NITYANAND M THAKORE Vs. CHARITY COMMISSIONER

JUDGEMENT

(1.) Rule. Mr.Desai waives service of rule on behalf of respondent Nos 1 & 3 and Mr.Macwan waives service of rule on behalf of respondent Nos 3 & 4. With the consent of learned advocates for the parties matter is taken up for final hearing today.

(2.) The question arises in this petition is whether the Deputy Charity Commissioner has power to accept the deposition by affidavit as per amended provisions of O.18 R.4 of Civil Procedure Code while holding the inquiry under section 22 of Bombay Public Trusts Act or not.

(3.) The short facts of the case as per the petitioner are that the First District Church Brethern (hereinafter referred to as "the Brethern Church" for short) came to be formed by registration of the society as per the Societies Registration Act in the year 1944. The said Brethern Church subsequently in the year 1960 came to be registered as Bombay Public Trust under Bombay Public Trusts Act, 1950 (hereinafter referred to as "the Act" for short). The respondent No.3-Church of North India Gujarat Diocease Trust (hereinafter referred to as "NIGD Trust" for short) came to be registered in the year 1980. However, it is the case of NIGD trust-respondent No.3 herein that the aforesaid Brthern Church came to be dissolved and the respondent No.3 trust is the successor of all rights and properties of the Brethern Church. Respondent No.3-trust for asserting such right on account of dissolution and merger filed Civil Suit No.72/79 in the court of Civil Judge (SD) Bharuch and the said suit came to be decreed in favour of respondent No.3 on 31.3.84. Reg.Civil Appeal No.72/84 came to be preferred against the said judgment and decree of the learned Civil Judge (SD), Bharuch before the Court of Extra Asst.Judge, Bharuch and the said appeal came to be allowed on 11.8.1986 and the said decision of the Ld.Extra Asst.Judge in Reg.Civil Appeal No.72/84 was challenged by preferring Second Appeal No.303/86 before this court and ultimately as per the decision dated 2.4.03 passed by this court (Coram: K.M.Mehta,J) the said second appeal is dismissed. There is no dispute on the point that against the said decision of this court in SA No.303/86 SLP No.8665/03 is preferred by the respondent No.3 before the Apex Court and the Apex Court has issued notice and the matter is pending at that stage.