Research › Search › Judgment

Bombay High Court · body

2012 DIGILAW 519 (BOM)

Calvin Macwan v. Commissioner P. Mary Rajakumari

2012-03-07

ROSHAN DALVI

body2012
Judgment : 1. The petitioners have challenged the order of the Judge of Bombay City Civil Court dated 04.11.2011 setting aside the order of the Joint Charity Commissioner, Mumbai (JCC) dated 17.03.2010 in an application of the petitioners filed before the JCC under Section 41E of the Bombay Public Trust Act, 1950. The order disposes of the application on merits without remand. It is contended that the matter should have been remanded and the appeal could not have been disposed of finally. The extent of the powers of an appellate Court are, therefore, required to be considered. . 2. The petitioners applied under the aforesaid section as 2 persons interested in the trust property. The petitioners must show their interest. Petitioner No.1 claims to be a member/beneficiary of the suit trust registered under No. E/1052 of the Bombay Public Trust Act, 1950 (BPT Act). The petitioner has produced a membership certificate title “Dedication Certificate” of the suit trust. Petitioner No.2 has not produced any such certificate. He is employed by the trust as the driver. He was given accommodation as an employee. He did not perform his duties as driver. A disciplinary action came to be taken against him. He has sought to join in the application with petitioner No.1. He has not shown how he was interested in the trust since he was not a member. He has not disputed that he was a driver against whom certain proceedings were taken. He has not shown any other relationship. 3. The Learned Judge has seen in the impugned order that 2 persons mandatorily required to make their application under Section 41E of the BPT Act had not so applied, since the interest of at least one of them was not prima facie shown. Hence on merits the learned Judge has dismissed their application itself. 4. It is contended by Mr. Gole Advocate on behalf of petitioners that the learned Judge should have remanded the application to the lower Court. That contention is wholly misconceived. The interest of the parties has to be first seen. The very premise of the filing of the application would be absent if such interest is not shown. The merits of the case need not be considered until that is shown. 5. That contention is wholly misconceived. The interest of the parties has to be first seen. The very premise of the filing of the application would be absent if such interest is not shown. The merits of the case need not be considered until that is shown. 5. It may be mentioned that under Order 41 Rule 11 (1) of the Code of Civil Procedure the Appellate Court has power to dismiss the appeal without sending the notice to the lower Court after recording the grounds for delivering a judgment of dismissal under Rule 4 thereof which is what the learned Judge has correctly done. 6. The question of remand would come up under Order 41 Rule 23 of the Code of Civil Procedure when the Court from whose decree an appeal was preferred had disposed of the suit upon a preliminary point was reversed in appeal or under Order 41 Rule 23A when the court from whose decree the appeal is preferred had disposed of the case otherwise on a preliminary point but the retrial was deemed necessary by the appellate Court. 7. However under Order 41 Rule 24 if the evidence on record was sufficient, the appellate Court has power to determine the case finally. 8. It may be mentioned that in this case the lack of evidence was sufficient. The application under Section 41E could not be continued for want of such evidence which went to the root of the matter. 9. The powers of the Appellate Court under Order 41 Rule 33 are to pass any decree or make any order which ought to have been passed or made and as the case may require and could be exercised in favour of all or the respondents. 10. Consequently the impugned order is correct. The Writ Petition is dismissed.