and hence the present writ petition by the petitioners. 8. Having heard the learned counsel for the petitioners and the learned counsel for respondent no.2 and having gone through the impugned order and the petitioner’s application for condonation of delay, in my opinion, there is merit in the petition. The Deputy Charity Commissioner, Pune Region, Pune passed an order on 15.6.2006, thereby allowed the application of respondents 2 to 6 under section 50-A(3) of BPT Act. The petitioners were not made parties to this proceeding though the petitioner no.1 claims to be hereditary trustee and the petitioners 2 and 3 claim to be sons of hereditary trustee by name Shaikh Sadulla. The petitioners came to know about the order passed by the Deputy Charity Commissioner in the month of November, 2006 and immediately on 8.11.2006 they filed an application for certified copy of the order. The 4 petitioners could not get the certified copy of the order and on the contrary, the office of Deputy Charity Commissioner informed the petitioners that the relevant documents in the matter were lost/misplaced and therefore certified copy cannot be given. In view of persuasion by the petitioners, the Deputy Charity Commissioner ordered reconstruction of the documents by order dated 29.3.2007 and thereafter the petitioners were informed that documents are reconstructed on 1.7.2007 and again the petitioners may apply for certified copy of order dated 15.6.2006. The petitioners accordingly preferred an application on 7.7.2007 and they received certified copy on 10.7.2007 and thereafter immediately on 28.7.2007 filed the aforesaid appeal under section 72 before the District Judge No.6, Pune. 9. The abovementioned facts and circumstances of the case will show that the petitioners were diligent enough and wanted to challenge the order of Deputy Charity Commissioner passed on 15.6.2006 however immediately after knowledge could not do so for want of availability of certified copy of the order. In my view, the learned District Judge No.6, Pune ought to have allowed the petitioners application for condonation of delay in view of the fact that they have shown sufficient cause. 10. In that view of the matter, I dispose of the 5 petition by following order: ORDER ORDER ORDER (i) The impugned order passed by the District Judge No.6, Pune on 30.1.2008 in Misc. Civil Application No.792/2007 is quashed and set aside. The petitioners’ application being Misc.Civil Application No.792/2007 is allowed and the delay occurred in filing the appeal under section 72 of the Bombay Public Trust Act is condoned. (ii). Needless to mention that I have not gone into the merits of the contentions of the respective parties and the learned District Judge shall dispose of the petitioners’ appeal under Section 72 of BPT Act independently on its own merit without being influenced by the present order as expeditiously as possible and in any case within a period of six months from the date of receipt of this order. 11. Rule is made absolute accordingly. [R.V. [R.V. [R.V. MORE,J.] MORE,J.] MORE,J.]