ORDER B.P. Dharmadhikari, J.
1. This is an Appeal against Order under Order 43 Rule l(u) of Civil Procedure Code, challenging the Judgment of remand passed by First Ad hoc Additional District Judge, Nagpur, dated 19-8-2005 in Miscellaneous Civil Appeal No. 785 of 1998. The respondents have raised objection about its maintainability and according to them, Appeal under section 72(4) of Bombay Public Trust Act, 1950 (hereinafter referred to as B.P.T. Act) which is in the nature of Second Appeal as per section 100 of Civil Procedure Code is alone tenable. I have heard parties on this issue on various dates and on 25-10-2005, case was closed for passing orders on this objection. Parties were directed to maintain status quo as existing on that date till today.
2. Bare facts necessary for determination of this controversy can now be stated. The impugned judgment is delivered on an application under section 72 of B.P.T. Act and said application, in turn, was challenging the order dated 30-9-1998 passed by Joint Charity Commissioner, Nagpur in Appeal No. 32 of 1998. This appeal before Joint Charity Commissioner was against the order dated 26-6-1998 passed by Deputy Charity Commissioner in Inquiry No. 1042 of 1995. The first Ad hoc Additional and District Judge, Nagpur, by impugned judgment allowed the proceedings before him partly and the orders dated 26-6-1998 as also 30-9-1998 passed by both lower authorities have been set aside to the extent of issuing certificate of classification in the name of one Shri V.G. Senad. The rest of the order has not been disturbed. The original order dated 26-6-1998 passed by Deputy Charity Commissioner in inquiry Case No. 1042 of 1995 under section 19 of B.P.T. Act declares that present Appellant No. 4 is a Public Trust and directs issuance of Certificate of Registration with classification as "F" in above name with further direction to take necessary entry in Schedule-I, the appeal before Joint Charity Commissioner vide Appeal No. 32 of 1998 was under section 70 of B.P.T. Act.
3. I have heard Advocate S, R. Deshpande for appellants and Advocate N. D. Khamborkar for respondents.
4. Advocate S.R. Deshpande has contended that appeal under section 72(4) is viewed as Second Appeal under section 100, Civil Procedure Code in view of provisions of section 76 of B.P.T. Act. He further states that, Second Appeal will lie if there is no remand by Appellate Court. He invites attention to impugned judgment dated 19-8-2005 to demonstrate that it is in fact a remand and as such, in view of section 76 of the B.P.T. Act, Order 43. Rule l(u), Civil Procedure Code will apply and Appeal Against Order is the only remedy. He has relied upon the judgments reported at and AIR 1953 SC 837 in this respect.
5. As against this, Advocate N.D. Khamborkar has invited attention to provisions of Order 41 Rule 23 of Civil Procedure Code to point out when remand is possible. He states that by the impugned judgment here, the learned Additional District Judge has not in Appeal before him interfered with the "decree" passed by lower Court and as such, provisions of Order 43, Rule l(u) are not attracted. He states that appeal before this Court is in view of section 72(4) of the B.P.T. Act and not in view of section 100, Civil Procedure Code. He also relies upon 1998(1) Mh.L.J. 444 and 2001(2) Mh.L.J. 654 as also in support.
6. In , I.T.I. Ltd. v. Siemens Public Communications Network Ltd., it is held by Hon'ble Apex Court that order passed by Civil Court in appeal filed under section 37 of Arbitration and Conciliation Act (26 of 1996) is revisable by High Court under section 115 of Civil Procedure Code. A revision petition under section 115 of the Civil Procedure Code lies to the High Court as against an order made by a Civil Court in an appeal preferred under section 37 of the Arbitration Act. In that Act there was no such specific exclusion of the Civil Procedure Code. When there is no express exclusion it cannot be inference to hold that the Code is not applicable. It is well settled that the jurisdiction of the Civil Court to which a right to decide a lis between the parties has been conferred can only be taken by a statute in specific terms and such exclusion of right cannot be easily inferred because there is always a strong presumption that the Civil Court have the jurisdiction to decide all questions of civil nature, therefore, if at all there has to be an inference the same should be in favour of the jurisdiction of the Court rather than the exclusion of such jurisdiction and there being no such exclusion of the Code in specific terms except to the extent stated in section 37(2) (Bar to second appeal) an inference that merely because the Arbitration Act has not provided the Civil Procedure Code to be applicable, the Code is inapplicable cannot be drawn. Power conferred on the High Court under section 115 of the Code of Civil Procedure, over all subordinate Courts within its jurisdiction is a supervisory power and has been distinguished from its power of appeal to correct errors of fact and law. The power of revision under section 115 being in the nature of power of superintendence to keep subordinate Courts within the bounds of their jurisdiction cannot be readily inferred to have been excluded by provisions of a special Act unless such exclusion is clearly expressed in that Act. The Arbitration and Conciliation Act of 1996 by provisions contained in section 37(3) only takes away the right of Second Appeal to the High Court. The remedy of revision under section 115 of the Code of Civil Procedure is neither expressly nor impliedly taken away by the said Act. In , National Sewing Thread Co. Ltd, Chidambaram v. James Chadwick and Bros. Ltd. Hon'ble Apex Court observed that a decision given by a Single Judge of the High Court in an appeal preferred under section 76, Trade Marks Act, constitutes a judgment within the meaning of Cl. 15 of the Letters Patent. In , Saiyad Mohammad Bakar El-Edroos v. Abdulhabib Hasan Arab Hon'ble Apex Court has stated that in proceedings for settling scheme under section 50A of Bombay Public Trusts Act (29 of 1950), Civil Procedure Code does not apply. The plea that Rule 7 read with section 6 of Presidency Small Cause Courts Act, 1882 makes Civil Procedure Code applicable is misconceived. Neither Rule 7 nor Section 6 of 1882 Act gives what procedure is to be followed in a suit by the Small Causes Court. It is section 9 of 1882 Act which provides the procedure to be followed. Section 9 prescribes that the High Court by rule has to prescribe the procedure to be followed by the Small Causes Court. The procedure is not what is under Civil Procedure Code. Hence, the argument that proceeding before the Charity Commissioner are to be as per what is provided in Civil Procedure Code is without any foundation. Recently Division Bench of this Court in judgment reported at Anna Shriram Fate v. Joint Charity Commissioner, Nagpur has considered challenge to validity of provisions of Rule 7 of the Bombay Public Trust Rules, 1951. It was contended that said rule is inconsistent with provisions of section 76 of the Act. This Court has negated that argument and has held that said rule does not in any manner infuse any new provision. It has been held that provisions of Civil Procedure Code shall apply to inquiry under section 22 for limited purposes of procedure of inquiry, recording of evidence and matters relating thereto. In view of this ruling of Division Bench, it is not necessary to go into more details of this issue.
7. Advocate S, R. Deshpande has also relied upon provisions of section 76 of the B.P.T. Act to contend that judgment impugned is delivered by District Court to which admittedly provisions of Civil Procedure Code are applicable. Hence, according to him, in view of Order, 41 Rule 23 thereof, second appeal shall not be maintainable and appeal against order is correctly filed. Before proceeding further, it will be necessary to reproduce relevant provisions of the B.P.T. Act for this purpose.
Section 72. Application from Charity Commissioner's decision under sections 40, 41, 41C and 43(2)(a) and (c), 50A, 70 or 70A etc. (1) Any person aggrieved by decision of the Charity Commissioner under sections 40, 41, 41C and 43(2)(a) and (c), 50A, 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 60 day from the date of 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 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 the 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.
(3) pending the disposal of an application under sub-section (2) all proceedings for surcharge shall be stayed if the person aggrieved makes out a prima facie case for a stay order.
(4) An appeal shall lie to the High Court against the decision of the Court under sub-section (2) as if such decision was a decree from which an appeal ordinarily lies.
Explanation : In the section, the expression, "decision" shall include a scheme framed or modified under section 50A.
Section 76. Civil Procedure Code to apply to proceedings before Court under this Act.
Save insofar as they may be inconsistent with anything contained in this Act, the provisions of the Code of Civil Procedure, 1908, shall apply to all proceedings, before the Court under this Act.
Section 2(4) "Court" means in the Greater Bombay, the City Civil Court and elsewhere, the District Court;
The controversy needs to be considered in the light of Order 41, Rule 23 and 23A of Civil Procedure Code. Said provisions read :
Rule 23. Remand of case by Appellate Court. - Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the register of Civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand. Rule 23 A. Remand in other cases - Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under Rule 23.
8. Perusal of Rule 23 or Rule 23A reveal that the appeal before Appellate Court has to be from a decree passed by lower Court. Effort of learned counsel for appellant is to treat order of Joint Charity Commissioner impugned before Additional District Judge as "decree" by taking recourse to section 76 of the B.P.T. Act : He has stated that therefore only appeal under section 72(4) is treated as second appeal. Reliance upon judgment of Division Bench of this Court in case between Shivprasad v. Leelabai reported at 1998(1) Mh.L.J. 444 for this purpose appears to be totally misconceived. Perusal of paragraph 14 of this judgment shows that the District Court under section 72(1) of the B.P.T. Act exercises appellate jurisdiction and consequently, the Single Judge of High Court while deciding the appeal from the order of the District Court deals with an order made by District Judge in the exercise of an appellate jurisdiction by a Court subject to superintendence of the High Court. In paragraph 16, Division Bench has found that one has to consider real nature of right that is conferred by section 72(1) and though proceedings under section 72(4) are registered as "First Appeal" still they arise out of an order passed by the District Court in appeal and hence the same are treated as a second appeal which has to satisfy the requirements of section 100 of Civil Procedure Code. Observations and findings recorded in paragraph 25 leave no manner of doubt that the Division Bench has reached finding about the scope of power available to High Court under section 72(4) of the B.P.T. Act independently and not because of any restraint put upon such power by section 100 of Civil Procedure Code, The arguments of learned counsel for appellant on these lines are therefore misconceived.
9. From the definition of term "Court", it is clear that Additional District Judge who decided appeal and delivered impugned judgment is covered there under. However, an appeal lies to this Court against that decision/judgment delivered under sub-section (2) of section 72 as if such decision is a decree from which an appeal ordinarily lies to High Court. Thus, appeal before this Court is in view of deeming fiction created by section 72(4). It is to be noted that such judgment of District Court has been artificially treated as decree with further provision of appeal against it. The appeal comes to this Court not because of section 100 of Civil Procedure Code but because of section 72(4) as the appeal from decree of District Court lies to it. It is registered under section 96, Civil Procedure Code as first appeal and treated/heard as second appeal. Section 76 does not permit enlarging of this position because it expressly protects and saves it. To attract provisions of Order 41, Rule 23 or Rule 23A, present appellant has to demonstrate that the Additional District Judge, was considering validity or otherwise of "decree". In other words, the order dated 30-9-1998 delivered by Joint Charity Commissioner which was impugned before Additional District Judge, must be shown to be a "decree" and, in that event only, present Appeal against Order can be held that to be maintainable. However, in view of provisions of section 72(4) such an exercise also cannot be undertaken as that would amount to overlooking the express words therein and would also amount to reading something more in section 72 which Legislature did not find fit to enact. Not only this, section 76 permits use of only those provisions of Civil Procedure Code which are not inconsistent with provisions of the B.P.T. Act and in case of such inconsistency, provisions of the B.P.T. Act are to prevail. Hence, provisions of section 72 read with section 76 expressly bar treating the order passed by Joint Charity Commissioner as decree. Hence, recourse to Order 41, Rule 23 or Rule 23A is not permitted and appeal against Order is not maintainable. Civil Procedure Code is applicable only for limited purpose before such authorities as explained by Division Bench of this Court and by accepting such arguments, it cannot be made applicable because that will be unduly enlarging the scope of deeming fiction and section 76. For same reasons, language of section 76 cannot be used to permit filing of appeal against Order under Order 43, Rule l(u) Ci.vil Procedure Code because section 72(4) does not make any distinction between a judgment of remand and a judgment on merits. The said distinction made by Civil Procedure Code is alien to the scheme of the B.P.T. Act. Moreover, perusal of impugned order reveals that it is not only an order of remand but the appeal has been partly allowed and some portion of order of Joint Charity Commissioner is set aside while rest of it is maintained. Thus, a retrial as required by Order 41, Rule 23A is not warranted in the facts and circumstances of the case.
10. I, therefore, find that remedy of filing Appeal against Order against decision of Court in proceedings under section 72(2) of the B.P.T. Act is not available. The appellant has to file a regular appeal as contemplated by section 72(4) thereof. Accordingly, as per request made by learned counsel for appellants, this Appeal against Order is permitted to be converted into regular appeal within period of two weeks from today. Till then, the order of status quo made by this Court on 25-10-2005 shall continue to operate and cease to have effect thereafter automatically.