PRATAP CHANDRA SINGH AND ANR. Vs. MADHABA SWAIN AND ORS.
LAWS(ORI)-1978-10-10
HIGH COURT OF ORISSA
Decided on October 23,1978

Pratap Chandra Singh And Anr. Appellant
VERSUS
Madhaba Swain And Ors. Respondents

JUDGEMENT

R.N.Misra, J. - (1.) PETITIONERS in this application were opposite parties in a proceeding under Section 42 of the Orissa Hindu Religious Endowments Act, 1951 (hereinafter referred to as the Act) before the Commissioner of Endowments. The Commissioner had posted the matter to 8 -9 -1977 for examination of witnesses. On that date on behalf of the Petitioners an application for adjournment was made and two grounds were indicated in justification of the prayer: (i) one of the opposite parties had lost his wife and they were in mourning; and (ii) the two advocates who had been engaged on their behalf were otherwise occupied and were not in a position to attend the Court of the Commissioner. The learned Commissioner rejected the application and proceeded to receive evidence ex parte. He also heard arguments from the said of the opposite parties and directed the matter to be called on 2 -11 -1977 for orders. Petitioners challenge the action of the Commissioner in refusing to grant adjournment and in receiving evidence behind the back of the Petitioners.
(2.) IN the counter affidavit of the opposite parties, it has been contended that the impugned order was open to appeal under Section 44(2) of the Act and since an alternate statutory remedy was available, the writ application is not tenable. The impugned order of the Commissioner has also been otherwise sought to be supported. So far as the preliminary objection regarding maintainability of the writ application is concerned, we are not satisfied that there is merit in the contention that the impugned order was open to appeal. It is too well settled to be combated that the right to appeal has got to be statutorily provided and Section 44 of the Act which authorises an appeal reads thus: (1) Any person aggrieved by any order passed by the Assistant Commissioner under Section 41 or Sub -sections (1) and (6) of Section 42 or Section 43 may within thirty days from the date of receipt of the order under Section 41 or Section 43 or from the date of the publication of the order under Section 42 as the case may be, appeal to the Commissioner. (2) Any party aggrieved by the order of the Commissioner under Sub -section (1) or (6) of Section 42 may appeal to the High Court within thirty days from the date of the order or publication thereof as the case may be. In the instant case, the original order being of the Commissioner, the matter is covered by Sub -section (2). Section 42 deals with framing of a scheme. Power has been given to the Assistant Commissioner to frame a scheme in regard to religious institutions managed by a non -hereditary trustee. Similar power votes in the Commissioner where the religious institution is presided over or managed by a hereditary trustee. The statutory procedure in that class of cases is that the Assistant Commissioner makes an initial enquiry and submits a report to the Commissioner on the basis of which the Commissioner proceeds to finalise the scheme. Power has been vested in the appropriate authority to modify or annul a scheme framed for the management of an institution at any time when the authority is satisfied in that regard (see Sub -section (6)). Provision has been made in the related Rules laying down the procedure for framing of schemes. Section 42(1) authorises that after appropriate enquiry, by an order, the authorised officer may frame a scheme for the administration of the institution. Section 44 providing for appeal obviously refers to that order by which the scheme is settled for the administration of the institution and it does not refer to every interlocutory or ancillary order that may be passed from time to time in a proceeding initiated for settling of a scheme". The principle laid down by the Supreme Court in the case of The Central Bank of India Ltd. v. Gikal Chand : A.I.R. 1967 S.C. 799, supports such a view. We are, therefore, inclined to accept the contention of Mr. Kar for the Petitioners and overrule the preliminary objection realised on behalf of the opposite parties by holding that the impugned order was not open to appeal.
(3.) THERE is some dispute as to when the wife of one of the Petitioners died, but the fact of death is not disputed. There was no material before the Commissioner when he made the order that Petitioners were not mourning the death of the lady by the date of the application. It had been asserted in the application for adjournment that both the lawyers engaged for the Petitioners were otherwise preoccupied and were not available to appear in the enquiry. Once Petitioners had engaged lawyers for the purpose of cross -examining the witnesses for the opposite parties but such lawyers were not available on the date of hearing, the learned Commissioner would have done well to adjourn the proceeding on such terms as he thought appropriate; otherwise injustice is bound to result. After hearing both sides, we are satisfied that the impugned order is opposed to the cause of justice and unless vacated is likely to affect the ultimate conclusion of the enquiry.;


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