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Dhanjibhoy Raghoo Vs. Meherally Moraj - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberOriginal Suit No. 435 of 1005
Judge
Reported in(1907)9BOMLR901
AppellantDhanjibhoy Raghoo
RespondentMeherally Moraj
Excerpt:
civil procedure code (act xiv of 1882), section 539-breach of trust-suit brought with the consent of the advocate general-amendment of plaint by mentioning particulars of the breach of trust-no consent necessary.;a suit instituted under the provisions of section 539 of the civil procedure code complained generally about a breach of trust. the suit was brought with the consent of the advocate general. the plaint was subsequently amended by mentioning the particulars constituting the breach of trust: no consent of the advocate general was obtained to the amendment: ;that consent was not necessary, because if the advocate general was satisfied generally that there was a breach of trust and gave his consent, it was competent to the plaintiffs to specify such instances of the breach of trust..........could not be expected to answer a vague charge of breach of trust without particulars of the breach. plaintiffs' counsel asked for permission to amend the plaint by mentioning the particulars. the amendment, having been allowed, was made accordingly. but now it is urged for the defendant that the court cannot go into the question of those breaches, because no consent in writing had been obtained to the suit in respect of them before it was filed, as required by section 539 of the code of civil procedure.2. apart from the amendment in para 6 a of the plaint, the suit fulfils all the requirements of section 539. the plaint originally filed merely alleged breach of trust; it related to a public charitable purpose; it asked for the removal of the trustees and for the appointment of new.....
Judgment:

Chandavarkar, J.

1. A preliminary objection has been raised to the maintenance of this suit, so far as the breaches of trust alleged against the first defendant in para 6A of the plaint are concerned. In the plaint originally filed there was a mere allegation that the defendants had committed breaches of trust and their removal was prayed for on account of those breaches. Before raising issues, I pointed out to plaintiffs' counsel that the defendants could not be expected to answer a vague charge of breach of trust without particulars of the breach. Plaintiffs' counsel asked for permission to amend the plaint by mentioning the particulars. The amendment, having been allowed, was made accordingly. But now it is urged for the defendant that the Court cannot go into the question of those breaches, because no consent in writing had been obtained to the suit in respect of them before it was filed, as required by Section 539 of the Code of Civil Procedure.

2. Apart from the amendment in para 6 A of the plaint, the suit fulfils all the requirements of Section 539. The plaint originally filed merely alleged breach of trust; it related to a public charitable purpose; it asked for the removal of the trustees and for the appointment of new trustees in their place; and the suit was brought by two or more persons after having obtained the consent in writing of the Advocate General. So far there was nothing wanting to make the suit complete according to the section. The subsequent amendment has merely particularised the breaches of trust. There is nothing in Section 539 which requires parties bringing a suit under it to obtain the consent in writing of the Advocate General to any and every specific charge of breach of trust alleged against the defendant. All that the section requires is that the Advocate General should give his consent in writing to the institution of the suit in a case where any breach of trust is alleged. A suit is instituted by filing a plaint and Section 50 of the Code of Civil Procedure prescribes the particulars which the plaint must contain. Among them is a plain and concise statement of the circumstances constituting the cause of action and where and when it arose. Here there was a statement of the circumstances when the plaint was filed, but it was not as plain as it ought to have been. It was alleged that the defendants had committed breaches of trust and that, therefore, they were liable to be removed. The plaint so filed was brought with the consent in writing of the Advocate General previously obtained. The amendment merely made the statement of the circumstances more clear and specific. If the Advocate General was satisfied generally that there was a breach of trust and gave his consent, it is competant to the plaintiff's to specify such instances of the breach of trust as they think they can prove. The section nowhere says that the plaintiffs must state in the plaint only such particulars of breach of trust as they have placed before the Advocate General and to the mention of which in the plaint he has given his consent. They are merely matters of detail inserted in the plaint in accordance with the rule of law, (independent of Section 539), that a defendant against whom fraud (which is implied in the term breach of trust) is alleged should have particulars of fraud stated in the plaint so that he may know the specific case he has to meet. Had the Legislature intended that the suit should be confined to those charges of breach of trust to which the Advocate General has consented, they would have said so explicitly in the section. A mere specification of the instances of breach of trust on the part of the defendant does not change the suit or affect its constitution as required by Section 539 so long as all the essential conditions prescribed in that section are complied with. I find no warrant whatever in the language of the section for putting upon it the narrow construction contended for by the defendants' counsel.

3. The decision in Darves v. Jainudin (1806) 8 Bom L.R. 751 which has been relied upon in support of the preliminary objection, stands upon a different footing altogether. There the suit had been origin ally brought by only one person with the consent in writing thereto of the Advocate General, whereas Section 539 required that two or more persons should bring it. After the suit had been filed another person obtained the Advocate General's consent in writing and joined the suit as co-plaintiff. And it was held that he could not by such joinder cure the original defect of the suit, since it had been filed by only one person after obtaining the Advocate General's consent and the new plaintiff had joined with the consent of that official obtained after the institution of the suit. The very constitution of the suit was there bad from the beginning ; there was no consent in writing of the Advocate General obtained before its institution, as required by the plain terms of the section. There is nothing of the kind here. The amendment of the plaint in the present case merely makes the statement as to the cause of action arising from the alleged breach of trust on the part of the defendant more clear and specific than it was in the original plaint. I find in the negative on the issue. The defendant should pay the costs of this issue.


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