Skip to content


Khivaraj Chhagniram Zavar and anr. Vs. Shivshankar Basappa Lingashetty and anr. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies;Property
CourtMumbai High Court
Decided On
Case NumberL.P.A. Nos. 4 and 7 of 1970 in First Appeal No. 830 of 1965
Judge
Reported inAIR1974Bom40; (1973)75BOMLR523; 1973MhLJ782
ActsBombay Public Trusts Act, 1950 - Sections 72 and 72(1)
AppellantKhivaraj Chhagniram Zavar and anr.
RespondentShivshankar Basappa Lingashetty and anr.
Appellant AdvocateJ.R. Lalit, Adv. for ;U.R. Lalit, Adv.
Respondent AdvocateM.V. Paranjpe and ;V.V. Divekar, Advs.
Excerpt:
a) the case discussed the interpretation of the clause 15 of the letters patent (bombay) - it was held that, the words and expression used in the clause should be given their natural meaning - it is not possible to go beyond the express language of the clause unless the words are of two different meanings;b) it was held that, where a single judge hears an appeal from the decision of the district judge under section 72 (1) of the bombay public trusts act, 1950, he does not hear an appeal from the decision of an appellate court within the meaning of clause 15 of the letters patent (bombay) and an appeal against the decision of the single judge in such a case can be filed without obtaining leave from him under the clause - - 2. the appellant as well as respondent no. paranjpe, counsel for.....1. these appeals arise out of the original proceedings before the deputy charity commissioner holding enquiry under the bombay public trustee act (hereinafter referred to as 'the act') to determine whether there was a public the properties of that rust a preliminary m.v. paranjpe learned counsel for respondent no. 1, the these appeals under clause (15) of the letters patent against the judgment of learned single judge of this court are filed without the leave of that judge. according to him, the proceedings before the district court under section 72 of the act are proceedings in the nature of an appeal from the order and decision of the charity commissioner and as such the first appeal heard by a learned single judge of this court is a decision of this court while exercising appellate.....
Judgment:

1. These appeals arise out of the original proceedings before the Deputy Charity Commissioner holding enquiry under the Bombay Public Trustee Act (hereinafter referred to as 'the Act') to determine whether there was a public the properties of that rust a preliminary M.V. Paranjpe learned Counsel for respondent No. 1, the these appeals under clause (15) of the Letters Patent against the judgment of learned single Judge of this Court are filed without the leave of that judge. According to him, the proceedings before the District Court under Section 72 of the Act are proceedings in the nature of an appeal from the order and decision of the Charity Commissioner and as such the First Appeal heard by a learned Single Judge of this Court is a decision of this Court while exercising appellate jurisdiction over a decision of the District Court given in the exercise of its appellate jurisdiction. This being so, the relevant provisions of the Letters Patent clause (15) will be attracted and both the present appeals filed without the leave are incompetent.

2. The facts out of which the two appeals arise may be noted very briefly, Respondent No. 2 Devidas Baliramdas Bairagi riled application No. 3477 of 1952 under protest under Section 18 of the Act for a declaration that certain properties described in that application were his private properties and not public trust. A little later in the same year 1952 under Section 18 in respect of the sent appellant filed application No. 3522 of 1952 under Section 18 in respect of the they constituted a public trust and the properties belong to that rust. Both these applications were heard by the Assistant Charity Commissioner and he arrived at the finding under Section 20 of the Act that House No. 206 constituted a public trust property and directed it to be so registered under the provisions of Section 21 of the Act. So far as House No. 13 was concerned his finding was that it was private property of respondent No. 2 who had transferred it to respondent No. 1 before the year 1952 in satisfaction of a decree obtained by respondent No. 1 against respondent No. 2. The appellant as well as respondent No. 2 went in appeal to the Charity Commissioner who heard both the appeals confirmed the finding and held that house No. 13 was the private property of respondent No. 2. He further held that house No. 206 was a public trust but the property was subject to a charge of Rs. 2,000/- in favour of respondent No. 1 in relation of an earlier transaction. Both of them filed applications under Section 72 in the District Court. appellant's application was No. 76 of 1964 in which he contended that the charge in favour of respondent No. 1 against house No. 206 was not binding on the trust at all. he also filed another application No. 77 of 1964 that house No. 13 was a property of the public trust. The present respondent No. 2 filed Misc. Application No. 92 of 1964 in the District Court for a decision that house No. 206 was his private property and not a public trust. all the three applications which were transferred to the learned Asstt. Judge, Sholapur, were heard together by him. He rejected all the three application maintaining the orders passed by the Charity Commissioner. Being aggrieved, the appellant filed First Appeal No. 830 of 1965 in the High Court regarding the finding in respect of house No. 13, Both these appeals were heard together by Kantawala. J. ( as he then was) and both came to be dismissed by common judgment dated July 23, 1969. Against present two letters patent Appeals have been filed without the leave of the learned Single Judge.

3. Accordingly to Shri Paranjpe, these appeals without the leave under clause 15 of the Letters Patent are incompetent and should be rejected. We have heard the learned Counsel on both side only on preliminary point and would dispose of the preliminary objection in the first instance.

4. There is no doubt that this matter has come to the Civil Court under Section 72 of the Act after the Assistance Charity Commissioner completed the enquiry under Sections 19 and 20 of the Act and after the appeals filed to the Charity Commissioner under Section 70 of the Act came to be disposed of. So far as the plain language used in Section 72 of the Act is concerned, it only provides to a person aggrieved a remedy by way of an application to the Court under the Act. The court is defined under Section 4 of the Act to mean in the Greater-Bombay, the City Civil Court and elsewhere, the District Court. Having approached the District Court under Section 72 of the Act and after its disposal as provided by sub-section (2) of Section 72, the appeals came to be filed in this Court. As the judgment and order passed by the learned Single Judge in the two appeals has aggrieved the present appellant the present appeals without the leave of the learned Single Judge are filed.

5. Mr. Paranje's argument in nuts heel is that the jurisdiction exercised by the District Court under Section 72 of the Act is appellate in its character and that the jurisdiction of District Court under Section 72 should be considered as an exercise of the appellate jurisdiction as contemplated by clause 15 of the Letters Patent. In that view the Two First Appeals heard by the learned Single Judge were decided in the Appellate jurisdiction of the High Court over the decisions which were themselves in the exercise of the appellate jurisdiction. There is no doubt that so far as the provisions of clause 15 of the Letters Patent are concerned, where the exercise of jurisdiction by a Single Judge of this Court is in the appellate jurisdiction of this Court in respect of a decree or order made by the lower Court in the exercise of its appellate jurisdiction leave of the learned Single Judge must be obtained without which no appeals can be filed. The only question that requires determination therefore is whether the jurisdiction exercised by the District Court under Section 72 of the Act should be considered as the exercise of the appellate jurisdiction for the purpose of clause 15 of the Letters Patent.

6. Mr. Paranjpe, Counsel for the respondents, took us through the provisions of the act as well as the Civil procedure |Code for the purpose of pointing out how the appellate jurisdiction is conferred upon the Court and what is the nature the Act commences when an application comes to be made by aparty under Section 18 or otherwise it is permissible for the Deputy or Assistant Charity Commissioner to commence an enquiry suo motu. The provisions of sub-section (5) of Section 18 deal with the contents of the application which a party is required to make. This enquiry whether at the instance of a party or suo motu by the Deputy Charity Commissioner is intended under the Act for the purpose of registering public trust. Section 19 deals with the enquiry that is to be made and more particularly for the determination of the statutory issues which are required to be raised under the Act. On each of these issues the Deputy or Assistant Charity Commissioner has to give findings in the manner prescribed. The rules in that behalf broadly speaking provide for a public notice before an enquiry is held and is clearly an inquiry with the help of assessor. Once findings are given under Section 20, they become appealable under Section 70. besides Section 20 which deals directly with remedy of an appeal to the Charity Commissioner there is power in the Charity Commissioner for a suo motu revision or a revision on the application of a party of the findings given, as provided by Section 70-A. This revisional jurisdiction is to be exercised on the conditions stipulated by that section. In the matter of certain orders passed under sub-sec, (2) of Section 51 by the Charity Commissioner an appeal has been provided to the Maharashtra Revenue Tribunal under Section 17 of the Act. Besides Sections 70 and 70-A other orders can be passed by the Charity Commissioner under Sections 40, 41-C and 43 (2) (a) and (c) and Section 50-A of the Act. Against all these orders a general remedy has been provided by Section 72 of the Act by way of an application to the District Judge.

7. Shri Paranjpe broadly drew our attention to sub-section (1-A) of Section 72 which says that 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 document 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. The proviso says that whenever additional evidence is allowed to be produced by the Court, the Court shall record the reason for its admission. he also brought to our notice sub-section (2) of Section 72 which says that 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. Referring to these two provisions of sub-sections (1-A) and (2) of Section 72 of the Act, Shri Paranjpe argued that these provisions are almost identical with the provisions of O.41, R 27 of the Code of Civil Procedure which deals with the production of additional evidence in Appellate Court, under the Code. The opening calves of sub rule (1) of Rule 27 of Order 41 enacts some prohibitions, viz., that the parties, to an appeal shall not be entitled to produce additional evidence in the Appellate Court, However, two sub-section (a) and (b) provide the circumstance under which additional evidence could be permitted to be produced by the Appellate be either oral or documentary. Clause (a) of that Rule says that if the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, then it is possible for the party to persuade the Appellate Court and the appellate Court will ordinarily allow such evidence to be led. Under clause (b) if the Appellate court required any document to be produced on any witness to be examined to enable if to pronounce judgment, or for any to her substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. Under sub-rule (2) of Rule 27, the Appellate Court when it decides to permit additional evidence to be reproduced is obliged to record the reason for its admission Reading these provisions of Order 41, Rule 27 along with the provisions of sub-section (1-A) and (2) of Section 72 of the Act Mr. Paranjpe argued that the procedure which is laid down for hearing the appeals under the Civil Procedure Code with all its limitations and restrictions of leading evidence, is adopted in the remedy before the District Court under Section 72 of the Act. He made a broad solute right of a party before a trial Court or before any Tribunal which is holding inquiry for the first time. That functions is performed in the Civil Courts by those Courts which are exercising original jurisdiction. a party dissatisfied by the judgments, decree or order of the trial Court is awarded a further remedy by the Legislature by way of an appeal to a higher Court and ordinarily additional evidence is not permitted to be led in the Appellate Court. On the evidence as led in the trail Court, the Appellate Court re-examines the record and either confirms, modifies or revokes the orders of the Court below or otherwise passes order as provided by the relevant provisions dealing with the Appellate Tribunal. By way of analogy Mr. Paranjpe argued that the proceeding of enquiry before the Deputy or Assistant Charity Commissioner are primary proceedings and there parties are entitled to lead such evidence as the appellate stage before the Charity Commissioner, the Charity Commissioner merely hears the parties as provided by sub-section (3) of Section 70 and for reasons to be recorded in writing, he is entitled to annual, reverse, modify or confirm the finding or the order appealed Assistant Charity Commissioner to make further inquiry or to take such additional evidence as he may think necessary of he may himself take such additional evidence. When the hearing before the Charity Commissioner is over and an application comes to be made to the Court, the procedure provided for hearing of the application under Section 72 of the Act is similar to the procedure provided for the hearing of the appeal under the Code of Civil Procedure. Though the expression used by the Legislature is 'may ........................ apply', the real nature of the remedy seems to be the exercise of appellate jurisdiction by the Court over the decision of the Charity Commissioner. He also referred us to the provisions of Ss. 96 and 107 of the Code of Civil Procedure only to draw a parallel between some of the provisions of Section 72 of the Act and Section 107 of the Code of Civil Procedure.

8. It is true that Section 107 of the C.P.C. is more detailed and contains some provisions which are not to be found in Section 72 of the Act. However, according to him, by and large the jurisdiction under Section 72 of the Act is very much similar to the jurisdiction provided by these substantive sections of the Civil Procedure Code. It is the nature of the jurisdiction that is being contemplated by clause 15 of the Letters patent. In terms of the languages of clause 15, if the judgment of the High Court is passed in exercise of the Appellate Jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court

subject to the superintendence of the said High Court, the appeal contemplated under clause 15 requires a prior permission of the learned Single Judge who was disposed of that appeal. Shri Paranjpe said that there was no occasion so far as he knows to consider the provisions of Section 72 of the Act in this light but there was one occasion when the provisions of Section 72 of the Act were required to be interpreted along with the provisions of Section 72 of the Act were required to be interpreted along with the provisions of Section 29(2) of the Limitation Act of 1908. In D.R. Pradhan v.Bombay State Federation of Goshalas and Panjrapoles (1956) 58 Bom LR 894 the facts were that the application under Section 72 was filed beyond the period of 60 days contemplated by that section. Section 72 of the Act says that any persons aggrieved by the decision of the Charity Commissioner may, within sixty days from the date of the decision, apply to the Court to set aside the said decision. The party aggrieved had spent some time in obtaining a copy of the order of the Charity Commissioner. if that time was calculated and was permitted to be excluded, the application filed under Section 72 was within time. The objection relating to limitation raised before the Division Bench failed as the learned Judges observed that the application under S. 72 of the Act was in the nature of an appeal and it was possible to exclude the time spend in obtaining the copy under the provisions of Section 12 (2) of the Limitation Act, 1908. In view of the fact that Section 75 of the Act lays down that in computing period of appeal under this chapter, the provisions of Sections 4, 5, 12 and 14, of the Indian Limitation Act, 1908, shall apply to the filing of such appeals. Though sub-section (2) of Section 20 of the Indian Limitation Act, 1908, is general in its languages and covers remedies like suit, appeal or application for which different period of limitations been laid down by a special or local law, clause (a) thereof makes Sections 4, 9 to 18 and 23 applicable only so far as, and to the extent to which, they are not expressly excluded by such special or local law. What was argued therefore was that Section 75 of the Act lays down in express terms that in computing the period of appeal under the Chapter, viz., Chapter 11 of the Act in which it falls, the provisions of Ss. 4, 5, 12 and 14 of the Indian Limitation Act, 1908 shall apply to the filing of such appeals. That being so the provisions of Section 12(2) of the Limitation Act of 1908 dealing with the exclusion of time for copy of judgment and order would be attracted only if the remedy is an appeal under Chapter XI of the Act and not otherwise. The Division Bench considered an argument very much similar to the one made before us an pointed out that the recently introduced sub-section (1-A) of Section 72 of the Act lays support to the argument before them that the nature of the remedy of an application before the City Civil Court or the District Court is very much similar to an Appellate remedy. At any rate so far as the additional evidence was concerned for all practical purposes the Court under the Act was like an Appellate Court. it is pointed out that had the District Court been a Court of first instance, there would have been no restriction on the rights of the parties to call such evidence as they like before that Court. If that is so, the question is whether Section 29 (2) of the Limitation Act must be so strictly construed or it must receive a liberal construction.

9. The learned Judges proceeded to point out that every law of limitation must of necessity operate harshly upon the person whose right to go to Court is taken away or whose remedy is barred and therefore Courts have always construed laws of limitation in favour of the person against whom limitation is pleaded. They further took a liberal view of the provisions of Section 29 (2) of the Limitation Act of 1908 and came to the conclusion that the intention of the Legislature was to give the benefit of Section 12 in all those cases where it could be necessary for the party to challenge an order of the lower Court or of a Tribunal in order to succeed and if it is necessary for the party to do so, then before the party approaches the higher Court he must obtain a copy of that order which he is challenging. Even though there may not be an obligation the party to obtain a copy under the rules provided under the provisions of the Actor the rules prescribed therein. It is pointed out that a party who wants to challenge that decision or order must know the reasons therefor. he has a right to read the order to find out the reasons and then to make his opinion whether he should pursue his remedy. On that broader approach and by the application of Section 12 (2) and 29 (2) of the Limitation Act, 1908, read with Section 75 of the Act the learned Judges excluded the time taken for obtaining the copy and held that the application before the Court was in time. Shri Paranjpe therefore argued that accepting the same reasoning we should hold that not only the jurisdiction under Section 72 of the Act is similar to the Appellate jurisdiction but it is in fact an exercise of Appellate jurisdiction as contemplated by clause 15 of the Letters Patent.

10. In answering the preliminary objection Shri Lalit learned Counsel for the appellants, relied upon the language of Section 72 of the Act and some passages from Maxwell on Interpretation of Statutes. According to him, when the words used by the Legislature are clear and unambiguous, they must be given their natural meaning and it is not proper to go beyond those words in search of what is usually pointed out to be 'the intention' of the Legislature. The intention of the Legislature is primarily that which the words chosen by them express. In case where the language chosen is ambiguous or is not very clear, the Court may interpret and find out the intention of the legislature. However, where there is no such scope it is not for the Court to take help of abstract propositions like the nature of the original Civil Jurisdiction and the contents of the Appellate Jurisdiction.

11. Having considered the rival contentions we are of the view that the provisions of clause 15 of the Letters Patent must be so construed as the words and expressions used therein would have their natural meaning and unless the words appear to the capable of two different meanings, it would not be possible to go beyond the express language of that clause. The primary question that is raised by the argument of Shri Paranjpe is whether from the nature of the remedy provided or from the inquiry that is permitted to be made, should that remedy itself be styled as appellate remedy or the exercise of an appellate jurisdiction, even though the Legislature does not choose to use that languages. it must naturally be assumed that the Legislature is well aware of the different natures of jurisdiction that can be created and bestowed upon various Tribunal and Courts.

12. In fact reference to the provisions of the Bombay Civil Courts Act 1969. the Code of Civil Procedure and Chapter 11 of the Act would make the position quite clear. Section 7 of the Bombay Civil Courts Act, 1869, declares that the District Court shall be the principal Court of original civil jurisdiction in the District, within the meaning of the Code of Civil Procedure. Having described the District Court as the principal Court of original civil jurisdiction, the very next section 8 lays down that except as provided in section 16, 17 and 26 the District Court shall be the Court of Appeal from all decrees and orders passed by the subordinate Courts from which an appeal lies under any law for the time being in force. This section which immediately follows section 7 bestows upon the District Court an appellate jurisdiction. The kind of appellate jurisdiction which is contemplated by clause 15 of the Letters Patent, is the one under Section 8 of that Act, though the Court that exercises it, it the principal Court of original civil jurisdiction under section 7. Section 96 of the Code of Civil Procedure lays down that save where otherwise expressly provided in the Code or by any appeal shall lie from every decree passed by any Court authorised to hear appeals from the decisions of such Court. If the provisions of Section 96 are read along with the provisions of Section 8 of the Bombay Civil Courts Act, it is amply clear that over the orders and decrees passed by the Civil Judges, Junior Divisions, or decrees and orders passed by the Civil Judge, Senior Division, in respect of suits whose monetary valuation jurisdiction is below Rs. 10,000/- An appeal would lie to the District Court.

13. We may incidentally point out that the provisions of Section 107 of the Code of Civil Procedure are not identical with the provisions of Section 72 of the Act. Under sub-section (2) of Section 72 of the Act authority of the District Court extends only to the extent of confirming, revoking or modifying the decisions and remitting the amount of the surcharge and making such orders as to costs as it thinks proper in circumstances. The language of Section 107 says that the Appellate Court under the Civil Procedure Code can determine a case finally or remand the case or frame issues and refer them for trail or take additional evidence to require such evidence to be taken. Sub-section (2) of Section 107 further clarifies the position by saying that subject to sub-section (1) the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein. The scheme of the Code of Civil Procedure would show that an appeal is continuation of the suit and the appellate Court has all the powers of the trial Court subject of course the provisions of sub-section (1) of Section 107. The matters under the Civil Procedure Code are ordinarily in the nature of lie between two contesting litigants and either of them has a right as provided by the Code to approach the higher Courts for relief. What is important is that these provisions dealing with the District Court and its powers, styles the District Court's jurisdiction as appellate jurisdiction, when the matter reaches that Court after a trial is held by the Civil Judge. If we then refer to the provisions of Chap 11 of the Act the title no doubt is 'functions of Charity Commissioner, Procedure, jurisdiction and appeals'. Shri Paranjpe argued that amongst other things this Chapter deals with appeals and therefore the application under section 72 should also be treated as a sort of appeal. We do not find any substance in this argument because the title merely takes into account the functions of the Charity Commissioner and the procedure to be followed while approaching him and the title merely deals with the jurisdiction and appeals to the Charity Commissioner. The remedy under Section 72 commences after the appeal to the Charity Commissioner is decided. In this Chapter an appeal has been provided to the Charity Commission from the findings of the Deputy or Assistant Charity Commissioner. That is the provision of sub-section (1) of Section 70. By the added Section 70-A a revisional jurisdiction has been bestowed upon the Charity Commissioner in certain cases under certain circumstances. As we have already pointed out, in respect of one order passed by the Charity Commissioner an appeal has been provided to the Maharashtra Revenue Tribunal. The Legislature which passed this Act uses the expression 'appeal' under Sections 70 and 71 and it describes in so many words the nature of the jurisdiction to be exercised under Section 70-A by the Charity Commissioner either on an application or suo motu for the purpose of satisfying himself as to the correctness of the finding of order recorded or passed by the Charity or Assistant Charity commissioner and also authorises him to annual or modify or confirm or reverse the said finding. The same Legislature however chooses the expression 'may ................... apply' when the remedy to an aggrieved persons is provided under Section 72. This distinct and different language used by the Legislature must be given its natural meaning unless it is found that in the circumstances the expressions used are rather ambiguous and do not seem to convey the meaning the Legislature had in its mind.

14. It may be remembered that a remedy like an appeal is a creature of law. Unless an appeal is so provided, there does not seem any right in a litigant to approach some higher Court or Tribunal by way of an appeal. The expression 'appeal' is also a term of an art. The legislature which is fully aware of the difference between the various remedies has chosen in the circumstances of this case, the expression 'may ................... apply' under Section 72 as against the expression 'an appeal' under Section 70 and 71. Ordinarily it is true that when original jurisdiction is being exercised the litigating parties have a right to lead evidence. It is a fundamental right of a party of being heard. The hearing which denies the right of leading evidence could hardly be described as hearing. However, we do not think how the legislature could not divide the right of being heard into different parts and provide a particular Tribunal for leading evidence and another Tribunal having a higher experience and position to re-examine the entire evidence recorded, by way of an independent remedy. whether this remedy would be an appeal must depend upon the language used by the Legislature. It may be that the functions performed by the Court under this remedy may have similarity with the functions performed otherwise by the Appellate Courts. It may be that the Legislature has resorted to this time saving devise by directing evidence to be recorded before the Deputy or Assistant Charity Commissioner and a further examination of that evidence by way of an appellate remedy by a higher departmental officer viz. Charity Commissioner. However, when the first remedy to approach to a Civil Court is made available the legislature has in terms provided an application and not an appeal. It would not be therefore proper to confuse the nature and the functions of the court under Section 72 with the technical remedy of an appeal which has to be so provided by the Legislature.

15. We will at once point out that the learned Judge who dealt with the case of (1956) 58 Bom LR 894 had a very different proposition before them. Primarily they were concerned with the obstacle of limitation which was being created in the way of a party by resorting to the technical provisions of chapter 11 and more particularly Section 75 of the Act. It is in that context when the days for obtaining copies were to be excluded that they read the remedy provided under section 72 of the Act in a liberal way for the purpose of brining it under the provisions of Section 12 (2) and 29 (2) of the Limitation Act of 1908. While making this liberal construction, the language used by the learned Judge is worth nothing. They point out that the application to the Court was in the nature of an appeal but they have no where called it as an appeal so provided by the Legislature. While considering the nature and type of function performed by the court under section 72, the learned Judges have constructed liberally the provisions of section 75 of the Act as also section 12 (2) and 29 (2) of the Limitation Act, 1908. It is possible that the courts might look at the particular provisions in a liberal manner for the purpose of technical provisions like Limitation Act. However, when it comes to the construction of provision which awards a positive right to a party it would be appropriate that the provisions are construed in a manner which are conducive to the right of the party.

16. In the present case the narrow questions, whether the Letters Patent Appeal could be filed, as the language goes as of right or must be filed only with the leave of the learned Single Judge? Undoubtedly both are rights of appeal. In one case the party can directly approach a Division Bench and try its luck. In the other case, he has first to obtain leave of the Judge, who had decided the matter, and them file the appeal. Undoubtedly, the second remedy is more onerous and seeks to curtail the right of appeal to some extent. If it could be held in the present case that the court under Section 72 was itself exercising the appellate jurisdiction, then undoubtedly the present appeals filed without the leave of the learned Single Judge are incompetent. Such appeals lie only with his leave and not otherwise. if otherwise it could be held, as the natural meaning of the expression suggest, that section 72 provides a remedy by way of an application only, and though the inquiry held by the District Court seems to have some semblance of an appellate jurisdiction, it is not a jurisdiction created by the legislature as an appellate jurisdiction. It is only where the jurisdiction is appellate and a decision in exercise of such jurisdiction is given, and the High Court has also exercised the appellate jurisdiction, that the but contemplated by Clause 15 of the Letters Patent of obtaining leave of the Court seems to come in.

17. Shri Paranjpe's argument in the present case comes to this. Construe the provisions under Section 72 (1) as exercise of appellate jurisdiction of the liberal construction by looking to the type of functions performed under that section. Even though therefore the Legislature does not style the exercise of that jurisdiction as appellate jurisdiction, we should describe it so and on that assumption deprive the present appellants of their legitimate remedy of an appeal to a Division Bench of this court under clause 15 of the Letters Patent. This would be against the normal canons of construction. Even in the judgment on which Mr. Paranjpe relies, viz. 58 Bom LR 894, the approach of the learned obstacle like the limitation could be got over by liberal construction. The idea therefore is to keep a remedy alive and it should not be foiled on mere technicalities of the provisions. if that principle is applied to the present case, we think is not warranted at all. apart from the fact that the language of Section 72 does not seem to permit us to take that view.

18. We are therefore satisfied that whatever the type of function that the Court performs under Section 72 of the Act when an application is received by it from any aggrieved party, it is certainly not appellate jurisdiction as is contemplated by clause 15 of the Letters Patent. If that is so, the decree or the order of the District Court was not in the exercise of the appellate jurisdiction, even though the High Court exercised the appellate jurisdiction, while hearing First appeals No. 830 and 831 of 1965.

19. The preliminary objection thus fails and is rejected.

20. Orders accordingly.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //