- (1.) This appeal is by special leave granted by this Court on 30-10-1973 against the judgment and order of the High Court of Gujarat dated 19-9-1972 passed in Letters Patent Appeal No. 72 of 1971. The facts necessary in brief for disposal of the appeal are as hereunder : The Deputy Charity Commissioner, Ahmedabad Region appointed under the Bombay Public Trusts Act, 1950 (for short 'the Act') started suo motu enquiry under the Act against the appellant as Enquiry No. 578 of 1958 with regard to the nature of the properties involved in the appeal. The Deputy Charity Commissioner held by his order dated 20-10-1960 that the properties were of a public trust. Aggrieved by this order, the appellant filed an appeal before the Charity Commissioner. The Charity Commissioner dismissed the appeal on 15-5-1961. Thereupon the appellant moved the City Civil Court by filing an application under sec. 72 of the Act. This application was dismissed on 6-8-1983. The First Appeal No. 448 of 1963, was then filed in the High Court of Gujarat against this order of the City Civil Court. This appeal was dismissed by the High Court on 30-9-1970. The appellant then filed Letters Patent Appeal before the High Court. It was admitted on 25-2-1971. However, it was dismissed on 19-9-1972 holding that the appeal was not maintainable since the requisite certificate under Clause 15 of the Letters Patent was not obtained by the appellant. Hence this appeal.
(2.) The Division Bench dismissed the appeal relying upon an earlier judgment rendered by another Division Bench of that Court reported in Hiragar Day agar v. Ratanlal, (1972) 13 Guj. LR 181 : (AIR 1973 Guj. 15). This decision was rendered on 26-10-1971. The ratio of the decision is that the single Judge who disposed of the appeal was hearing an appeal in respect of an order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the High Court and that, therefore, it was necessary for the appellant to obtain a certificate from the single Judge that the case was a fit one for appeal to the Division Bench under Clause 15 of the Letters Patent Appeal. It is this question that we have to consider in the case.
(3.) For this purpose we will first read sec. 72 which is as follows : "72(1) Any person aggrieved by the decision of the Charity Commissioner under Secs. 40, 41, 50-A, 70 or 70-A 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 sixty days from the date of the decision, apply to the Court to set aside the said decision. (1-A) 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 or the Charity Commissioner has refused to admit evidence which ought to have been admitted or the Court requires any documents 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. (1) 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. (Emphasis supplied) xx xx xx xx";