Final Order 1

Order Details: Chamber summons
Pdf Text: 1 C/H No.1082/2018 in S.S.7538/1981
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
CHAMBER SUMMONS NO.1082 OF 2018
(MH CCO10076332018)
IN
S.C.SUIT NO. 7538 OF 1981
(MH CCO10047742012)
(HIGH COURT SUIT NO.363 OF 1981)
Gijubhai Dhanjibhai Patel & Ors.].. Plaintiffs
V/s.
Francis Anton Assessao & Ors. ]..Defendants.
Advocate Mr. Iqbal A. Siddiqui for the plaintiffs.
Advocate Mr. Narayanan for defendant nos.10 to 12.
CORAM : HER HONOUR JUDGE
MS. S.P. PONKSHE.
(C.R.NO.01)
DATE : 4TH OCTOBER 2018
ORAL ORDER
This Chamber summons has been taken out by the plaintiffs
for allowing the proposed plaintiffs to be arrayed and included as one of
the plaintiffs in the present suit and also for deletion of plaintiff no.3
from the present suit.
2 Plaintiff no.7 Trustee of Shri Saurashtra Patel Samaj has
filed his affidavit in support of Chamber Summons. It is averred that
-- 1 of 13 --
2 C/H No.1082/2018 in S.S.7538/1981
he is one of the Trustees of Shri Saurashtra Patel Samaj (hereinafter
referred to as “the Trust”). The plaintiffs had filed Chamber Summons
No.1970/2017 for arraying the name of additional Trustees as plaintiff.
However, the procedure mentioned in Rule 13 of the Bombay Public
Trust Rules 1951 was not duly complied with by the Trust. Therefore,
the plaintiffs sought for withdrawal of Chamber Summons
No.1970/2017. This Court has allowed the plaintiffs to withdraw the
said Chamber Summons by order dated 06.03.2018 with liberty to file
fresh.
3 It is further averred that Trust has filed an application
under section 50(A) of the Maharashtra Public Trust Act 1950 (To be
referred as “the Act”) for framing of a scheme for proper management
and administration of the Trust. The scheme reconstituted the Board of
Trustees of the Trust and the proposed plaintiffs were proposed as the
first board of trustees of the Trust. The said application was allowed by
the Assistant Charity Commissioner vide his order dated 27.04.2018.
Therefore, the proposed plaintiffs are the first board of trustees of the
Trust as per the Scheme.
4 The Trust has also complied with the provisions of section
22 of the Act and Rule 13 of the Bombay Public Trust Rules 1951. The
names of the proposed plaintiffs are also added in the register
maintained by the department of the Maharashtra Public Trust under
section 17 of the Act. It would be in the interest of justice that the new
Trustees of the Trust be arrayed as plaintiffs in the present suit. This is
a formal amendment to the plaint only for the purpose of adding new
trustees and the Trust as plaintiffs. No prejudice would be caused to
the defendants, if the Trustees and the Trust are arrayed as plaintiffs in
-- 2 of 13 --
3 C/H No.1082/2018 in S.S.7538/1981
the present suit. Mr. Valjibhai Nagjibhai Patel (Plaintiff no.3), who was
one of the Trustees of the Trust expired on 12.06.2018. Therefore, the
plaintiffs seeks deletion of plaintiff no.3 from the present suit. Thus,
prayed for allowing the Chamber Summons.
5 The Director of defendants nos.10 to 12 Vijay Khowala has
filed affidavit in reply to the chamber summons on behalf of defendants
nos.10 to 12. It is contended that he is personally conversant with the
facts and he has denied all allegations and averments in the affidavit in
support of Chamber Summons in toto.
6 It is contended that the plaintiffs have made reference to
an Application bearing No.ACCVIII/21/2018 allegedly filed by the
Trust before the Charity Commissioner, Mumbai, allegedly seeking
framing of a scheme for the proper management and administration of
the Trust, pursuant to which Scheme, the Board of Trustees of the Trust
allegedly came to be reconstituted and the proposed plaintiffs were
proposed as the first Board of Trustees of the Trust.
7 It is further contended that no copy of the said application
has been annexed to the affidavit in support by the plaintiff. Defendant
nos.10 to 12 by their letter dated 30.07.2018 addressed to the advocate
for plaintiff no.7 called upon the said advocate to furnish them with a
copy of the said application. Being unaware of the contents of the
aforesaid application referred to in the said affidavit in support, the
defendants are unable to completely deal with the contents of the
affidavit in support and the claim of the proposed plaintiffs regarding
their entitlement to be impleaded as plaintiffs to the present suit.
-- 3 of 13 --
4 C/H No.1082/2018 in S.S.7538/1981
8 It is further contended that defendant no.7 is one
Gopalbhai R. Patel, whereas the deponent of the said affidavit in
support is one Gopalbhai Ravjibhai Pedhdiya claiming himself as alias
Gopal R. Patel. The deponent of the said affidavit in support has not
placed on record any documents to substantiate his such contention.
The present suit has been filed by one Gopalbhai R. Patel and others,
claiming to be the Trustees of Shri Saurashtra Patel Samaj, whereas the
present affidavit in support has been affirmed by one Gopalbhai
Ravjibhai Pedhdiya claiming to be one of the Trustees of Shri
Saurashtra Patel Samaj. Therefore, Chamber Summons has taken out
by Gopalbhai Ravjibhai Pedhdiya is not maintainable.
9 It is further contended that in the Extract of the Register of
Public Trust annexed by the deponent to the affidavit in support, the
suit property is neither referred to nor mentioned in the Schedule,
wherein particulars of immovable property belonging to or vesting in
the Trust are required to be entered and recorded. The plaintiffs at any
point of time, never placed on record any documents substantiating
their contention about the suit property having vested in any of the
plaintiffs, as the Trustees of the said Shri Saurashtra Patel Samaj and
the deponent has never placed on record any documents substantiating
his contention about him or any of the proposed plaintiffs having any
interest in the suit property in their capacity, as the Trustees of Shri
Saurashtra Patel Samaj, Mumbai or otherwise or of the suit property
having vested in the proposed plaintiffs, as the Trustees of Shri
Saurashtra Patel Samaj. The proposed plaintiffs does not seem to have
any manner have right title or interest to or in the suit property.
Further, the suit property does not seem to have vested on their
-- 4 of 13 --
5 C/H No.1082/2018 in S.S.7538/1981
appointment, as the First Board of Trustees of the said Shri Saurashtra
Patel Samaj, Mumbai. Therefore, the proposed plaintiffs cannot be
impleaded as plaintiffs in the manner as proposed by the present
Chamber Summons.
10 It is further contended that neither the plaintiffs nor the
deponent of the said affidavit in support has placed on record any
registered document evidencing the transfer and vesting of the title to
the suit property either in favour of the plaintiffs or in favour of the
proposed plaintiffs. The question of permitting the plaintiffs to be
impeaded in the present suit does not arise. Thus denied the averments
in affidavit in support of the chamber summons. Hence, prayed for
dismissal of chamber summons along with the costs.
11 Mr. Gopalbhai R. Pedhidya has filed his rejoinder. It is
averred that the deponent on behalf of defendant nos.10 to 12 has not
filed authorization letter issued in his name. The order passed by the
Assistant Charity Commissioner on 27.04.2017 is self explanatory. The
plaintiffs are under no legal obligation to provide a copy of the
Application bearing No.ACCVII/21/2018 to defendant nos.10 to 12. It
is further averred that he has been associated with the Trust for more
than 40 years. He has denied that Gopalbhai R. Patel and Gopalbhai R.
Pedhdiya are two different persons. He is the same person. He has
filed several affidavits in this suit in the name of Gopalbhai R. Patel
alias Pedhdiya. Trust is the owner of the suit property. This Chamber
Summons is only to add the board of trustees as plaintiffs, which has
been appointed under the approved scheme. Thus prayed for allowing
Chamber summons.
-- 5 of 13 --
6 C/H No.1082/2018 in S.S.7538/1981
12 Heard the learned advocate for the plaintiffs and the
learned advocates for the defendants at length. The suit has been filed
by the plaintiffs in the year 1981. Total seven plaintiffs have filed
present suit. It appears that out of them, plaintiff nos.1, 3, 4, 5 and 6
expired. The suit has been filed being trust of Shri Saurashtra Patel
Samaj. Plaintiff no.7 has mentioned name in the suit title as Gopalbhai
R. Patel. The plaintiffs have given description of suit property as New
Survey No.313, Hissa No.3/4 (Old Survey No.128 Plot No.1:3)
admeasuring 2000 square yards or thereabouts situated, lying and being
at Village Malad, Taluka Borivali, Mumbai Suburban District at
Kedarmal Road, Malad (West), Mumbai 400 064. The plaintiffs have
filed this suit for declaration that they have absolute right, title and
interest in the suit plot.
13 It is argued by the learned advocate for the plaintiffs that
Application bearing No.ACCVIII/21/2018 under section 50(A) of the
Bombay Public Trusts Act has been sanctioned on 27.04.2018.
Therefore, this Chamber Summons is for impleading the first board of
trustees of the Trust as coplaintiffs. The proposed coplaintiffs have no
objection and no prejudice would be caused to the defendants, if
proposed plaintiffs are brought on record. Further, he has submitted
that plaintiff no.7 had filed four affidavits in earlier Chamber Summons,
which were withdrawn with liberty to file Chamber summons. The
defendants have not taken any objection to the earlier affidavits of
defendant no.7. There is defence that the suit property is not of the
Trust. He has drawn my attention toward Exh.30 being the document
of Deed of Conveyance. There are balance sheet available to show that
the suit property is the Trust property. He has urged further that this
-- 6 of 13 --
7 C/H No.1082/2018 in S.S.7538/1981
issue is to be decided on merits. Thus, he has prayed for allowing
Chamber summons.
14 On the other hand, it is argued by the learned advocate for
defendant nos.10 to 12 that the proposed plaintiffs are trustees of
different Trust. It is contended that plaintiffs have not made compliance
of Order XXXI Rule 2 of the Code of Civil Procedure and not added all
trustees at the time of filing of the suit as plaintiffs. The defect of the
year 1991 can not be cured at this stage. There is no good case even to
the plaintiffs under Order I Rule 10 of the Code of Civil Procedure. The
plaintiffs have not shown interest in the suit property. The plaintiffs
have not filed on record any documents substantiating their contention
about the said trust being entitled to the suit property. Further, it is
argued that Chamber Summons by the said Gopalbhai Ravjibhai
Pedhdiya, claiming to be plaintiff no.7 is not maintainable.
15 In this background, let us consider first objection raised by
the defendants that plaintiff no.7 and deponent of the affidavit in
support of Chamber Summons, one Gopalbhai Ravjibhai Pedhdiya is
not one and the same person. According to them, the suit is filed by
plaintiff no.7 and others, claiming to be the Trustees of Shri Saurashtra
Patel Samaj, whereas the present affidavit in support has been affirmed
by one Gopalbhai Ravjibhai Pedhdiya claiming to be one of the Trustees
of Shri Saurashtra Patel Samaj. The advocate for the defendants has
drawn my attention towards name of plaintiff no.7 in Public Trust
Register also for the year 1991 and 19961997. Therefore, present
Chamber Summons is not maintainable.
16 It appears that earlier the plaintiffs had taken out Chamber
-- 7 of 13 --
8 C/H No.1082/2018 in S.S.7538/1981
Summons No.1970/2017 for allowing the plaintiffs to bring on record
12 proposed plaintiffs on the ground that new Trustees of the Trust
have been elected for a period of three year i.e. 20172018 to 2019
2020. Accordingly, change had been registered to the record of the
Trusts. In support of the said Chamber summons, present deponent had
filed affidavit in support of that Chamber Summons by mentioning his
name as Gopal R. Patel (alias Pedhdiya). Further, the learned advocate
for the plaintiffs has drawn my attention towards Chamber Summons
No.1971/2017 taken out by the plaintiff for issuance of writ of
summons to defendant no.7 by substituted service through publication
in the local newspapers. In support of the said Chamber summons also
present plaintiff no.7 had filed his affidavit by mentioning his name as
Gopal R. Patel (alias Pedhdiya). It is argued by the leaned advocate for
the plaintiffs that the defendants have never raised objection earlier to
the said affidavits in support of chamber summons nos.1970/2017 and
1971/2017.
17 Further, even plaintiff no.7 has filed rejoinder to the
present Chamber Summons by mentioning his name as Gopalbhai
Ravjibhai Pedhdiya (alias Gopal R. Patel) and alongwith rejoinder, he
has filed his notarized affidavit that in some documents he has
mentioned his name as “Gopalbhai Ravjibhai Pedhdiya, Gopalbhai R.
Patel and Gopal R. Patel”.
18 Thus, affidavits before this Court of plaintiff no.7 discloses
his name as “Gopalbhai Ravjibhai Pedhdiya (alias Gopal R. Patel)”.
Therefore, it is believable that plaintiff no.7 and Gopalbhai Ravjibhai
Pedhdiya (alias Gopal R. Patel) is one and the same person. Thus, there
is no substance in the objections raised by the learned advocate for the
-- 8 of 13 --
9 C/H No.1082/2018 in S.S.7538/1981
defendants that plaintiff no.7 and deponent in support of Chamber
Summons are different persons. From primafacie, documents i.e.
affidavits, it discloses that name of plaintiff no.7 is “Gopalbhai Ravjibhai
Pedhdiya (alias Gopal R. Patel).
19 Now second objection of defendants is want of compliance
of Order XXXI Rule 2 of the Code of Civil Procedure. But said
objection is necessary to decide on merits during the hearing of the
suit.
20 Further, according to the defendants, the proposed
plaintiffs have no interest in the suit property. The plaintiffs have filed
on record order passed in Application No.ACCVIII/21/2018 under
section 50(A) of the Maharashtra Public Trust Act. It appears that
plaintiff no.7 and Shri Bipin Khodabhai Patel have filed an application
being the Trustees of P.T.R. No.E3538 for framing of a scheme for
proper management and administration of the suit Trust. It reveals that
the provisions of constitution of the said Trust were drafted long back in
the year 1966. It reveals further that for better management and
administration of the said Trust along with draft scheme, the applicants
have submitted affidavits of the Trustees and undertaking and further
submitted copies of information cum consent of the trustees. They have
also submitted audited statements of the suit Trust and ScheduleI. For
appointment of first board of 27 trustees had given the written consent
for their appointment as trustee in the first board of trustees.
Accordingly, The Assistant Charity Commissioner passed order on
27.04.2018 and allowed scheme for better management and
administration of trust Shree Saurashtra Patel Samaj as per AnnexureA
to the Judgment.
-- 9 of 13 --
10 C/H No.1082/2018 in S.S.7538/1981
21 Perused Scheme framed. Paragraph no.5 of AnnexureA to
the Judgment discloses that as per the Public Trust Register, movable
and immovable property and as such other properties, which belongs to
the trust have been considered and further considered that properties,
which may through error, oversight or inadvertence have remained to
be mentioned in the ScheduleI. Further, paragraph no.8 discloses the
names of First board of Trustees. They are total 27 in numbers. The
plaintiffs have filed Public Trust Register. The defendants have also
filed on record copy of Public Trust Register. According to defendants,
the suit property is not mentioned in the register as a trust property.
22 The suit is filed earlier by the seven Trustees of Shree
Saurashtra Patel Samaj. The Assistant Charity Commissioner has framed
scheme in respect of Trustees of Shree Saurashtra Patel Samaj and
order has been passed on 27.04.2018. The suit is filed by the trustees
and in view of subsequent event of framing scheme, the proposed
plaintiffs have become trustees of the trust. No doubt, ScheduleI
nowhere discloses that the suit property is property of trust.
23 The learned advocate for the plaintiffs has placed on record
Deed of Conveyances dated 27.05.1963 and 02.02.1991 executed in
favour of Shree Saurashtra Patel Samaj Trust. Thus, prima facie Deed
of Conveyances of the suit property is in favour of the suit Trust.
Therefore, it is not acceptable that the proposed plaintiffs, who are the
trustees of the suit trust are not having interest in the suit property and
nowhere related to the suit property.
24 In view of scheme framed vide order of the Assistant
-- 10 of 13 --
11 C/H No.1082/2018 in S.S.7538/1981
Charity Commissioner and scheme framed, prima facie, it appears that
the proposed plaintiffs are having interest in the suit property. At this
juncture, in the absence of evidence on merits, it is not reasonable to
accept that the proposed plaintiffs have no interest in the suit property.
It seems that in view of OrderI Rule 10(2) of the Code of Civil
Procedure, the proposed plaintiffs have shown their interest in the suit
subject being the trustees of the Trust, in view of order passed by the
Assistant Charity Commissioner. In such circumstances, the proposed
plaintiffs have become necessary parties, in order to enable the Court
effectually and completely to adjudicate upon and settle all the
questions involved in the suit.
25 The learned advocate for the plaintiffs has placed his
reliance in Atmaram Ranchhodbhai V/s. Gulamhusein Gulam
Mohiyaddin and another reported in AIR 1973 Gujarat 113. With
respects, in view of above authority, all cotrustees must joint in filing a
suit for seeking possession of the property.
26 Further, the learned advocate for the plaintiffs has placed
his reliance in Monghi Bai V/s. Cooverji Umersey reported in 1939
Privy Council 926. Further, the learned advocate for the plaintiffs has
placed his reliance in Shyamabai wd/o Surajkaran Joshi and others
V/s. Madan Mohan Mandir Sanstha reported in 2014(2) Mh.L.J.
547. With respect the principle held is guideline for deciding this
Chamber Summons.
27 Further, the learned advocate for the plaintiffs has placed
his reliance in Chitralekha Builders and another V/s. G.I.C.
Employees Sonal Vihar Cooperative Housing Society Ltd. Reported
-- 11 of 13 --
12 C/H No.1082/2018 in S.S.7538/1981
in 2005(4) Mh.L.J.360. With respect, the plaintiff are “dominus litis”,
they are masters of the suit. Considering the subsequent event of
framing scheme by the order of the Assistant Charity Commissioner,
which have been taken place during the pendncy of the suit, it has
become necessary to implead proposed plaintiffs being the trustees of
the suit trust. The proposed plaintiffs are having interest in the suit
property being the trustees of the trust Shri Saurashtra Patel Samaj, in
view of registered Deed of Conveyances dated 27.05.1963 and
02.02.1991. Therefore, with respects, the authority cited is applicable to
the present set of facts.
28 Further, the learned advocate for the plaintiffs has placed
his reliance in Jivanlal Damodardas Wani V/s. Narayan Ukha Sali
reported in 1971 SCC OnLine Bom 47. In the present case in hand,
the proposed plaintiffs have shown their interest in the suit property, in
the background of execution of registered Deed of Conveyance in favour
of Shree Saurashtra Patel Samaj. Hence, principle held is applicable.
29 Thus, in view of my above discussion, I hold that the
present proposed plaintiffs are necessary parties to the suit being co
plaintiffs, in order to enable the Court effectually and completely to
adjudicate upon and settle all the questions involved in the suit.
Therefore, Chamber Summons is maintainable and is to be made
absolute in the interest of justice. With this, I proceed to pass the
following order:.
ORDER
Chamber Summons No. 1082 of 2018 is hereby made absolute in
terms of prayer clause (a), (b) and (c).
-- 12 of 13 --
13 C/H No.1082/2018 in S.S.7538/1981
2 The plaintiffs are hereby directed to carry out amendment
as prayed within seven days from the date of this order and further
directed to place on record amended copy of suit plaint.
3 It is also directed to the plaintiffs to furnish amended copy
of suit plaint to the defendants.
4 Chamber Summons No. 1082 of 2018 stands disposed of
accordingly.
(S. P. PONKSHE)
Judge,
Date: 04/10/2018. City Civil Court,
Gr. Bombay.
Dictated on : 04/10/2018
Transcribed on : 05/10/2018
Signed on : 10/10/2018
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
11/10/2018 At 2.05 p.m. MRS. SUPRIYA S. PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ MS. S. P. PONKSHE
(C.R.NO.01)
Date of pronouncement of
Judgment/Order
04/10/2018
Judgment/Order signed by P.O. on 10/10/2018
Judgment/Order uploaded on 11/10/2018
-- 13 of 13 --