Narayan Govindrao Tawde vs The Charity Commissioner, Mumbai ...
2016 Latest Caselaw 59 Bom

                                                                          wp10307.14
                                           -1-




                                                                           
               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD




                                                   
                           WRIT PETITION NO. 10307 OF 2014




                                                  
     Dr. Narayan s/o Govindrao Tawde
     Age : 73 years, Occ : Medical Practitioner
     and Agri., R/o Talani, Tq. Hadgaon,
     District Nanded.                                       ... Petitioner




                                         
              Versus         
     1.       The Charity Commissioner,
              Dharmadaya Ayukta Bhavan
                            
              Dr. Anie Bazent Road, Varali Naka,
              Mumbai.

     2.       The Joint Charity Commissioner,
              Aurangabad Region, Aurangabad.
      


     3.       Keshavrao s/o Sonbarao Tawde
   



              Age : 78 years, Occ : Agri.,
              R/o Talani, Tq. Hadgaon,
              District Nanded.





     4.       Vitthalrao s/o Marotrao Tawde
              Age : 73 years, Occ : Medical Prctitioner
              and Agri., R/o Talani, Taluka Hadgaon,
              District Nanded.                          ... Respondents
                                          .....





          Mr. P. H. Dighe h/f Mr. V. R. Dhorde, Advocate for the Petitioner
                 Mr. B. A. Shinde, AGP for Respondent Nos. 1 and 2
               Mr. G. K. Muneshwar, Advocate for Respondent No. 3
                       Respondent No. 4 absent though served.
                                          .....

                                            CORAM : V. K. JADHAV, J.

Reserved for Judgment on : 16.02.2016 Judgment pronounced on : 25.02.2016

wp10307.14

JUDGMENT :-

1. Rule, Rule returnable forthwith. By consent of learned counsel

for respective parties, heard finally at admission stage.

2. Petitioner is the founder member of Shri Datta Education

Society, Talani, Taluka Hadgaon, District Nanded, which is a trust

duly registered under the Maharashtra Public Trusts Act, 1950 (for

short "the Act of 1950"). The said trust runs one Secondary and

Higher Secondary School and one girls' school at Village Talni,

Taluka Hadgaon, District Nanded. Under the directions of Joint

Charity Commissioner, elections were held in the year 2005, and

accordingly, the Change Report was submitted before the Assistant

Charity Commissioner. Present respondent Nos. 3 and 4 are also

the members of the said trust and they were initially looking after the

affairs of the trust. According to the petitioner, respondent Nos. 3

and 4 had committed various illegalities and mismanagement in the

affairs of the trust and therefore, petitioner and one another member

filed application bearing Enquiry No.6 of 2006 on 29.01.2006, before

respondent No.2-Joint Charity Commissioner under Section 41-D of

the Act of 1950. Learned Joint Charity Commissioner, by judgment

and order dated 18.07.2008, rejected the application Enquiry No. 06

of 2006 filed by the petitioner. Being aggrieved and dissatisfied with

the said judgment and order, petitioner has preferred R.J.E. No. 144

of 2008 before District Court, Nanded. During pendency of said

wp10307.14

R.J.E., petitioner has received certain documents. Initially, said

documents were not within the knowledge of petitioner and therefore,

petitioner could not produce the said documents before Joint Charity

Commissioner during the course of application Enquiry No.6 of 2006

filed under Section 41-D of the Act of 1950. Consequently, petitioner

filed application Exh.33 under Order 41 Rule 27 of the Code of Civil

Procedure seeking permission to lead additional evidence. On

16.01.2014, learned District Judge has observed that the counsel

appearing for petitioner has given up the cause of the application for

production of additional evidence. Petitioner has, however, filed

pursis to the effect that the cause has not been given up seeking

permission to lead additional evidence. However, petitioner has also

filed application for grant of adjournment. Learned District Judge

granted adjournment, however, further directed the petitioner to

move an application for transfer of the case.

3. Being aggrieved by the said order passed by District Judge on

16.01.2014 below Exh.33, petitioner approached this Court by filing

Writ Petition No. 1810 of 2014. This Court, by order dated

30.06.2014, disposed of the said Writ Petition and set aside the order

dated 16.01.2014 passed below Exh.33 in R.J.E. No. 144 of 2008

and restored the said application for hearing afresh with directions to

decide the same in accordance with law.

wp10307.14

4. Thereafter, learned District Judge has heard the said

application Exh.33 and by order dated 18.10.2014, rejected the said

application. Hence this writ petition.

5. Learned counsel for the petitioner submits that the documents,

which are sought to be produced by way of additional evidence are

necessary for just decision in the case. Learned counsel submits

that it is incumbent on the part of the appellate court to consider the

documents at the time of hearing of appeal on merits so as to find out

whether the documents or the evidence sought to be adduced have

any relevance/bearing on the issues involved. Learned counsel

submits that the appellate court had rejected application Exh.33 at

the initial stage, though the appeal is yet to be heard finally on merits.

6. Learned counsel for the petitioner, in order to substantiate his

contentions, placed reliance on the decision of the Apex Court in the

case of Union of India vs. Ibrahim Uddin and another, reported in

(2012) 8 Supreme Court Cases 148.

7. Learned counsel for respondent No.3 submits that petitioner

has not shown any due diligence to procure the documents when the

matter was pending before the Joint Charity Commissioner. Thus,

wp10307.14

the application for production of additional documents before the

appellate court cannot be considered. Learned counsel submits that

the lower appellate court has rightly rejected the application Exh.33.

8. Learned counsel for respondent No.3, in order to substantiate

his contentions, placed reliance on the decisions in the following

cases:

1.

Sardar Dastur Schools Trust and others vs. Adil Jamshed, Frenchman since deceased through his

legal heirs and representatives, reported in 2003 (1) Mh. L. J. 226,

2. Malyalam Plantations Ltd. vs. State of Kerala and another, reported in AIR 2011 Supreme Court 559,

3. Ashabai w/o Ramchandra Kotecha and others vs. Mohanlal s/o Bhika Badode (died) through his L.Rs.

Smt. Munnabai w/o Mohanlal and others, reported in 2012 (6) Mh. L. J. 176 and

4. Ferani Hotels Pvt. Ltd. vs. Nusli Neville Wadia, reported in 2013 (3) Mh. L. J. 509.

9. I have also heard learned AGP.

10. It is true that additional evidence can only be permitted under

certain circumstances enumerated under Order 41 Rule 27(1) of the

Code of Civil Procedure, and not as a matter of course. However,

wp10307.14

under Sub-rule (b) of Order 41 Rule 27(1), admissibility of additional

evidence is made to depend, not upon the relevancy or materiality of

the evidence sought to be admitted, to the issue before the court or

upon the fact whether or not the applicant has had an opportunity of

adducing such evidence at some earlier stage, but upon whether or

not the appellate court requires such evidence to enable it to

pronounce judgment or for any other substantial cause. In view of

this, appellate court may postpone consideration of the application till

hearing of the appeal and should take up the same at the time of

hearing of the appeal on merits so as to find out whether the

evidence sought to be adduced is relevant and bearing on the issues

involved. Since learned District Judge, by rejecting application

Exh.33 has closed the doors forever, the very purpose of the

provision of Order 41 Rule 27(1)(b) would be defeated. In view of

this, the order of rejection of application Exh.33 is liable to be set

aside and the application Exh.33 filed under Order 41 Rule 27 is

required to be directed to be taken up along with hearing of the

appeal. Hence the following order :

ORDER

I. The writ petition is hereby partly allowed.

II. The order dated 18.10.2014 passed by District Judge-1, Nanded below Exh.33 in R.J.E. No. 144 of 2008 is hereby quashed and set aside.

wp10307.14

III. Learned District Judge is directed to postpone the

consideration of application Exh.33 till hearing of R.J.E. No.144 of 2008 and take up the same at the time of hearing

of R.J.E. on merits so as to find out whether the evidence sought to be adduced by way of additional evidence is relevant and bearing on the issues involved.

IV. Learned District Judge shall decide R.J.E. No.144 of 2008 as expeditiously as possible, preferably within a period of

four (04) months from today.

V. Rule is made absolute in the above terms. The writ petition

is disposed. In the circumstances, there shall be no order as to costs.

( V. K. JADHAV, J.)

vre/