1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.4490 OF 2009 Rustumrao s/o Kashinathrao Khiste, R/o-Vakil Colony, Parbhani. ...PETITIONER. VERSUS 1) Shri Dhondiba s/o Nagorao Ladke, R/o-New Mondha, Parbhani, 2) Joint Charity Commissioner, Maharashtra State, At Aurangabad. 3) Assistant Charity Commissioner, At Parbhani, Dist-Parbhani. ...RESPONDENTS. ... Mr.Swapnil S. Rathi Advocate for Petitioner. Mr.A.B. Tele Advocate for Respondent No.1. Mr.V.G. Shelke, A.G.P. for Respondent Nos. 2 and 3. ... CORAM: K.K. TATED, J. DATE : 7TH OCTOBER, 2009. 2 PER COURT : 1. With the consent of the learned counsel for the parties, matter is taken up for final hearing. Rule. Rule made returnable forthwith and matter is heard finally at the stage of admission. 2. Heard learned counsel for the Petitioner, learned counsel for Respondent No.1 and learned A.G.P. for Respondent Nos. 2 and 3. 3. By this Petition under Articles 226 and 227 of the Constitution of India the Petitioner - original appellant challenges the order passed by the Principal District Judge, Parbhani in B.P.T. No.3 of 2008 below Exhibit 32 rejecting the Petitioner's application for permission to produce additional evidence by way of affidavit in respect of original documents about participation in meeting to elect office bearers. A few facts of the present case are as under: 3 . After holding election of the management committee of the Trust namely, Nehru Education Trust, Parbhani, new body came in power and accordingly change report was forwarded to the Assistant Charity Commissioner. The Assistant Charity Commissioner, Parbhani was pleased to reject the change report on the ground that insertion of new members is not duly proved by the Trustees. The said order rejecting the change report was challenged by the Petitioner before the Joint Charity Commissioner by way of Appeal No.30 of 2007. The said Appeal was also dismissed by learned Joint Charity Commissioner, Aurangabad vide his order dated 22nd January, 2008. Being aggrieved by the said order passed by the Joint Charity Commissioner, Aurangabad, the Petitioner preferred B.P.T. Appeal No.3 of 2008 before the District Court, Parbhani. In the said Appeal the Petitioner filed an application under Section 72 of the Bombay Public Trusts Act below Exhibit 32 for leading additional evidence in the matter on the ground that though the original documents were produced on record those were not 4 considered by both the authorities below. The said application came to be dismissed by impugned order dated 7th April, 2009 passed by Principal District Judge, Parbhani. 4. Learned counsel for the Petitioner submitted that as per provisions of Section 72 of the Bombay Public Trusts Act, additional evidence can be produced on record at appellate stage also. He further submitted that Section 72 of the said Act specifically provides for permission to lead evidence at any stage. Learned counsel for the Petitioner submitted that in the present case the issue involved is about membership and their participation in meeting to elect office bearers. He further submitted that appellate authority as well as lower authority has observed that though the documents are produced on record, the same are not proved and therefore cannot be considered for deciding the matter. In view of this fact the Petitioner- original appellant filed application below Exhibit 32 on 13th March, 2009 before the 5 Principal District Judge, Parbhani for permission to produce additional evidence, which came to be rejected. 5. On the other hand, learned counsel for Respondent No.1 submitted that the Petitioner failed to put forth any cogent reason for allowing him to file additional affidavit to prove the documents which are already on record. He further submitted that the Petitioner filed application Exhibit 32 at belated stage and therefore the Principal District Judge, Parbhani rightly rejected the Petitioner's application below Exhibit 32. 6. It is clear that learned counsel for Respondent No.1 is not disputing about the fact that the Petitioner filed original documents on record before both the authorities below. If these facts are not disputed by the learned counsel for Respondent No.1, then it is necessary to permit the Petitioner to file additional affidavit of evidence to bring on record those documents which are already on the file 6 of the authorities below. In any case the Court should not take hyper technical view in respect of original documents which are already on record. Learned counsel for the Petitioner relied on the Judgment in the matter of Laxman Babanrao Mali and another vs. Prabhakar Sambhu Chaudhari and others, reported in 2008 (1) ALL M.R. Page 836. In this case the High Court allowed the party to bring additional evidence on record under Section 72 (1-A) of the Bombay Public Trusts Act, 1950. The trial Court also considered this reported Judgment while passing the impugned order dated 7th April, 2009 but rejected the Petitioner's application dated 13th March, 2009 being Exhibit 32. The trial Court erred in coming to the conclusion that filing of affidavit of evidence will be nothing but repetition not exhibiting the document despite evidence adduced by the parties could be argued and legality can be decided. If the document is not properly proved and brought on record, then it is difficult for a Court to consider the same at the time of final hearing. In the present case, it is the case of the Petitioner that 7 he already filed the original documents on record but those were not considered by the authorities below as those were not brought on record in their evidence. Considering these facts, in the interest of justice, Writ Petition is allowed in terms of prayer clause (c) and (d), which reads as under: "(c) By issuing appropriate writ, directions in the nature of writ judgment and order dated: 07.04.2009 passed by Principal District Judge, Parbhani in Bombay Public Trust Appeal No.03 of 2008 below Ex.32 may kindly be quashed and set aside; and; (d) By issuing appropriate writ and/or directions in that nature, application filed below Ex.32 for leading evidence in Bombay Public Trust Appeal No.03 of 2008 below Ex. 32 may kindly be allowed accordingly." 8 7. The Petitioner is permitted to file additional evidence by way of affidavit in respect of original documents as he prayed in his application Exhibit 32. 8. Rule is made absolute on the terms indicated above. [K.K. TATED, J.] asb/OCT09/wp4490.09