Oral Judgment:
1. This appeal is directed against the judgment and decree passed by the Additional District Judge, Khamgaon in Regular Civil Appeal No.75 of 1985, decided on 6.12.1996 dismissing the appeal of the appellants and confirming the judgment and decree passed in Regular Civil Suit No.104 of 1984 by 2nd Joint Civil Judge, Senior Division, Khamgaon on 29.7.1985 decreeing the suit of the respondent for ejectment, possession and mesne profits. The appellants are the legal heirs of the original defendant and respondent is the original plaintiff. The respondent had filed a suit bearing Regular Civil Suit No.101 of 1984 for ejectment, possession and mesne profits. The suit filed by the respondent Madan Mohan Mandir Sanstha, a registered Public Trust was through one of its trustees, Gokuldas Kalyanji Shelarka. It was the case of the respondent that original defendant (hereinafter referred to as âappellantsâ for the sake of convenience) was inducted in the suit house, as described in plaint paragraph No.1, as tenants on monthly rent of Rs.25/. The respondent, sought permission from the Rent Controller and Resident Deputy Collector, Buldhana for issuing a quit notice and sent a notice to the appellants on 29th July, 1984 intimating them that their tenancy stood terminated with effect from 30.4.1984. After receiving notice, appellants did not hand over the possession of the suit house, and therefore, respondent brought a suit against them for ejectment and mesne profits. The suit was resisted by them on various grounds. One of the grounds of contest was that the respondent had no authority to file a suit on behalf of the Trust, Madan Mohan Mandir Sanstha (hereinafter referred to as âthe Trustâ for the sake of brevity). The trial Court framed six issues, and one of them was, whether or not Gokuldas Kalyanji Shelarka was duly authorized to sue for and on behalf of the Trust. Substantial questions of law involved in this appeal resolve around this issue. The other issues related to legality and validity of the quit notice, entitlement of the Trust to the possession of the suit house, tenability of suit for want of permission of Charity Commissioner under Section 51 of the Bombay Public Trusts Act, 1950 and decision of Rent Controller operating as resjudicata regarding the rate of rent with which we are not concerned in this appeal.
2. The trial Court after considering the evidence adduced by the rival parties found that respondent was duly authorized to file the suit and the Trust was entitled to possession of suit house, and accordingly decreed the suit by its judgment and order passed on 29.7.1985. Aggrieved by this decree, appellants filed an appeal before the Additional District Judge, Khamgaon, Distt. Buldhana. The leaned Additional District Judge, Khamgaon confirmed the judgment and decree of the trial Court and dismissed the appeal by its judgment and order passed on 6th December, 1996. Not satisfied with this Judgment, the appellants have preferred the present Second Appeal. The appeal was admitted by this Court on 15th June, 1998 on the following substantial questions of law:
â1) Whether the suit in the present form as filed by one of the trustees is maintainable without there being made all the trustees and the plaintiffs in this suit ?
2) Whether the learned Additional District Judge was right in not deciding the application filed by the appellant under Order 6 Rule 17 at Exhibit10, dated 7.4.1994, for amendment of the written statement incorporating the defence about nonâjoinder of proper and necessary parties ?â
3. There appears to be some typographical error in formulating the question No.1, and therefore, it is reformulated as under:
âWhether the suit filed in the present form by one of the trustees is maintainable without all trustees being joined as plaintiffs in the suit ?â
4. The appeal was heard by the learned Single Judge of this Court. The learned Single Judge in his judgment rendered on 6th August, 2009 framed four substantial questions of law which are reproduced as under:
â(i) Whether Sections 47 and 48 of the Indian Trusts Act, 1882 are applicable to a Public Trust and consequently whether all the trustees of such Public Trust are required to be joined as party to the suit for eviction of a tenant ?
(ii) Whether in the absence of instrument of trust, and in the wake of Sections 47 and 48 of the Trusts Act showing a provision for delegation of any of the duties of a trustee, a resolution authorising one trustee to file a suit passed by majority by the executive committee of the Trust would be a good substitute for the instrument of trust ?
(iii) Whether passing of a resolution to authorise one trustee to file suit against the tenant for eviction can be said to be a delegation in âregular course of business within the meaning of Section 47......or (b) of the Indian Trusts Act ?
(iv) Whether in the absence of registration of a public trust, in addition, under the Societies Registration Act, the provisions of Societies Act and Sec. 6 thereof, would apply to such a public trust on the strength of definition of Public Trust under Section 2(13) of the Bombay Public Trusts Act, 1950 ?â
5. The learned Single Judge after considering the law laid down in the case of GopalSridhar Mahadeb vs. Sashi Bhusan Sarkar, reported in AIR 1933 Calcutta 109, held that the unanimous resolution passed by the governing body of a public trust cannot be a substitute for instrument of trust showing delegation of power to file suit nor such resolution would be in âordinary course of businessâ within the meaning of Section 47.... or (b) of the Indian Trusts Act, 1882 and accordingly answered the question Nos.2 and 3 referred to above, as in the negative. The learned Single Judge, however, in view of the conflicting decisions of this Court in various writ petitions thought it appropriate to refer the controversy arising out of question Nos.1 and 4 referred to above, to Full Bench of this High Court and accordingly he directed the Registry to place the matter before the Honble the Chief Justice for constitution of Full Bench for answering these two questions. In another writ petition bearing Writ Petition No.3749 of 2008 the learned Single Judge of this High Court during the course of hearing of the writ petition also came across similar questions. The learned Single Judge, therefore, framed three questions in the following terms:
â(i) Whether Section 47 of the Indian Trusts Act is applicable to a public trust and thus limits the powers of the Board of Trustees to delegate their powers in regard to institution of suit for recovery of the trust property to one of their colleagues ?
(ii) Whether therefore a suit instituted by one of the trustees for possession would be maintainable ?
(iii) Whether by virtue of public trust being a society, a suit for recovery of property at the instance of the Chairman, President, Secretary of the public trust alone is maintainable under Section 6 of the Societies Registration Act ?â
6. The learned Single Judge in the said writ petition also directed the Registry to place the matter before the Honble the Chief Justice for constitution of larger Bench for answering the above questions.
7. Accordingly, the Honble the Chief Justice was pleased to constitute the Full Bench. After hearing parties, the Full Bench of this Court answered the said questions by its judgment rendered in Second Appeal No.116 of 1998 with Writ Petition No.3749 of 2008 on 10th December, 2009.
8. So far as concerned the first question raised in this appeal and also in Writ Petition No.3749 of 2008 about applicability of the provisions of Sections 47 and 48 of the Indian Trusts Act, 1882 to public trusts and about putting limits on powers of the trustees to delegate power to file suit for recovery of trust property, the questions were answered by the Full Bench as in the negative. The second question raised in this appeal related to applicability of Section 6 of the Societies Registration Act, 1860 to a public trust not registered under the Societies Registration Act, 1860 only on the strength of definition of Public Trust as given under Section 2(13) of the Bombay Public Trusts Act, 1950. It was also answered as in the negative by the Full Bench. The Full Bench further found that the second question referred to it by the learned Single Judge in Writ Petition No.3749 of 2008 would have to be decided in the facts and circumstances of the case, in the light of the law laid down by the Honble Supreme Court in the case of J.P. Srivastava and Sons (P) Ltd. and ors. vs. Gwalior Sugar Co. Ltd. and Ors. reportedin (2005) 1 SCC 172. As regards the third question referred to it in the Writ Petition No.3749 of 2008, the Full Bench held that the question did not arise for consideration before the learned Single Judge nor was there any conflict of opinion expressed in that regard by other learned Single Judges. The references were accordingly answered in the above terms and the record and proceedings were remitted to the respective Courts for disposal of the matters in accordance with law. This is how the present appeal is before this Court for its disposal on merits of the case.
9. Now, in the light of the questions so answered by the Full Bench of this High Court that the substantial questions of law involved in the appeal would have to be determined, having regard to the arguments advanced on behalf of rival parties and the evidence available on record.
10. Shri Gilda, learned counsel for the appellants has submitted that Section 6 of the Societies Registration Act, 1860 (hereinafter referred to as âSocieties Act, 1860â for the sake of brevity) would not be applicable to this case for the reason that there is no pleading in the plaint that the Trust which is a Public Trust registered under the provisions of the Bombay Public Trusts Act, 1950, (hereinafter referred to as âBPT Act, 1950â for the sake of brevity) is also a society registered under the provisions of the Societies Act, 1860, and therefore, benefit of Section 6 of the Societies Act, 1860, which allows the President, Chairman or Principal Secretary or trustees as determined by the rules and regulations of the Societies to sue or be sued on behalf of the Society, would not be available to the respondent. He further submits that in such a case the resolution passed by the executive committee of the Trust authorizing the respondent/plaintiff to file a suit for eviction of the appellant No.1 cannot be justified by taking recourse to Section 6 of the Societies Registration Act, and it would have to be seen if the resolution is hit by rule against delegation which is based on general principles applicable to all trusts, private or public. He further submits that in the instant case admittedly no instrument of trust was produced on record and, therefore, answers given by learned Single Judge of this Court in his judgment rendered in this case on 6th August, 2009 would have to be considered and followed by this Court. The learned Single Judge in the said Judgment while answering questions No.2 and 3 as reproduced earlier has held that in the absence of instrument of trust and in the wake of Sections 47 and 48 of the Indian Trusts Act, 1882, a resolution authorizing one trustee to file a suit passed by the majority of the executive committee of the trust would not be a good substitute for the instrument of the trust and that such a resolution cannot be said to be a delegation in âregular course of businessâ within the meaning of Section 47....or (b) of the Indian Trusts Act, 1882 (hereinafter referred to as âTrusts Act, 1882, for the sake of brevity). He further argues that even though the Full Bench of this Court has held that Sections 47 and 48 of the Indian Trusts Act, 1882 are not applicable to the public trusts covered by the provisions of the BPT Act, 1950, in view of the law laid down by the Honble Supreme Court in the case of Sk. Abdul Kayum and ors. vs. Mulla Alibhai and ors. reportedin AIR 1963 SC 309, the ratio of the case of State of Uttar Pradesh vs. Bansi Dhar and Ors. reportedin AIR 1974 SC 1084, would make it clear that there are certain common principles which cover all trusts, private and public and merely because they find a place in the Trusts Act, 1882 they cannot become âuntouchableâ where public trusts are involved. Therefore, according to him, even without any reference being made to Sections 47 and 48 of the Trusts Act, 1882, the first substantial question of law involved in this appeal would have to be answered in favour of the appellants by holding that a suit filed for eviction of a tenant by one of the trustees, is not maintainable at law unless all the trustees are joined as plaintiffs in the suit. The learned counsel for the appellants places his reliance additionally on cases listed as below:
â1) Servants of India Society, Poona 4, vs. Charity Commissioner of Bombay, AIR 1962 Bombay 12.
2) Board of Trustees Ayurvedic and Unani Tibia College, Delhi vs. State of Delhi (Now Delhi Administration) and another, AIR 1962 SC 458.
3) Duli Chand vs. M/s. Mahabir Pershad Trilok Chand Charitable Trust, Delhi, AIR 1984 Delhi 145.
4) Kishore Joo vs. Guman Behari Joo Deo, AIR 1978 Allahabad 1.
5) Mandir Jamuna Dass Jawaharlal S. Sanatan Dharam Mahabir Dal Trust, Ambala, Cantt. vs. Shankar Dass, 2003 A I H C 3337.â
11. On the other hand, Shri Mohta, learned counsel for the respondent has submitted that Full Bench of this Court has already answered the questions framed and referred to it by the learned Single Judges of this Court for their answers in this appeal as well as in Writ Petition No.3749 of 2008 and these answers simply favour the case of the respondent that the provisions of Sections 47 and 48 of the Trusts Act, 1882 are not applicable to the public trusts covered by the BPT Act, 1950 and that resolution passed by the executive committee of the Trust unanimously or by majority authorizing a trustee to file civil suit for eviction of a tenant is a valid delegation of duties and functions of the trust and that such a suit is not bad in law. Therefore, he submits that in this appeal, no further questions survive and the judgments on which reliance has been placed by the learned counsel for the appellants would not help the case of the appellant. He has also submitted that existence of resolution of the trustees authorizing one trustee of the respondent to file civil suit for recovery of possession against the appellants was not only pleaded in the plaint, but was also proved by Purushottamdas (PW 1) and no challenge has been made to the resolution by the appellants. He, therefore, submits that the suit as filed by respondent against the appellants was maintainable at law and there is no need for this Court to interfere with the impugned judgment and decree in any manner.
12. Upon consideration of the answers given to the questions referred to the Full Bench of this Court by learned Single Judges of this Court, I am of the considered view that Shri Mohta learned counsel for the respondent is right when he submits that authorization given to the respondent/Madan Mohan Mandir Sanstha Trust, Khamgaon, a registered public trust, to file a suit for ejectment, recovery of possession and mesne profits was a valid delegation of duty to execute the trust as it fell within the exceptions recognized by law. Consequently, I find no substance in the argument canvassed in this behalf by Shri Gilda learned counsel for the appellants.
13. The Full Bench of this Court, while answering the questions relating to applicability of Sections 47 and 48 of the Indian Trusts Act, 1882 has extensively referred to law laid down by the Honble Supreme Court in the cases of (i) Thayarmmal (dead) by L.Rs. vs. Kankammal, reported in (2005) 1 SCC 457, and (ii) Sk. Abdul Kayum and ors. vs. Mulla Alibhai and ors. (supra). By placing reliance upon the principles laid down in these cases, it held that Sections 47 and 48 of the Trusts Act, 1882 are not applicable to a public trust. The Full Bench also found that Courts interpret laws and do not legislate any, and therefore, from this perspective also, applying the provisions of Sections 47 and 48 of the Trusts Act, 1882 to the public trusts without there being any legislation to that effect evolved by the Parliament or State Legislature would not be permissible. It would be useful to reproduce the relevant observations of the Full Bench as appearing in paragraph 9 of its Judgment dated 10.12.2009 and they are as under:
â.......... In the instant case, provision of Section 1 the Indian Trusts Act stipulates that though the provisions of the Act are extended to the whole of India except State of Jammu and Kashmir and Andaman and Nicobar islands, however, it is made clear that no provision of the Act will affect the rules of Muhammadan law as to Wakf or the mutual relations of the members of an undivided family as determined by any customary or personal law or to the public or private religious and charitable endowments. Section 1, therefore, in no uncertain terms excludes applicability of the provisions of Indian Trusts Act to the public trusts. It is no doubt true that Bombay Public Trusts Act, 1950 came into force at later in point of time. However, that does not mean that the provisions of the earlier Act can be picked up as and when it is convenient to do so. It is well settled that provisions of the earlier Act can be read in subsequent Act only when the Legislature comes up with proper legislation, i.e. Legislation by adoption, legislation by reference or legislation by incorporation or by amending the Acts. It is not the job of the Court to read the provisions of one Act into another by adopting one of these methods since it is for the Parliament or the State Legislature to undertake this exercise and come up with appropriate legislation. The Courts interpret laws and do not legislate any. It is from this perspective also, applying the provisions of Sections 47 and 48 of the Indian Trusts Act to the public Trusts without there being any legislation to that effect evolved by the Parliament or State Legislature, in our view, would be impermissible and more so because the Supreme Court also endorsed its seal of approval by holding that provisions of the Indian Trusts Act are applicable only to the private Trusts and not to the public Trusts in the case of Thayarammal (cited supra).
14. The Full Bench also considered the true meaning of the observations of the Honble Supreme Court in the case of State of Uttar Pradesh vs. Bansidhar and others, (supra), wherein the Honble Supreme Court has laid down that even though the provisions of the Indian Trusts Act, 1882 do not, by their own force, apply there are some common legal principles which apply to all the trusts, private and public. The Honble Supreme Court also held that only because these common principles are embedded in the provisions of the Trusts Act, 1882, they would not be inapplicable or become âuntouchableâ where public trusts are involved. The Honble Supreme Court, however, gave a word of caution by saying that care must be taken not to import by analogy the provisions of the Trusts Act, 1882 when they are not germane to the general law of Trusts. The Full Bench, after considering this decision, found that Honble Apex Court has rendered decision in the said case, State of Uttar Pradesh vs. Bansidhar (supra), in the facts and circumstances of that case and that it would not affect the binding nature of law laid down by the Honble Apex Court in the case of Thayarammal (supra), which is a direct decision on the subject. Observations of the Full Bench in this regard appear in paragraph 14 and relevant portion thereof is reproduced as under:
â......... The careful reading of the above observations of the Apex Court shows that it has given a note of caution that care must be taken not to import any analogy, which is not germane to the general law of the trusts and it is in the light of these observations, the recent decision of the Apex Court in the case of Thayarammal (cited supra) assumes importance, which has been rendered by the Apex Court keeping in view the preamble and provisions of the Indian Trusts Act and held that it is applicable only to the private trusts and not to the public trusts. The Apex Court has rendered decision in the case of State of Uttar Pradesh (cited supra) in the peculiar facts and circumstances of that case and it does not affect the binding nature of law laid down by the Apex Court in the case of Thayarammal since it is the direct decision on the subject. It is in this factual and legal background, we answer the question about applicability of provisions of Sections 47 and 48 of the Indian Trusts Act, 1882 to the public trusts in negative.â
15. So far as the question, whether or not Section 6 of the Societies Registration Act applies to a public trusts not registered under the Societies Registration Act, 1860, is concerned, the Full Bench has already answered it in the negative. In any case, this question does not fall for consideration in the instant case as it is not the case of the respondent/trust that it is also a Society registered under the Societies Act, 1860.
16. So, after having seen the decision given by the Full Bench of this Court that the provisions of Sections 47 and 48 of the Indian Trusts Act, 1882 do not apply to a public trust, as the one in this case, which decision would be binding on this Court, next question would be as to whether or not the suit filed by one of the trustees for and on behalf of the Trust for ejectment and possession would be maintainable at law. This is precisely the first substantial question of law on which this appeal has been admitted.
17. In order to answer this question, once again it would be necessary to fall back upon the answer given to the question No.2 of the reference made in Writ Petition No.3749 of 2008 â Whether, therefore, a suit instituted by one of the trustees for possession would be maintainable ?â. Needless to say, the Full Bench had already given a negative answer to the first question referred to it by the learned Single Judge in this writ petition, that question being similar to the question referred to Full Bench by Single Judge in this appeal.
18. The Full Bench after referring the law laid down by Honble Supreme Court in the case of J.P. Srivastava and Sons (P) Ltd. and others vs. Gwalior Sugar Co. Ltd. and Ors. Reported in (2005) 1 SCC 172, held that said question would have to be decided by the learned Single Judge on the facts and circumstances of the case, having regard to the law laid down by the Honble Supreme Court in the said case of J.P. Srivastava. The relevant observations of the Full Bench as appearing in paragraph 20 of its judgment are reproduced
thus:
âSo far as the second question referred to us by Justice C.L. Pangarkar is concerned, it will be appropriate to reproduce the observations of the Apex Court in para 29 of the judgment in the case of J.P. Srivastava and Sons (P) Ltd. And others vs. Gwalior Sugar Co. Ltd. and others (2005) 1 SCC 172, which are as follows:
â29. Therefore, although as a rule, trustees must execute the duties of their office jointly, this general principle is subject to the following exceptions when one trustee may act for all (1) where the trust deed allows the trusts to be executed by one or more or by a majority of trustees; (2) where there is express sanction or approval of the act by the co-trustees; (3) where the delegation of power is necessary; (4) where the beneficiaries competent to contract consent to the delegation; (5) where the delegation to a co-trustee is in the regular course of the business, (6) where the co-trustee merely gives effect to a decision taken by the trustees jointly.â
The above observations of the Apex Court clearly demonstrate that as a general rule, the trustees must execute duties of their office jointly. However, this general rule is not without exceptions and those exceptions as mentioned by the Apex Court are: Where one of the trustees can act upon the decision taken by the majority of the trustees, or by express sanction or approval by the co-trustees, or where the beneficiaries competent to contract consent to the delegation, or where the delegation to a co-trustee is in regular course of business or where the co-trustee merely gives effect to the decision taken by the trustees jointly. It is in the light of the law laid down by the Apex Court, the question No.2 referred to us by Justice C.L. Pangarkar will have to be decided by the learned Single Judge on the facts and circumstances of the case.â
19. This answer given by the Full Bench of this Court will also be binding on this Court.
20. Let me now recapitulate, for the sake of convenience, the answers given by the Full Bench in references made to it. They can be stated thus(i) Sections 47 and 48 of the Indian Trusts Act, 1882 do not apply to the public trusts, (ii) as a general rule, the trustees must execute duties of their office jointly and (iii) the general rule of joint execution of duties is subject to certain exceptions as mentioned by the Honble Apex Court in the case of J.P. Srivastava (supra). These exceptions indicate that one of the trustees can act singularly or perform duties of the co-trustees in situations where the trust deed allows the trust to be executed by one or more of the trustees or where there is express sanction or approval of the act by the co-trustees or where the delegation of power is necessary or where the beneficiaries competent to contract consent to the delegation or where the delegation to a co-trustee is in regular course of business or where a co-trustee merely gives effect to the decision taken by the trustees jointly.
21. The above referred discussion of the legal principles enunciated by the Honble Apex Court and also the law laid down by the Full Bench of this Court while answering the questions referred to it in this appeal as well in Writ Petition No.3749 of 2008 would demonstrate that even though Sections 47 and 48 of the Indian Trusts Act, 1882 do not apply in terms to the public trusts, there are some common principles, which are not out of bounds or which do not become âuntouchableâ when it comes to their application to public trusts. One such principle is of general rule against the delegation which does apply to public trusts but it is subject to certain exceptions. These exceptions as stated in the case of J.P. Srivastava (supra) by Honble Supreme Court are reiterated by the Full Bench of this Court in its Judgment dated 10.12.2009 and have already been mentioned earlier.
22. In the light of these exceptions that we have to see whether the suit filed in the present form by one of the trustees in the absence of all the trustees is maintainable or not.
23. In this case, the respondent has already proved in evidence a resolution of the respondent/Trust (Exhibit23) authorizing Gokuldas Kalyanji and one Purushottamdas Chatrabhujdas (PW 1) to file the suit for ejectment and possession against the appellants. This resolution has been proved by the respondent through the evidence of Purushottamdas (PW 1) and as rightly submitted by the learned counsel for the respondent, no challenge absolutely has been made to the evidence adduced in this behalf by Purushottamdas. This resolution authorizes the said persons to file a suit in its present form against the appellants and accordingly the suit has been filed. This resolution may not be a good substitute for an instrument of trust or may not be a delegation âin regular course of business as held by learned Single Judge in his judgment rendered on 6.8.2009 making reference to Full Bench. But, facts remain that it expressly confers authority to file suit and it is passed by the respondent/Trust. Therefore, it amounts to express sanction or approval given by the trustees to said Gokuldas or Purushottamdas to file a suit for ejectment and recovery of possession making it squarely fall within one of the exceptional situations enumerated by the Full Bench of this Court and also by Honble Apex Court in the case of J.P. Srivastava (supra), in which one of the trustees can execute the duties of the co-trustees. For these reasons, said resolution cannot be said to be in violation of any principle of law applicable generally to all public trusts. Consequently, on its basis one of the trustees named therein could have filed the suit without other co-trustees joining him in the action. This is what has happened in the present case.
24. In the cases of Duli Chand (supra), Kishore Joo (supra) and Mandir Jamuna Dass (Supra) referred to me by the learned counsel for the appellants, High Courts of Delhi, Allahabad and Punjab and Haryana have held that unless the instrument of trusts otherwise provides, all co-trustees must join in the suit to recover possession of the property from the tenant, and that delegation of duty of trustee is only permissible where the instrument of trust so provides or delegation is in the regular course of business or the delegationis necessary or the beneficiaries being competent to contract consent to the delegation or otherwise no application or suit to recover possession of the property from the tenant can be filed by one of the trustees. I have already noted that the law laid down by Full Bench of this Court is binding on this Court and following it I have further found in a very specific manner as to how the resolution passed by the respondent/Trust in favour of Purushottamdas and/or Gokuldas to file a suit for recovery of possession falls within the ambit of exceptions to general principles applicable to all trusts, private and public. The exceptional situation of express sanction or approval having been given by the co-trustees in favour of another trustee to execute their duties, does exist in the instant case. Therefore, the judgment rendered in these three cases would not help the appellants in any way in the present appeal. There is one more judgment relied upon by the learned counsel for the appellants rendered in the case of Servants of India Society, Poona 4 (supra), wherein learned Judge on the difference of opinion between learned Judges of the Division Bench took a view that the Bombay Public Trusts Act, 1950 applies to a society such as Servants of India Society, even though it is registered under the Societies Registration Act, 1860 and has its objects not confined to the State of Maharashtra. There is no dispute about this principle which has been approved by the Honble Apex Court in the case of Board of Trustees, Ayurvedic and Unani Tibia College, Delhi, (supra). However, in the instant case it is not the case of respondent that apart from it being a trust registered under the provisions of the BPT Act, 1950, it is also a society registered under the Societies Act, 1860 and, therefore, said principle would have no application to the facts of this case.
25. In view of the above discussion, I find that suit as filed in the present form by the respondent is maintainable even though all trustees have not been joined as plaintiffs in the suit. The first substantial question of law is, therefore, answered as in the affirmative.
26. This brings me to the second substantial question of law. The learned District Judge before whom the application (Exhibit10) dated 7.4.1994 was filed under Order 6 Rule 17,Code of Civil Procedure, 1908 (âCPC in short) seeking grant of permission to amend the written statement so as to incorporate therein the defence about non-joinder of proper and necessary parties, did not decide it. So the question is whether or not the learned Additional District Judge was right in not deciding this application. Ordinarily, whenever such an application is filed before the first appellate Court, it must be decided by that Court and more particularly when the decision of that Court would have its impact on the determination of the real questions in controversy between the parties. Rule 17 of Order 6, CPC confers a power upon the Court to allow the amendment application if amendment is necessary for determining real questions in controversy. This power is available at any stage of the proceedings and the appeal being continuation of the suit, the power is available even at appellate stage. It has been held that principles behind Rule 17 of Order 6 CPC power are that object of Courts and rules of procedure is to decide rights of parties and not to punish them for their mistakes and to avoid uncalled for multiplicity of litigation (see B.K. Narayan Pillai vs. Parmeswaran Pillai (2000) 1 SCC 712). Therefore, the power could and should have been exercised one way or the other by the first appellate Court. But, the first appellate Court did not decide this application and therefore it committed an error in this regard. But, in the light of observations made by Honble Supreme Court in the said case of B.K. Narayan Pillai (supra) that technicalities of law should not be permitted to hamper the Courts in administration of justice, a further question would arise, whether the error was a mere irregularity or was something which went to root of the matter vitiating the proceedings before the first appellate and trial Courts. Answer to the question would depend upon answer to another question â Did it prevent the appellants from effectively defending themselves or in other words, did it cause prejudice to the case of the appellants If appellants were not prevented from putting forward their case effectively and no prejudice as been caused to the defence of the appellants, obviously the error would be a mere irregularity having no bearing ultimately upon a just decision in the case. To ascertain it, let us take a look at the issues framed by trial Court. First issue framed by it is relevant. It is as to whether Gokuldas who has signed the plaint on behalf of the Trust, was authorized to sue for and on behalf of the Trust to file a suit being a trustee thereof or not. This issue is wide enough to take within its fold impliedly the issue about who should be the necessary parties, if the contextual setting of the suit is taken into account. The suit was filed by a trust and ordinarily such a suit has to be filed by all the trustees, subject to exceptions noted above. So, the issue so framed did take care of the defence of the appellants as such. This issue has been answered in the affirmative by the trial Court. All the findings recorded by the trial Court including the one on this issue have been confirmed by the first appellate Court. I have also found, as discussed earlier, no flaw or legal lacuna in the resolution authorizing said trustee to file a suit on behalf of the trust. Once it is found that Gokuldas was duly authorized to sue for and on behalf of the Trust being a trustee thereof, it would follow by necessary implication that the other trustees were not necessary parties and so need not have been joined as plaintiffs. This is what I have already held while answering the first substantial question of law. If this is so, it cannot be said that by not deciding the application for amendment of written statement so as to incorporate the defence of non-joinder of necessary parties any prejudice has been caused to the defence of the appellants or that they were prevented in defending themselves effectively. In fact, their defence is already well answered throughout. I, therefore, find that the learned District Judge though was wrong in not deciding the application vide Exhibit10 under Order 6 Rule 17 filed by the appellants, his such failure has not resulted in causing of any prejudice to the defence of the appellants and it was only a mere irregularity on his part which had no bearing upon a just decision in this case. The second substantial question of law is answered accordingly.
27. For the reasons stated above, this appeal fails. It stands dismissed with costs.