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1985 DIGILAW 177 (GUJ)

SAIYAD MOHAMAD BAKER v. ABDULHABIB BIN HASAN ARAB

1985-08-12

P.R.GOKULAKRISHNAN, S.B.MAJMUDAR

body1985
P. R. GOKULAKRISHNAN, J. ( 1 ) THIS Letters Patent Appeal is against the order passed by the learned Single judge of our High Court wherein the learned single judge has summarily dismissed the appeal filed by the appellant herein. originally an application was filed therefore the Charity Commissioner and he has inattitude the scheme proceedings No. 5 of 1973 under sec. 50-A of the Bombay Public Trusts Act 1950 The said proceedings are still pending before the Charity Commissioner. On 23/01/1979 original applicant No. 2 Hasan Bin Abubaker died Since nobody had action to prosecute the matter the son of the original applicant No. 2 Abdul Habib Bin Hasan gave application Ex. 44 on 11/10/1983 to be joined as a party to the said proceedings on the ground that he is interested in the said trust. On the same day another person. Hussain bin Avadhbhai. claimed to the one of the trustees of Hazarat Chhota Edroos Masjid and Durgah Trust and also as a reason interested in the Hazarat Bada Edroos Trust gave application Ex. 45 for being joined as an applicant in the scheme proceedings. It is unnecessary for us to state the other facts of the case and suffice it to say that the Charity Commissioner added them as parties. The appellant agitated the matter under section 72 sub-sec. (1) of the Bombay Public Trusts Act before the City Civil Court. The City Civil Court also confirmed the order of the Charity Commissioner. As against that First Appeal No. 478 to 1985 was filed and the learned single judge of our High Court after observing that the adding of the parties by the Charity Commissioner as confirmed by the City Civil Court is proper and that the advocate for the appellant herein has not given any valid reason as to why the applicant of applications Exs. 45 and 53 could not be joined as an opponent. The learned Judge has further observed that it was not in dispute that the proposal persons are interested in the Trust. After observing so the learned Judge has summarily dismissed the appeal. It is as against this appellate order that the present Letters Patent Appeal has been filed by the appellant under Clause 15 of the Letters Patent. The learned Judge has further observed that it was not in dispute that the proposal persons are interested in the Trust. After observing so the learned Judge has summarily dismissed the appeal. It is as against this appellate order that the present Letters Patent Appeal has been filed by the appellant under Clause 15 of the Letters Patent. ( 2 ) AS regards the facts of case the Charity Commissioner the City Civil Court and the High Court uniformly came to the conclusion that the persons sought to be added as parties to the charity proceedings More the Charily Commissioner are proper and necessary parties. Such a factual finding in our view cannot be interfered with at the Letters Patent stage. Apart from this factual aspect of the case a Bench of our High Court in Hiragar Dayagar and Anr. v. Ratanlal Chunilal and Ors. 13 GLR 181 has correctly held:". . That therefore when the District Court deals with an application under sec. 72 it exercises appellate jurisdiction and the order made by the District Judge in. the present case which was confirmed by the single Judge of the High Court was consequently an order made in the exercise of appellate jurisdiction by a Court subordinate to the :high Court and no Letters Panent Appeal against the decision of the single Judge could be filed by the appellants without obtaining a certificate from the Single Judge that the case was a fit one for appeal". This grant of certificate which was one of the procedure available before Civil Procedure Code amendment of 1976 is also not there as on date. Hence following the decision reported in 13 GLR 181 we do not think that the Letters Patent Appeal is maintainable on the side of the legal aspect of the case. ( 3 ) NO doubt the learned counsel appearing for the appellant pressed into service the decision in the case of Khivaraj Chhagniram Zavar and another v. Shivshanker Basappa Lingashetty and another reported in AIR 1974 Bom. 40 . When we have a decision of the Bench of our High Court we have to follow the same and hence the decision in the case of Hiragar Dayagar v. Ratanlal Chunilal (supra) will cover the facts of this case both on the factual aspect and also on the legal aspect of the case. 40 . When we have a decision of the Bench of our High Court we have to follow the same and hence the decision in the case of Hiragar Dayagar v. Ratanlal Chunilal (supra) will cover the facts of this case both on the factual aspect and also on the legal aspect of the case. ( 4 ) FOR all these reasons there is absolutely no merit in the Letters Patent Appeal and this appeal is accordingly dismissed. (KMV) appeal dismissed .