Gujarat High Court
Billimora Parsi Jarthosti Anjuman ... vs Savaksha Gayomal Dandiwalla And Ors. on 31 August, 1990
Equivalent citations: (1991)1GLR54
JUDGMENT J.N. Bhatt, J.
1. Since the question involved in this revision is circumscribed to a narrow compass, it would be pertinent to refer a few facts leading to the rise of this revision.
Present applicants are the original plaintiffs, who instituted the Regular Civil Suit No. 137 of 1983 against the opponents No. 1 to 5, who are the original defendants. In the course of the proceedings, the plaintiffs applied for amendment in the plaint for addition of two persons on the plaintiff s side and two persons on the defendant's side. This application was necessitated in view of the reconstitution of Trust Board by virtue of the order dated 9-7-1984 under Section 47A of the Bombay Public Trust Act in Misc. Civil Application No. 60 of 1984 by the learned District Judge, at Valsad.
2. Pursuant to the aforesaid order of the learned District Judge, at Valsad, the original plaintiffs in trial Court, requested that out of the four new Trustees, two trustees were sought to be impleaded as plaintiffs and remaining two trustees were sought to be joined on defendant's side. However, the learned trial Court Judge came to the conclusion that two persons willing to be joined as plaintiffs are allowed to be joined as such, but the learned trial Court Judge was pleased to reject the second part of the application that the remaining two trustees should be impleaded as defendants. Only reason which is mentioned in the impugned order by the learned trial Court Judge is that as there was not any material on record to show that remaining two trustees were unwilling to be impleaded as plaintiffs, the plaintiffs cannot be permitted to add them on defendants side. Thus, the application of the original plaintiffs dated 2-8-1984 came to be partly allowed and partly rejected by the learned Civil Judge (J.D.) at Gandevi, on 29-11-1984.
3. Being aggrieved by the said order, the original plaintiffs have now come up before this Court in revision under Section 115 of the Civil Procedure Code.
4. When the matter was called out, neither parties nor their lawyers were present. The advocate for the applicants had expired. The Court had therefore, issued notice to the applicants. They are served. However, they are absent today. The opponents are also duly served. Nobody has appeared either in person or through advocate when the matter was taken up today for hearing.
5. Having seen and examined the facts which are, in short, enumerated, there in before and while viewed in the light of the provisions of Order 6 Rule 17 read with Order 1 Rule 10 of the Civil Procedure Code, it becomes crystal clear that the impugned order is patently illegal. The learned trial Court Judge has committed a serious error in partly rejecting the application and not allowing the remaining two trustees to be added on the side of the defendants. Obviously, in a body like a Trust, when all Trustees are not on good terms, or by any other reason, are unable to join on plaintiffs side, then in that case, they are required to be impleaded as defendants, and that is absolutely necessary so as to effectively and effectually adjudicated upon the question in focus. Unfortunately, the learned trial Court Judge has failed to appreciate this aspect. When there is a specific demand and request that four trustees, newly nominated by the District Court after the filing of the suit, should be brought on record and two of them being ready to be impleaded as plaintiffs and the remaining two were sought to be impleaded as defendants, such a request on the part of the plaintiffs is quite genuine and justified. There was no reason for the learned trial Court Judge to reject a part of the prayer by holding that remaining two trustees cannot be allowed to be impleaded as defendants. The order under challenge is quite illegal and perverse, therefore, in the opinion of this Court, this revision is full of substance and requires to be allowed.
6. In the result, the revision application is allowed. The impugned order passed on 29-11-1984 and the second order passed on the same day for the similar prayer are quashed. The prayer in Exhs. 90 and 92 in the suit below, for impleading two trustees as defedants, is granted. The plaintiffs shall carry out necessary amendment in pursuance of this order.
Rule is made absolute to the aforesaid extent with no order as to costs.