R.M. Lodha, J.
1. By this Civil Revision Application filed under section 115 of C.P.C., the petitioners herein seek to challenge the legality and correctness of the order dated 27-9-90 passed by the Bombay City Civil Court refusing petitioners' Chamber Summons No. 774 dated 6-8-90 in Suit No. 4539 of 1989.
2. Shri Vijay Merchant the well-known social worker and philanthropist was concerned with various trust and philanthropy institutions and he was also the managing trustee of Sir Vithaldas Damodar Thackerey Charitable Trust which was established by indenture dated 18th October, 1984. The said trust is registered and is public charitable trust. Sir Vijay Merchant died on 27-10-87. The present petitioners No. 1, 2 and 3 are his sons, wife and daughter respectively. The respondents No. 1 and 2 herein are brothers of Shri Vijay Merchant and respondents No. 4 and 5 are his nephews. The present petitioners (for short, 'plaintiffs') filed a suit in the Court of Bombay City Civil Court at Bombay against the respondents No. 1 to 7 herein after obtaining consent of the Charity Commissioner, State of Maharashtra, Bombay for filing the said suit. The plaintiffs averred in the plaint that the respondents No. 1 to 6 herein (for short, 'defendants No. 1 to 6') are the present trustees of Shri Vallabhdas Damodar Charitable Trust (for short, 'trust') and the plaintiffs are the persons having interest in the said public trust and all of them are beneficiaries of the said trust. According to plaintiffs, Shri Vijay Merchant prior to his death discovered certain irregularities committed on trust by 4th defendant Sudhir Thackerey in active collusion with his brother Chandrahas Thackerey who is not a trustee in the trust, and, Mr. Jagdish Thackerey 5th defendant. Shri Vijay Merchant found that these persons have committed gross breach of trust and had also misconducted themselves in collusion to the prejudice of the trust. The plaintiffs alleged that there was deliberate siphoning of the trust properties tantamounting to misappropriation of trust fund and said persons had proceeded to profiteer personally at the cost of the trust and had in fact committed breach of trust in respect of trust property. According to the plaintiffs for the reasons stated and circumstances narrated in the plaint, day-to-day activities of the trust had come to standstill. The plaintiffs required complete investigation into the affairs of 4th defendant Sudhir Thackerey and 5th defendant Jagdish Thackerey in regard to the acts of conversion, misrepresentation, breach of trust, etc. in the matter of shares, transfers, and also illegal import of Mercedes car and misuse of it by Shri Sudhir Thackerey. It is further case of the plaintiffs that both defendants No. 4 and 5 were financially corrupt and had rendered themselves liable to be removed as trustees of the trust. The plaintiffs made numerous requests to the trustees for remedial action, but of no avail. The plaintiffs averred in the plaint that on the face of several acts of omissions and commissions committed by defendant No. 4 in active co-operation with defendant No. 5, it was necessary, just and proper that they should be removed as trustees of the trust. According to plaintiffs, defendant No. 4 Sudhir Thackerey in collusion with defendant No. 5 Jagdish Thackerey has misappropriated share holding which formed the corpus of the trust to their names or to the companies where the said Shri Sudhir Thackerey and Jagdish Thackerey have interests. According to plaintiffs the trust which came to be created by these trustees were on the face of it bogus trusts and never carried-out any philanthropic work and the objectives of these 31 trusts with active participation of defendant No. 4 Shri Sudhir Thackerey and Shri Chandrahas Thackerey as trustees were never disclosed to the relevant trustees of the trust. The plaintiffs alleged that other property in the form of shares has been siphoned by defendant No. 4 and defendant No. 5 through the medium of 31 trusts of companies in which both of them have control. ECK Houbold and Laxmi Ltd. is a company in which defendant No. 5 is executive and Chandrahas is director and the properties of the trust siphoned of by these defendants should be returned to the trust. The plaintiffs submitted in the plaint that it was just and necessary in the circumstances that these 31 companies should be persuaded not to continue to hold to the illegal benefits derived by them from the transfer of shares into their company and they be ordered to return all these shares to the trust or in any event to the 31 trusts subject, however, to the main trust being represented in these 31 trusts. The VDT trust property comprising of 6 floor of Vithal Chambers being used by Hindustan Spinning and Weaving Mills Ltd. at the instance of defendant No. 4 Shri Sudhir Thackerey should be ordered and directed to be returned back to the trust forthwith and the belongings of Hindustan Spinning and Weaving Mills Ltd. be removed. The plaintiffs in the background of the aforesaid averments prayed for declaration and injunction. The plaintiffs thus prayed that it be declared that defendants Nos. 4, 5 and 6 have acted to the prejudice of the trust and or misconducted themselves and/or violated the provisions of Bombay Public Trust Act and are, therefore, liable for actions in law and defendants Nos. 4 to 6 be removed as trustees of Sir Vithaldas Damodar Trust. The prayer was also made that an independent audit and enquiry be taken of accounts and transactions of the trust in the matters concerning the donation of trust and its shares and investments to the 31 trusts named as Sir V.D. Thackerey Charitable Trust Nos. 1 to 31 and defendant No. 4 be ordered to return the investment in shares transferred to subsidiaries of ECK Haubold and Laxmi Ltd. and have them transferred to the trust or in the alternative defendant No. 4 Shri Sudhir Thackerey be ordered to reimburse the trust in cash equivalent in money of shares and other investments which were made over to the 31 trusts on the basis of valuation of the shares and investments as on the date of transfer together with interest computed thereon, and, that all the donations of shares and investment made over to the 31 trusts be declared to be void and ultravires of the trust deed, illegal and improper and of no binding effect on the trust. The plaintiffs also prayed that Shri Amar Vijay Merchant and Mrs. Aditi Santhnam be appointed as trustees of the trust. The interim-relief's pending hearing and final disposal of the suit were also prayed.
3. During pendency of the suit, the plaintiffs took out chamber summons praying therein that leave be granted to them to amend the plaint by adding respondents Nos. 8 to 43 herein as defendants, and for adding and amending pleadings as proposed in the Schedule Exh. 'C' to the affidavit in support of chamber summons.
4. Proposed schedule of amendment read thus :
'EXHIBIT 'C'
SCHEDULE OF AMENDMENTS
(1) In the title of the suit, as against the name of the 4th defendants, add the following words viz. 'in his individual capacity as also a trustee of the 31 public trusts known as Sir Vithaldas Damodar Thackerey Charitable Trust Nos. 1 to 31 the defendants Nos. 9 to 39. Add the following further defendants as follows :
(8) Chandrahas Thackerey of Bombay Indian Inhabitant, having his office at Sir Vithaldas Chambers 16, Bombay Samachar Marg, Bombay-400 023 as a trustee of the 31 trusts respectively known as Sir Vithaldas Damodar Thackerey Trust Nos. 1 to 31.
(9) Sir V.D.T. Charitable Trust, No. 1 P.T.R. No. E-7827 (Bom.),
(10) Sir V.D.T. Charitable Trust No. 2, P.T.R. No. E-7828 (Bom.),
(11) Sir V.D.T. Charitable Trust No. 3, P.T.R. No. E-7829 (Bom.),
(12) Sir V.D.T. Charitable Trust No. 4, P.T.R. No. E-7830 (Bom.),
(13) Sir V.D.T. Charitable Trust No. 5, P.T.R. No. E-7831 (Bom.),
(14) Sir V.D.T. Trust No. 6, P.T.R. No. E-7832 (Bom.),
(15) Sir V.D.T. Charitable Trust No. 7, P.T.R. No. E-7833 (Bom.),
(16) Sir V.D.T. Charitable Trust No. 8, P.T.R. No. E-7834 (Bom.),
(17) Sir V.D.T. Charitable Trust No. 9, P.T.R. No. E-7835 (Bom.),
(18) Sir V.D.T. Charitable Trust No. 10, P.T.R. No. E-7836 (Bom.),
(19) Sir V.D.T. Charitable Trust No. 11, P.T.R. No. E- 7837 (Bom.),
(20) Sir V.D.T. Charitable Trust No. 12, P.T.R. No. E-7838 (Bom.),
(21) Sir V.D.T. Charitable Trust No. 13, P.T.R. No. E-7839 (Bom.),
(22) Sir V.D.T. Charitable Trust No. 14, P.T.R. No. E-7840 (Bom.),
(23) Sir V.D.T. Charitable Trust No. 15, P.T.R. No. E-7841 (Bom.),
(24) Sir V.D.T. Charitable Trust No. 16, P.T.R. No. E-7842 (Bom.),
(25) Sir V.D.T. Charitable Trust No. 17, P.T.R. No. E-7843 (Bom.),
(26) Sir V.D.T. Charitable Trust No. 18, P.T.R. No. E-7844 (Bom.),
(27) Sir V.D.T. Charitable Trust No. 19, P.T.R. No. E-7845 (Bom.),
(28) Sir V.D.T. Charitable Trust No. 20, P.T.R. No. E-7846 (Bom.),
(29) Sir V.D.T. Charitable Trust No. 21, P.T.R. No. E-7847 (Bom.),
(30) Sir V.D.T. Charitable Trust No. 22, .P.T.R. No. E-7848 (Bom.),
(31) Sir V.D.T. Charitable Trust No. 23, P.T.R. No. E-7849 (Bom.),
(32) Sir V.D.T. Charitable Trust No. 24, P.T.R. No. E-7850 (Bom.),
(33) Sir V.D.T. Charitable Trust No. 25, P.T.R. No. E-7851 (Bom.),
(34) Sir V.D.T. Charitable Trust No. 26, P.T.R. No. E-7852 (Bom.),
(35) Sir V.D.T. Charitable Trust No. 27, P.T.R. No. E-7853 (Bom.),
(36) Sir V.D.T. Charitable Trust No. 28, P.T.R. No. E-7854 (Bom.),
(37) Sir V.D.T. Charitable Trust No. 29, P.T.R. No. E-7855 (Bom.),
(38) Sir V.D.T. Charitable Trust No. 30, P.T.R. No. E-7856 (Bom.),
(39) Sir V.D.T. Charitable Trust No. 31,
P.T.R. No. E-8291 (Bom.),
All of the defendants Nos. 9 to 39 abovenamed being public trusts having their office at Sir Vithaldas Chambers, 16, Bombay Samachar Marg, Bombay-400 001 sued through their trustee Shri Chandrahas Thackerey, the defendant No. 8 (the other trustee being the defendant No. 4)
(40) Eck Haubold & Laxmi Ltd., a company incorporated under the Companies Act, 1956 and having its office at Sir Vithaldas Chambers, 16, Bombay Samachar Marg, Bombay-400 001.
(41) Aristocrat Investments Ltd., a company incorporated under the Companies Act, 1956 and having its registered office at Sir Vithaldas Chambers, 16, Bombay Samachar Marg, Bombay-400 001.
(42) Sukta Investment Ltd., a company incorporated under the Companies Act, 1956 and having its registered office at Sir Vithaldas Chambers, 16, Bombay Samachar Marg, Bombay-400 001.
(43) Western Holding Ltd., a company incorporated under the Companies Act, 1956 and having its registered office at Sir Vithaldas Chambers 16, Bombay Samachar Marg, Bombay-400 001....Defendants.
(2) In paragraph 2 at the end of the paragraph add the following sentences:
'The defendant No. 8 is a trustee of the 31 public trusts alongwith the defendant No. 4 known as Sir Vithaldas Damodar Thackerey Charitable Trust Nos. 1 to 31 viz., the defendants Nos. 9 to 39 is defendant No. 40 viz., Eck Haubold & Laxmi Ltd., are a public limited company and a Thackerey family group company in which the affairs and management including the composition of the Board of Directors are presently being controlled by the defendants Nos. 4, 5 and 8 and/or their nominees. The defendant Nos. 9 to 39 are being sued through their trustee the defendant No. 8 under leave of Court duly obtained in pursuance of Order 1, Rule 8 of Civil Procedure Code.'(3) In paragraph 15 in the sentence starting with the words the plaintiffs say that in as much as ..... and ending with the word 'being represented in these 31 trusts', after the words 'Shri Chandrahas Thackerey is a director' and the following words viz., 'and which company is controlled by Sudhir Thackerey through his nominees and in which company all of these persons claim substantial control'.
(4) Prayer (d) be amended by the incorporation of the words 'and/or defendant No. 5' after the words the defendant No. 4.
(5) The following prayer be added as e(i) after the present prayer (e) in the plaint that the defendants Nos. 4,5 and 8 and/or the defendants Nos. 40,41,42 and 43 be permanently restrained by an order of this Hon'ble Court from transferring, selling, disposing off and/or otherwise howsoever parting with all that the shares of Hindustan Spg. & Wvg. Mills Ltd., originally belonging to Sir Vithaldas Damodar Thackerey Charitable Trust and donated to the 31 trusts and stated to be finally transferred to the defendants Nos. 40 to 43.
6. Prayer (g) be amended by the incorporation of the words 'and the shares purchased from the 31 trusts now in the hands of the defendants Nos. 40 to 43' after the words Santacruz, Bombay.
7. In prayer (n) instead of the words prayers (g) to (m) above substitute the words (e) to (m) above.'
5. The said chamber summons was contested by defendants and affidavits-in-reply were filed by existing defendants as well as proposed defendants.
6. The trial Court heard the arguments of the plaintiffs, existing defendants as well as proposed defendants and by the order dated 27-9-90 impugned in the present Civil Revision Application, dismissed the chamber summons on the ground that the consent of the Charity Commissioner under section 51 of the Bombay Public Trust Act was necessary before the amendment could be allowed and since the plaintiffs had not obtained such permission before seeking amendment, the chamber summons could not be granted.
7. Mr. Sinhan, learned Counsel appearing for the plaintiffs/petitioners strenuously urged that by the proposed amendment neither any substantial change in the character of the suit would be made nor the scope of the suit was sought to be enlarged and, therefore, Court below seriously erred in holding that consent of the Charity Commissioner was required under section 51 of the Bombay Public Trust Act before amendment could be allowed. According to him amendment in the title was only descriptive and by that it cannot be said that any change of the character of the suit was sought to be made or scope of the suit was sought to be enlarged. Mr. Sinhan also urged that by the proposed amendment no relief was sought against the proposed defendants trusts and these were only sought to be impleaded as proper parties. He would also contend that relief sought by the proposed amendment against proposed defendant No. 8 could not be construed to mean that relief was sought against 31 trusts. Mr. Sinhan submitted that proposed defendants Nos. 40 to 43 are companies and, therefore, no permission of the Charity Commissioner is required under the Bombay Public Trust Act. In support of his contentions Mr. Sinhan relies upon :
(1) Kashinath Mahadeo Mahajan and others, appellants v. Gangubai Keshav Nagarkar, respondents A.I.R. 1931 Bom 170; (2) Chandulal Suklal Shet and others, defendants-appellants v. Dagdu Mahadu Chaudhuri and others-plaintiffs-respondents A.I.R. 1925 Bom 342; (3) Mt. Ali Begam and others-appellants v. Badr-ul-Islam Ali Khan and others-respondents ; (4) Bapugouda Yadgounda Patil and others-defendants-appellants v. Vinayak Sadashiv Kulkarni and others-plaintiffs-respondents : AIR1941Bom317 ; (5) Tirumalai Tirupati Devasthanams Committee-appellants v. Udivar Krishnayya Shanbhaga and others-respondents A.I.R. 1943 MaD 466; (6) Kidar Nath Datt and others, petitioners v. Kishan Das Bajragi and others, respondents, ; (7) Mulchand Devidin and others, appellants v. Sugnamal Radhamal, respondent, : AIR1959Bom90 ; (8) C.R. Neelkanthan and another, appellants v. Saidapet Annadhana Samajam represented by its Secy. C. Bhaktavatsalam, respondents, : AIR1967Mad303 ; (9) Rajgopal Raghunathdas Somani, appellant v. Ramchandra Hajarimal Jhavar, respondent 1967 MH LJ 799; (10) R.M. Narayan Chettiyar and another, appellants v. N. Lakshmanan Chettiar and others, respondents : AIR1991SC221 ; (11) Sri Vedgiri Lakshmi Narasimha Swami Temple, appellant v. Indru Pattabhirami Reddi, respondent : [1967]1SCR280 .
8. Opposing the contentions aforesaid on the other hand, Mr. Soli Cooper, learned Counsel for the respondents No. 4 to 6 argued that by the proposed amendment, the scope of the suit was sought to be enlarged and, therefore, consent of the Charity Commissioner under the Bombay Public Trust Act was mandatorily required before amendment could be allowed. He submitted that the present controversy is squarely covered by the decision of this Court in Jessingbhai Jagjivgandas and others-plaintiffs v. Jivatlal Pratapsi and others-defendants A.I.R. 1947 Bom 487 and, therefore, Court below cannot be said to have committed any error much less an error of jurisdiction warranting interference by this Court under section 115 C.P.C. Mr. Cooper would also rely upon the decision of this Court in Bapugouda Yadgounda Patil and others-defendants appellants v. Vinayak Sadashiv Kulkarni and others-plaintiffs-respondents : AIR1941Bom317 and submitted that the case in hand was covered by the second category spelt-out by this Court in that case. Accordingly the amendments which enlarge the scope of the suit, for instance by allowing further reliefs, without substantially changing its character may be made with sanction of the Charity Commissioner only and that having not been done the amendment could not be allowed.
9. I have considered the rival contentions advanced by the learned Counsel for the parties and gone through the impugned order as well as the various authorities cited at Bar and the provisions of sections 50 and 51 of the Bombay Public Trust Act, 1950 (for short, 'B.P.T. Act') Sections 50 and 51 of the B.P.T. Act read thus :
'Section : 50. Suit by or against or relating to public trusts or trustees or others. In any case.---
(i) where it is alleged that there is a breach of public trust, negligence, misapplication or misconduct on the part of a trustee or trustees,
(ii) where a direction or decree is required to recover the possession of or to follow a property belonging or alleged to be belonging to a public trust or the proceeds thereof or for an account of such property or proceeds from a trustee, ex-trustee, alienee, trespasser or any other person including a person holding adversely to the public trust but not a tenant or licensee,
(iii) where the direction of the Court is deemed necessary for the administration of any public trust, or
(iv) for any declaration or injunction in favour of or against a public trust or trustee or trustees or beneficiary thereof, the Charity Commissioner after making such enquiry as he thinks necessary, or two or more persons having an interest in case the suit is under sub-clauses (i) to (iii), or one or more such persons in case the suit is under sub-clause (iv) having obtained the consent in writing of the Charity Commissioner as provided in section 51 may institute a suit whether contentious or not in the Court within the local limits of whose jurisdiction the whole or part of the subject-matter of the trust is situate, to obtain a decree for any of the following reliefs :---
(a) an order for the recovery of the possession of such property or proceeds thereof;
(b) the removal of any trustee or manager;
(c) the appointment of a new trustee or manager;
(d) vesting any property in a trustee;
(e) a direction for taking accounts and making certain enquiries;
(f) an order directing the trustees or others to pay to the trust the loss caused to the same by the breach of trust, negligence, misapplication, misconduct or wilful default;
(g) a declaration as to what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust;
(h) a direction to apply the trust property or its income cypres on the lines of section 56 if this relief is claimed alongwith any other relief mentioned in the section;
(i) a direction authorising the whole or any part of the trust property to be let, sold, mortgaged or exchanged or in any manner alienated on such terms and conditions as the Court may deem necessary;
(j) the settlement of a scheme, or variations or alteration in a scheme already settled;
(k) an order for amalgamation of two or more trusts by framing a common scheme for the same;
(l) an order for winding up of any trust and applying the funds for other charitable purposes;
(m) an order for handing over of one trust to the trustees of some other trust and deregistering such trust;
(n) an order exonerating the trustees from technical breaches, etc.;
(o) an order varying, altering, amending or superseding any instrument of trust;
(p) declaration or denying any right in favour of or against a public trust or trustee or trustees or beneficiary thereof and issuing injunctions in appropriate cases, or
(q) granting any other relief as the nature of the case may require which would be a condition precedent to or consequential to any of the aforesaid relief or is necessary in the interest of the trust:
Provided that no suit claiming any of the reliefs specified in this section shall be instituted in respect of any public trust, except in conformity with the provisions thereof :
Provided further that, the Charity Commissioner may instead of instituting a suit make an application to the Court for a variation or alteration in a scheme already settled :
Provided also that, the provisions of this section and other consequential provisions shall apply to all public trusts, whether registered or not or exempted from the provisions of this Act under sub-section (4) of section 1.
51. Consent of Charity Commissioner for institution of suit.:---
'(1) If the persons having an interest in any public trust intend to file a suit of the nature specified in section 50, they shall apply to the Charity Commissioner in writing for his consent. (If the Charity Commissioner after hearing the parties and making such enquiries (if any) as he thinks fit is satisfied that there is a prima facie case, he may within a period of six months from the date on which the application is made, grant or refuse his consent to the institution of such suit. The order of the Charity Commissioner refusing his consent shall be in writing and shall state the reasons for the refusal.
(2) If the Charity Commissioner refused his consent to the institution of the suit under sub-section (1) the persons applying for such consent may file an appeal to the (Maharashtra Revenue Tribunal constituted under the Bombay Revenue Tribunal Act, 1957,) in the manner provided by this Act.
(3) In every suit filed by persons having interest in any trust under section 50, the Charity Commissioner shall be a necessary party.
(4) Subject to the decision of the (Maharashtra Revenue Tribunal) in appeal under section 71, the decision of the Charity Commissioner under sub-section (1) shall be final and conclusive.'
10. The purpose and object of sections 50 and 51 are similar and identical to section 92 of C.P.C.
11. In Abdul Rehman Bapusaheb and others plaintiffs v. Cassum Ebrahim and others defendants, (supra) I.L.R. 1936 Bom 168 this Court took the view that amendment in the suit filed under section 92 C.P.C. may be permitted with the sanction of the Advocate-General as in England. In that case names of the two original defendants were deleted and one new defendant was added. By an amendment of the plaint, reliefs were sought against the newly added defendant. Davar, J., held that plaintiffs were not entitled to maintain suit against the added defendant because no sanction of the Advocate-General was obtained before he was made defendant and before the amendment of the plaint.
12. The view of Davar, J., in Abdul Rehman Bapusaheb and others (supra) came up for consideration before the Division Bench of this Court in Bapu Gouda Yadu Gouda Patil v. Vinayak Sadashiv Kulkarni and others (supra). The Division Bench of this Court comprising of Broomfield and Macklin, JJ., laid down that in the suits filed under section 92 C.P.C., the amendments which do not substantially change the character of the suit or enlarge the scope of the suit could be made by the Court itself without sanction of the Advocate-General or Collector. The Division Bench further held that : the amendments which enlarge the scope of the suit without substantially changing its character may be made with the consent of the Advocate-General or the Collector but the amendment substantially changing the character of the suit would not be permissible even with the sanction of Advocate-General or Collector. Broomfield, J., who delivered the judgment on behalf of the Division Bench held thus :---
'We think the true position is that it is for the Court to decide in suits under section 92 as in any other suit whether an amendment is permissible, and, the consent of the Advocate-General or the Collector, as the case may be, is really evidence which has to be taken into consideration before deciding whether the amendment should be allowed. We can see no reason why amendments which do not substantially change the character of the suit or enlarge the scope of it should not be made by the Court itself without sanction. Amendments which enlarge the scope of the suit, for instance by allowing further reliefs, without substantially changing its character, may be made with the sanction of the Advocate General or the Collector, that sanction, as I say, being evidence that the suit after amendment is to all intents and purposes the same suit and not a different one. Amendments substantially changing the character of the suit would, we think, not be permissible even with sanction. In such a case it could hardly be said that the suit in its amended form was ever validly instituted.'
13. The aforesaid two judgments in Abdul Rehman's case (supra) and Bapu Gouda Yadu Gouda Patil v. V.S. Kulkarni's case (supra) were considered by Blagden, J., in Jessingbhai v. Jeevatlal's case (supra) and it was held by Balgden, J., that if a suit is amended by the introduction of a new party or in some other substantial manner the suit is not identical with the suit which was at its commencement. The relevant discussion of Blagden, J., in Jessingbhai's case (supra) in paras 2 and 4 of the report reads thus :---
'(2) On the case of it, it seems to me, if a suit is amended at any rate by the introduction of a new party or in some other quite substantial manner the suit is not identical with the suit which it was at its commencement. In this particular case the matter is entirely technical, but it might not be. The Advocate-General might have sanctioned the suit against, say, the four defendants and have been perfectly unwilling to sanction the suit against the fifth person, and if the plaintiffs were at liberty without his sanction, to bring new parties on the record as defendants, it might mean that the protection afforded by section 92 to trustees of public charities would be rendered nugatory. Therefore, though technical, I think the point is of some substance and important. (4) I do not myself understand why the learned Judges referred to 'evidence' that the character of the suit remained the same, for, surely whether a suit is the same suit or not is a question of law which any competent Court can determine merely by reading the amended pleadings and comparing them with the unamended pleadings; and I cannot help feeling that perhaps some mistake has been made in reporting what was said on the point. But apart from that in my opinion, when the Court referred to an amendment which 'did not substantially change the character' of the suit and which Broomfield and Macklin, JJ., though could be made without sanction, I do not think they intended for one moment to refer to anything more substantial than, say, an amendment correcting some obvious slip, as for example, if the word 'plaintiff' had been used for 'defendant' by mistake, or correcting an error in punctuation or something of that kind; I certainly do not think they intended to suggest that a party could be added as a defendant without the sanction previously obtained of the Advocate General. An amendment of that kind, it seems to me, necessarily in my opinion if this expression of opinion is at variance with the decision of Davar, J., which I do not think it really, is, I have little doubt that the proper course for me to do would be to follow the decision of Davar, J., supported as it is by English authorities. I, therefore, hold that the suit has since yesterday been bad and therefore I can make no order on the motion.'
14. The Madras High Court in C.R. Neelakantan and another v. Saidapet Annadhana Samajam (supra) considered the question of amendment of plaint in the suit filed under section 92 C.P.C. by way of addition of a party defendant and held that such application for amendment was maintainable without further consent of Advocate-General since the parties sought to be added were necessary party and nature of the suit was not altered. The learned Single Judge of Madras High Court held thus :---
'(8) Sri Ganpathi Subramaniam for the respondent, however, drew my attention to a ruling of this Court reported in Varaprasada Rao v. Gopalacharlu A.I.R. 1926 Mad. 970. Krishnan and Venkatsubba Rao, JJ., laid down in this case that objection as to absence of sanction under section 92 is not an objection that can be properly waived. What is emphasised by the learned Judges is the object of such sanction. That being to secure that suits are not brought against trustees unless there is a prima facie case against them of breach of trust or unless circumstances exist which necessitate the Court's interference in the administration of trust. They also stated that the object of the section will be defeated if it is left open to a plaintiff to get sanction against a person who is not the trustee and then use it afterwards against the real trustee. The personality of the trustee and the way in which he is dealing with the trust are matters of material consideration in granting sanction for a suit. If we probe into the facts of this case, it would be seen that it has very little application to the present case where Sri Bhaktavatsalam who is already on record as a defendant, no doubt without any description of his capacity, as an intermeddler with the affairs of the Annadhana Samajam and against whom sanction has been granted by the Advocate General is sought to be impleaded as representing the Annadhana Samajam which is sought to be impleaded as supplemental second defendant.
(9) Jessingbhai v. Jivatlal A.I.R. 1947 Bom. 487 is case, where a suit was instituted under section 92 against some defendants after obtaining sanction of the Advocate General. Subsequently, the plaintiff amended the plaint by addition of one more defendant without such sanction. The Bombay High Court held that the amendment necessarily enlarges the scope of the suit and the suit thus being not identical with the suit which it was at the time of its commencement, was bad.
(10) The present however is a case which to my mind, more appropriately comes within the scope and ambit of the ruling in Selvam Mudaliar v. Raju Mudaliar : AIR1953Mad816 wherein Rajamannar, C.J. and Venkatarama Aiyar, J., held that a sanction given by the Advocate General under section 92 C.P.C. is one generally for the institution of the suit for the removal of persons purporting to act as the trustees of a public religious institution and that an amendment sought for subsequently by way of addition of a party is merely formal and does not alter the nature of the suit. In such a case, a further sanction of the Advocate General is not necessary.'
15. In Kedarnaths case (supra) Punjab High Court was seized of the question whether there was any necessity of sanction of Advocate-General when by addition a new defendant is sought to be impleaded in the suit filed under section 92 of C.P.C. and it was held thus '(10). The question now arises whether the addition of Kishan Das as a defendant has or has not the effect of enlarging the scope of the suit or of altering the nature of the suit. Mr. Sarin contends, and in my opinion with a considerable amount of justification, that the addition of this new defendant is likely to alter not only the cause of action but also to enlarge the scope of the suit. In his application under Order 1, Rule 10 of the Code of Civil Procedure Kishan Das stated that Ramasaran Das had been removed from the Mahantship of the Thakardwara and that he, namely Kishan Das applicant, had on the 23rd June, 1953 been appointed a Mahant by the worshippers of the Thakardwara. The plaintiffs do not admit the correctness of these allegations. In order to decide the matters in controversy between the parties it would be necessary to frame a number of issues with the object of determining (1) whether Ramasaran Das was in fact removed from the Mahantship by the worshippers of the Thakardwara; (2) whether Kishan Das was appointed a Mahant by the sewaks on or about the 23rd June, 1953; (3) whether Kishan Das could be elected a Mahant in accordance with the rules of custom by which the parties are regulated; and (4) whether he is entitled to a declaration of status in a suit under section 92 without paying the appropriate fees in respect of such relief. I am clearly of the opinion that the addition of Kishan Das is almost certain to alter the cause of action, to alter the nature of the suit and to enlarge the scope of the litigation'.
16. Legal position that emerges and to me appears to be correct is that plaint filed after the consent of the Advocate General or Collector under section 92 of C.P.C. or after obtaining the sanction of the Charity Commissioner under section 51 of the B.P.T. Act could be permitted to be amended by the Court itself without sanction of such authority if such amendments do not substantially change the character of the suit or enlarge its scope. Even after the amendment if the character of the suit remains the same, and so also its scope obviously the sanction of the Advocate-General/Collector under section 92 C.P.C. or for that matter sanction of Charity Commissioner would not be required. The same principle shall not hold the field where proposed amendments enlarge the scope of the suit but do not substantially change its character. In such situation the amendment may be made with the consent of the Advocate-General or the Collector under section 92 or with the consent of the Charity Commissioner under section 51 of the B.P.T. Act. The Court, therefore, would insist on sanction of the Advocate-General or Collector or the Charity Commissioner and in its absence the Court would not permit amendment in the plaint in this category of cases. However, the cases in which amendment sought substantially change the character of the suit, such permission for amendment cannot be granted even with the consent of the Advocate General or Collector or for that purpose by the Charity Commissioner. The law succinctly laid down in Bapu Gouda Patil's case (supra) with reference to section 92 of C.P.C. holds equally good for the suits filed under sections 50 and 51 of the B.P.T. Act. The view of Balgden, J., in Jessingbhai's case (supra) does not depart from the Division Bench view of this Court in Bapu Gouda Patil's case (supra) when he ruled that if a suit filed under section 92 C.P.C. is amended by the introduction of a new party or in some other quite substantial manner the suit is not identical with the suit which it was at its commencement and, therefore, the sanction of the Advocate-General or Collector would be required.
16A. In the light of the aforesaid legal position, the question before me is whether the proposed amendment would enlarge the scope of the suit or substantially change the character of the suit or not.
16B. A careful look at the schedule of amendment would show that plaintiffs seek to add Shri Chandrahas K. Thackerey as defendant No. 8 in his individual capacity as well as trustee of 31 public trusts known as V.D. Charitable Trust. The plaintiffs also seek to implead the said 31 trusts as defendants Nos. 9 to 39 and four companies as defendants 40 to 43. Paragraph 2 of the plaint is sought to be amended by inserting defendant No. 8 as a trustee of the 31 public trusts alongwith defendant No. 4 known as Sir Vithaldas Damodar Charitable Trust Nos. 1 to 31 viz, the defendants Nos. 9 to 39. Defendant No. 40 ECK Haubold and Laxmi Limited is a public limited company and a Thackerey family group company in which the affairs and management including the composition of Board of Directors presently being controlled by defendants Nos. 4, 5, 8 and/or their nominees. The defendants Nos. 9 to 39 are being sued through their trustee the defendant No. 8 on the leave of the Court duly obtained under Order 1, Rule 8 C.P.C.'. In para 15 of the original plaint the plaintiffs also seek some amendment. The original prayer (d) made in the plaint is sought to be amended and by that the plaintiffs seek relief against defendant No. 8 by incorporation of the words 'and/or defendant No. 8' after the words defendant No. 4. The plaintiffs also propose to add the prayer (e-1) and seek relief that defendants Nos. 4, 5, 8 and/or the defendants 40, 41, 42 and 43 be permanently restrained by an order of this Court from transferring, selling, disposing of and/or otherwise transferring, parting with all that shares of Hindustan Spinning and Weaving Mill Ltd. originally belonging to Sir Vithaldas Damodar Charitable Trust and donated to the 31 trusts and stated to be finally transferred to defendants Nos. 40 to 43. Again in prayer (g) plaintiffs seek amendment by incorporation of the words, 'shares purchased from 31 trusts now in the hands of defendants Nos. 40 to 43' after the words Santacruz, Bombay.
17. The bare perusal of the aforesaid proposed amendments lead to irresistible conclusion that plaintiffs are seeking reliefs against proposed defendant No. 8 as well as proposed defendants Nos. 40, 41, 42 and 43. The proposed defendant No. 8 is admittedly trustee of proposed defendants Nos. 9 to 39. According to plaintiffs' own case the defendants Nos. 9 to 39 are sought to be sued through their proposed defendant No. 8. It is not a case where the new parties are sought to be impleaded without seeking reliefs against them. I have no manner of doubt that by the proposed amendments the scope of the suit would be enlarged and in this fact situation the consent of the Charity Commissioner would necessarily be required. It would be entirely a different case where the plaintiff seek impleadment of some formal party without claiming any relief and perhaps in that situation the sanction of the Charity Commissioner under section 51 may not be required before amendment could be allowed by the Court. But in the present case the plaintiffs by way of amendment are seeking definite reliefs against newly added parties i.e. defendant No. 8 who is trustee of 31 trusts proposed to be added as defendants Nos. 9 to 39 and proposed defendants Nos. 40 to 43 and that definitely enlarges the scope of the suit.
18. Mr. Sinhan, learned Counsel for plaintiffs strenuously urged that all facts relating to 31 trusts proposed defendants Nos. 9 to 39 have been stated in the plaint filed originally after obtaining sanction from Charity Commissioner and, therefore, impleadment of these parties as well as proposed defendant No. 8 who is trustee of these trusts is only technical correction and there is no enlargement of the scope of the suit. I am afraid the contention is devoid of any merit on the face of the new reliefs prayed by the plaintiffs against proposed parties by way of amendment. The substance of the proposed reliefs definitely enlarges the scope of the suit and for that the sanction of the Charity Commissioner shall be necessarily required. It cannot be said that Charity Commissioner at all was called upon to apply his mind on the proposed reliefs by way of amendment when he considered the matter for sanction before filing the suit. How could the Charity Commissioner be expected to anticipate at the time of grant of sanction that new parties shall be added and further reliefs shall be sought against them. The amendment in the pleadings as well as in the array of parties proposed by the plaintiffs is not technical correction simplicitor but material, enlarging the scope of the suit.
19. As regards proposed defendants Nos. 40 to 43 Mr. Sinhan, learned Counsel for the plaintiffs would contend that since these proposed defendants 40 to 43 were neither public trusts nor were related to public trusts, sanction of the Charity Commissioner under section 51 was not required because the reliefs against the proposed defendants 40 to 43 do not fall under section 50 of the B.P.T. Act. In support of his contention, Mr. Sinhan relied upon Division Bench judgment of this Court in 1967 Mh.L.J. 799, Rajgopal v. Ramchandra Zaveri, wherein Division Bench of this Court held where the plaintiffs are found to be associated with public trust and are held to be its de facto trustees, they are entitled to file suit for eviction of the property against persons who have no right, title or interest in the property and/or against trespasserseven without the consent of the Charity Commissioner as required by section 50 of the B.P.T. Act. I am afraid the said judgment has no application in the facts of the present case. In the case before the Division Bench in Ramgopal's case (supra), the plaintiffs were trustees and Division Bench held that a trustee is legal owner of the trust property and has all the rights inherent as the natural owner of the property and he can sue to recover trust property without seeking sanction from Charity Commissioner. In the case in hand, the suit has been filed not by the trustees but by the persons who claim to have interest in the trust and are beneficiaries. The beneficiaries of trust property or the persons having interest in the trust cannot be equated with the trustees of the trust. A trustee of the trust has the status of legal owner of the trust property and has all the rights which are inherent in the natural owner of the property and, therefore, entitled to recover trust property without sanction of the Charity Commissioner which cannot be a status of the beneficiaries of the trust or the persons having interest in the trust.
20. I, therefore, hold that the proposed amendment would enlarge the scope of the suit and, therefore, can only be permitted with sanction of the Charity Commissioner, and, since no such permission was obtained by the plaintiffs from the Charity Commissioner, the trial Court did not commit any error of jurisdiction in passing the impugned order.
21. Resultantly, the impugned order does not call for any interference by this Court in revisional jurisdiction under section 115 C.P.C. and Civil Revision Application is accordingly dismissed with no order as to costs.
22. Mrs. Kajela, learned Counsel appearing for petitioners orally prays for staying the proceedings of the trial Court for a period of 6 weeks. I am unable to accede to the oral request made by the learned Counsel for the petitioners. During pendency of Revision Application no stay was granted by this Court. Moreover, Apex Court by the order dated 10th November, 95 has ordered for expeditious disposal of the suit by the City Civil Court. Oral prayer for stay is accordingly rejected.