HIRAGAR DAYAGAR v. RATANLAL CHUNILAL — 1971 DIGILAW 101 (GUJ)

P. N. BHAGWATI, T. U. MEHTA, J. ( 1 ) THIS Letters P tent Appeal raises a short but very interesting question of law relating to the maintainability of an appeal against an order made by a single Judge of the High Court in appeal against a decision of the District Court under sec. 72 of the Bombay Public Trusts Act 1950. It is not necessary for the purpose of determination of this question to state the facts giving rise to this Letter Patent Appeal in detail but it would be sufficient if we briefly set out a few of the relevant facts as that would help to understand how the question arises for consideration. There is a trust known as Dholeshwar Mahadev Trust which consists inter alia of a temple situate in Cambay and it was registered as a public trust by the Assistant Charity Commissioner on 10th November 1953 on an application made by one Motigar Lalgar Gosai. Motigar Lalgar Gosai having died on 21st October 1958 the appellants who are his heirs filed a change report under sec. 22 sub-sec. (1) claiming that their names be entered in the Register as trustees in place of Motigar Lalgar Gosai as they were his heirs. This change report was accepted by the Assistant Charity Commissioner by an order dated 6th March 1959 and the entry in the register was amended by showing the appellants as trustees of the public trust. Now it appears that when Motigar Lalgar Gosai made an application for registering the trust as a public trust he did not disclose to the Assistant Charity Commissioner that he had executed a deed of trust dated 30th November 1946 appointing respondents Nos. 1 to 3 as trustees and respondents Nos. 1 to 3 were therefore not shown in the register as trustees of the trust. Soon after the death of Motigar Lalgar Gosai however the respondents Nos. 1 to 3 realised that their names were not entered in the register as trustees and they therefore made an application under sec. 22a claiming that their names should be entered as trustees in plate of Motigar Lalgar Gosai. This application was made subsequent to the date of the order passed by the Assistant Charity Commissioner accepting the change report of the appellants. The Assistant Charity Commissioner on receiving this application held an inquiry and found that respondents Nos. 22a claiming that their names should be entered as trustees in plate of Motigar Lalgar Gosai. This application was made subsequent to the date of the order passed by the Assistant Charity Commissioner accepting the change report of the appellants. The Assistant Charity Commissioner on receiving this application held an inquiry and found that respondents Nos. 1 to 3 were trustees of the trust under the trust deed dated 30th November 1946 and they were entitled to have their names entered in the register as trustees and he accordingly by an order dated 29th June 1959 directed that the names of the appellants be deleted from the register and the names of respondents Nos. 1 to 3 be entered as trustees. The appellants) being aggrieved by this order made by the Assistant Charity Commissioner preferred an appeal to the Charity Commissioner. The main ground on which the appeal was based was that the Assistant Charity Commissioner had no jurisdiction to delete the names of the appellants and to substitute the names of respondents Nos. 1 to 3 as trustees in the register under sec. 22a that being the section under which the Assistant Charity Commissioner acted in making his order dated 29th June 1959 and the order dated 29th June 1959 made by him was therefore without jurisdiction. The argument of the appellants was that if respondents Nos. 1 to 3 were aggrieved by the order dated 6th March 1959 made by the Assistant Charity Commissioner accepting the change report of the appellants and entering the names of the appellants as trustees in the register under sec. 22 their remedy if at all was to prefer an appeal or revision application but they could not seek to set aside that order by inviting the Assistant Charity Commissioner to act under sec. 22athe Charity Commissioner who heard the appeal was impressed by this contention of the appellants and he set aside the order dated 29th June 1959 made by the Assistant Charity Commissioner. Respondents Nos. 1 to 3 thereupon made an application being Miscellaneous Application No. 22 of 1962 in the District Court Kaira under sec. 72 seeking to set aside the decision of the Charity Commissioner. Respondents Nos. 1 to 3 thereupon made an application being Miscellaneous Application No. 22 of 1962 in the District Court Kaira under sec. 72 seeking to set aside the decision of the Charity Commissioner. The learned Assistant Judge who heard the application disagreed with the view taken by the Charity Commissioner and taking the view that Assistant Charity Commissioner has jurisdiction to make his order dated 29th June 1959 under sec. 22a he set aside the decision of the Charity Commissioner and restored that of Assistant Charity Commissioner. The appellants being aggrieved by this decision of the learned Assistant Judge preferred an appeal before the High Court and since the value of the subject matter of the proceeding was less than Rs. 10 0 the appeal came to be heard by Mr. Justice M. U. Shah as a single Judge of this Court. Mr. Justice M. U. Shah confirmed the decision of the learned Assistant Judge and dismissed the appeal. The appellants thereupon preferred the present Letters Patent Appeal against the decision of Mr. Justice M. U. Shah. ( 2 ) WHEN the Letters Patent Appeal reached hearing before us Mr. B. S. Kapadia learned advocate appearing on behalf of respondents Nos. 1 to 3 raised a preliminary objection against the maintainability of the appeal. This preliminary objection was also set out in a separate application being Civil Application No. 784 of 1971 filed on behalf of respondents Nos. 1 to 3. The contention urged on behalf of respondents Nos. 1 to 3 was that the order made by the learned Assistant Judge being an order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the High Court no appeal lay to a Division Bench of the High Court against the judgment of Mr. Justice M. U. Shah under Clause 15 of the Letters Patent without a certificate obtained from Mr. Justice M. U. Shah that the case is a fit one for appeal and the Letters Patent Appeal filed by the appellants without obtaining such certificate of fitness from Mr. Justice M. U. Shah was therefore not maintainable. Now it was not disputed on behalf of the appellants that the present Letters Patent Appeal was filed by them without obtaining a certificate from Mr. Justice M. U. Shah was therefore not maintainable. Now it was not disputed on behalf of the appellants that the present Letters Patent Appeal was filed by them without obtaining a certificate from Mr. Justice M. U. Shah that the case was a fit one for appeal under Clause 15 of the Letter Patent. But the argument of the appellants was that it was not necessary to obtain such a certificate of fitness in order to entitle the appellants to file the Letters Patent Appeal since the order made by the learned Assistant Judge which was confirmed by Mr. Justice M. U. Shah in appeal was not an order made in the exercise of appellate jurisdiction and Clause 15 did not therefore require that a certificate of fitness should be obtained from Mr. Justice M. U. Shah in order to maintain a Letters Patent Appeal against his judgment. The determination of these rival contentions depends on the true interpretation of Clause 15 of the Letters Patent and it would therefore be convenient at this stage to re-produce it. It reads as follows:- 15 And we do further ordain that an appeal shall lie to the said High Court of Judicature at Fort William in Bengal from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court and not being an order made in the exercise of revisional jurisdiction and not being a sentence or order passed or made in the exercise of the power of superintendence under the provisions of sec. 107 of the Government of India Act or in the exercise of criminal jurisdiction) of one Judge of the said High Court or one Judge of any Division Court pursuant to sec. 108 of the Government of India Act and that notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court pursuant to sec. 108 of the Government of India Act and that notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court pursuant to sec. 108 of the Government of India Act made (on or after the first day of February 1929) in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court where the Judge who passed the judgment declares that the case is a fit one for appeal; but that the right of appeal from other judgments of Judges of the said High Court or of such Divisional Court shall be to Us Our heirs or Successors a in Our or Their Privy Council as hereinafter provided. It will be seen that Clause 15 of the Letters Patent provides for an appeal from the judgment of one Judge of the High Court to a Division Bench of the High Court but it introduces a condition that if the judgment of one Judge of the High Court has been given in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the High Court the Judge who passed the judgment must declare that the case is a lit one for appeal and it is only if such a declaration is given by the Judge who passed the judgment that an appeal can be preferred against the judgment to a Division Bench of the High Court. The question is whether this condition has applicability in the present case. It was common ground between the parties that the judgment of Mr. Justice M. U. Shall was passed in the exercise of appellate jurisdiction and it was equally common ground that it was in respect of an order made by a Court subject to the superintendence of the High Court. The only controversy between the parties was as to whether the order made by the learned Assistant Judge could be said to be an order made in the exercise of appellate jurisdiction. If it was made in the exercise of appellate jurisdiction the Letters Patent Appeal would not be maintainable since certificate of Mr. The only controversy between the parties was as to whether the order made by the learned Assistant Judge could be said to be an order made in the exercise of appellate jurisdiction. If it was made in the exercise of appellate jurisdiction the Letters Patent Appeal would not be maintainable since certificate of Mr. Justice M. U. Shah as so fitness was not obtained by the appellants but if it was not made in the exercise of appellate jurisdiction the Letters Patent Appeal would be maintainable for the condition which requires that the certificate of fitness should be obtained from the Judge who passes the judgment would not then apply. ( 3 ) TO determine this controversy we must consider what is the nature and character of the jurisdiction exercised by the District Court when it deals with an application under sec. 72. Sec. 72 omitting portions immaterial reads as follows:-72 (1) Any person aggrieved by the decision of the Charity Commissioner under secs. 40 41 50 70 or 70a or on the questions whether a trust exists and whether such trust is a public trust or whether any property is the property of such trust may within sixty days from the date of the decision apply to the Court to set aside the said decision. (1a ). No party to such application shall be entitled to produce additional evidence whether oral or documentary before the Court unless the Deputy or Assistant Charity Commissioner or the Charity Commissioner has refused to admit evidence which ought to have been admitted or the Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause to Court thinks it necessary to allow such additional evidence:-PROVIDED that whenever additional evidence is allowed to be produced by the Court the Court shall record the reason for its admission. (2) The Court after taking evidence if any may confirm revoke or modify the decision or remit the amount of the surcharge and make such orders as to costs as it thinks proper in the circumstances. . . . . . (4) An appeal shall lie to the High Court against the decision of the Court under sub-sec. (2) as if such decision was a decree from which an appeal ordinarily lies. . . . . . . . . . . . (4) An appeal shall lie to the High Court against the decision of the Court under sub-sec. (2) as if such decision was a decree from which an appeal ordinarily lies. . . . . . . The argument of the appellants was that sec. 72 sub-sec. (1) speaks only of an application to the Court to set aside the decision of the Charity Commissioner and it does not provide for an appeal against the decision of the Charity Commissioner. It is significant pointed out the appellants that though the Legislature has used the word appeal in secs. 70 and 71 it has departed from this nomenclature in sec. 72 and while dealing with the proceeding under sec. 72 it has deliberately and advisedly omitted to use the word appeal and characterized that proceeding as an application. The proceeding under sec. 72 cannot therefore be regarded as an appeal to the District Court against the decision of the Charity Commissioner and when the District Court exercises its jurisdiction in relation to an application under sec. 72 it does not exercise appellate jurisdiction but it exercises a special jurisdiction conferred upon it by sec. 72. If contended the appellants the Legislature intended to confer appellate jurisdiction on the District Court the Legislature would have used the well-known and familiar expression appeal which it has used in secs. 70 and 71 but the Legislature not having used this expression the inference must be inevitably raised that the jurisdiction which the Legislature intended to confer on the District Court under sec. 72 was not appellate jurisdiction but jurisdiction of a special nature. The Charity Commissioner who is the fourth respondent before us supported this line of argument advanced on behalf of appellants. Respondents Nos. 1 to 3 however urged that the nomenclature used by the Legislature in sec. 72 was immaterial. What was required to be considered was as to what was the real nature and character of the jurisdiction conferred on the District Court and this could be determined only on a proper consideration of the scope and ambit of the powers exercisable by the District Court in an application under sec. 72. Respondents Nos. 1 to 3 pointed out that the powers conferred on the District Court while dealing with an application under sec. 72. Respondents Nos. 1 to 3 pointed out that the powers conferred on the District Court while dealing with an application under sec. 72 were clearly appellate powers and though the word appeal was not used by the Legislature it was really appellate jurisdiction which was being exercised by the District Court while dealing with an application under sec. 72. These were the rival contentions of the parties which we shall now proceed to consider. ( 4 ) NOW it is no doubt true that while dealing with the proceeding under sec. 72 the Legislature has not used the expression appeal which is a well-known and well-recognized expression ordinarily used by the Legislature when it wants to confer appellate power on an authority but this circumstance cannot in our opinion be regarded as determinative of the question as to what is the true nature and character of the jurisdiction conferred on the District Court under sec. 72. Since the Legislature has used the expression appeal in secs. 70 and 71 and instead of describing the proceeding under sec. 72 as an appeal characterised it as an application it may be said that wherever the word appeal is used in the Act it would not include a proceeding under sec. 72. Such a proceeding for example would not he an appeal for the purpose of sec. 75 which provides that in computing the period of appeal under Chapter XI the provisions of secs. 4 5 12 and 14 of the Old Limitation Act shall apply to the filing of such appeals. That was in fact so held by a Division Bench of this Court in Shantilal v. Fulchand III G. L. R. 117. But the question before us is not whether according to the dictionary adopted by the Legislature in enacting the Act a proceeding under sec. 72 is an appeal or not The question before us is a wholly different one namely whether the jurisdiction exercisable by the District Court in dealing with an application under sec. 72 is an appellate jurisdiction and in determining this question it is immaterial as to how the proceeding has been designated by the Legislature. The designation given by the Legislature to the proceeding under sec. 72 cannot be regarded as determinative of the question. 72 is an appellate jurisdiction and in determining this question it is immaterial as to how the proceeding has been designated by the Legislature. The designation given by the Legislature to the proceeding under sec. 72 cannot be regarded as determinative of the question. Whatever might be the designation given by the Legislature the material question is-and that is the question we must attempt to answer-what is the nature of the power conferred on the District Court while dealing with such a proceeding ? what is its content ? what is its scope and ambit ? Is the power conferred on the District Court an appellate power or is it a revisional power or is it a power to deal with an original matter ? It is of course axiomatic that if the word appeal had been used by he Legislature there would have been no need for further inquiry because the word appeal would carry with it conferment of the usual appellate powers unless there is anything in the context which expressly or by necessary implication indicates that any particular power which appertains to the exercise of appellate jurisdiction was not intended to be conferred. But even where the word appeal is not used the powers which are conferred on the authority may be such as to indicate that the authority is really intended to be constituted an appellate authority. The word appeal as understood in the law of procedure connotes judicial examination by a higher Court of the decision of an inferior Court and appellate jurisdiction means the power of a superior Court to review the decision of an inferior Court. Vide The Dictionary of English Law by Earl Jowitt p. 130-131 and 133 The question which we are therefore called upon to consider is whether the power conferred on the District Court while dealing with a proceeding under sec. 72 is an appellate power that is a power to review the decision of the Charity Commissioner. ( 5 ) NOW it may be noticed that the District Court in an application under sec. 72 is given the power to confirm revoke or modify the decision of the Charity Commissioner and there are no limits or fetters upon this power. 72 is an appellate power that is a power to review the decision of the Charity Commissioner. ( 5 ) NOW it may be noticed that the District Court in an application under sec. 72 is given the power to confirm revoke or modify the decision of the Charity Commissioner and there are no limits or fetters upon this power. The entire matter which was before the Charity Commissioner is at large before the District Court and the District Court has full and complete power to review the decision of the Charity Commissioner either on law or on fact in such manner as it thinks proper. If this be not an appellate power it is difficult to see what else it can be. It is true that the Charity Commissioner is not subordinate to the District Court in the sense that the District Court has no power of superintendence over the Charity Commissioner but there can be no doubt that inter alia in the matter of his decisions under sec. 70 the Charity Commissioner is inferior to the District Court in that the District Court has power to revoke or modify his decisions. What is of the essence of an appeal is that a superior Tribunal should have the power to review the decisions of the inferior Tribunal and that power the District Court certainly has under sec. 72. The District Court as we have already pointed out may confirm revoke or modify the decisions of the Charity Commissioner on all application under sec. 7z. The District Court may also in the exercise of its inherent power under sec. 76 read with sec. 151 of the Code of Civil Procedure make an order of remand to the Charity Commissioner if the District Court think it necessary to do so in a proper case. Vide Chandrakant v. Charily Commissioner VI G. L. R. 649. We may point out that sub-sec. (1a) of sec. 72 also reinforces the view that the power conferred on the District Court under sec. 72 is an appellate power. The provision enacted in sec. (1a) of sec. 72 is in identical terms as Order 41 Rule 27 of the Code of Civil Procedure and it emphasizes that what the District Court is called upon to do under sec. 72 also reinforces the view that the power conferred on the District Court under sec. 72 is an appellate power. The provision enacted in sec. (1a) of sec. 72 is in identical terms as Order 41 Rule 27 of the Code of Civil Procedure and it emphasizes that what the District Court is called upon to do under sec. 72 is to review the correctness of the decision of the Charity Commissioner on the evidence which was before him and this is clearly a characteristic of appellate power. There can therefore be no doubt that though the word appeal is not used by the Legislature and the proceeding under sec. 72 is designated as an application the jurisdiction conferred on the District Court while dealing with such proceeding is appellate jurisdiction. This view is completely supported by the decision in Chandrakant v. Charity Commissioner (supra) which being a decision given by a Division Bench of this Court is binding upon us. There the question was whether an application under sec. 72 could be regarded as an appeal within the meaning of sec. 29 (2) of the Limitation Act and after examining the real nature of the right conferred by sec. 72 the Division Bench consisting of M. U. Shah J. and myself held that though an appeal within the meaning of sec. 75 it was certainly liable to be regarded as an appeal within the meaning of the Limitation Act. What we said there must apply equally in the present case and we must hold that the jurisdiction of the District Court while dealing with an application under sec. 72 is appellate jurisdiction. ( 6 ) THE appellants and respondent No. 4 relied on secs. 7 8 and 16 of the Bombay Civil Courts Act 1869 and contended that these sections showed that the jurisdiction conferred on the District Court under sec. 72 was not appellate jurisdiction. The argument of the appellants and respondent No. 4 was that the appellate jurisdiction of the District Court consisted only of that jurisdiction which was referred to in sec. 8 and any other jurisdiction which might be either original jurisdiction or special jurisdiction but it would not be appellate jurisdiction. The attempt of the appellants and respondent No. 4 thus was to confine the expression appellate jurisdiction in Clause 15 of the Letters Patent to the appellate jurisdiction contemplated in sec. 8 and any other jurisdiction which might be either original jurisdiction or special jurisdiction but it would not be appellate jurisdiction. The attempt of the appellants and respondent No. 4 thus was to confine the expression appellate jurisdiction in Clause 15 of the Letters Patent to the appellate jurisdiction contemplated in sec. 8 of the Bombay Civil Courts Act 1869 This attempt is futile and cannot be countenanced. Sec. 8 of the Bombay Civil Courts Act 1869 does not make an exhaustive provision in regard to the appellate jurisdiction of the District Court. What it says is that except as provided in secs. 16 17 and 26 the District Court shall be the Court of Appeal from all decrees and orders passed by the subordinate Courts from which an appeal lies under any law for the time being in force. Wherever therefore an appeal is provided from a decree or order passed by the subordinate Court it shall lie to the District Court. But this does not mean that the jurisdiction to hear appeals from decrees and orders passed by the subordinate Courts shall constitute the only appellate jurisdiction of the District Court. There may be various statutes which may provide for appeals from the decisions of Tribunals to the District Court. The Bombay Land Requisition Act 1948 is an example of one such statute. Wherever jurisdiction is conferred by statute on the District Court to review the decision of an inferior Tribunal it would constitute part of the appellate jurisdiction of the District Court. The words appellate jurisdiction in Clause 15 of the Letters Patent refer to appellate jurisdiction of whatever kind which may be vested in the District Court whether it is conferred under sec. 8 of the Bombay Civil Courts Act 1869 or under sec. 8 (3) of the Bombay Land Requisition Act 1948 or under sec. 72 of the Bombay Public Trusts Act 1950 ( 7 ) WE are therefore of the view that when the District Court deals with an application under sec. 72 it exercises appellate jurisdiction and the order made by the learned Assistant Judge in the present case which was confirmed by the decision of Mr. Justice M. U. Shah was consequently an order made in the exercise of appellate jurisdiction by a Court subordinate to the High Court and no Letters Patent Appeal against the decision of Mr. 72 it exercises appellate jurisdiction and the order made by the learned Assistant Judge in the present case which was confirmed by the decision of Mr. Justice M. U. Shah was consequently an order made in the exercise of appellate jurisdiction by a Court subordinate to the High Court and no Letters Patent Appeal against the decision of Mr. Justice M. U. Shah could be filed by the appellants without obtaining a certificate from Mr. Justice M. U. Shah that the case was a fit one for appeal. Since the present Letters Patent Appeal was filed by the appellants without obtaining such certificate from Mr. Justice M. U. Shah it must be held to be not maintainable and must be rejected. On this view it becomes unnecessary to examine the merits of the appeal and we do not therefore propose to express any opinion on the merits. The appeal therefore fails and is dismissed with costs. .