1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.348 OF 2010 WITH CIVIL APPLICATION NO.755 OF 2010 Burzor Rustom Joshi ..Appellant Vs. Zarir Rustom Joshi and ors. ..Respondents ......... Mr.S.G.Aney, Senior Counsel for the appellant. Mr.Aspi Chinoy, Senior Counsel i/b.Mr.Nilesh Tared and Ms.Khurshid Joshi, for respondent no.1. ......... CORAM: R.G.KETKAR, J. DATE : 23rd JUNE, 2010. P.C. : Heard learned counsel for the parties. Admit. Learned counsel for the respondent no.1 waives service. 2] Learned Senior counsel for the appellant and respondent no.1 agree for setting aside the impugned order on the ground that in paragraph 18 of the impugned order, the learned Judge of the City Civil Court referred to the letters dated 5 th September, 1997 addressed by the Manager of the Trust to Advocate Mr.A.G.Katki (2) dated 23 rd September, 1997 written by Late R.B.Joshi to Advocate A.G.Katki and (3) dated 3 rd October, 1997 written by Late R.B.Joshi to Advocate Mr.A.G.Katki, which were not exhibited. However, the learned trial Judge took into account those documents while passing the impugned order. 348-10.sxw 2 3] It is also not in dispute that in paragraph no.20 of the impugned judgment, the learned Judge recorded finding that Dara Vania did not object for appointment of Zarir R. Joshi as trustee. This is also factually incorrect finding having regard to the letter dated 23 rd July, 1998 at exhibit 66 addressed by Vania to Zarir R. Joshi. 4] Mr.Aney submits that even the letter dated 19 th May, 1997 is also not on record. Shri.Chinoy disputes this position. Since, by consent, I am setting aside the impugned order and remitting the case to the City Civil Court, the parties are at liberty to agitate this point before the City Civil Court. 5] Since I am passing this order by consent of the learned Senior Counsel for the appellant and respondent no.1, notices to respondent nos.2 to 5 in this Appeal are dispensed with. 6] The appeal is disposed of in the following terms:- (a) By consent, the impugned judgment and order dated 29 th April, 2010 passed by the learned Judge, City Civil Court, Mumbai, in Charity Application No.12 of 2005 is set aside. Charity Application No.12 of 2005 is restored to the file of the City Civil Court, Mumbai. (b) The appellant and respondent no.1 shall appear before the learned Judge, City Civil Court, Mumbai on 7 th July, 2010 and shall obtain suitable orders for proceeding further in the matter. 348-10.sxw 3 (c) Before proceeding with the matter on merits, the learned Judge of the City Civil Court shall issue fresh notices to respondent nos.2 to 5 in Charity Application No.12 of 2005. (d) The learned Judge, City Civil Court shall decide the Charity Application No.12 of 2005 afresh in accordance with law within six months from today. (e) Appeal is disposed of in the aforesaid terms with no order as to the costs. (f) In view of dismissal of Appeal, no orders are necessary on Civil Application and the same stands disposed of. [R.G. KETKAR, J.] 348-10.sxw