If the remedy of appeal against the two objectors, Haji Ismail and
Hamid Khan, has become barred by law of limitation, question of
granting any permission to implead the objectors as party respondents in
the proceedings before the lower Courts by relegating the matter to them
would not arise. No doubt, this Court has adequate power to remand the
case to the lower Court under Order 41 Rule 23-A as held in the case of
Setu Madhavrao Vyankatapatulu V/s. Food Corporation of India
reported in AIR 1985 Gujarat 27, referred to me by the learned Counsel
for the appellants, but the question of remand would not arise as the
belated stage.
objectors, for the the reasons stated earlier, cannot be impleaded at this
The third substantial question of law is, therefore,
answered as in the negative.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO.441 OF 2011
S.A. No.441 of 2011
Sheikh Yusuf V Haji Mohammad Jamil Ahemad,
CORAM : S.B. SHUKRE, J.
Pronounced On : 23rd APRIL, 2014
Citation; 2015(2) MHLJ
This appeal is preferred against the judgment and decree passed in
M.J.C. No.42/2009 by District Judge – 1, Yavatmal on 17/09/2011.
2.
The relevant facts of the case are briefly stated as under:
There is an Anjuman Urdu Education Society, Ner Parsopant, Tq.
Ner, District Yavatmal, registered under the Registration of Societies Act
of 1980 and also the Bombay Public Trust Act, 1950 ('BPT Act', for
short). As per the constitution of the Society, general body is required to
be convened in every 5 years for election of the Managing Committee.
The society has 13 members. By a notice issued on 30/09/2002, by the
then President of the society, a meeting of the general body was convened
on 12/10/2002 for electing the members of the Managing Committee.
Accordingly, elections were held and elected members, through appellant
no.1, the reporting trustee, filed a change report under Section 22 of the
BPT Act, upon which inquiry bearing no.267/2002 was instituted. The
matter was heard and the learned Assistant Charity Commissioner, by his
order passed on 18/08/2008, rejected the change report.
3.
Dissatisfied with the said order of Assistant Charity Commissioner,
the reporting trustee filed an appeal under Section 70 of the BPT Act
before the Joint Charity Commissioner, Amravati.
Joint Charity
Commissioner, after hearing both sides, by his order dated 30/07/2009
allowed the appeal and set aside the order of rejection passed by the
Assistant Charity Commissioner.
4.
Being aggrieved by the said order, the respondents herein
challenged the said order of Joint Charity Commissioner by filing an
application under Section 72 of the BPT Act before the Court of District
Judge, Yavatmal. The learned District Judge, by his order passed on
20/01/2010, rejected the application and, therefore, the respondents in the
present appeal, who were objectors in the inquiry before the Assistant
Charity Commissioner, preferred a Second Appeal in the High Court
bearing Second Appeal No.230/2010. The High Court, on 14/12/2010
partly allowed the Second Appeal and set aside the judgment and order
dated 20/01/2010 and remanded back the matter to the Court of District
Judge for deciding the M.J.C. No.42/2009 on merits, in accordance with
law.
5.
After remand of the matter, the learned District Judge reheard the
case and by his order passed on 17/09/2011, allowed the application and
set aside the order passed by the Joint Charity Commissioner, Amravati
on 30/07/2009, thereby maintaining the order of the Assistant Charity
Commissioner, Yavatmal in inquiry no.267/2002 passed on 18/02/2008.
It is this order which has been challenged in the present appeal.
6.
I have heard Shri J.T. Gilda, learned Counsel for the appellants,
Shri V.V. Bhangde, learned Counsel for respondents no.1 & 2 and Shri
V.P. Panpalia, learned Counsel for respondent no.3. With their assistance,
I have carefully gone through the impugned judgment and order and also
the judgments and orders of the lower Courts and paper book of this
appeal.
This Court, while admitting the appeal on 3/09/2013, formulated
two substantial questions of law and also formulated on 18/10/2013 three
more substantial questions of law. These substantial questions of law,
having regard to the arguments canvassed, however, would have to be
rearranged in an order so that those are taken up first for answers on
which the others are dependent for being resolved. These substantial
questions of law, arising for my consideration in the re-arranged order,
are:
1) Whether the learned lower appellate Court has
committed an error of law by holding that two
objectors namely 1) Haji Ismail s/o. Haji Musa Seth
and 2) Hamid Khan s/o. Majid Khan were necessary
parties in the Appeal No.42/2008 filed by the
appellant No.1 before the learned Joint Charity
Commissioner, as none of the objectors/respondents
had raised the said ground of non-joinder of party to
appeal before the learned lower appellate Court?
2) Whether two objectors namely (1) Haji Ismail s/o
Haji Musa Seth and (2) Hamid Khan s/o Majid Khan
should have been joined as the parties-respondents
to Appeal No.42/2008 by the learned Joint Charity
Commissioner in view of the principles analogous to
Order 41 Rule 20 and also to Order 1, Rule 10 of the
Code of Civil Procedure?
(3) Whether it is necessary to permit the appellants
to join two objectors namely (1) Haji Ismail s/o.
Haji Musa Seth and (2) Hamid Khan s/o. Majid
Khan as the parties-respondents to Appeal
No.42/2008 filed before the learned Joint Charity
Commissioner in the interest of justice and
administration of trust by remanding the matter for
fresh adjudication?”
4) Whether the learned lower appellate Court and
the Assistant Charity Commissioner should have
rejected the case of objectors that the reporting
trustees have committed fraud and forgery while
holding
the
meeting
for
elections
of
Governing/Executive Committee on 12.10.2002, as
the objectors have failed to make specific allegations
of fraud, forgery and filing of fabricated documents
in their written statements/objections.
7.
5) Whether the learned lower appellate Court and
the Assistant Charity Commissioner are right in
ignoring the conduct of the objectors as they have
denied their signatures which have appeared on
objections to change report, Vakalatnama etc.,
particularly looking into the fact that they have also
simply denied their signatures made on the notice of
meeting of election and proceedings book etc.?
Learned Counsel for the appellants has submitted that the first
appellate Court has committed a serious error of law by holding that two
of the objectors, Haji Ismail and Hamid Khan, were necessary parties to
the appeal filed before Joint Charity Commissioner and that for non-
joinder of parties, the appeal was liable to be dismissed. He submits that
the objection as regards the non-joinder of these parties in view of the
provisions of Rules 9 and 13, Order 1, Civil Procedure Code, ought to
have been taken at the earliest possible opportunity and having not taken,
the objection of non-joinder was deemed to have been waived.
He
further submits that these two objectors in the inquiry held in respect of
the change report by Assistant Charity Commissioner had, in the course
of their respective cross-examinations, denied their signatures on the
objection vide Exhibit 2 and also the Vakalatnama and, therefore, it ought
to have been held by the first appellate Court that these two persons had
in fact not objected to the change report and, as such, were not necessary
parties.
8.
Learned Counsel further submits that the first appellate Court
misconstrued the order of remand dated 14/12/2010 passed in Second
Appeal No.230/2010 by the learned Single Judge of this Court directing
the learned District Judge to consider the issue whether Haji Ismail and
Hamid Khan were necessary parties to the appeal filed before the Joint
Charity Commissioner or not. He submits that when the High Court
directed the learned District Judge to consider this issue, it only meant
that it was to be considered and adjudicated upon in accordance with law.
He also submits that there has been no failure of justice occasioned by
non-joinder of said two persons, who had in fact denied their signatures
on the objection and had thus impliedly admitted the change report.
Learned Counsel for respondents no.1 and 2 has submitted that the
9.
conclusion reached by the first appellate Court that Haji Ismail and
Hamid Khan were necessary parties is absolutely in accordance with well
settled principles of law. He submits that there is a distinction between a
proper party and necessary party and the provisions as contained in Rules
9 and 13 of Order 1, Civil Procedure Code, are required to be considered
in the light of difference between these two categories of parties and also
whether any failure of justice is going to be occasioned by non-joinder of
the party. He submits that if a party is a necessary party due to whose
non-joinder there is a miscarriage of justice, the objection as to non-
joinder can be raised even at a later stage, as it would be an objection of
law. He submits that the order dated 18/08/2008 rejecting the change
report passed by the Assistant Charity Commissioner was common and
inseparable and, therefore, such an order in appeal could have been either
reversed or upheld against all the parties and it could not have been
10.
reversed as against only some of the parties.
Learned Counsel further submits that the order of rejection of the
change report operated against the appellants and in favour of all the
seven objectors and when in the appeal filed under Section 70 of BPT
Act, the two of the objectors, Haji Ismail and Hamid Khan, were left out
from the array of respondents, the order passed by the Joint Charity
Commissioner allowing the appeal, amounted to accepting the change
report only in respect of the five objectors and resulted in confirming of
the order of the Assistant Charity Commissioner operating in favour of
the remaining two objectors, Haji Ismail and Hamid Khan. He, therefore,
submits that the said two objectors were necessary parties, non-joinder of
whom resulted in failure of justice and, therefore, no fault could be found
with the conclusion reached in this regard by the first appellate Court.
11.
The learned District Judge-1, Yavatmal in his order impugned
herein has held that two objectors, Haji Ismail and Hamid Khan, were
necessary parties to the appeal. The finding so recorded by the learned
District Judge has to be viewed from the context in which it has been
recorded. The context is not of as to when the objection as regards non-
joinder should have been taken.
The context is of an order of the
Assistant Charity Commissioner rejecting change report of respondent
no.1 on the objections taken by seven objectors, which order has been
challenged by filing an appeal under Section 70 of the BPT Act as against
only five objectors, leaving apart two objectors having order of rejection
of the change report in their favour. This was the factual scenario which
gave rise to a question of law-whether such an order could be set aside
against some of the objectors only while it is confirmed against the
remaining objectors?, to be decided by the appellate Court, in the light of
the law laid down by the Hon'ble Supreme Court in the case of Rajeswari
Amma & Anr. V/s. Joseph & Anr. reported in (1995) 2 SCC 159.
12.
In the said case of Rajeswari Amma (supra), which was cited
before the learned District Judge as well as this Court by learned Counsel
for respondents no.1 & 2, the Hon'ble Apex Court has held that when
there is a common and inseparable decree in favour of three persons, such
decree in appeal filed against only two persons cannot be set aside only
against two persons. It would be useful to refer to the observations
of the Hon'ble Apex Court in this regard (page 160) which read
thus:
“Since the order of delivery of possession in
favour of the decree-holders is common and
inseparable and since it has become final as
Same factual scenario being present in the instant case, the learned
13.
against Neelamma, the High Court was not right
in setting aside the order as against the appellants.
No doubt, as rightly pointed out by the learned
counsel for the respondents this contention was
not raised before the High Court. But being a
question of law, it is open to be raised and can be
considered as the order is an inseparable one.
Since the order against Neelamma had attained
finality, we think that the High Court was not right
in reversing the order of the executing court as
against two respondents.”
District Judge, rightly applied the ratio of the above referred case and
recorded a finding that the two objectors, Haji Ismail and Hamid Khan,
were necessary parties as without their impleadment, the learned Joint
Charity Commissioner could not have set aside the order of the learned
Assistant Charity Commissioner and accepted the change report.
14.
If the learned District Judge had not held so, it would have resulted
in an anomalous situation, where there would have been two conflicting
decrees, one accepting the change report as against the five objectors and
other rejecting the change report in favour of the two objectors. This
being the question of law, even though not raised before the learned Joint
Charity Commissioner in appeal filed under Section 70, BPT Act, it could
have been raised in the appeal before the High Court. Therefore, the
reference made to the provisions of Rules 9 and 13 of Order 1, Civil
Procedure Code and also the case law referred to me by learned Counsel
for the appellants in respect of these provisions, would not help the case
of the appellants. The cases so referred to me by the learned Counsel for
the appellants are as follows:
1.State of U.P. V/s. Ram Swarup Saroj reported in (2000) 3 SCC 699
2.Sri Ram Pasricha V/s. Jagannath & Ors. reported in AIR 1976 SC 2335
3.Y.G. Chavan V/s. Parvatibai & Ors. reported in 1973 Mh.L.J. 83
2008 (6) Mh.L.J. 195
4.Ukha Chamatya Bhil V/s. Chatursingh Bilji Bhil and Ors. reported in
5.Ramchandra Jamnadas Katariya V/s. Nutuddinchai s/o Mazhar Ali and
Ors. reported in 2004 (4) MhLJ 185
6.Addepalli Venkata Laxmi V/s. Ayinampudi Narasimha Rao and Ors.
reported in AIR 1994 Andhra Pradesh 72
7.Bhagaban Mahapatra & Anr. V/s. Palturam Singh & Anr. reported in
AIR 1916 Cal. 516
These cases lay down principles that objection as regards non-
joinder of parties must be taken at the earliest possible opportunity and it
cannot be permitted to be raised for the first time before the appellate
Court, unless it has occasioned failure of justice and that if the objection
is not taken in any case at or before the settlement of the issues, it is
deemed to be waived. As already said, the main issue involved in the
case was a question of law with regard to power of the Court to set aside
a decree, existing in favour of several persons, only against few of them,
when the decree itself is common and inseparable, as held by the Hon'ble
Apex Court in the case of Rajeswari Amma & Anr. (supra). Such an
objection is open to be raised and liable to be considered at the appellate
stage, even when it was not taken earlier. Even in the case of Firdous
Omer (dead) by LR's and Ors. V/s. Bankim Chandra Daw (dead) By
LR's and Ors. reported in (2006) 6 SCC 569, the Hon'ble Apex Court has
laid down the same law when it held that in a proceeding challenging
decree existing in favour of several persons, the Court cannot pass an
inconsistent decree in the same proceeding by granting the decree to the
other legal representatives of the plaintiffs, while the decree of dismissal
as against one legal representative has become final.
15.
Having regard to the law settled by the Hon'ble Apex Court on non-
joinder, I may state, the question of non-joinder of a party is also required
to be examined from another point of view of the consequences it would
entail in respect of the rights of the parties. In the case of Ram Swarup
Saroj (supra), the Hon'ble Apex Court, in paragraph 9, has held that the
plea as to non-joinder of party cannot be permitted to be raised for the
first time before the Hon'ble Apex Court, if the same was not taken before
the High Court and had not occasioned a failure of justice. This case has
been relied upon by the learned Counsel for the appellants, but it helps
more the case of the respondents, than the case of the appellants. The
reason being that without impleadment of two objectors, Haji Ismail and
Hamid Khan, in the appeal proceedings before the learned Joint Charity
Commissioner, no order of setting aside of the order of the Assistant
Charity Commissioner could have been made against only five of the
objectors, as the order of the Assistant Charity Commissioner operated
commonly and inseparably in favour of all the seven objectors. So, the
order passed by the learned Joint Charity Commissioner, in the absence
of these two objectors, has occasioned a failure of justice and resultantly
the objection of non-joinder could have been taken for the first time
before the High Court or at the appellate stage.
16.
Viewed in this way, the finding recorded by the learned Additional
District Judge that these two objectors were necessary parties and for
their non-joinder in the appeal before the learned Joint Charity
Commissioner, the appeal was liable to be dismissed, cannot be found to
be perverse or against any principle of law. The first substantial question
of law is, therefore, answered as in the negative.
The next substantial question of law relates to what the learned
17.
Joint Charity Commissioner should have done regarding joining of the
two objectors, Haji Ismail and Hamid Khan, in view of the provisions of
Order 1 Rule 10 and Order 41 Rule 20, Civil Procedure Code.
Rule 20 Order 41 confers power upon the Court to adjourn hearing
18.
and direct a person appearing to be interested in the result of the appeal to
be made respondent. Under Rule 10 Order 1, when it appears to the
Court that the suit has been instituted in the name of wrong plaintiff or
there is a doubt whether it has been instituted in the name of the right
plaintiff and mistake is bonafide, the Court may, if it is satisfied that it is
necessary to do so for determination of the real matter in dispute, order
any other person to be substituted or added as plaintiff, upon such terms
as the Court thinks just. Here the question involved was of addition of
the two objectors as respondents and, therefore, provision of Rule 10
Order 1, would not come into picture. However, the provision of Rule 20
Order 41, would be relevant.
19.
In the case of Salim Khan Bashir Khan V/s. Karamat Ali Hussain
Ali in Second Appeal No.25/2011, decided on 14/10/2011, by learned
Single Judge of this Court, referred to me by the learned Counsel for the
appellants, it has been observed that in the fact situation obtaining
therein, the learned District Judge was under a duty to exercise his power
under Rule 20 Order 41 and then to proceed to decide the matter on
merits.
In the case of Notified Area Committee Buria V/s. Gobind Ram
20.
Lachhman Dass and Others reported in AIR 1959 Punjab 277, referred
to me by learned Counsel for the appellants, Full Bench of the High Court
of Punjab, has held that no inflexible rule of interpretation of the words
“interested in the result of the appeal” in order 41 Rule 21 can be stated
and it has to be decided in the facts and circumstances of each particular
case.
21.
In the case of Paras Ram V/s. Maharaj Ekling Singhji & Ors.
reported in AIR 1985 Rajasthan 236, referred to me by learned Counsel
for respondents no.1 & 2, the Division Bench of Rajasthan High Court
has interpreted the expression “interested in the result of the appeal” as
meaning a person, who is to be affected by any decree or order to be
passed in the appeal and not otherwise and that the interest must be
determined with reference to a time when he is not brought on record. It
is further explained that it cannot be accepted that such a party continues
to have any interest in the appeal, if the decree in his favour had become
final by reason of an appeal not having been presented against it.
22.
In the case of Ammukutty Amma and Anr. V/s. Madhavi Amma
reported in AIR 1971 Kerala 90, referred to me by learned Counsel for
respondents no.1 & 2, Full Bench of Kerala High Court has taken a
similar view as in the case of Paras Ram (supra). It is held that a person
who is “interested in the result of the appeal” is the person against whom
right of appeal has not become barred by limitation.
23.
In case of CH. Surat Singh (dead) & Ors. V/s. Manohar Lal &
Ors. reported in 1971 (3) SCC 889, referred to me by learned Counsel
for respondents no.1 & 2, the Hon'ble Apex Court has held that an
application for impleadment of a necessary party made before the
Supreme Court at a belated stage giving no reasons could not be allowed.
This case does not throw any light on the issue, whether a person against
whom right of appeal has become time barred can be impleaded as a
party or not, which issue is involved herein, and, therefore, may not be of
any assistance to us.
It is clear from the principles enunciated in the above referred cases
24.
that the appellate Court has the power to direct impleadment of a party as
respondent, if it is satisfied that such party is interested in the result of the
appeal and that the expression “interested in the result of the appeal” has
to be understood with reference to the time for which the party was not
impleaded as a respondent.
In other words,
a person cannot be
impleaded as a party respondent in exercise of power under Rule 20
Order 41, if the remedy of appeal against that party is barred by
limitation.
In the instant case, it appears that necessity of impleadment of the
25.
two objectors was not brought to the notice of the learned Joint Charity
Commissioner and it was argued only before the High Court in Second
Appeal No.230/2010. The order of Assistant Charity Commissioner was
passed on 18/08/2008 and it was set aside by the Joint Charity
Commissioner on 30/07/2009, which was challenged in M.J.C.
No.42/2009 before Additional District Judge, Yavatmal.
The said
application was dismissed by the Additional District Judge by his order
dated 20/01/2010, which order was challenged before the High Court in
Second Appeal No.230/2010. This Second Appeal was disposed of by
this Court on 14/12/2010, by directing the remand of the case to the
Additional District Judge, Yavatmal for a decision afresh on merits. In
the remand order, this Court also directed the learned Additional District
Judge to consider as to whether or not said two objectors were necessary
parties to the appeal filed before the Joint Charity Commissioner. So,
from 18/08/2008 till filing of the Second Appeal in the year 2010, no
question as regards impleadment of the said two objectors came up for
consideration and the result was that the order passed on 18/08/2008
became final with remedy against it getting barred by limitation, so far as
Therefore, applying the above
these two objectors were concerned.
referred principles of law, it has to be said that these two objectors were
no longer the parties interested in the result of the appeal. As such, there
was no scope for their being considered to have been joined as party
respondents in the proceedings before the lower Courts. Even the learned
Joint Charity Commissioner at the time of deciding the appeal
no.42/2009, which appeal was decided by him on 30/07/2009 could not
have exercised the power under Rule 20 Order 41 directing impleadment
of these objectors, with the remedy of appeal available against them
having become barred by limitation. The second substantial question of
law, therefore, is answered as in the negative.
26.
If the remedy of appeal against the two objectors, Haji Ismail and
Hamid Khan, has become barred by law of limitation, question of
granting any permission to implead the objectors as party respondents in
the proceedings before the lower Courts by relegating the matter to them
would not arise. No doubt, this Court has adequate power to remand the
case to the lower Court under Order 41 Rule 23-A as held in the case of
Setu Madhavrao Vyankatapatulu V/s. Food Corporation of India
reported in AIR 1985 Gujarat 27, referred to me by the learned Counsel
for the appellants, but the question of remand would not arise as the
belated stage.
objectors, for the the reasons stated earlier, cannot be impleaded at this
The third substantial question of law is, therefore,
answered as in the negative.
27.
This takes me to the fourth and fifth substantial questions of law
which relate to the findings recorded by the first appellate Court and
Assistant Charity Commissioner with regard to commission of fraud and
forgery while ignoring conduct of the objectors in denying their
signatures on objection and Vakalatnama.
28.
Learned Counsel for the appellants has submitted that without
giving specific details of the fraud, forgery and fabrication of documents,
the first appellate Court and the Assistant Charity Commissioner should
not have held that there was substance in the case of the objectors that the
reporting trustee committed fraud and forgery while holding the meeting
for electing the Managing Committee on 12/10/2002. He also submits
that these Courts have wrongly placed burden upon the appellants to
prove the case that there was no fraud or fabrication of documents
committed by the appellants in holding of the meeting on 12/10/2002 as
the averments in this regard were made by the objectors. He has also
ig
submitted that conduct of the objectors who denied their signatures on
objection (exhibit 2) to the change report and Vakalatnama should have
been appropriately considered by the first appellate Court and the
Assistant Charity Commissioner before coming to conclusion that the
appellant could not prove service of notice upon the objectors.
29.
Learned Counsel for respondents no.1 & 2, on the other hand,
submits that both the Courts below have appropriately considered the
conduct of the objectors, who denied their signatures on the objection and
the Vakalatnama and have arrived at right conclusions.
He further
submits that since it was the case of the appellants that notices for the
meeting scheduled to be held on 12/10/2002 were issued to all the
thirteen trustees and that at least nine of the trustees who were present in
the meeting held on 12/10/2002, had signed the proceeding book and this
case was specifically denied by the objectors, it was for the reporting
trustee to prove his case. He submits that if the objectors while denying
their signatures on the notices and also in the proceeding book, had stated
that the signatures appearing on these documents were fabricated and
fraud was committed, no further details as to how the forgery or fraud
was committed, were required to be given inasmuch as they were not
within the knowledge of the objectors. Therefore, the burden of proof in
this regard was rightly placed upon the appellants and no infirmity in the
conclusion drawn in this regard by the first appellate Court as well as the
Assistant Charity Commissioner could be seen, so submits the learned
Counsel.
30.
As regards the contention that the allegation of fraud and forgery
should have been supported by giving specific details of the fraud and
forgery, I am of the view that these allegations were only incidental to the
denial of signatures of the objectors on the copies of the notice and in the
proceeding book and, therefore, it was not necessary for the objectors to
give any further details in support of the said allegations. It would have
been a different case if the objectors had admitted their signatures on the
documents and had contended that signatures were obtained by fraud.
Such being not the case here and the case being of only denial of the
signatures coupled with the allegation that the signatures were forged and
fabricated, it was not necessary for the objectors to have given further
specifics in support of the main allegation of the denial of the signatures.
31.
As regards the contention that burden of proof should not have
been placed upon the reporting trustee to disprove allegation of fraud and
forgery, I must say that here also the appellants are not right. The
ig
appellants had come to the Court with the case of service of notice of the
meeting upon the objectors and it was the case of the objectors that they
did not receive the notice and that their signatures appearing on the copies
of the notice and in the proceeding book were forged. In such a case, it
becomes necessary for the parties i.e. the appellants, who propounded the
documents to prove them by showing that the signatures appearing
thereon were genuine and not forged or fabricated. In this regard, I would
like to draw support from the observations of the Hon'ble Apex Court in
the case of Thiruvengadam Pillai V/s. Navaneethammal & Anr.
reported in (2008) 4 SCC 530, referred to me by learned Counsel for
respondents no.1 & 2, appearing in paragraph 19 of the judgment. The
Hon'ble Apex Court has observed thus:
“....The first appellate Court proceeded on the
basis that it is for the party who asserts something
to prove that thing; and as the defendants alleged
that the agreement was forged, it was for them to
prove it. But the first appellate Court lost sight of
the fact that the party who propounds the
document will have to prove it. In this case the
plaintiff came to court alleging that the first
defendant had executed an agreement of sale in
his favour. The first defendant having denied it,
the burden was on the plaintiff to prove that the
first defendant had executed the agreement and
not on the first defendant to prove the negative.”
S.A. No.441 of 2011
The ratio of the above referred case squarely applies to the facts of the
instant case and, therefore, I find no substance in the argument canvassed
32.
in this behalf on behalf of the appellants.
In view of the above, fourth substantial question of law is answered
as in the negative.
33.
The last contention of the appellants is with regard to the effect of
conduct of the objectors, Haji Ismail and Hamid Khan, upon the overall
defence of the objectors that they never received the notice of the
meeting.
According to the learned Counsel for the appellants, this
conduct which was disclosed from their denial of their signatures
appearing on the objection (exhibit 2) and Vakalatnama indicated that
either they had no objection to the change report filed by the reporting
trustee or they were not trustworthy witnesses whose version in the
examination-in-chief that they did not receive notice of the meeting
34.
deserved outright rejection.
Learned Counsel for respondents no.1 & 2 disagrees and submits
that stray admissions of witnesses cannot be read in isolation and used for
drawing convenient inferences.
He submits that evidence has to be
considered in its entirety, which is what has been done by the learned
Assistant Charity Commissioner in giving his finding that notice was not
received by the objectors. This finding has been confirmed by the first
appellate Court, the final fact finding Court and it being based upon
evidence available on record cannot be interfered with in Second Appeal,
so further submits learned Counsel for respondents no.1 & 2.
35.
On a careful perusal of the order of the learned Assistant Charity
Commissioner, I find that learned Counsel for respondents no.1 & 2, is
right when he submits that the learned Assistant Charity Commissioner
upon overall consideration of the evidence available on record has
concluded that notice of the meeting was not received by the objectors.
This finding is based upon the evidence available on record and is not the
result of ignorance of any material evidence on record or consideration of
any extraneous material. It has also been confirmed by the first appellate
36.
for its consideration and it is answered accordingly.
Court. Therefore, the fifth substantial question of law does not arise at all
Even assuming, just for the sake of argument, that the said
substantial question of law does arise and the Courts of Assistant Charity
Commissioner and District Judge have ignored the conduct of the two
objectors, still the finding concurrently recorded by them that notice of
the meeting was not received by the objectors can not be interfered with
by this Court in exercise of its power under Section 100, Civil Procedure
Code, as it is based upon the consideration of entire evidence available on
record and is not perverse. Only because another view is possible, it
would not be open to this Court exercising jurisdiction in Second Appeal
to substitute the view of lower Courts by its own view, unless the view
taken is so absurd that it cannot be taken at all. Such is not the case here.
Law in this regard is well settled and it has been developed to the extent
that even an erroneous finding of fact, howsoever grave in nature, as long
as it is based upon consideration of evidence on record, could not be
interfered with in Second Appeal. Useful reference in this regard could
be made to the law laid down by the Hon'ble Apex Court in the cases
referred to me by learned Counsel for respondents no.1 & 2. These cases
are of Ram Prasad Rajak V/s. Nand Kumar & Bros. & Anr. reported in
(1998) 6 SCC 748, Pakeer Rai V/s. Seethamma Hengsu (dead) LR's &
Ors. reported in (2001) 9 SCC 521 and Christopher Barla V/s. Basudev
Naik (dead) by LR's reported in (2005) 9 SCC 207.
37.
In view of the above, the appeal deserves to be dismissed. In the
result, the appeal stands dismissed. In the circumstances of the case,
there shall be no order as to costs. Decree be drawn up accordingly.
NH/-
S.B. SHUKRE, J.
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