LexSAIYAD MOHAMMAD BAKER EL-EDROOS (DEAD) BY LRS. versus ABDULHABIB HASAN ARAB AND ORS.
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A SAIY AD MOHAMMAD BAKER EL-ED ROOS (DEAD) BY LRS. v. ABDULHABIB HASAN ARAB AND ORS. ),.._ ~, APRIL 2, 1998 B [K.VENKATASWAMI AND A.P. MISRA, JJ.] Trusts and Trustees : Bombay Public Trusts Act, 1950-Section 50A- Application under, moved in the prescribed form by two persons.for initiating c proceeding for settlement of scheme of a public trust-Demise of one of the applicants-Belated application for substitution by the son of the deceased applicant and similar application by another set of two persons for being joined also as applicants in the said scheme-Applications allowed by the Charity Commissioner-Challenge to on the grounds that the heirs of the deceased applicant not being brought on record within the prescribed time, D the proceedings would abate by virtue of provisions under the C.P. C-Held, the proceedings under Section 50A of the Bombay Public Trust Act, 1950 would not abate and the Charity Commissioner has powers to grant substitution even if belated or add parties in the said proceedings-Sections 3, 35, 36, 36B, 37, 39, 40, 41, 4/A, 4/B, 47A, 69. E Bombay Public Trust Rules, 1951/Presidency Small Causes Courts Act, 1882-Rule 71 Sections 6, 9-Proceedings before the Charity Commissioner- Governance of-Held, Civil Procedure Code not applicable to such proceedings-It is the High Court by rule to prescribe the procedure which is to be followed by the Small Causes Court and not what is provided under F Civil Procedure Code-Contention that proceedings before the Charity Commissioner to be what is provided in Civil Procedure Code, rejected-- A Code of Civil Procedure,1908. ... Procedural law-Held, is always subservient to the substantive law, is always in aid of justice and not in contradiction or to defeat the very object G which is sought to be achieved. An application under Section SOA of the Bombay Public Trusts Act, 1950 was field by two persons before the Charity Commissioner for settling a scheme of a public trust. One of the applicants died and his son moved an application for substitution after lapse of long time. Similar application was H made by another set of two persons claiming interest in the said trust. The 648 S.M. BAKER EL-EDROOSI v. ABDULHABIB HASAN ARAB 649 Charity Commissioner allowed both the substitution applications. The said A order of the Charity Commissioner was challenged unsuccessfully by the appellant before the City Civil Court, Single Judge of the High Court and finally before the Division Bench of the High Court. Hence, the present appeal. On behalf of the appellant it was contended that in view of Rule 7 of B the Bombay Public Trust Rules, 1951 and section 6 of the Presidency Small Causes Courts Act, 1882 the Charity Commissioner was bond to follow the procedure as prescribed by the Civil Procedure Code; and that when one of the applicants died and his heirs were not brought on record within the prescribed time, the proceedings would abate by virtue of provisions under the Civil Procedure Code. C Dismissing the appeal, this Court HELD: 1.1. The proceeding under Section 50A of the Bombay Public Trust Act, 1950 would not abate and the Charity Commissioner has powers to grants substitution even if belated or add parties in the said proceedings. D (657-D] 1.2. In view of various provisions, object of the Act, and the Charity Commissioner being clothed with sufficient power to deal with all exigencies where public trust or its trustees stay away from its legitimate path and where the materials are before him or before him by the said two persons, to hold abatement of proceedings on application of any procedural laws not E only would amount to the curtailment of his power but make him spineless and helpless to do anything in the matter of public trust eroding the very object of the Act. (654-H; 655-A] 1.3. The concept of abatement under Section 50A would never arise, specially in such a situation where for achieving such an objective the F Charity Commissioner in addition is capped with power to initiate suo motu. In this case when initiation of proceedings is in accordance with law which requires consideration for settling a scheme for better management , the proceedings cannot culminate or be defeated on the principle of abatement as provided in Civil Procedure Code. Once the material is brought before G him, he may on the materials or after inquiry or after giving opportunity to the person concerned or tr
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