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JUDGMENT
T.U. Mehta, J.
1. This is an appeal filed under Section 72(4) of the Bombay Public Trusts Act, 1950 (which is hereinafter referred to as the Act) and it raises rather an important question of law as regards the procedure to be adopted by the Assistant Charity Commissioner during the course of an inquiry contemplated by Section 19 of the Act. It also raises the question as regards the revisional jurisdiction of the Charity Commissioner under Section 70A of the Act.
2. Following in brief are the facts out of which this appeal arises. On 15th April, 1932 one Husemkhan Ahmedkhan Pathan filed an application under’ Section 18 of the Act for registration of a public trust under the name of Chhani Masjid. Consequent upon this application, inquiry No. ‘499/52 was undertaken by the concerned Assistant Charity Commissioner, Baroda. Eventually, the trust was registered under the provisions of the Act on 9th June, 1953 and was given No. B/553. The trust “claimed some properties said to have been gifted to it by one Nabiji Nathaji Vohra, of Baroda as per two gift deeds dt. 22nd May, 1953.
3. The, above order registering the trust and its above named properties, Nabiji, who has since died, filed an appeal before the Charity Commissioner contending that the gifts under which his properties were claimed by the trust were procured from him when he was mentally incapable of making them. This appeal was registered before the Charity Commissioner as appeal No. 72 of 1956. On 10th May, 1957 the Charity Commissioner remanded the matter back to the Assistant Charity Commissioner with directions to allow Nabiji to lead evidence with regard to the contentions raised by him. Thereafter Nabiji filed his written statement before the Assistant Charity Commissioner her further inquiry into the matter was undertaken by, the Assistant Charity Commissioner, Baroda.
4. It is found that on 19th December, 1959 evidence in the matter was to be recorded. But on that date the gentleman who was engaged as the advocate of the trustees, submitted one application to the Assistant Charity Commissioner declaring that he had no instructions. This application is found at Ex. 40 in the record of the case of the Assistant Charity Commissioner. It appears that the Assistant Charity Commissioner, before whom this declaration was made, allowed the said advocate to be discharged from his engagement. However, instead of giving notice of this discharge to the trustees, on whose behalf that advocate was engaged, the Assistant Charity Commissioner endorsed the following order on that application.
The trustees are absent even though duly informed. Inquiry to proceed ex-parte against them.
Thereafter the Assistant Charity Commissioner, in fact, proceeded ex-parte and recorded evidence offered by Nabiji. This evidence went unchallenged as nobody was present on behalf of the trustees. On the same day the Assistant Charity Commissioner decided the matter and came to the conclusion that the gift deeds said to have been executed by Nabiji were executed by him when he was net mentally capable of doing so. He, therefore, excluded the properties of Nabiji from the list of the trust properties. As said above, this order was passed by the Assistant Charity Commissioner on 19-12-1959.
5. In the mean while, there were several changes in the board of trustees and several change reports were filed as contemplated by Section 22 of the Act. It is an admitted position that the present trustees were appointed on 11-4-60 in place of old trustees and they were registered as such in change inquiry No. 476/60. The point to be noted is that 19-12-59 when the Assistant Charity Commissioner excluded the properties claimed by Nabiji from the list of trust properties, all the present trustees, were not on the Board of trustees. When they came to know about the existence of the order passed by the Assistant Charity Commissioner on 19-12-59 they filed an application before the Assistant Charity Commissioner on’ 10-5-1960 for setting aside the ex-parte order passed by him on, 19-12-59- This application was registered as Application No. 2 of 1960 before the Assistant Charity Commissioner. It was presumably made under the provisions–of Order 9 Rule 13 read with Section 151 C.PC. This application; as dismissed by the Assistant Charity Commissioner on 15-6-60 on the ground that it was prima-facie beyond the period of limitation and that were not the parties to the original inquiry proceedings bearing No. 499/52.
6. Thereafter the trustees, who are the present appellants, approached the Charity Commissioner in appeal. By reference to the appeal memo preferred by them, it is clear that it was preferred not only against the order of the Assistant Charity Commissioner refusing to set aside the ex order passed by him on 19-12-59 but also against his order passed Section 20 of the Act holding that the properties claimed by Nabiji be excluded from the list of the trust properties. The appeal was registered in, the office of the Charity Commissioner as Appeal No. G. 17 of 1960. The learned Charity Commissioner dismissed this appeal on the ground that the order passed by the Assistant Charity Commissioner refusing to set aside his own ex-parte order under Order 9 Rule 13 C.P.C. read with Section 151 thereof, is not appealable under Section 70 of the Act.
7. Against this decision of the Charity Commissioner the present appellants approached the District Court by way of an application under Section 72 of the Act. This application was registered in the court of the District Judge, Baroda as Civil Misc. Application No. 46/63. It was heard and decided by Extra Assistant Judge, Baroda, who held that provisions of Civil Procedure Code were not applicable to the proceedings before the Deputy or Assistant Charity Commissioner or the Charity Commissioner and that being so, an application under Order 9 Rule 13 C.P.C. was not competent. He further held that the Charity Commissioner had no appellate jurisdiction under Section 70 of the Act to pass any order against the decision given by the Assistant Charity Commissioner refusing to set aside his own ex parte order.
8. During the course of hearing before the learned Assistant Judge, a contention was raised on behalf of the appellants-trustees that the learned Charity Commissioner ought to have exercised his revisional jurisdiction under Section 70A of the Act, in case it was found that the order against which the appeal was preferred, was not appealable. Even this contention was rejected by the learned Assistant Judge as discussed para 7 of his judgment. Being aggrieved by this decision of the Assistant Judge, the trustees have approached this Court in appeal.
9. On behalf the respondents it was contended that in proceedings under Section 19 of the Act, which are undertaken before the Deputy or the Assistant Charity Commissioner, provisions of Civil Procedure Code have no application and, therefore, the application for setting aside an ex-parte order under the provisions of Order 9 Rule 13 of the said Code, was not entertainable by the Assistant Charity Commissioner. In support of this proposition, reliance was placed on two of the decisions of this Court, namely, Shah Hiralal Virchand and Ors. v. Patel Vithalbhai Vaghajibhai and Ors. II G.L.R. 549 and Lallubhai Girdharlal Parikh v. Atharya Vrijbhushanlalji Balkrishnalalji and Ors. VIII G.L.R. 42. The learned advocates of the parties wanted these two decisions to be construed as laying down a proposition that in proceedings before the Deputy or Assistant Charity Commissioner under Section 19 of the Act, the provisions of the Civil Procedure Code have no application. After perusing these two decisions, I am of the opinion that none of these two decisions goes to this extent. I will discuss the ratio of these decisions rather at a subsequent stage but before doing so, I propose to examine the scheme of the Act and the rules fringed thereunder with regard to the procedure which the Deputy or the Assistant Charity Commissioner is supposed to follow during the course of an inquiry under Section 19 of the Act. Section 19 of the Act directs that the Deputy or the Assistant Charity Commissioner shall make an inquiry in the prescribed manner.” The section itself does not prescribe any manner but the prescription of this manner seems to have been left to the State Government, which is authorised under Section 84 of the Act, to frame rules for the purpose of carrying into effect the provisions of the Act. Clause (g) of Sub-section (2) of Section 84 empowers the State Government to frame rules with regard to the manner in which the inquiry has to be made by Deputy or Assistant Charity Commissioner under Sections 19 and 39. In exercise of these powers the State Government is found to have framed Rule 7 which is in the following terms:
Manner of Inquiries: Except as expressly provided in these rules inquiries under the Act shall be held as far as possible, in the Greater Bombay Region in accordance with the procedure prescribed for the trial of suits under the Presidency Small Cause Courts Act, 1882 and elsewhere under the Provincial Small Cause, Courts Act, 1887. In any inquiry a party may appear in person or by his recognised agent or by a pleader duly appointed to act on his behalf:
Provided that any such appearance shall, if the Deputy or Assistant Charity Commissioner so directs, be made by the party in person’.
This rule makes it clear that the procedure to be adopted by the Deputy or Assistant Charity Commissioner during the course of an inquiry under Section 19 of the Act is the one provided either in Presidency Small Cause Courts Act, 1882 or in Provincial Small Causes Courts Act, 1887. Since the property in this case is situated at Baroda, it is an admitted position that it would be the Provincial Small Cause Courts Act, 1887 which would have relevance so far as this question is concerned. If we refer to the Provincial Small Cause Courts Act, 1887, we find Section 17 thereof in the following terms:
17. (1) The procedure prescribed in the Code of Civil Procedure, 1908-,’ shall, save in so far as is otherwise provided by that Code or by this Act, be; the procedure, followed in a Court of Small Causes in all suits cognizable by it and in all proceedings arising out of such suits;
Provided that an applicant for an order to set aside” a decree passed ex parts or for a review of judgment shall, at the time of presenting his application, either deposit in the court the amount due from him under the decree or in pursuance of the judgment, or give such security for the performance of the decrees or compliance with the judgment as the court may, on a previous application made by him in this behalf, have directed.
(2) Where a person has become liable as surety under the proviso to Sub-section (1), the security may be realised in manner provided by Section 145 of the Code of Civil Procedure 1908.
It is thus obvious that the procedure prescribed in the Code of Civil Procedure, 1908, in so far as the same is consistent with the provisions of the Provincial Small Cause Courts Act is the procedure meant for inquiries conducted under Section “19 of the Act,” by Deputy Charity Commissioner or the Assistant Charity Commissioner. According to Rule 7 quoted above, this procedure is to be adopted subject to the express, provisions found in the rules and also subject to the possibility of the applicability thereof. Under these circumstances, it is not a correct statement to say that the procedure contemplated by Civil Procedure Code is not at all applicable to inquiry proceedings contemplated fay Section 19 of the Act. If any authority is required on this point, the same would be found in the Bombay case of Vinoba v. Balkrishna .
10. Now coming to the two Gujarat decisions referred to above, I find that they are not applicable to the facts of the present case. It is held in Shah Hiralal Virchand v. Patel Vithalbhai Vaghjibhai (supra) that Order 41 Rule 17 of the Civil Procedure Code, regarding dismissal of appeal for default, is not applicable to the proceedings before the Charity Commissioner. It is further observed that in that case that the whole of the Code of Civil Procedure is not applicable to the proceedings before the Officers acting under the Bombay Public Trusts Act, and that the Code only applied to certain specified matters. I have gone through the decision and I do not find anything therein to suggest that the Civil Procedure Code as a whole is not applicable to the proceedings of inquiry contemplated by the Act. In fact, it appears from the reported decision that Rule 7 of the rules framed under the Act, was not brought to the notice of the Court. However, the decision does not amount to saying that Civil Procedure Code has no application to the procedure contemplated by the Act. Another decision is found in the case of Lallu v. Vrijlal (supra). There also what is held is that Order 23 Rule 3 of the Civil Procedure Code, which provides for passing of a decree by court in accordance with the lawful agreement made between the parties, cannot be made applicable to the proceedings before the Charity Commissioner in appeal under Section 70 of the Act. Even in this decision there is nothing to suggest that the application of all the provisions of the Civil Procedure Code is barred. I, therefore, hold that none of these two Gujarat decisions is of any help to the respondents on this point.
11. The next question to be considered is whether the learned Charity Commissioner was justified in holding that he had no jurisdiction to decide and dispose of the appeal which was preferred before him by the present appellants. From the judgment of the learned Charity Commissioner it appears that he has proceeded on the basis that the appeal before him was confined only against the order passed by the Assistant Charity Commissioner under Order 9 Rule 13 of Civil Procedure Code. But this is not a fact. I have perused the whole appeal memo which is found in the file of the learned Charity Commissioner and 1 find that it contains specific grounds against the original order by which the learned Assistant Charity Commissioner excluded the property of Nabiji from the list of the trust properties. These grounds are grounds Nos. 7 to 12 of the appeal memo. In the relevant clauses of the appeal memo, it is specifically mentioned that the order passed by the Assistant Charity Commissioner on 19-12-59 should be set aside along with the order dismissing the appellants’ application to set aside the ex-parte order. Thus, the learned Charity Commissioner was obviously in error in believing that the appeal preferred by the present appellants was confined only to the order of the Assistant Charity Commissioner dismissing the appellants’ application to set aside the ex-parte order passed by him on 19-12-59. On this ground alone the judgment of the learned Charity Commissioner is liable to be set aside. Even the learned Extra Assitt. Judge has apparently omitted to consider this aspect of the matter. Shri Shah who appeared on behalf of the respondents Nos. 1/1 and 1/2 however, contended that appeal against the original order dt. 19-12-59 passed by the Assistant Charity Commissioner would be time barred and since there is no prayer made by the appellants-trustees to condone the said delay, it should be held that appeal before the Charity Commissioner was confined only to the order of the Assistant Charity Commissioner refusing to set aside his ex-parte order. I find myself unable to accept this argument for the simple reason that if an appellant prefers to file an appeal beyond the period of limitation, and does not pray for the condonation of the period of limitation, the appeal cannot be said to have been “not preferred,” though on the question of limitation it would be liable to be rejected. The appeal which the trustees had preferred before the Charity Commissioner is obviously not rejected on the ground of limitation and the prayer for condonation of delay could be made at any time during the pendency of the appeal. Under the circumstances, it cannot be said that this appeal was not against the original order of the Assistant Charity Commissioner dt. 19-12-59.
12. Apart from this, I find that even if the trustees had preferred appeal only against the order of the Assistant Charity Commissioner refusing to set aside his ex-parte order, the learned Charity Commissioner was not correct in refusing to give redress to the appellants on the footing that such an order of the Assistant Charity Commissioner was not appealable and that the Charity Commissioner had no appellate jurisdiction over such an order under Section 70 of the Act. The reason is that the learned Charity Commissioner could have set the matter right by utilising his revisional powers under Section 70A of the Act. I, however, find that though the learned advocate of the trustees, who appeared before the learned Charity Commissioner had not urged him to utilise his revisional powers under Section 70A of the Act, such a contention was, in fact, advanced on behalf of the trustees at least before the learned Extra Assistant Judge, who disposed of the matter under Section 72 of the Act. This is apparent from the paragraph 7 of the judgment recorded by the learned Extra Assistant Judge. I have perused very closely the line of reasoning adopted by the learned Extra Assistant Judge in this paragraph but I must admit that I have failed to follow the reasoning adopted by him for showing that Section 70A of Act it is not applicable to the facts of the case. This is what the learned Judge says in this paragraph of his judgment.
He (advocate for the trustees) therefore urged that the Charity Commissioner should have treated the appeal as a revisional application and decided the case on merits. I am unable to accept this argument of Shri Parikh. This question would have arisen if an appeal did not lie against the order of the Charity Commissioner and the question was of treating the appeal as a revision application. But 70A empowers the Charity Commissioner to exercise his revisional jurisdiction in any of the cases mentioned in Section 70. It appears to me that the intention of the Legislature in enacting this section was to see that the orders passed by the Deputy or Assistant Charity Commissioner which are not legal or correct and which are not challenged by the trustees in appeal can be corrected by him in this revisional powers. That being so, there was no question of the learned Charity Commissioner treating this appeal as a revision application. Moreover, the question of exercising the powers under Section 70 would not arise in the appeal before the learned Charity Commissioner as what was challenged before him was the order passed by the Assistant Charity Commissioner on the application under order IX Rule 13 Civil Procedure Code. When the applicants had not challenged the order passed by the Assistant Charity Commissioner on 19th December, 1959 giving his findings under Section 20, the learned Charity Commissioner cannot treat that appeal as a revisional application.
As stated above, I have not been able to follow the line of reasoning adopted by the learned Assistant Judge in this portion of his judgment. The learned Judge says that the question of exercising the revisional jurisdiction would have arisen if an appeal did not lie, against the order in question. But this is exactly the position here, because, against the order passed by the Assistant Charity Commissioner refusing to set aside his ex-parte order, no appeal is provided in Section 70 of the Act, and if no appeal is provided against a particular order, the only method by which the wrong in question could be remedied, was by utilisation of the revisional powers contemplated in Section 70 A. Therefore, it is found that the learned Extra Assistant Judge has not approached the problem with a proper perspective. Now coming to this provisions of Section 70A it is found that it provides that the Charity Commissioner may, “in any of the cases mentioned in Section 70” call for and examine the record and proceedings of such case before any Deputy or Assistant Charity Commissioner for the purpose of satisfying himself as to the correctness of any finding or order recorded or passed by the Deputy or Assistant Charity Commissioner and may either annul, reverse, modify or confirm the said finding or order or may direct the Deputy or Assistant Charity Commissioner to make further inquiry or take such additional evidence as he may think necessary or he may himself take such additional evidence. Thus, Section 70A empowers the Charity Commissioner to correct any order passed by the Deputy or the Assistant Charity Commissioner in any of the cases mentioned in Section 70. The question is what are the cases mentioned in Section 70. To answer this question, we have to made a reference to sec, 70. This Section 70 provides for appeals from findings of Deputy or Assistant Charity Commissioner only in specified cases. These specified cases are:
(a) The findings and order, if any, under Section 20.
(b) finding under Section 22. (b-1) finding under Section 22A.
(c) finding under Section 28.
(d) the order under Sub-section (3) of Section 54.
These are the five types of cases, which are referred to in Section 70. Therefore, if from the record of these 5 types of cases, the Charity Commissioner finds anything which may require his interference, he can exercise his revisional powers under Section 70 A. On behalf of the respondents it was, however, contended that Section 70A which confers revisional powers on the Charity Commissioner is confined in its operation only to the limitations of the appellate powers of the Charity Commissioner provided in Section 70. 1 find that this has also been the view of the learned Extra Assistant Judge over the order against which this appeal is preferred. But this view is obviously wrong because Section 70A purposely refers not to the appellate powers conferred on the Charity Commissioner under Section 70 but to the “cases” mentioned in the section. The idea is that the categories of cases which are mentioned in Section 70 being important, even if no appeal is preferred against the ultimate order passed in such cases, the Charity Commissioner can enjoy his revisional powers to set a particular matter right. Now the order of the Assistant Charity Commissioner refusing to set aside the ex-parte order passed by him on 19th December, 1959 was a part of the record and proceedings of the case in which he passed the ex-parte order on 19-12-59 under Section 20. That being so, this was a case mentioned in Section 70, and if that was a case mentioned in Section 70, the Charity Commissioner was entitled to send for the record of that case under Section 70A of the Act and to satisfy himself as to the correctness of “any finding or order” recorded or passed by the Assistant Charity Commissioner. Therefore, even believing that an order refusing to set aside the ex-parte order previously passed by the Assistant Charity Commissioner was not liable to be revised in appeal under Section 70 of the Act, it was undoubtedly liable to be revised in exercise of the revisional powers vested in the Charity Commissioner under Section 70 of the Act. Therefore, in my opinion, the learned Assistant Judge was not correct in his finding that Section 70A of the Act has no application to the facts of the case.
12.1 Shri Patel, who appeared on behalf of the appellants, contended that apart from the provisions of Section 70A, his application to set aside the ex-parte order passed by the Assistant Charity Commissioner on 19th December, 1959 could have been treated as an application under Section 22A of the Act and the same could have been disposed of accordingly. Section 22A of the Act says that if at any time after the entries are made in the register under Section 21 or 22, it appears to the Deputy or Assistant Charity Commissioner that any particular relating to any public trust, which was not the subject-matter of the inquiry under Section 19 or Sub-section (3) of Section 22, as the case may be, has remained to be enquired into, the Deputy or Assistant Charity Commissioner, as the case may be, may make further inquiry in the prescribed manner and record his findings and make entries in the register in accordance with the decision arrived at. The contention of Shri Patel was that since his application to set aside the ex-parte order virtually amounted to further inquiry relating to public trust, it could have been treated as an application under Section 22A of the Act and the provisions of Section 20 and other sections could have been applied to the same. In view of the above discussion on other points, I do not find it necessary to discuss the merits of this contention of Shri Patel.
13. Under these circumstances, T find that this appeal should be allowed. The same is allowed and the orders passed by the Assistant Charity Commissioner in appeal No. 72 of 1956 as well as by the Extra Assistant Judge in Misc. Application No. 46/63 are set aside. The matter is remanded back to the learned Charity Commissioner for disposal of appeal No. G. 17/60 on merits. While disposing of this appeal on merits, it would be open to the learned Charity Commissioner to consider the validity and correctness of the order passed by the Assistant Charity Commissioner refusing to set aside his own ex-parte order found on 19-12-59 and also to consider other contentions raised by the parties including the contention whether the appeal is within the limitation or not. Looking to the facts of the case, except the Charity Commissioner, each party shall, bear his own costs of this appeal. The costs of the Charity Commissioner shall be borne by the estate of the trust but if there is no estate of the trust, than the same shall be borne by the heirs of the original respondent Nabiji Nathaji Vohra.