Case Note & Summary
The judgment concerns a review petition filed by Ganesh N. Salunkhe against an order dated 4 February 2015 passed in Writ Petition No. 174 of 2015. The writ petition was instituted by Nizampur Vibhag Shikshan Prasarak Mandal (Trust), of which Salunkhe was a trustee. The order directed that Salunkhe be impleaded as a respondent in Appeal No. 29 of 2008 pending before the Charity Commissioner. Salunkhe, claiming he was not a party to the writ petition, sought review on two grounds: first, that no direction to implead him could be made in a proceeding to which he was not a party; second, that such direction was contrary to Order XLI Rule 20 of the Code of Civil Procedure, 1908 (CPC) as interpreted by the Bombay High Court in Sheikh Yusuf Haji Sheikh Usman & Ors. vs. Haji Mohammad Jamil Ahemad & Ors., particularly since the remedy of appeal against him was barred by limitation. The Court noted that during the hearing of the writ petition, a specific query was made to the counsel for the Trust, who stated that the petition was filed on instructions from Salunkhe and Shankarlal Mehta, both trustees. This was recorded in the order. The Court found that Salunkhe was effectively a party through the Trust and that the direction to implead him was not an error apparent on the record. The review petition was dismissed, and the civil application for condonation of delay was allowed.
Headnote
A) Civil Procedure - Review - Error Apparent on Record - Order XLI Rule 20 CPC - The review petitioner, a trustee of the Trust, sought review of an order directing his impleadment in an appeal before the Charity Commissioner. The Court held that since the writ petition was filed by the Trust on instructions from the petitioner and another trustee, the petitioner was effectively a party. No error apparent on record was found, and the review was dismissed. (Paras 1-6)
B) Civil Procedure - Impleadment - Order XLI Rule 20 CPC - The Court noted that the direction to implead the review petitioner was not contrary to Order XLI Rule 20 CPC as interpreted in Sheikh Yusuf Haji Sheikh Usman & Ors. vs. Haji Mohammad Jamil Ahemad & Ors., since the petitioner was already represented by the Trust and the remedy of appeal was not barred by limitation. (Paras 3-5)
Issue of Consideration
Whether the order dated 4 February 2015 directing impleadment of the review petitioner in Appeal No. 29 of 2008 before the Charity Commissioner suffers from an error apparent on the record warranting review.
Final Decision
The civil application for condonation of delay is allowed. The review petition is dismissed. No order as to costs.
Law Points
- Review jurisdiction limited to errors apparent on record
- Order XLI Rule 20 CPC
- impleadment of parties in appeal
- condonation of delay
Case Details
2016 LawText (BOM) (01) 49
Civil Application (ST) No. 23727 of 2015 in Review Petition (ST) No. 23726 of 2015 in Writ Petition No. 174 of 2015
Mr. Balkrishna Joshi for Applicant; Mr. R. A. Thorat, Senior Advocate i/b. Ms. Gauri Jadhav with Mr. Tushar Jadhav for Original Petitioner; Mr. C. G. Gavnekar for Respondent Nos. 3 to 7
Nizampur Vibhag Shikshan Prasarak Mandal & Ors.
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Nature of Litigation
Review petition against an order in a writ petition filed by a trust, seeking to set aside a direction to implead the review petitioner in an appeal before the Charity Commissioner.
Remedy Sought
The review petitioner sought review of the order dated 4 February 2015 and setting aside of the direction to implead him in Appeal No. 29 of 2008.
Filing Reason
The review petitioner claimed he was not a party to the writ petition and that the direction to implead him was contrary to Order XLI Rule 20 CPC.
Previous Decisions
The order dated 4 February 2015 in Writ Petition No. 174 of 2015 directed impleadment of the review petitioner in Appeal No. 29 of 2008 before the Charity Commissioner.
Issues
Whether the review petitioner, though not a named party, was effectively a party to the writ petition through the Trust.
Whether the direction to implead the review petitioner in the appeal was contrary to Order XLI Rule 20 CPC.
Submissions/Arguments
The review petitioner argued that he was not a party to the writ petition and no direction to implead him could be made.
The review petitioner argued that the direction was contrary to Order XLI Rule 20 CPC as interpreted in Sheikh Yusuf Haji Sheikh Usman & Ors. vs. Haji Mohammad Jamil Ahemad & Ors., especially since the remedy of appeal against him was barred by limitation.
Ratio Decidendi
A review petition lies only if there is an error apparent on the face of the record. Since the review petitioner was a trustee and the writ petition was filed on his instructions, he was effectively a party. The direction to implead him was not contrary to Order XLI Rule 20 CPC as the remedy of appeal was not barred.
Judgment Excerpts
The civil application, which seeks condonation of delay in instituting the review petition is hereby allowed and the delay is condoned.
The review petition has been instituted by Ganesh N. Salunkhe, who has claimed that he was not a party to writ petition no. 174 of 2015...
Admittedly, review petitioner – Ganesh Salunkhe is a Trustee of the said Trust.
In response, Tushar Jadhav made statement that though Shankarlal Mehta and Ganesh Salunkhe may not be the petitioners themselves, the petition has been filed by the Trust, of which the two said persons are the trustees...
Procedural History
The writ petition No. 174 of 2015 was filed by the Trust. On 4 February 2015, an order was passed directing impleadment of Ganesh Salunkhe in Appeal No. 29 of 2008 before the Charity Commissioner. Salunkhe filed a review petition along with a civil application for condonation of delay. The civil application was allowed and the review petition was heard on merits and dismissed.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order XLI Rule 20
