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Jainarayan Mandlal Vs. Agarwal Panch Mandal, Khamgaon - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 16 of 1969
Judge
Reported inAIR1973Bom167; 1973MhLJ49
ActsCode of Civil Procedure (CPC), 1908 - Order 6, Rule 17
AppellantJainarayan Mandlal
RespondentAgarwal Panch Mandal, Khamgaon
Appellant AdvocateM.S. Deshpande, Adv.
Respondent AdvocateV.M. Kulkarni, Adv.
Excerpt:
.....closely perused, and which i have referred to in the earlier part above, clearly show that the suit was not in the individual capacity at all. he referred to the provisions of section 31 of the bombay public trusts act so as to say that the suit should fail as the trust in suit was not a registered trust. the complaint that any right that is accrued to the defendant is in any manner jeopardised or defeated cannot prevail......by all agarwals of khamgaon and some of the members are managing the same in the name as agarwal panch mandal which was the original name of the plaintiffs. similarly, in the same paragraph permission is sought from the court as required by order 1 rule 8, code of civil procedure.4. originally, the suit appears to have been filed on june 26, 1965 and the written statement put in on september 1, 1965. the original suit is in the name of plaintiffs 'shri agarwal panch mandal. khamgaon by managing trustees' and two names are given (1) shri sheodatta laxmandas and (2) radhakisan bodulal, both residents of khamgaon. it is a suit for possession of the land which is said to be in the occupation of the defendant. thus, the original suit itself was filed by agarwal panch mandal, which.....
Judgment:
ORDER

1. The present revision is directed against the order dated October 29, 1968 passed by the 2nd Joint Civil Judge (Junior Division) Khamgaon, allowing the plaintiffs to amend their plaint so as to add averments in the plaint to the effect that they were suing in the representative capacity under Order 1 Rule 8, Code of Civil Procedure.

2. Though the application was styled as an application for amendment, the amendments sought were that the suit property belonged to the Agarwal community of Khamgaon and the plaintiffs were suing as such for and on behalf of the community and they seek leave as required by Order 1 Rule 8, Code of Civil Procedure. In other words, the application was referable to the power of the Court under Order 1 Rule 8 and consequently the amendment under Order 6 Rule 17 of the Code.

3. However, the learned Court treated it as merely an application for amendment and on that footing allowed it and now the plaint stands amended, whereby the cause title in the plaint is changed showing that the original plaintiffs are suing in the representative capacity for and on behalf of Agarwals of Khamgaon for their benefit. A para is added being para No. 7 (a) stating that the property is owned by all Agarwals of Khamgaon and some of the members are managing the same in the name as Agarwal Panch Mandal which was the original name of the plaintiffs. Similarly, in the same paragraph permission is sought from the Court as required by Order 1 Rule 8, Code of Civil Procedure.

4. Originally, the suit appears to have been filed on June 26, 1965 and the written statement put in on September 1, 1965. The original suit is in the name of plaintiffs 'Shri Agarwal Panch Mandal. Khamgaon by Managing Trustees' and two names are given (1) Shri Sheodatta Laxmandas and (2) Radhakisan Bodulal, both residents of Khamgaon. It is a suit for possession of the land which is said to be in the occupation of the defendant. Thus, the original suit itself was filed by Agarwal Panch Mandal, which admittedly is not registered nor incorporated body or society. Thus, the suit in effect purported to be on behalf of Agarwals represented by the Panch Mandal. On behalf of the said Panch Mandal, the two persons were named (1) ] Laxmandas and (2) Radhakisan Bodulal as the plaintiffs. The plaint does not aver any personal cause of action as far as these two persons are concerned, and it entirely relates tot he rights of the Agarwal Community as such. Thus, if the original plaint is scrutinised, it is clear that cause for the same and the matter that was canvassed was for the benefit of the community, whatever that may be and it was represented by the Agarwal Panch Mandal. Even the defendant understood the plea in this manner and traversed allegations or accepted certain facts in the written statement on that basis. In fact, the written statement does not deny the ownership of the suit property as being that of Panch Mandal, the plaintiffs.

5. It appears, however, that some objections were raised on the basis of the provisions of Section 31 of the Bombay Public Trusts Act by way of defence to the tenability of the case. The suit was proceeded till the state of evidence and all evidence was recorded. Thereafter the suit appears to have been fixed for judgment. At that stage the present application was filed and it was pleaded in the application that the plaintiffs have applied separately for necessary permission under Order 1, Rule 8, Code of Civil Procedure, that was made by the plaintiffs and consequent amendments were sought in the plaint.

6. The contention of the learned advocate appearing for the applicant-defendant in this revision is that this changes the nature of the suit. The application for amendment itself was very much belated and the right accrued to the defendant to defeat the claim as laid in the plaint is seriously prejudiced.

7. The plaint allegations, if closely perused, and which I have referred to in the earlier part above, clearly show that the suit was not in the individual capacity at all. It was by a community which is neither incorporated nor registered. The body it is not disputed, called Agarwal Panch Mandal, is not a society registered under the Societies Registration Act nor is it registered under the Bombay Public Trusts Act. When the two persons named as the representatives of the Panch Mandal filed a suit, really they were suing in the representative capacity and styling themselves as trustees for the entire community. This position cannot be seriously disputed. If that is the real character of the cause of action, the present amendment is merely explanatory and does not affect nor change the nature of the suit.

8. As to the delay, no doubt the matter has been pending in the Court and such an application could have been made at the earliest opportunity but the learned Judge, after allowing the amendment, has given the costs of Rs. 150/- to cover the expenses occasioned to defendant. That is sufficient, in my view, to compensate the defendant in this case.

9. Thirdly Mr. Deshpande argued that some right in defence is jeopardised. He referred to the provisions of Section 31 of the Bombay Public Trusts Act so as to say that the suit should fail as the trust in suit was not a registered trust. If that is the interpretation upon Section 31 as is being contended by Mr. Deshpande. I do not follow as to how that contention could be overruled only because the amendment of the present nature is allowed by the Court. If a suit on behalf of a trust cannot be maintained in view of any of the provisions of law, only because permission or leave is granted under Order 1, Rule 8, Code of Civil Procedure, the defect would not stand ceased. The question is still open and will have to be considered by the Court on its own merit at proper stage. That would require consideration of Section 31 of the Bombay Public Trusts Act and its application will have to be taken into account. That inquiry is not surely ruled out. The complaint that any right that is accrued to the defendant is in any manner jeopardised or defeated cannot prevail.

10. These being the contentions raised on behalf of the applicant-defendant to support this revision, it must be held that there is no merit in this application. The revision, therefore, stands dismissed, but there will be no order as to costs.

11. Revision dismissed.


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