Oral Judgment:

Rule. Rule returnable forthwith. Heard finally by consent of parties.

2. An order made by the Joint Charity Commissioner, Amravati, on an application in the pending appeal purported to be under Section 70 of the Bombay Public Trusts Act, 1950 (for short the) directing verification of the disputed signatures on the alleged resignations and opinion of expert thereon is under challenge in these petitions.

3. Mr. Saboo, learned counsel for the petitioners, vehemently argued that such application could have been moved by the respondents before the Assistant Charity Commissioner- the first Court but that was not done and, therefore, now allowing the respondents referring the matter to the hand writing expert and then recording the evidence would be allowing the respondents to fill in the lacuna. He then submitted that provisions of Section 70(3) of thecannot be allowed to be utilized for filling up the lacuna. He then submitted that in case the appellate court records additional evidence and also records a finding on that issue about the alleged resignations, the petitioners would lose their right of appeal and therefore the appellate court ought to have remitted the matter to the Assistant Charity Commissioner for the said purpose.

4. Per contra, Mr.De, learned counsel for respondent no.2 relying on the provisions of Section 70(3) of theurged that the Legislature in its wisdom has provided for a specific power in the appellate court to record additional evidence and then dispose of the appeal. He submitted that the crux of the matter is about the truth or otherwise of the alleged resignations and, therefore, the appellate authority has rightly adopted the course of referring the documents to the hand writing expert to find out the truth. He submitted that the petitioners have ample opportunity to cross-examine the said witness, namely the hand writing expert and also lead evidence in rebuttal, if so advised.

5. Learned A.G.P. supported the impugned order.

6. Having heard the learned counsel for the parties and having perused the provision of Section 70(3) of the Act, I find that the appellate court has been empowered by the Legislature to record additional evidence. Provisions of section 70(3) reads thus :

"70. (1) .....

(2) .....

(3) The Charity Commissioner may, after hearing the appellant or any person appearing on his behalf for reasons to be recorded in writing either annul, reverse, modify or confirm the finding or the order appealed against or he may direct the Deputy or Assistant Charity Commissioner to make further inquiry or to take such additional evidence as he may think necessary or he may himself take such additional evidence."

Perusal of the above provisions show that the appellate court has an option either to record the evidence himself or direct the subordinate court to record the evidence or make further enquiry. The appellate court can himself record the additional evidence in terms of the said provision.

7. Provisions of Order 41 Rule 27 of the Code of Civil Procedure reads as under:

"27. Production of additional evidence in appellate Court.- (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if -

(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or

((aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or)

(b) the Appellate 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 Appellate Court may allow such evidence or document to be produced, or witness to be examined.

(2) Whenever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission."

Perusal of clauses (a), (aa) & (b) of sub-rule (1) show that such permission to lead additional evidence can be granted if any of the circumstances enumerated in the above clauses require. Clauses (a) & (aa) clearly define the limits of powers of appellate court when an order allowing additional evidence can be made. These two clauses (a) and (aa) are the clauses alike sub-section (3) of Section 70 of the. It is thus seen that the power under sub section (3) of Section 70 of thewould consequently be not power akin to the one provided Rule 27 of the Code of Civil Procedure. As per clause (b) of sub-rule (1) of Rule 27 of the Code of Civil Procedure if the appellate court requires or feels any particular additional evidence to be necessary to enable it to pronounce a judgment, this clause (b) can be invoked. In my opinion, the scope of sub-section (3) of Section 70 of theis broader than the provisions of Order 41 Rule 27 of the Code of Civil Procedure.

8. In the instant case, the appellate court has categorically found that the issue whether some of the trustees have resigned or not is the bone of contention between the parties. It is true that the respondents did not take care when the matter was before the Assistant Charity Commissioner to request the Court for sending the documents for examination by hand writing expert, but that does not mean that truth should not be found out. The appellate court therefore felt the dire need or necessity of taking help of hand writing expert to find out whether the alleged documents of resignation are genuine or not. The appellate court has further decided to record additional evidence.

9. Insofar as the argument advanced by Mr. Saboo that his right to file appeal would be lost is concerned, according to me the same is absurd. A specific provision has been made in sub-clause (3) of Section 70 of thewhich empowers the appellate court to take additional evidence and hence the submission is misconceived.

10. Mr. De, learned counsel for respondent no.2, submits that by this time the report of the hand writing expert has been placed on record and not only that affidavit by way of evidence has also been filed and now the only thing that has to be done is that the petitioners have to cross-examine that witness. Needless to say that the petitioners will have liberty to cross-examine the said witness or any other witness who will be examined by the appellate authority and the appellate authority will give sufficient opportunity to the petitioners to do so.

11. For all these reasons, I do not find that the appellate authority has committed any error in allowing the application (Ex.12). The impugned order is, therefore, maintained. Appellate authority to dispose of the appeal expeditiously. Rule accordingly. No order as to costs.