1 IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE APPELLATE APPELLATE JURISDICTION JURISDICTION JURISDICTION FIRST FIRST FIRST APPEAL NO.2801/2007 APPEAL NO.2801/2007 APPEAL NO.2801/2007 with with with CIVIL CIVIL CIVIL APPLICATION NO.6510 OF 2007 APPLICATION NO.6510 OF 2007 APPLICATION NO.6510 OF 2007 inin in F.A.NO.2801/2007 F.A.NO.2801/2007 F.A.NO.2801/2007 with F.A.2802/2007 with F.A.2802/2007 with F.A.2802/2007 with with with C.A.No.6511/2007 C.A.No.6511/2007 C.A.No.6511/2007 inin in F.A.No.2802/2007 F.A.No.2802/2007 F.A.No.2802/2007 with F.A.No.2803/2007 with F.A.No.2803/2007 with F.A.No.2803/2007 with with with C.A.No.6512/2007 C.A.No.6512/2007 C.A.No.6512/2007 inin in F.A.No.2803/2007 F.A.No.2803/2007 F.A.No.2803/2007 with F.A.No.2804/2007 with F.A.No.2804/2007 with F.A.No.2804/2007 with with with C.A.No.6513/2007 C.A.No.6513/2007 C.A.No.6513/2007 in F.A.NO.2804/2007 in 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F.A.No.2810/2007 F.A.No.2809/2007 with F.A.No.2810/2007 with with with C.A.No.6521/2007 C.A.No.6521/2007 C.A.No.6521/2007 inin in F.A.No.2811 of 2007 F.A.No.2811 of 2007 F.A.No.2811 of 2007 with with with C.A.No.6250 of 2007 C.A.No.6250 of 2007 C.A.No.6250 of 2007 inin in F.A.No.2812/2007 in F.A.No.2813/2007 F.A.No.2812/2007 in F.A.No.2813/2007 F.A.No.2812/2007 in F.A.No.2813/2007 with with with C.A.No.6522/2007 C.A.No.6522/2007 C.A.No.6522/2007 inin in F.A.No.2813/2007 with F.A.No.2814/2007 F.A.No.2813/2007 with F.A.No.2814/2007 F.A.No.2813/2007 with F.A.No.2814/2007 with with with C.A.No.6523/2007 C.A.No.6523/2007 C.A.No.6523/2007 in in in F.A.No.2814/2007 F.A.No.2814/2007 F.A.No.2814/2007 with F.A.No.2815/2007 with F.A.No.2815/2007 with F.A.No.2815/2007 with with with C.A.No.6524/2007 C.A.No.6524/2007 C.A.No.6524/2007 inin in F.A.No.2815/2007 with F.A.No.2816/2007 F.A.No.2815/2007 with F.A.No.2816/2007 F.A.No.2815/2007 with F.A.No.2816/2007 with with with C.A.No.6525/2007 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in F.A.No.2837/2007 with with with F.A.No.2838/2007 F.A.No.2838/2007 F.A.No.2838/2007 with with with C.A.No.6547/2007 C.A.No.6547/2007 C.A.No.6547/2007 in F.A.No.2838/2007 in F.A.No.2838/2007 in F.A.No.2838/2007 with with with F.A.No.2839/2007 F.A.No.2839/2007 F.A.No.2839/2007 with with with C.A.No.6548/2007 C.A.No.6548/2007 C.A.No.6548/2007 in F.A.No.2839/2007 in F.A.No.2839/2007 in F.A.No.2839/2007 with with with F.A.No.2840/2007 F.A.No.2840/2007 F.A.No.2840/2007 Dr.Subhash Dr.Subhash Dr.Subhash Dnyandeo Kadam .. Appellant Dnyandeo Kadam .. Appellant Dnyandeo Kadam .. Appellant (Orig.Opponent) (Orig.Opponent) (Orig.Opponent) vs vs vs (In (In (In all Appeals) all Appeals) all Appeals) 3 Laxman Laxman Laxman Sidram Jadhav & anr Sidram Jadhav & anr Sidram Jadhav & anr Respondents Respondents Respondents (Respt (Respt (Respt no.1/ no.1/ no.1/ Orig.Appellant) Orig.Appellant) Orig.Appellant) (In (In (In all Appeals) all Appeals) all Appeals) Mr.V.B.Naik Mr.V.B.Naik Mr.V.B.Naik i.b Mr.I.M.Khairdi for Appellant i.b Mr.I.M.Khairdi for Appellant i.b Mr.I.M.Khairdi for Appellant Mr.S.G.Deshmukh Mr.S.G.Deshmukh Mr.S.G.Deshmukh for Respondent no.1 for Respondent no.1 for Respondent no.1 CORAM CORAM CORAM : A.S.OKA, J : A.S.OKA, J : A.S.OKA, J DATED DATED DATED : 25th January, 2008 : 25th January, 2008 : 25th January, 2008 COMMON COMMON COMMON ORDER ORDER ORDER P.C. P.C. P.C. 1.1.1. These appeals take an exception to similar These appeals take an exception to similar These appeals take an exception to similar judgments judgments judgments and orders passed by the learned Adhoc and orders passed by the learned Adhoc and orders passed by the learned Adhoc District District District Judge-1 Pandharpur dated 28th August, 2007 Judge-1 Pandharpur dated 28th August, 2007 Judge-1 Pandharpur dated 28th August, 2007 on on on applications filed by the applicant under applications filed by the applicant under applications filed by the applicant under section section section 72 of the Bombay Public Trusts Act, 1950 72 of the Bombay Public Trusts Act, 1950 72 of the Bombay Public Trusts Act, 1950 (hereinafter (hereinafter (hereinafter referred to the said Act of 1950). referred to the said Act of 1950). referred to the said Act of 1950). 2.2.2. The first respondent filed 40 different change The first respondent filed 40 different change The first respondent filed 40 different change reports reports reports under section 22 of the said Act of 1950 under section 22 of the said Act of 1950 under section 22 of the said Act of 1950 for for for reporting changes occured in the board of reporting changes occured in the board of reporting changes occured in the board of trustees trustees trustees from April 1981 to May, 2000. The change from April 1981 to May, 2000. The change from April 1981 to May, 2000. The change reports reports reports were rejected by a common order by the were rejected by a common order by the were rejected by a common order by the learned learned learned Assistant Charity Commissioner. Separate Assistant Charity Commissioner. Separate Assistant Charity Commissioner. Separate Appeals Appeals Appeals were preferred by the first respondent were preferred by the first respondent were preferred by the first respondent before before before the Joint Charity Commissioner for the Joint Charity Commissioner for the Joint Charity Commissioner for challenging challenging challenging the common judgment and order passed by the common judgment and order passed by the common judgment and order passed by the the the learned Assistant Charity Commissioner. By a learned Assistant Charity Commissioner. By a learned Assistant Charity Commissioner. By a common common common judgment judgment judgment and order, the appeals were allowed and order, the appeals were allowed and order, the appeals were allowed by by by the learned Joint Charity Commissioner and the the learned Joint Charity Commissioner and the the learned Joint Charity Commissioner and the change change change reports filed by the 1st respondent were reports filed by the 1st respondent were reports filed by the 1st respondent were 4 accepted accepted accepted to be legal and valid. to be legal and valid. to be legal and valid. 3.3.3. Being aggrieved by the common judgment and Being aggrieved by the common judgment and Being aggrieved by the common judgment and order order order passed by the learned Joint Charity passed by the learned Joint Charity passed by the learned Joint Charity Commissioner, Commissioner, Commissioner, separate applications were filed separate applications were filed separate applications were filed under under under section 72 of the said Act of 1950 by the section 72 of the said Act of 1950 by the section 72 of the said Act of 1950 by the present present present appellant. The said applications have appellant. The said applications have appellant. The said applications have been been been dismissed dismissed dismissed by the learned District Judge by the by the learned District Judge by the by the learned District Judge by the impugned impugned impugned judgment and Order. The learned District judgment and Order. The learned District judgment and Order. The learned District Judge Judge Judge recorded recorded recorded a finding that the appellant was not a finding that the appellant was not a finding that the appellant was not a "person "person "person having interest" as defined under section having interest" as defined under section having interest" as defined under section 2 (10) of the said Act of 1950. The learned Judge (10) of the said Act of 1950. The learned Judge (10) of the said Act of 1950. The learned Judge rejected rejected rejected the prayer for remand made by the the prayer for remand made by the the prayer for remand made by the appellant. appellant. appellant. The learned District Judge further held The learned District Judge further held The learned District Judge further held that that that the considering the definition of a "person the considering the definition of a "person the considering the definition of a "person having having having interest" applicable to the trust in interest" applicable to the trust in interest" applicable to the trust in question question question which was also registered under the which was also registered under the which was also registered under the Societies’ Societies’ Societies’ Registration Act, 1860, only a member Registration Act, 1860, only a member Registration Act, 1860, only a member can can can be a person having interest. The learned be a person having interest. The learned be a person having interest. The learned District District District Judge Judge Judge recorded a finding that no documents recorded a finding that no documents recorded a finding that no documents were were were produced by the appellant either before the produced by the appellant either before the produced by the appellant either before the learned learned learned Assistant Charity Commissioner or before Assistant Charity Commissioner or before Assistant Charity Commissioner or before the the the learned Joint Charity Commissioner to learned Joint Charity Commissioner to learned Joint Charity Commissioner to substantiate substantiate substantiate the case made out by the appellant the case made out by the appellant the case made out by the appellant that that that he he he was a member of the trust in question since was a member of the trust in question since was a member of the trust in question since the the the year 1980 onwards. Therefore, the learned year 1980 onwards. Therefore, the learned year 1980 onwards. Therefore, the learned Judge Judge Judge held that the appellant had no locus standi held that the appellant had no locus standi held that the appellant had no locus standi toto to challenge the change reports. The order passed challenge the change reports. The order passed challenge the change reports. The order passed by by by the Joint Charity Commissioner was also the Joint Charity Commissioner was also the Joint Charity Commissioner was also confirmed confirmed confirmed on merits. on merits. on merits. 4.4.4. The learned counsel appearing for the appellant The learned counsel appearing for the appellant The learned counsel appearing for the appellant 5 has has has tendered an additional affidavit. By the said tendered an additional affidavit. By the said tendered an additional affidavit. By the said additional additional additional affidavit a reliance has been placed on affidavit a reliance has been placed on affidavit a reliance has been placed on the the the applications by the appellant made before the applications by the appellant made before the applications by the appellant made before the District District District Court seeking permission to adduce Court seeking permission to adduce Court seeking permission to adduce additional additional additional evidence in the form of a true copy of evidence in the form of a true copy of evidence in the form of a true copy of the the the extract extract extract of a resolution allegedly passed in the of a resolution allegedly passed in the of a resolution allegedly passed in the meeting meeting meeting of the trust on 10th September, 1980 by of the trust on 10th September, 1980 by of the trust on 10th September, 1980 by which which which the appellant and other persons were the appellant and other persons were the appellant and other persons were allegedly allegedly allegedly enrolled enrolled enrolled as members. Learned counsel for as members. Learned counsel for as members. Learned counsel for the the the appellant invited my attention to order dated appellant invited my attention to order dated appellant invited my attention to order dated 28th 28th 28th August, August, August, 2007 by which the said application was 2007 by which the said application was 2007 by which the said application was rejected. rejected. rejected. He submitted that a true copy of the He submitted that a true copy of the He submitted that a true copy of the extract extract extract of of of the resolution was sought to be produced the resolution was sought to be produced the resolution was sought to be produced alongwith alongwith alongwith an an an affidavit and as the said document was affidavit and as the said document was affidavit and as the said document was going going going to the root of the matter, the learned to the root of the matter, the learned to the root of the matter, the learned District District District Judge ought to have allowed the Judge ought to have allowed the Judge ought to have allowed the application application application at Exhibit 23. He also invited my at Exhibit 23. He also invited my at Exhibit 23. He also invited my attention attention attention to the application dated 27th October, to the application dated 27th October, to the application dated 27th October, 2003 2003 2003 made by the appellant before the learned made by the appellant before the learned made by the appellant before the learned Assistant Assistant Assistant Charity Charity Charity Commissioner seeking intervention Commissioner seeking intervention Commissioner seeking intervention inin in the change report proceedings. He submitted the change report proceedings. He submitted the change report proceedings. He submitted that that that the documents produced along with application the documents produced along with application the documents produced along with application atatat Exhibit 23 before the District Court clearly Exhibit 23 before the District Court clearly Exhibit 23 before the District Court clearly establish establish establish that the appellant was enrolled as a that the appellant was enrolled as a that the appellant was enrolled as a member. member. member. He submitted that a clear illegality has He submitted that a clear illegality has He submitted that a clear illegality has been been been committed by the Joint Charity Commissioner. committed by the Joint Charity Commissioner. committed by the Joint Charity Commissioner. He He He pointed pointed pointed out the findings recorded by the learned out the findings recorded by the learned out the findings recorded by the learned Assistant Assistant Assistant Charity Commissioner while rejecting the Charity Commissioner while rejecting the Charity Commissioner while rejecting the change change change reports. reports. reports. He invited my attention to various He invited my attention to various He invited my attention to various other other other submissions made by the appellant before the submissions made by the appellant before the submissions made by the appellant before the learned learned learned Joint Charity Commissioner and before the Joint Charity Commissioner and before the Joint Charity Commissioner and before the learned learned learned District Judge. He pointed out that the District Judge. He pointed out that the District Judge. He pointed out that the 6 Assistant Assistant Assistant Charity Commissioner found that entries Charity Commissioner found that entries Charity Commissioner found that entries inin in the agenda register of the managing committee the agenda register of the managing committee the agenda register of the managing committee were were were suspicious and that all the entries appeared suspicious and that all the entries appeared suspicious and that all the entries appeared toto to have been made at the same time. He submitted have been made at the same time. He submitted have been made at the same time. He submitted that that that though irregularities and illegalities in the though irregularities and illegalities in the though irregularities and illegalities in the record record record produced before the Assistant Charity produced before the Assistant Charity produced before the Assistant Charity Commissioner Commissioner Commissioner were were were pointed out by the appellant, the pointed out by the appellant, the pointed out by the appellant, the same same same have not been considered by the learned have not been considered by the learned have not been considered by the learned District District District Judge. He submitted that a prayer was Judge. He submitted that a prayer was Judge. He submitted that a prayer was made made made before the District Court for remanding the before the District Court for remanding the before the District Court for remanding the matter matter matter which ought to have been acceded to. He which ought to have been acceded to. He which ought to have been acceded to. He submitted submitted submitted that there is enough material on record that there is enough material on record that there is enough material on record toto to show show show that the appellant was enrolled as a member that the appellant was enrolled as a member that the appellant was enrolled as a member inin in the year 1980. He submitted that the findings the year 1980. He submitted that the findings the year 1980. He submitted that the findings recorded recorded recorded by the learned District Judge are by the learned District Judge are by the learned District Judge are completey completey completey erroneous. erroneous. erroneous. 5.5.5. Mr.Deshmukh, learned counsel appearing for the Mr.Deshmukh, learned counsel appearing for the Mr.Deshmukh, learned counsel appearing for the first first first respondent pointed out that a copy of the respondent pointed out that a copy of the respondent pointed out that a copy of the resolution resolution resolution sought to be produced by the appellant sought to be produced by the appellant sought to be produced by the appellant along along along with the application at Exhibit 23 is false with the application at Exhibit 23 is false with the application at Exhibit 23 is false and and and fabricated. He invited my attention to certain fabricated. He invited my attention to certain fabricated. He invited my attention to certain affidavits affidavits affidavits filed before the Assistant Charity filed before the Assistant Charity filed before the Assistant Charity Commissioner Commissioner Commissioner by by by the first respondent. He submitted the first respondent. He submitted the first respondent. He submitted that that that the appellant has produced fabricated the appellant has produced fabricated the appellant has produced fabricated documents documents documents in this Court alongwith an additional in this Court alongwith an additional in this Court alongwith an additional affidavit affidavit affidavit tendered today and the first respondent tendered today and the first respondent tendered today and the first respondent desires desires desires to take out an application for prosecuting to take out an application for prosecuting to take out an application for prosecuting the the the appellant. He submitted that no case was made appellant. He submitted that no case was made appellant. He submitted that no case was made out out out for interference. for interference. for interference. 6.6.6. I have carefully considered the submissions. I have carefully considered the submissions. I have carefully considered the submissions. 7 In In In view of the settled position of law, though view of the settled position of law, though view of the settled position of law, though these these these appeals are numbered as First Appeals, the appeals are numbered as First Appeals, the appeals are numbered as First Appeals, the same same same shall be governed by the constraints section shall be governed by the constraints section shall be governed by the constraints section 100 100 100 of the Code of Civil Procedure, 1908. At the of the Code of Civil Procedure, 1908. At the of the Code of Civil Procedure, 1908. At the outset, outset, outset, it must be stated that 40 change reports it must be stated that 40 change reports it must be stated that 40 change reports which which which are subject matter of these appeals were are subject matter of these appeals were are subject matter of these appeals were filed filed filed for reporting change in the constitution of for reporting change in the constitution of for reporting change in the constitution of the the the board of trustees/managing committee of the board of trustees/managing committee of the board of trustees/managing committee of the trust. trust. trust. It is admitted position that the tenure of It is admitted position that the tenure of It is admitted position that the tenure of the the the alleged newly elected managing committee the alleged newly elected managing committee the alleged newly elected managing committee the election election election of which was sought to be recorded by the of which was sought to be recorded by the of which was sought to be recorded by the last last last of the forty change reports has already of the forty change reports has already of the forty change reports has already expired. expired. expired. The last change report is in respect of The last change report is in respect of The last change report is in respect of the the the change allegedly made on 9th May, 2000. The change allegedly made on 9th May, 2000. The change allegedly made on 9th May, 2000. The other other other change report relate to earlier period. It change report relate to earlier period. It change report relate to earlier period. It is, is, is, therefore, therefore, therefore, obvious that now the controversy obvious that now the controversy obvious that now the controversy regarding regarding regarding the alleged changes under the change the alleged changes under the change the alleged changes under the change reports reports reports subject matter of these appeals has become subject matter of these appeals has become subject matter of these appeals has become merely merely merely academic. It is academic. It is academic. It is, therefore, not necessary therefore, not necessary therefore, not necessary toto to entertain the appeals as the questions involved entertain the appeals as the questions involved entertain the appeals as the questions involved therein therein therein have become purely academic. have become purely academic. have become purely academic. 7.7.7. As regards the submissions made regarding the As regards the submissions made regarding the As regards the submissions made regarding the locus locus locus of the appellant, I find that in proceedings of the appellant, I find that in proceedings of the appellant, I find that in proceedings relating relating relating to change reports, the dispute regarding to change reports, the dispute regarding to change reports, the dispute regarding the the the status of the appellant as a member of the status of the appellant as a member of the status of the appellant as a member of the trust trust trust could not have been finally decided.