Misra, J. - (1.) The short question for consideration is, whether the proceedings under Section 50A of the Bombay Public Trusts Act, 1950 would abate for the non-substitution of one of the applicants since deceased, and whether the Charity Commissioner has power under the Act to grant the belated substituted application made after long delay.
(2.) This appeal is directed against the order of the High Court in appeal against the judgment of the learned single Judge, who summarily dismissed the appellant's appeal. Earlier, through an application before the Charity Commissioner, a proceeding was initiated or settling a scheme of a public trust in a Proceeding No. 5 of 1973 under Section 50A as aforesaid. Admittedly, the said application was moved in the prescribed form by two persons as per requirement of the said Section. On 23rd January, 1979 one of the original applicants, namely applicant No. 2 Hasan Bin Abubakar, died, It is true that after a lapse of long time, the son of the deceased applicant moved an application, Ex 44, on 11th October, 1983 for permitting him to join as a party to the said proceedings as he has interest in the said Trust. Significantly, another set of two persons viz. Hussain Bin Avadhabhai, claiming to be one of the trustees of Hazarat Chhota Edroos Masjid and Durgah Trust and another person made similar application under the same section for being joined also as applicant in the said scheme. The Charity Commissioner allowed both, the substitution of the son of the aforesaid deceased applicant and impleadment of the aforesaid second set of two persons as a party to the said proceedings. The appellant filed a C.M.A. against the said order under Section 72 (1) of the said Act before the City Civil Court. The City Civil Court (appellate authority) confirmed the order of the Charity Commissioner. Against that, an appeal was preferred before the learned single Judge in the High Court who also confirmed the order passed by the City Civil Court. The learned single Judge recorded that it is not in dispute that the proposed persons are interested in the Trust. Thereafter, a Letters Patent Appeal was filed which was also dismissed. It is against this, the present appeal arises.
(3.) Learned counsel for the appellant submits with vehemence that in all the aforesaid orders, if Rule 7 of the Bombay Public Trust Rules, 1951 was taken into consideration, the conclusion would have been otherwise. Submission is this, Rule 7 read with Section 6 of the Presidency Small Cause Courts Act, 1882 (hereinafter referred as '1882 Act') makes it obligatory on the Charity Commissioner to follow the procedure as prescribed by the Civil Procedure Code, so when one of the applicants died and his heirs not being brought on the record within the prescribed time, the proceedings would abate by virtue of provisions under the Civil Procedure Code. The relevant portion of Rule 7, as relied by the appellant is quoted hereunder:- "7. Manner of inquiries - Except as otherwise provided in that Act and these rules, inquiries under ..................or any other inquiry which the Charity Commissioner may direct to be held for the purposes of the Act, shall be held, as far as possible, in the Greater Bombay Region in accordance with the procedure prescribed for the trial of suits under the Presidency Small Cause Courts Act, 1882 and elsewhere under the Provincial Small Cause Courts Act, 1887. In any inquiry a party may appear in person or by his recognised agent or by a pleader duly appointed to act on his behalf." Section 6 of the Presidency Small Cause Courts Act, 1882 is quoted hereunder:- "6. The Small Cause Courts shall be deemed to be a Court subject to the superintendence of the High Court of Judicature at Fort William, Madras or Bombay, as the case may be, within the meaning of the Letters Patent, respectively, dated the 28th day of December, 1865, for such High Courts, and within the meaning of the Code of Civil Procedure and to be a Court subordinate to the High Court within the meaning of section 6 of the Legal Practitioners Act, 1879 and the High Court shall have, in respect of the Small Cause Court, the same powers as it has under the twenty-fourth and twenty-fifth or Victoria, Chapter 104, Section 15, in respect of Courts subject to its appellate jurisdiction." ;