(PER: THE HON'BLE MR. JUSTICE C M JOSHI)
2. The factual matrix i.e. relevant for the purpose of this
"a) That the Hon'ble Court may kindly decree
that the plaintiff trust is the rightful
management of the Basel Mission English
Medium School, Hubli and the defendants
have no right of whatsoever nature to
claim as the management of such
institution and consequently the Hon'ble
Court may kindly grant permanent
injunction to restrain them from interfering
for the peaceful administration of the
institution by the plaintiff in the interest of
justice and equity;
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b) Accordingly, a decree may be passed;
c) Any other reliefs that the Court deems fit
may kindly be granted in the interest of
justice and equity."
ii) It was contended that the appellant is a trust
registered under the Bombay Public Trust Act,
19501 with registration No. E718 (DAR) in the
year 1994 and is managing the educational
institution by name Basel Mission English Medium
School at Hubli.
iii) The said school was established in the year 1971
with great and sincere efforts of late Martin Luther
Bhasme and the same was managed till his death
and thereafter, it was registered in the name of
Martin Luther Educational Trust in the year 1994.
The respondent, which is also a trust registered
under the BPT Act, without any authority has
started interfering in the management of the
school run by the appellant-trust in and around the
Hereinafter referred to as 'BPT Act'
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year 1986. A change report was submitted to the
Assistant Charity Commissioner (Competent
Authority under the BPT Act), Belgaum and the
same was approved in PTR sheet and therefore,
the appellant- trust had to file the suit against the
respondent-trust. After the trial, the authorities of
the Department of Education of the Government
have recognized the plaintiff trust as it is in the
management of the said school and therefore, the
appellant-trust sought the reliefs as mentioned
(supra).
3. The defendants appeared and filed a written
statement denying the plaint averments. Inter alia they
contended as below:
i) The defendants contended that the plaintiff Martin
Luther Educational Trust is not at all a trust and
presumably it has come into existence only in the
year 1994. The school had been started more than
30 years back and therefore, the plaintiff trust do
not have any manner of right whatsoever in the
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institution. It is the defendant trust, which is
managing the affairs of the Basal Mission Higher
Education English Medium School at Hubballi and it
was registered in Reg.No.E39/DWD under the BPT
Act.
ii) The defendants also contended that the five
trustees of the plaintiff have got their name
registered on the basis of the orders passed by the
Assistant Charity Commissioner, Belgaum in
Enquiry No.52/2000 which is a fake one and the
said enquiry nowhere connected to the plaintiff-
institution. Therefore, it was alleged that
documents have been fabricated by the plaintiff.
iii) They contended that the wife of one of the trustee
i.e. Martin Luther Anandappa Bhasme was
appointed as principal of the Basel Mission English
Medium School in the year 1986 by the defendant
Trust and she has recognized the defendant to be
in the management of the school. Earlier to it, the
father of Martin Luther Bhasme was the principal
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of the said school and he was responsible for
running of the said school under the defendant
Trust. It is contended that nowhere the name of
the plaintiff Trust appears in the records of the
Education Department and it was all along the
defendant Trust which is recognized as the
institution which is running the said school.
4. It was alleged by the defendant that it is the plaintiff
who is interfering in the management of the said school and now
he is claiming that he is managing the said school under the
plaintiff Trust. Therefore, they sought for dismissal of the suit.
5. On the basis of the above pleadings, the following
issues were framed by the Trial Court:
"i) Whether the plaintiffs proves that Basel
Mission English Medium School at Hubli is run
by it?
ii) Whether the plaintiff proves that the
defendants are illegally challenging its right to
manage the Basel Mission English Medium
School of Hubli and interfering with the
management of the said school?
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iii) Whether the plaintiff is entitled for the relief of
declaration as sought for?
iv) Whether the plaintiff is entitled for the relief of
permanent injunction as sought for?
v) What order?"
6. The president of the plaintiff Trust examined as PW.1
and one witness was examined as PW.2. Ex.P.1 to Ex.P.33 were
marked. On behalf of the defendants, one witness was examined
as DW.1 and Ex.D.1 to Ex.D.22 were marked.
7. After hearing the arguments, the Trial Court
answered issue Nos.1 to 4 in the affirmative and decreed the
suit as prayed for.
8. Being aggrieved by the same, the defendant
approached the First Appellate Court in R.A.No.79/2006. The
First Appellate Court after hearing both the parties, by the
impugned judgment, allowed the appeal and dismissed the suit.
Being aggrieved, the plaintiff is before this Court in second
appeal.
9. This Court while admitting the appeal has framed the
following substantial question of law.
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"Whether the appellate Court is justified in
reversing the judgment of the trial Court?"
10. The arguments by learned counsel appearing for the
appellant and the respondent were heard.
11. Learned counsel for the appellant would submit that
the school started in the year 1974-1975 and it was run by the
principal Martin Luther Bhasme. The property which was owned
by Martin Luther Bhasme and his family was used for the said
school and he managed the said school. Then in the year 1994,
the plaintiff Trust was formed and the Trust began managing the
said school. It was contended that in the year 1984 a high school
was also granted and it was also managed by the plaintiff. In this
regard, the learned counsel appearing for the appellant points
out to Ex.P.9 to contend that the change report submitted by the
defendant was without the consent of the plaintiff. He argues
that the said change report dated 03.09.1986 unilaterally stated
that the Basel Mission English Medium Primary School was to be
added as one of the institutions run by the defendant and the
said change report submitted to the Assistant Charity
Commissioner under the BPT Act was illegal. Therefore, the said
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Ex.P.9 being an illegal document could not have been relied by
the concerned Competent Authority under the BPT Act to
enumerate the school to be under the management of the
defendant. Secondly, he submits that the Ex.P.2, which is the
change report maintained by the Assistant Charity Commissioner
clearly mentioned that under the inquiry No.52/2000 dated
08.06.2000 the Basel Mission English Medium School was listed
under the educational institutions run by the plaintiff Trust.
Therefore, he contends that the Competent Authority under the
BPT Act had recognized that the said school was being run by the
plaintiff Trust. Further, it is submitted that except the change
report relied by the defendant (Ex.P.9), there is nothing else to
show that the said school was run by the defendant. He relied on
the reasoning that was adopted by the Trial Court in its
judgment and submitted that the impugned judgment of the First
Appellate Court is not sustainable in law. It is further the case of
the learned counsel for the appellant that he relies on Ex.P.2
only to show that the plaintiff Trust is registered under the BPT
Act. But he do not rely on the endorsement in the said document
concerning enquiry No.52/2000. However he submits that
Ex.P.1, which is the certificate of registration issued by the
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Assistant Charity Commissioner would be a relevant document in
this regard. He also relies on the CTS extract pertaining to CTS
No.209/B/7 pertaining to the year 1975 which show the name of
the family of Martin Luther Bhasme to contend that the said
property belongs to the PW.1.
12. Per contra, the learned counsel appearing for the
respondent submits that the defendant Trust has come into
existence in the year 1954 and since then, it is running various
educational institutions under the name Basel Mission. He points
out that there is no reason as to why the plaintiff Trust or Martin
Luther Bhasme had adopted the name of Basel Mission, when he
started the said school in the year 1971. It is pointed out that
Ex.P.9 is the proceedings of the meeting of the Board of Trustees
of the defendant and in the year 1986, it submitted a change
report to the Assistant Charity Commissioner to list the Basel
Mission English Medium School as one of the institutions run by
it. It is submitted that the father of PW.1, Anandappa Bhasme
was the first principal of the said school and later his daughter-
in-law was appointed as the principal of the school in the year
1986. In this regard, he points out that she had submitted a
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requisition for recognition of the school to the Government
Authorities as per Ex.D.13, wherein she had clearly mentioned
that the said school is under the management of Basel Mission
Higher Education Center, Dharwad that is the defendant. He
further points out that as per Ex.D.15, Mrs. S.J. Bhasme, i.e. the
wife of PW.1, had written a letter to the defendant Trust
expressing her gratitude for appointing her as the principal of the
school. It is submitted that despite the PW.1 has refused to
recognize the signature of his wife on the said document, he
points out that the Ex.D.13 could not have been denied by her.
13. Of course, Ex.D.13 appears to be under the signature
of wife of PW.1, the Ex.D.15 cannot be verified.
14. Further he submits that apart from these, the
Department of Education of the Government has corresponded
from the year 1976 and it showed that it was under the
management of the defendant Trust. In this regard he relies on
Exs.D.12, D.11, D.7, D.8, D.9 and D.10, and such other
documents which show that the said school was under the
management of the defendant Trust. Lastly he points out that
the Deputy Director of Public Instruction of Education
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Department, Dharwad dated 07.05.2005 mentioned in detail the
manner in which the dispute started and ultimately, the report
concludes saying that the school is under the management of the
defendant Trust. So far as Ex.P.2 is concerned, he draws the
attention of this Court to Ex.D.4, which clarifies that there is no
such inquiry No.52/2000 pertaining to the plaintiff's Trust and
the school. But it is a suspicious entry in Ex.P.2. He points out
that Ex.P.2 cannot be held to be a genuine document when
contrary documents are available at Ex.D.4.
15. For above reasons, he submits that the conclusions
reached by the First Appellate Court are justifiable and though a
substantial question of law is framed by this Court, in fact there
is no such a substantial question of law that arises and hence, he
seeks dismissal of the appeal.
16. Learned counsel appearing for the appellant has
submitted that the application filed under Order 41 Rule 27 R/w
Section 151 of CPC be allowed and the additional documents be
looked into.
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17. Before going to the merits of the case, let me
consider the application filed by the appellant under Order XLI
Rule 27 of CPC. The provisions of Order XLI Rule 27 of CPC
provide a limited window for the parties to present any additional
evidence at appellate stage. It is worth to note that the scope for
production of the additional evidence in an appeal is restricted by
Rule 27 of Order XLI. The said Rule 27 reads as below:
27. Production of Additional Evidence in Appellate
Court
(1) The parties to an appeal shall not be entitled to
produce additional evidence, whether oral or
documentary, in the Appellate Court. But if--
(a) the Court from whose decree the appeal
is preferred has refused to admit
evidence which ought to have been
admitted, or
[(aa) the party seeking to produce additional
evidence, establishes that
notwithstanding the exercise of due
diligence, such evidence was not within
his knowledge or could not, after the
exercise of due diligence, be produced
by him at the time when the decree
appealed against was passed, or]
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(b) the Appellate 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 Appellate Court may allow such evidence or
document to be produced, or witness to be examined.
(2) Wherever additional evidence is allowed to be
produced by an Appellate Court, the Court shall
record the reason for its admission.
18. The affidavit filed in support of I.A.No.1/2025 states
that the property where the School is being run was taken on
lease by deceased Martin Luther Anandappa Bhasme. However
due to inadvertence and non availability of the original registered
lease deed, executed by the owner of the property in favour of
Martin Luther Bhasme dated 21.09.1978, it was not produced.
The affidavit states that the said Martin Luther Bhasme
constructed a building in the property that is C.T.S.No.209/B/7
and he obtained a completion certificate from the Hubballi-
Dharwad Municipal Corporation on 31.01.1979. It is the building
where the school is being run by the appellant. Therefore, the
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completion certificate as well as the lease deed are the important
documents. It is stated that these documents were not available
with the appellant at the time of the trial, and later it was traced
but since appeal was filed at Bengaluru Bench and it was being
transferred to the circuit Bench at Dharwad, the application could
not be filed. Therefore, it states that there is delay and the
documents are pivotal importance for the appellant and
therefore, the application be allowed.
19. The respondent has filed objections contending that
the reasons assigned by the appellant for production of the
document at this belated stage, is not properly explained and the
explanations are contradictory. Therefore, they have sought for
dismissal of the application.
20. the judgment of the Hon'ble Apex Court in the case
of Union of India vs. Ibrahimuddin and another2, lays down
the principles, under which the application filed under Order XLI
Rule 27 of CPC needs to be considered. It has clarified that the
production of the additional evidence is not as of right and the
reasons assigned should fall within the scope of Rule 27. As
(2012) 8 SCC 148
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noted above, Rule 27 provides a limited window for the parties to
present an additional evidence. If we examine the affidavit filed
in support of the application, it is evident that the diligence of
the appellant is not fully explained. The appellant could have
produced the certified copy of the lease deed, as it is a
registered one. Therefore, the explanation for non-production of
the lease deed at the earliest point of time is not acceptable. So
far as the building completion certificate is concerned, it was
issued in the year 1979 and a simple sentence in the affidavit
that due to inadvertence, he could not produce and that he was
not in possession of it, would not suffice. Therefore, the only
ground that remains to be considered under Rule 27 would be
whether these documents are of importance for a just
adjudication of the matter.
21. The relief claimed by the appellant is for declaration
that the school is being run by the appellant's Trust. The title to
the property and who constructed the building is not of any
importance in the case. Both the Trial Court and the First
Appellate Court have already noted that the C.T.S. extract
produced shows that the property stands in the name of the
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Martin Luther Bhasme. Therefore, the lease deed and the
building completion certificate are not necessary for the just
decision in this appeal. Resultantly, the application is devoid of
any merits.
22. Coming to the merits of the case, it is necessary to
note that the Trial Court went under the competence of the DW.1
to resist the suit. Much of the discussion by the Trial Court is in
respect of the competence of DW.1. It notices that the defendant
is a Trust and the DW.1, who is also the signatory to the written
statement. The Trial Court observes that there is nothing on
record to show that DW.1 is authorized to represent the
defendant and depose on its behalf. Therefore, it holds that the
evidence tendered by DW.1 is not sustainable in law and
therefore, it holds that the testimony of PW.1 and PW.2 is
acceptable and as such, it decreased the suit.
23. The First Appellate Court in its judgment notices that
the DW.1 is a reporting trustee as may be found from the
documents produced by the plaintiff at Ex.P.9. The DW.1-Paul S.
Dhavale was a reporting trustee and he was one among the
participants of the meeting, which resulted in submission of a
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change report to the Assistant Charity Commissioner under the
BPT Act. The plaintiff contends that the said change report is not
valid on the ground that the inclusion of the Basel Mission
English Primary School could not have been done by the
defendant-Trust. However, the Assistant Charity Commissioner
under the BPT Act has recognized the change report and has
made necessary changes in the Public Trust Register (PTR) and
approved it. Therefore, when DW.1 is shown to be one of the
trustee in the records of the Assistant Charity Commissioner, the
objection raised by the Trial Court was not sustainable. So also
the PTR extract produced by the defendant at Ex.D.2 also depict
that he was one of the trustee. It may be true that when he
deposed before the Court, he may not have continued as a
trustee, but he was well within the knowledge of the events,
which took place and therefore, his testimony becomes relevant
and acceptable.
24. In that view of the matter, the preliminary contention
that the DW.1 was incapable of deposing on behalf of the
defendant was rightly considered by the First Appellate Court.
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25. The perusal of the records produced by the plaintiff
are worth to be noted. The Martin Luther Educational Trust,
which is the plaintiff herein, was registered as a public Trust for
the first time on 05.08.1994 as evidenced by Ex.P.1. The PTR
extract produced at Ex.P.2 shows that one Jayashil Martin-
Bhasme, Jones Martin-Bhasme, Sulochana Martin-Bhasme,
Divakar E. Punit and Nisha Parakkal were the trustees.
Obviously, the owner of the property where the school is being
run, Mr.Martin Luther was no more alive and he had died on
03.03.1986 as recorded in the C.T.S extract at Ex.P.7.
26. The Exs.P4 and P5 show that for the academic year
2003-2004, the Deputy Director of Public Instruction (DDPI,
Dharwad) had granted recognition to the school, which is run by
Martin Luther Educational Trust. These two are the only
documents which show that the Government Department had
recognized the Basel Mission English Medium Primary School and
English Medium High School run by Martin Luther Educational
Trust. Except these two documents, no other document is
available establishing that the Government Department had
recognized the plaintiff's Trust.
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27. The Ex.P.8 is a tax payment receipt evidencing that
Sulochana Martin Luther Bhasme had paid the property tax of
₹5,745/- to the Hubballi-Dharwad Municipal Corporation.
28. As noted above, Ex.P.9 happens to be the change
report submitted by the defendant to the Assistant Charity
Commissioner. The important aspect which may be seen from
Ex.P.9 is that Professor Paul S. Dhavale, DW.1 was one of the
trustee of Basel Mission Higher Education Centre, Dharwad, i.e.,
the defendant. There were some changes in the trustees and this
report mentioned that Basel Mission Girls High School is also one
of the institutions run by the defendant. The Basel Mission
English Medium Primary School was also run by it and therefore,
it was reported to the Assistant Charity Commissioner to mention
these two institutions under the defendant's Trust in the PTR.
Accordingly, the Assistant Charity Commissioner has recorded
the same in the PTR as may be seen from the Ex.D.2 which is
the certified PTR extract. The intimations by the Additional
Director of Public Instructions Bengaluru, which are at Exs.P10,
P12 and P13 show that the permission was granted for the
running of the Basel Mission English Medium Primary School with
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certain conditions. These documents do not mention either it was
run under the management of the plaintiff or under the
management of the defendant. Therefore, they are not of much
importance to the appellant or the respondent. The intimation by
a Special Officer and Ex-Officio Under Secretary to the
Government, Education Department dated 26.07.1984 produced
at Ex.P.14 shows that Government had occurred recognition to
Basel Mission English Medium School at Hubballi. This document
also do not mention as to in whose management the said school
is.
29. Exs.P6, P15 to P21 are the correspondence between
the employees of the institution and the principal of Basel
Machine English Medium School. It is pertinent to note that as
per Ex.P.22, the DDPI, Dharwad had cancelled the suspension of
the teachers of the institution by the principal, on the ground
that only the management has the powers of suspension, but not
the principal. These correspondences depict that there was a rift
between the plaintiff' Trust and the Government Department.
Obviously, the principal of the institution, who was none else
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than the wife of PW.1 was supporting the plaintiff's Trust and not
the defendant's Trust.
30. Rest of the documents are not of much importance,
since they are the appointment letters, newspaper clippings etc.
31. The defendants' Trust has produced the PTR extract
at Ex.D.2, which shows that the defendant Basel Mission Higher
Education Center, Dharwad was registered in the year 1955 and
there have been several changes on account of the change
reports submitted. There cannot be any doubt that the
defendant's Trust is registered long back prior to the registration
of the plaintiff's Trust. The entry of the name of the Basel
Mission English Primary School was made pursuant to an inquiry
No.557/1986. Therefore, even before the plaintiff's Trust came in
existence, the Basel Mission English Primary School came under
the control and management of the defendant's Trust in the year
1986. This aspect is born out of the record and it cannot be
disputed.
32. The next aspect to be noted is that, pursuant to an
inquiry by the Assistant Charity Commissioner, an entry was
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made in the PTR of the plaintiff's Trust in the year 2000. Ex.P.2
mentioned that Basel Mission English Medium School Primary
and Higher Secondary was added as one of the institutions under
the plaintiff's Trust under inquiry No.52/2000. The entry dated
08.06.2000 was probed into by the defendant and it was found
that no such enquiry had been conducted by the Assistant
Charity Commissioner. The endorsement of the Assistant Charity
Commissioner is produced at Ex.D.4. The said inquiry
No.52/2000 pertains to Kumareshwara temple of Sarvandha
Taluka, Ranebennur as may be found from Exs.D.5 and D.6.
Therefore, the entry of the Basel Mission English Medium Primary
School as one of the institutions run under the management of
the plaintiff is a bogus entry and Ex.P2 to that extent cannot be
believed.
33. The learned counsel appearing for the respondent
has drawn the attention of this Court to the E.D.15, which is a
letter alleged to have been written by the principal Sri.S.J.
Bhasme, who is none else than the wife of PW.1, where she
thanked the defendant for appointing her as the principal on
07.03.1986. This document is not admitted by the PW.1 in the
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cross-examination. PW.1 states that he cannot recognize the
signature of his wife i.e., the principle of the school. This Court is
also not inclined to accept the said document for the simple
reason that the other documents produced by the defendant at
Exs.D16, D17 and D18 show the signature in a different way.
However, the learned counsel appearing for the respondent has
placed reliance on the correspondence by the Government
Department with the defendant institution. Exs.D10, D11 and
D12 are the correspondence and sanction accorded by the
Government for the running of the Basel Mission English Medium
Primary School. Ex.D.11 mentions that Government has
accorded the permission to start the English Medium Primary
School at Hubballi under the management of the Basel Mission
Girls High School Hubballi with effect from the academic year
1974-1975 without any financial commitment. This letter dated
17.07.1976 gains importance in the matter. Similarly, the
Ex.D.12 is another such letter issued by the Government. The
Ex.D.13 is a Form No.7 application submitted to the Government
by the principal of the school. This shows that Mrs.Salma J.
Bhasme, i.e., the principal of the school, has mentioned that the
said school is being run under Basel Mission Higher Education
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Center, Dharwad, i.e., the defendant and the signature on this
form is the same, which may be found in the documents
produced by the plaintiff. Therefore, it is evident that the initial
recognition by the Government to run the said school was under
the management of the defendant's Trust. These documents
clinch the issue in favour of the defendant.
34. It may be true that the school was started in the year
1971 or the year 1974-1975. The records reveal that it was in
the year 1976 and permission was accorded in the year 1976. At
that time, there was no such Trust known as Martin Luther
Educational Trust. Therefore, the principal had submitted an
application that the said school is run under Basel Mission Higher
Education Center which was a registered Trust under the BPT
Act.
35. It seems, the said Martin Luther and subsequently,
PW.1-Jayashil, was in possession of the property which was
granted by Deenabandu Housing Co-operative Society under
permanent lease and it was used for construction of the Basel
Mission English Medium Primary School. We are not concerned as
to in what capacity PW.1-Jayashil or his father Martin Luther
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Anandappa Bhasme had permitted the school to be run in his
individual property. The said question is not whether the subject
matter of the present suit and therefore, it is not necessary to go
into the same. It is for this reason that the lease deed sought to
be produced by the appellant under Order XLI Rule 27 of CPC
and the building completion certificate issued by Hubballi-
Dharwad Municipal Corporation are not of any relevance for
adjudication of the present case. The records reveal that
thereafter, the plaintiff, especially Martin Luther or PW.1 started
asserting that they are not under the control of Basel Mission
Higher Education Center and they started asserting that they
constitute the management. This rift appears to have escalated
and there were some differences between the teachers of the
institution and the principal. The principal had taken action of
suspension of some of the teachers, which was set at not by the
department on the ground that prior permission was not
obtained from the department and that the management had not
suspended the teachers, which alone had the powers to do so.
This has escalated into a direct conflict between the plaintiff's
Trust and the defendant's Trust.
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36. Evidently, the DDPI had instituted an inquiry and
ultimately, a report was instituted by DDPI and a report was
submitted by DDPI to the Director of Public Instructions,
Bengaluru. The said reported Ex.D.22 narrates the turn of events
which have taken place. What Ex.D.22 do not mention is the two
documents of the department which are produced by the plaintiff
at Exs.P4 and P5. Except Exs.P4 and P5, all other documents are
in favour of the defendant and the report of DDPI, Dharwad to
the Director of Public Construction is also in favour of the
defendant.
37. A careful examination of the above documentary
evidence which is available on record, clearly show that the Basel
Mission English Medium Primary School was run by the
defendant's Trust but not by the plaintiff's Trust. The
correspondences, approvals by the Government etc.,
commenced in the year 1976 and they stand that the defendant
is in the management of it. The form of application filed by the
principal of the school in the year 1976 also depicts that it was
admitted by the principal that the defendant is managing the
said school. It is not known, when the said school came under
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the management of the plaintiff's Trust. It appears that the
plaintiff's Trust usurped the management and proclaimed itself to
be in the management of the school. Therefore, simply because
the school is being run in the premises of PW.1, it cannot be said
that the school is under his management. Similarly, the evidence
falls short of establishing that the PW.1 had either leased or
rented his individual premises to the plaintiff's Trust to run the
said school.
38. Under these circumstances, the conclusions reached
by the First Appellate Court are justifiable and therefore, this
Court holds that the First Appellate Court has rightly dismissed
the suit filed by the plaintiff. Hence, the present appeal is bereft
of any merits and the same is hereby dismissed. The judgment
of the First Appellate Court in R.A.No.79/2006 is hereby
confirmed.
SD/-
(C M JOSHI)
JUDGE
YAN:Para 1 to 7
SSP: Para 8 to end
CT:PA
