Bombay High Court
Fakhrullakhan S/O Habibkhan And ... vs Abdul Wasik S/O Abdul Latif And ... on 9 September, 2021
Bench: S. M. Modak
C.A. 703.16. 1/13
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CIVIL APPLICATION (CAS) NO. 703/2016
WITH
CIVIL APPLICATION (CAS) NO. 885/2019
IN
SECOND APPEAL NO. 608/2005
Fakhrullakhan Habibkhan and others.
Versus
Abdul Wasik s/o Abdul Latif and others.
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Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders
or directions and Registrar's orders.
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Shri A.J. Thakkar, Advocate for Appellants.
Shri Firdos Mirza, Advocate for Respondent Nos. 1 to 3.
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CORAM : S.M. MODAK, J.
DATE OF RESERVE : 28/07/2021
DATE OF DECISION : 09/09/2021
Heard learned Advocate Shri A.J. Thakkar, for the
applicants/proposed appellants and learned Advocate Shri Firdos
Mirza for respondent Nos.1 to 3. There was some
misunderstanding amongst the Courts Staff about further date
given as 10/08/2021 or the matter closed for orders without
giving a date. Now this misunderstanding is cleared by fixing the
matter for order on 09/09/2021.
2. Pending disposal of the Second Appeal, question
raised is whether the applicants can be brought on record as
proposed appellants in place of deceased appellant Nos. 1 to 5.
Though the issue is small, it has got different facts. The appellant
Nos. 1 to 5 have expired on different dates. When appellant
C.A. 703.16. 2/13
Nos. 1 to 3 and 5 have expired, appellant No. 4 has filed
Civil Application No. 703/2016 for deleting their names.
However, during the pendency of the said application, he also
expired on 27/08/2019. Accordingly, Civil Application
No. 885/2019 is preferred by present applicants.
3. During his lifetime, Appellant No.4 has prayed for the
deletion of names of other deceased / appellants. At that time,
there was no prayer for bringing on record the names of these
applicants in place of deceased appellant Nos. 1 to 3 and 5. The
present applicants have founded their claim [to be brought on
record as appellants] on the basis of they being members/present
or past office bearers of Members of Urdu Education Society,
Akot.
4. The issue involved in this appeal is about the legality
of certain persons being admitted as members of the said Trust.
The applicants contend that they have got a right to be heard
while deciding that issue. The respondents have opposed the
prayer on the ground that ---
a] The original application and the subsequent
applications were filed not in time from the respective
dates of death of original appellants. It is beyond the
period of 90 days and as such barred under Article
120 of the Limitation Act.
b] The change report thereby accepting the applicants
C.A. 703.16. 3/13
are not accepted by the learned Assistant Charity
Commissioner.
c] The dispute in the appeal does not pertain to any
property belonging to the Trust.
d] The applicants have never participated in any of the
earlier litigation since 1996.
5. Learned Advocate Shri Firdos Mirza argued on the
basis of the grounds taken in the reply. He relied upon following
two judgments :-
a] Sitabai Ramchandra Jaltare and others V/s Masjid
Nurun Mohalla Jingerwadi reported in AIR 1979
Bombay 109.
b] Shanti Devi and others V/s Kaushaliya Devi reported
in (2016) 16 SCC 565.
6. Whereas according to learned Advocate Shri A.J.
Thakkar :
a] Period of limitation will not be applicable because this
application is governed as per the provisions of Order
XXII Rule 10 of the Code of Civil Procedure, 1908
(hereinafter referred to "C.P.C.").
C.A. 703.16. 4/13
b] He invited my attention to the documents filed
alongwith the affidavit of Hidayatullah Khan
[Applicant No.1].
c] He has pleaded that those documents support the
applicants claim.
7. In order to buttress the submission that the change
effected will be effective not from the date of approval by the
Assistant Charity Commissioner but from the date of change
itself he relied upon the following judgments :-
a] Asaram Bhimrao Shinde and others V/s State of
Maharashtra and others reported in 2002 (3) BCR
b] Karishnarao Kanhaiya Naidu and others V/s Jeevraj
Bhairavlal Agrawal and others reported in 2010 (2)
MhLJ 31.
BACKGROUND OF THE LITIGATION
8. Present respondent No.1-Abdul Wasik instituted a
change report registered as enquiry application No. 516/2004. It
was on the basis of election conducted on 22/07/1994. Learned
Assistant Charity Commissioner was pleased to reject the change
report as per the order dated 04/06/2001. Learned A.C.C. has
refused to put a seal of approval on the membership granted
C.A. 703.16. 5/13
from 07/04/1992 to 09/04/1992 and consequently held the
election as invalid.
9. Present respondent No.1 approached the Court of
Joint Charity Commissioner by way of Appeal No. 67/2001. It
was also rejected on 23/07/2004. The findings were as follows :-
a) Membership granted from 07/04/1992 to
09/04/1992 was not valid.
b) The Membership granted in the year 1977 was held
valid.
c) Ultimately election held on 22/07/1994 was
held as invalid.
10. This judgment led to filing of two proceedings before
the Court of District Judge. One is M.J.C. No. 27/05 filed by
present respondent No.1- Abdul Wasik. Another is M.J.C.
No. 28/05 filed by deceased appellant No.1 - Fakhrullakhan.
Both the proceedings were disposed of and both were dismissed
as per the judgment dated 05/07/2005 by the Court of
Additional District Judge, Akot, Dist. Akola.
11. Present Second Appeal is filed by the appellants who
have preferred M.J.C. No. 28/2005. The applicant Abdul Wasik of
M.J.C. No. 27/2005 (Present respondent No.1) had choosen not
to prefer the Second Appeal.
OBJECTION AS TO LIMITATION
C.A. 703.16. 6/13
12. Admittedly, the applicants are not the legal heirs of
deceased appellants. The deceased appellant No.4 when alive,
present applicants have not preferred respective applications as
per the provisions of Order XXII Rule 3 of the C.P.C. No doubt,
there are more than one appellants. If the right to sue survives to
the surviving plaintiffs, then Court has only to take an entry in
the record and the suit is proceeded further by remaining
plaintiffs [Order XXII Rule 2 of the C.P.C.]. Whereas when the
right to sue does not survive to the surviving plaintiffs then the
legal representatives of the deceased plaintiffs need to be brought
on record [Order XXII Rule 3 of the C.P.C.]. In the present appeal
what is challenged is the decision of not approving membership
given to certain persons.
13. When the appellant Nos. 1, 2 and 5 have expired, it
was only the appellant No.4 who filed Civil Application No.
703/2016. At that time, he must have considered the provisions
of Order XXII Rule 2 of the C.P.C.. That is to say when the right to
sue survives to the surviving plaintiffs, in that eventuality, the
question of bringing legal representatives of those deceased
appellants have not arisen. However, after the death of appellant
No.4, there was no surviving appellant. Order XXII Rule 3 of the
C.P.C., contemplates a situation wherein there are more than
plaintiffs and one or more have expired and the right to sue does
not survive to the surviving plaintiffs and in such an eventuality,
it is necessary to bring legal representatives on record.
C.A. 703.16. 7/13
14. As per both the provisions, whether to bring legal
representatives on record or not depends upon "whether right to
sue survives or does not survive and if survives then in favour of
surviving plaintiffs or not". In view of the death of appellant No.4
[prior to disposal of his request in Civil Application
No. 703/2016] issue of considering his request does not arise.
15. If we look to the nature of grievance made in the
Second Appeal, we can find that it relates to validity of
membership. The Second Appeal was filed by the five appellants.
After their death can it be said that the action comes to an end?.
The answer depends upon the nature of the Second Appeal and
grievance made therein. The grievance cannot be said to be
personal i.e. pertaining to five appellants. They have made the
grievance for themselves and on behalf of others. This we can
find on the basis of nature of the orders passed by Courts below.
16. This Court feels that the provisions of Order XXII
Rule 3 of the C.P.C. also will not be applicable to the issue raised
in Civil Application No. 608/2005, for the reason that the appeal
and earlier proceedings before Charity Authorities were not filed
in a personal capacity. They were filed in a representative
capacity.
17. Learned Advocate Shri Firdos Mirza drew my
attention to the observations in para-9 of Shanti Devi's judgment.
While applying the principles relating to "Right to sue survives or
not, in an appeal proceeding", the provisions of Order XXII Rule
C.A. 703.16. 8/13
11 the C.P.C. were considered. Those principles also do apply
when appeal is pending. The provisions of Article 120 of the
Limitation Act [90 days period] is applicable when an application
is filed under Order XXII Rule 3 (2) of the C.P.C..
18. I am afraid that these observations will be helpful to
the respondent in support of their contentions that the claim is
barred by law of limitation. Even though it is true that Article 120
lays down limitation, the issue is whether the present request
falls under Order XXII Rule 3 of the C.P.C.. In the case of Shanti
Devi's, there was a suit between the landlord and tenant. The title
of the plaintiff was disputed. The legal representatives of the
deceased appellant were not brought before the First Appellate
Court and accordingly, the appeal stood abated. After period of
eleven years, an application for substitution was made alongwith
delay application before the First Appellate Court and it was
allowed. It was subject matter of proceeding before the Hon'ble
Supreme Court. From these facts, it is clear that both the parties
contested the litigation in a personal capacity not in
representative capacity.
ASSIGNMENT ETC.
19. Learned Advocate Shri A.J. Thakkar relied upon the
provisions of Order XXII Rule 10 of the C.P.C., It says that about
continuance of the suit by interested persons in following three
contingencies :
a] Assignment of an interest
C.A. 703.16. 9/13
b] Creation of interest.
c] Devolution of interest.
It will be material to consider that if any of the contingencies
arises, then these provisions are applicable. The opening wording
reads "in other cases of". It implies the situation which is not
covered by the provisions of Rules in earlier part of the order.
Above said contingencies also occurs when suit is filed or
contested in a personal capacity. That is to say, if there is
assignment by way of gift or sale during the pendency of the suit,
the assignee can take the benefit of this provision. Those
contingencies do not occur due to death of the party. They occurs
even though parties are alive but due to certain Act voluntary or
involuntary by one of the party to the litigation.
20. In case before us, the foundation of the application,
no doubt is on death of the appellants it may not be proper to
apply "the test of survival of right" . When there is a claim about
validity of the membership of the trust, the legal representatives
cannot come forward and continue that claim. The nature of the
claim is very important, it is about validity of particular member
of membership.
DOCUMENTS FILED BY THE APPLICANTS
a] Photo copy of death certificate of appellant No. 4 -
Sabirullakhan Habibkhan dated 27/08/2019.
C.A. 703.16. 10/13
b] Resolution passed in Executive Committee Meeting of
the members on 20/10/2019 thereby resolving to
implead the names of these applicants in place of five
deceased appellants.
c] Copy of resolution passed in Executive Committee
of the Trust dated 20/02/2016 thereby authorizing
applicant No.1-Hidayatullah Khan to replace deceased
Irshadullakhan [Appellant No.2] in a proceeding
of inquiry applications pending before Assistant
Charity Commissioner.
d] Copy of the order passed by Assistant Charity
Commissioner in inquiry No. 605/1996 dated
05/09/2017 [whereby the applicant No.1-
Hidayatullah Khan] substituted as a reporting trustee
in place of deceased appellant No.3 - Hidayatullah
Khan.
AVERMENTS IN AFFIDAVIT
21. It will be material to consider the averments made by
applicant No.1 Hidayatullah Khan for this application. They are
as follows :-
(a) Applicant Nos. 1 to 3 are members of the Society
since 1993 and they were in Board of Trustees since
1996.
C.A. 703.16. 11/13
(b) Applicant No.5 is a Member of the society since prior
to 1976.
(c) Applicant No.4 is in Board of Trustees since
22/02/2015 [After passing of the impugned order by
District Court]
He has also clarified that the dispute before the Charity
Authorities is not an individual dispute but it is about
membership of the Society.
22. So it is clear that these applicants have got interest to
continue the claim about membership of certain persons. If it is
so, they are entitled to brought on record their names.
23. In judgment, in case of Chembur Trombay Education
Society and Krushnarao Naidu, this Court has elaborately dealt
with the effect of occurring of change and its approval by
learned Charity Commissioner under Section 22 of the
Maharashtra Public Trust Act. The conclusion of those
observation in inquiry under Section 22 of the said Act is only to
ascertain the factum as to whether change has occurred or not. It
does not require registration of the change precedent to giving
effect to the change. The person involving that change, assumes
the office for the Trusts and till the approval by Charity
Authorities, he continues to be an elected trustee.
24. No doubt, in respect of the applicant No.1-
C.A. 703.16. 12/13
Hidayatullah Khan, learned Assistant Charity Commissioner has
approved the change. It is in respect of the inquiry pending
before him. As said above, considering the relationship of these
applicants with the trust, their request need to be considered in
view of the provisions of Order XXII Rule 10 of the C.P.C..
25. In case of Sitabai Ramchandra Jaltare, the Division
Bench of this Court has elaborately dealt with the difference in
between Order XXII Rule 3 of the C.P.C. and Order XXII Rule 10
of the C.P.C.. There was a claim made by the plaintiff about
Mutawalliship of the Mosque before the Civil Court, the suit was
dismissed. The appeal was kept pending in view of the objections
that as the registration of mosque as a Public Trust under the
Maharashtra Public Trust Act was pending. Subsequently, the
Mosque was registered as a Public Trust and one Abdul Masjid
apply before the District Judge for prosecuting the appeal for the
reason that he had become the managing trustees of the
Members/Mosque. The issue involved was whether the said
person can prosecute the appeal after the death of original
plaintiff. This Court held that "when the plaintiff sues in
representative capacity, in case of death the legal representative
would not automatically become trusty and would not be legal
representatives within the meaning of Section-2 [11 of the
C.P.C.]. The trustees who are elected or appointed under the
scheme of the trust can step in his shoes and continue the suit.
Such new trustees cannot be said to be legal representatives of
the deceased [Para-7]. These observations will be applicable to
the issue involved before this Court.
C.A. 703.16. 13/13
26. As present request does not fall under the provisions
of Order XXII Rule 3 and 4, limitation prescribed under 119 of
the Limitation Act is not applicable. Earlier application and new
application are made within reasonable time.
27. In view of that, I am inclined to allow the Civil
Application (CAS) No. 885/2019. Hence, the following order:
ORDER
1] Civil Application (CAS) No. 703/2016 is
disposed of as become infructuous.
2] Civil Application (CAS) No. 885/2019 is
allowed.
3] The names of deceased appellant Nos. 1 to
to 5 be substituted in their place.
4] Necessary amendment be carried out within
three weeks.
28. The matter be fixed on 30/09/2021.
JUDGE
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