Judgment:
K.G. Shah, J.
1. (1) This is an appeal by one Shankar Waman Thatte, the Appellant before me by which he challenges the validity, legality and justness of the judgment and order dated 3rd May, 1984 passed by the learned District Judge, Ratnagiri in Regular Civil Suit No. 8 of 1971 on his file. That suit was filed by the Charity Commissioner, Maharashtra State, Bombay-Respondent No. 6 herein under Section 50 of the Bombay Public Trust Act, 1951 (for short 'the Act') The suit pertained to a public Trust named as 'Shri Sansthan Bhargav Parshuram' situate at village Pedhe-Parshuram in Chiplun Tahsil of Ratnagiri District. The Trust is a charitable trust pertaining to a temple and has been referred to by the learned District Judge as a Devasthan. Original Defendants No. 1 to 5 of that suit were the trustees of that Trust appointed by the learned District Judge, Ratnagiri as per his order dated 22nd December, 1967 in pursuance of a scheme which was framed in Civil Suit No. 3 of 1989 for management of the aforesaid Trust. In the suit filed by Respondent No. 6, he prayed for the following reliefs.
(a) Defendants Nos. 1 to 5 be removed from the trusteeship and from the management of the suit properties.
(b) A new scheme for the administration of the trust be settled.
(c) Competent and proper persons should be appointed as new trustees and all the trust property be ordered to be vested in them.
(d) As an interim relief, a Court Receiver be appointed pending the final disposal of the suit and suitable directions be given to him for proper administration of the trust.
(e) Defendants Nos. 1 to 5 be directed to render accounts of the income of the trust property during their tenure and after taking accounts they should be ordered to make good the loss sustained by the trust.
(f) The costs of the suit may be decreed against the Defendants.
2. It may be mentioned here that Shankar Waman Thatte, the Appellant before me and one another person had applied to Respondent Nos. 6 making allegations against the original Defendant Nos. 1 to 5 who were the trustees of the Trust. In that application, the Appellant and his companion had made allegations against the original Defendant Nos. 1 to 5, Respondent No. 6 therefore filed the suit before the District Court, Ratnagiri under Section 50 of the Act praying for the aforesaid reliefs.
3. The learned District Judge after the trial of the suit passed the impugned judgment and order by which he has framed a new scheme for the management of the Trust in question and he has ordered the removal of the original Defendant Nos. 1 to 5 from the trusteeship and has appointed a new set of trustees. One of the reliefs that Respondent No. 6 prayed for in the suit was that the original Defendant Nos. 1 to 5 be directed to render accounts of the income of the trust properties during their tenure and after taking accounts they should be ordered to make good the loss sustained by the Trust. That was the relief in prayer Clause (e) of the plaint.
4. Though the learned District Judge ordered removal of the original Defendant Nos. 1 to 5 from the trusteeship of the Trust in question, he for reasons recorded by him in his judgment declined to grant the relief for accounts as prayed in prayer Clause (e) of the plaint. The learned District Judge settled a fresh scheme for the management of the Trust in question.
5. Respondent No. 6, the original Plaintiff in the suit has not challenged that judgment of the District Court. Therefore in that sense he has accepted that judgment. Even the original Defendant Nos. 1 to 5, who were trustees of the Trust in question and who have been ordered to be removed from the trusteeship, have not challenged that judgment.
6. The present Appellant Shankar Waman Thatte, who was one of the persons who had approached the Charity Commissioner making grievances against the original Defendant Nos. 1 to 5 of mismanagement, negligence, dereliction of duties etc., feeling aggrieved by the judgment of the learned District Judge approached this Court with Civil Application No. 3418 of 1984. As he was not a party to the suit filed by Respondent No. 6 before the District Court, he prayed this Court to allow him to prefer an appeal against the judgment and decree passed by the learned District Judge in Civil Suit No. 8 of 1971. That Civil Application No. 3418 of 1984 was filed by him on 14th August 1984. On that civil application no notices to the present Respondents were issued. However this Court on 16th August 1984 i. e. to say within 2 days from the filing of the civil application passed a monosyllable order 'granted '. Thus, the Appellant has preferred the present appeal.
7. Mr. Sanghvi, the learned Counsel for the Appellant took three exceptions to the judgment and decree passed by the learned District Judge. Firstly he submitted that learned District Judge has erred in not granting the relief directing the original Defendant Nos. 1 to 5 to render accounts; a relief which Respondents No. 6 has prayed in prayer Clause (e) of the plaint. Mr. Sanghvi then took exception to Sub-clause (A)(ii) of Clause 8 of the scheme framed by the learned District Judge. That clause pertains to the qualification of the trustees. He also took exception to a part of Sub-clause (4) of Clause 20 of the scheme.
8. According to Mr. Sanghvi, the original Defendant Nos. 1 to 5, who were the trustees of the Trust in question, have done several acts and omissions as a result of which the Trust has suffered losses and therefore the learned District Judge should, while removing them from the trusteeship, have directed them to render accounts of the income of the Trust and should have saddled them with financial liabilities in respect of the loss suffered by the Trust on account of their negligence, mismanagement, dereliction of duties etc. So far as Clause 8(A)(ii) of the scheme is concerned, his objection was that a pujari of the temple should not be permitted to act as a trustee for the interest of pujari would be in conflict with the interest of the Trust represented by a trustee. Coming to Clause 20 (4) of the scheme, he submitted that, that clause gives undue rights to pujaris. According to him, the learned District Judge in the scheme should have provided that the donation boxes for the deity should be separately maintained. According to him, the learned District Judge should not have conferred such wide rights in favour of the pujaris as has been done by Clause 20 (4) of the scheme.
9. I may mention here that the original defendant Nos. 1,2, 4 and 5 have all died pending the proceedings and their heirs have been brought on record.
10. On behalf of those original Defendants and/or their heirs it was firstly contended that the Appellant has no right to file such an appeal. He is not a person interested in the Trust. He was not a party to the suit. He is busy body who should not be permitted to prosecute this appeal, the permission to file the appeal granted to him by this Court notwithstanding. It was nextly submitted on behalf of the contesting Respondents that as the new set of trustees, who have taken over the management of the Trust under the orders of the learned District Judge, has not been joined as party to the appeal, the Appellant's appeal should be dismissed on that count also. Mr. Rege, the learned Advocate who led the arguments on behalf of the contesting Respondents also submitted that no exception is possible to be taken to the views expressed by the learned District Judge for not directing the original Defendant Nos. 1 to 5 to render accounts for according to him the learned District Judge has given cogent reasons based on evidence for adopting that course.
11. I think the appeal should fail on the first submission levelled by Mr. Rege, namely that even in the face of the permission obtained by the Appellant to file the present appeal he has no locus standi to file such an appeal. As I have pointed out hereinabove, the Appellant filed Civil Application No. 3418 of 1984 on 14th August 1984. On that civil application no notices were issued to the present Respondents or any of them and this Court on 16th August 1984 passed a mono-syllable order 'granted'. Technically speaking, this order should be construed as a permission to the Appellant to file the present appeal. Nonetheless the question remains whether the appellant has a locus standi to file the appeal. Even at the cost of repetition I would say that on that civil application the present Respondents were not heard at all. Therefore even if as, submitted by Mr. Sanghvi, I cannot go behind that order 'granted' passed by this Court upon the civil application of the Appellant, I shall have to see as to what is the focus standi of the Appellant to file the present appeal.
12. Mr. Sanghvi, the learned Counsel for the Appellant relying upon the decision in the case of Province of Bombay v. Western India Automobile Association, AIR 1949 Bombay 141 submitted that even though the present Appellant was not a party to the suit filed by the Charity Commissioner, as the learned District Judge's order adversely affects him, he being a person interested in the Trust, can certainly file an appeal against the judgment and decree of the learned District Judge albeit with the leave of this Court and that leave the Appellant has obtained, therefore now, in the submission of Mr. Sanghvi, Mr. Rege's contention against the focus of the Appellant should be rejected.
13. I think Mr. Sarighvi's submission cannot be accepted for even though this Court has granted permission to the Appellant to file the appeal, the Court is certainly required to examine the locus standi of the Appellant in the matter of filing the appeal especially when the same is challenged by the Respondents for the first time in this appeal. In the civil application which was filed by the Appellant for the permission, the Respondents were not at all given any notice and they were not heard. Therefore this is the first occasion i, e. at the hearing of this appeal that the Respondents can raise whatever objections in law they are entitled to raise to the focus standi of the Appellant to file the appeal.
14. It is now well settled that Section 50 of the Act for all purposes substitutes Section 92 of the Code of Civil Procedure. Section 50 of the Act excludes applicability of Section 92 of the Code of Civil Procedure to the public trusts. The concept embodied in Section 92 of the Code of Civil Procedure is engrafted in Section. 50 of the Act. Section 92 of the Code of Civil Procedure as it stood before the amendment by Act No. 104 of 1976 provided that in the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate General or two or more persons having interest in the trust and having obtained consent in writing of the Advocate General, may institute a suit whether contentious or not in the Principal Civil Court of original jurisdiction or in any other court empowered in that behalf by the State Government within the local limit of whose jurisdiction the whole or part of the subject-matter of the trust is situate to obtain a decree for the reliefs as enumerated in Clauses (a) and (b) of that Section.
Section 50 of the Act also provides for a suit to be filed in any case where it is alleged that there is a breach of public trust, negligence, misapplication or misconduct on the part of the trustee or trustees or where a direction or a decree is required to recover possession of or to follow a property belonging or alleged to be belonging to a public trust or proceeds thereof for an account of such property or proceeds from a trustee, ex trustee, alienee, trespasser or any other person including a person holding adversely to the public trust but not a tenant or licensee, or where the direction of the Court is deemed necessary for the administration of any public trust or for any declaration or injunction in favour or against a public trust or trustee or trustees or beneficiary thereof.
15. In the contingencies referred to in Section 50 of the Act as aforesaid, the Charity Commissioner after making such inquiry as he thinks necessary is empowered to file a suit for the reliefs as enumerated in Clauses (a) to (q) of that Section. That section also empowers two or more persons having interest as referred to in the section, and who have obtained the consent in writing of the Charity Commissioner as provided in Section 51 of the Act to file a suit for the same reliefs as could be prayed by Charity Commissioner in his suit.
16. Thus it is clear that the concept that is there in Section 92 of the Code of Civil Procedure has been brought in the Act by Section 50 of the Act and by Section 52 of the Act the application of Section 92 of the Code of Civil Procedure is excluded in the matter of public trusts.
17. A bare reading of Section 50 of the Act would therefore show that in the matter of filing a suit for the reliefs as envisaged in that section, it is the Charity Commissioner who is empowered to file such a suit. Of course two or more persons having interest as mentioned in the section after obtaining the consent in writing of the Charity Commissioner are also empowered to file such a suit. The Appellant before me with one of his companions approached the Charity Commissioner respondent No. 6 herein making allegation against the original Defendant Nos. 1 to 5 of mismanagement, negligence, dereliction of duties etc. On that application the Charity Commissioner himself through his inspector made certain inquiries and found some substance in the allegations that were made by the Appellant and his companion in their application. The Charity Commissioner therefore himself thought it fit to approach the District Court with a suit under Section 50 of the Act and he filed the suit from which this appeal arises. The Charity Commissioner has thought it fit not to challenge the judgment and decree passed by the District Court in the suit, whereby the District Court has while removing the original Defendants Nos. 1 to 5 from trusteeship thought it fit not to direct any accounts being taken from the original Defendant Nos. 1 to 5. The District Court has also framed a new scheme. The Charity Commissioner has accepted that judgment and decree but the Appellant feeling aggrieved by that judgment and decree has approached this Court with the present appeal. The question is whether the Appellant has a locus standi to file such an appeal.
18. Mr. Rege, the learned Advocate who led the arguments on behalf of the contesting Respondents relied upon the decision in the case of Jan Mahomed Abdul Latif and another, v. Sayed Narudin Bin Sayed Htsamudin Rqfar and others, 32 ILR Bombay 155 and submitted that in such matters the person like the Appellant has no locus standi to file an appeal. The judgment relied upon by Mr. Rege is the judgment of this Court rendered by a Division Bench. In that matter, the suit was brought by the Advocate General at the instance of realtors, viz. the appellants under the provisions of Section 539 of the old Code of Civil Procedure. It appears that the suit in that case was filed by the Advocate General at the instance of or upon the application of the Appellants, the realtors. In that case upon a motion by the Defendants, the Court had ordered the relations to provide security to the satisfaction of the Prothonotary for the balance of the estimated cost of the Defendants within a certain time. Ultimately the Court ordered the suit to stand dismissed. The realtors i.e. the Appellants before the Division Bench were not parties to the suit. On behalf of the Respondents in that appeal a preliminary objection was raised about the maintainability of the appeal filed by the realtors who were not parties to the suit though of course, as it appears, it was at the instance of the realtors that the Advocate General had filed the suit. In that connection, the Division Bench of this Court observed as follows : -
We are against the appellants on the preliminary objection to this appeal raised by the Respondents counsel. We are of opinion that the suit having been brought by the Advocate General, he was the proper party to appeal and not the realtors who have filed this appeal. They were not party to the suit and as realtors they have no right to step in when the Advocate General who was Plaintiff has not thought it fit to appeal against the dismissal of the suit.
On the afore said holding, the Division Bench dismissed the appeal. I think the principle as has been enunciated by the Division Bench squarely applies to the case before me also. In the case before me it was upon the application of the present Appellant that the Charity Commissioner Respondent No. 6 had filed the suit before the District Court under Section 50 of the Act. In that suit the learned district Judge has passed the Judgment and decree. As pointed out hereinabove, the concept that is embodied in Section 92 of the Code of Civil Procedure equivalent to the old Section 539 of the Code of Civil Procedure has been embodied in Section 50 of the Act. In Section 92 of the Code of Civil Procedure as it stood prior to 1976 primarily it was the Advocate General who was empowered to file a suit though of course two or more persons having interest in the trust and having obtained consent in writing from the Advocate General were also empowered to file the suit. Nonetheless when the Advocate General filed the suit, as held by the Division Bench of the Bombay High Court in the judgment referred to hereinabove, it was the Advocate General alone who has a right to file an appeal if he was dissatisfied by the result of the suit and the realtors, viz. the person at whose instance the Advocate General filed the suit, have in turn been held to be persons who are not proper party to the appeal. Applying the same principle to the case on hand before me, the Charity Commissioner who was the Plaintiff in the suit was the only proper party who could have filed an appeal and not the person at whose instance the Charity Commissioner had filed the suit. The present Appellant though he has secured the permission of this Court to file the appeal, in my opinion, is, in the words of the Division Bench judgment, not a proper party to file the appeal. If the Charity Commissioner was in any manner aggrieved by the judgment and decree, it was for him to file an Appeal. The Charity Commissioner has not filed any appeal against the impugned judgment and decree.
19. Mr. Sanghvi tried to distinguish the judgment in Jan Mahomed's case by contending that in Jan Mahomed's case the realtors had not obtained leave of the Court for filing the appeal while in the case before me the present Appellant has obtained such a leave and there lies the distinction between the case of Jan Mohomed and the case on hand before me. I think this argument of Mr. Sanghvi cannot extricate the Appellant from the incompetence of his in the matter of filing the appeal on the basis of the judgment in Jan Mahomed's case. The reliance placed by Mr. Sanghvi on the decision in the case of Province of Bombay v. Western India Automobiles Association (supra) also cannot help the Appellant from the situation that arises against him on the strength of the judgment in Jan Mohomed's case.
20. As a general rule it could certainly be said that even though a person who is not a party to a suit, if the judgment and decree adversely affects him he can certainly file an appeal against the judgment and decree albeit with the leave of the Court. But to that general proposition the case on hand would be an exception as pointed out by the Division Bench of this High Court in Jan Mahomed's case. It was at the instance of the realtors that the Advocate General in Jan Mohomed's case, had filed the suit and he had not appealed against the decree. In the case on hand before me it was at the instance of the Appellant that the Charity Commissioner had filed the suit and he has not filed any appeal. Therefore, even the abstract proposition that a person who is likely to be adversely affected by the judgment and decree can, with the leave of the Court, file an appeal against the judgment and decree even though he is not a party to the suit, cannot help the Appellant in getting out of the position that arises on the strength of the judgment in Jan Mohomed's case. That being the position, I think neither the judgment in the case of Province of Bombay v. Western India Automobile Association (supra) nor the fact that the Appellant has secured permission from the Court to file an appeal would help him in prosecuting this appeal. The appeal is therefore liable to be dismissed on that count-alone. In that view of the matter, I do not think any purpose is going to be served by considering the other submissions which were raised by the Advocates at the bar.
21. In the end, the appeal fails and is dismissed with no order as to costs. All interim orders on the appeal and the connected civil application stand vacated.
22. Mr. Sanghvi submitted that the interim orders of stay should be continued for some time in order to enable the Appellant to pursue his further remedy. The request is rejected.