G.B. Pattanaik and; U.C. Banerjee, JJ.
1. Leave granted.
2. The order of the learned Single Judge of the Madras High Court interfering with the selection made by the District Judge for appointment of hereditary trustees is the subject-matter of challenge in this appeal. It is not necessary for us to indicate the facts in detail. Suffice it to say that a wakf had been created by virtue of two wakf deeds dated 16-12-1900 and 6-4-1901 and a scheme was ultimately framed for the management of the said wakf by order dated 30-8-1978 in Original Suit No. 6 of 1970. Under the scheme the District Judge is required to appoint hereditary and non-hereditary trustees for a period of three years and so far as hereditary trustees are concerned, the District Judge is required to make appointment from three different branches of the founders.
3. The selection in the present case was made by the learned District Judge for the period from 25-9-1998 to 24-9-2001 and in the present case we are concerned with the third branch. There are as many as seven applicants for being appointed from the third branch as trustees and the learned District Judge appointed the present appellant K. Naina Mohamed and one N. Abubucker.
4. Assailing the said appointments, Civil Revision Petitions Nos. 2893 and 3463 of 1998 were filed before the learned Single Judge of the Madras High Court. Applicants 2 and 4 were revision petitioners in Revision Petition No. 2893 of 1998 and the 6th applicant was the revision petitioner in Revision Petition No. 3463 of 1998. It may be stated that in relation to selection made in other branches also, revision applications were filed and the learned Single Judge discussed these revisions in different paragraphs of the impugned judgment. So far as the third branch is concerned, the learned Single Judge discussed the same in para 66 onwards till para 75.
5. The learned Single Judge came to the conclusion that the District Judge committed error in applying varying standards in adjudicating upon the rival claims of the parties and thereafter himself reappreciated the rival claims of the parties and on a comparison of individual merits and demerits, ultimately came to the conclusion that the 6th applicant, who is Respondent 1 herein, is far better than K. Naina Mohamed who is the appellant in this appeal. So far as the other appointee, namely, N. Abubucker is concerned, his appointment has not been interfered with.
6. The learned Single Judge directed that in respect of the 3rd branch, in place of K. Naina Mohamed, the present respondent should be appointed as the managing trustee for the period already indicated. It is this order of the learned Single Judge which is assailed in appeal before us.
7. Mr Mishra, the learned Senior Counsel appearing for the appellants contended that a bare perusal of the impugned order would indicate that the High Court exceeded its jurisdiction under Section 115 of the Code of Civil Procedure (CPC) and as such the impugned order cannot be sustained.
8. Mr Sampath, the learned counsel appearing for the respondents, on the other hand, contended that since the District Judge had applied and adopted varying standards in appointing trustees thereby committing material irregularity which was found to be erroneous by the High Court and the High Court being the only revisional forum was competent to correct that error and in the process, it was entitled to appoint the respondent in place of the present appellant K. Naina Mohamed.
9. It is undisputed and we also find from the impugned judgment of the learned Single Judge that no express direction of the scheme has been violated by the District Judge in making the selection in question. On an earlier occasion, against an appointment made by the District Judge, the parties had moved the High Court under Article 227 of the Constitution and against the order of the High Court under Article 227, the matter had been carried to this Court in Civil Appeal No. 602 of 1961. This Court while disposing of the civil appeal had indicated that the High Court was not justified in interfering with the appointments made by the District Judge as the power of the High Court under Article 227 was a supervisory one and not an appellate one and the High Court appears to have exercised the appellate power.
10. Mr Sampath submitted that the power of revision under Section 115 CPC must be held to be wider than Article 227 of the Constitution of India and, therefore, the aforesaid observation will have no application to the present case. We are not answering this submission of the learned counsel for the respondents and we are examining the legality of the impugned order of the High Court passed in revision in exercise of power under Section 115 CPC.
11. Having examined the impugned order from paras 66 to 73, we have no hesitation to come to the conclusion that the High Court has compared the merits and demerits of the individual candidates and has ultimately come to the conclusion that Respondent 3 Mohamed Mohideen is much better than the appellant K. Naina Mohamed and as such substituted K. Naina Mohamed by appointing the present respondent to be a member of the trustees representing the third branch. In that view of the matter, it must be held that the High Court exceeded its jurisdiction conferred under Section 115 CPC and, therefore, the same cannot be sustained. We accordingly set aside the impugned order of the High Court so far as it relates to the 3rd branch and allow this appeal. If Respondent 1 is aggrieved by the selection already made, he may approach such forum as is permitted under law.