1. This second appeal is filed by original plaintiff against the appellate decree passed against respondent No. 4 Trust, respondent Nos. 1 to 3 are the trustees of the Trust-respondent No. 4, though they are not described as such.
2. The plaintiff had filed a suit against the Trust initially in the Court of the Joint Civil Judge, Junior Division, Jalgaon, being Regular Civil Suit No. 618 of 1972 impleading the Trust as the first defendant and defendants Nos. 2 to 11 as original trustees. The suit was filed to recover an amount of Rs. 2,322/- with further interest and costs. The case of the plaintiff was that the first defendant is Public Trust and he was the employee of this Trust working as a teacher in one of the High Schools conducted by the Trust. The plaintiff was appointed as the Head Master for academic year 1969-70 on monthly pay of Rs. 200/- as the basis pay and permitted dearness allowance. The total salary of the plaintiff was Rs. 327/- per month. It was the case of the plaintiff that he was appointed on June 11, 1969 for a period of one year i.e., from June 11, 1966 to June 10, 1970.
3. It appears that the schooled was closed within that time after appointment and the defendants did not pay the plaintiff the agreed amount of salary, and therefore, the plaintiff was required to file a suit for recovery of his pay. The plaintiff had, therefore, filed an earlier suit, being Regular Civil Suit No. 529 of 1969 to recover his salary and it appears that suit related to the first six months of academic year 1969 70. That suit came to be decreed and the decree in that suit is on record which shows that the plaintiffs claim to the extent of six months period was decreed on the basis that the defendant-Trust committed breach of contract.
4. In this suit, which is filed by the plaintiff the plaintiff says that he was ready and willing to work as Head Master for the whole year but Vidyalaya was closed and the defendant-Trust is liable to pay for the remaining six months of the academic year 1969-70.
5. Defendant-Trust raised a plea that the suit is barred by the provisions of O. 2 R. 2 of the Civil P. C., in view of the judgment and decree passed in the earlier suit being Reg. Civil Suit No. 529 of 1969. It also dented that the Trust had committed any breach of contract and finally contended that the plaintiff is not entitled to any relief because be had not cause of action to his the present suit.
6. The learned trial Judge framed as many as seven issues. On consideration of the evidence on record, he held on issue No. 5 which related to the closure of the school, that as on this issue no evidence was given by the defendants, therefore, the contention of the plaintiff was accepted by the trial Judge that the school was not closed and therefore holding the contract continues he held that the plaintiff is entitled to the relief claimed by him. On issue NO. 6. Which related to the bar under O. 2 R. 2 of the Civil P. C. The learned trial Judge held that the bar is not attracted, because the cause of action for the present suit and the cause of action for the earlier suit are different, holding that the former suit was for recovery of damages of the earlier six months and the present suit is confined to the period from Nov. 12, 1969 to June 11. 1970 and the bar of O. 2 R. S of the Civil P. C. Does not arise. The learned trial Judge was of the view that since the plaintiff's claim relates to the monthly salary in which event monthly salary becomes due per month and as this cause of action is recurring cause of action, he held that the bar of O. 2 R. 2 of the Code cannot be attracted to the present suit. The other issues are not necessary to be taken into consideration. On these principal issues, the trial Judge having held in favour of the plaintiff passed a decree in the sum of Rs. 5,322 plus interest. It is material in note that the decree reads as follows:-
'The defendant-Trust to pay the plaintiff a sum of Rs. 2,322/- plus interest at the rate of 4% p.a from the date of suit till realisation. Defendant-Trust to pay the costs of this suit to the plaintiff and shall bear its own.'
7. Against this decree, only defendant Nos. 3, 5 and 6 filed an appeal before the learned District Judge, Jalgaon. This appeal was heard by the learned District Judge and he had reversed the decree passed by the trial Court and dismissed the suit of the plaintiff on the ground of bar of O. 2 R. 2 of the Civil P. C. Although be held on other issues in favour of the plaintiff concurring with the trial Court. In the resuit the learned District Judge allowed the appeal and set aside the decree of the trial Court, and dismissed the suit of the plaintiff by his judgment and decree, dated Feb., 9, 1976. The plaintiff being dissatisfied with this appellate decree has filed this second appeal in the High Court.
8. It may be noted here that the first defendant is a Trust and there were as many as defendants Nos. 2 to 11 as trustees originally on record. Mr. V. Z. Kankaria, the learned Advocate for the respondents had told that defendants Nos. 3, 5 and 6 were represented by lawyers and original defendant No. 11 died and all other respondents were ex parte. Original defendant No. 2 Pandharinath Thapade is not the appellant before me.
9. Mr. J. R. Lalit for the appellant has raised preliminary point that the appeal filed by defendant Nos. 3, 5 and 6 before the Appellate Court is incompetent and defective, because the other defendants who were co trustees are not jointed in the said appeal either as appellants or respondents. Secondly, he says that as the decree is only passed against the Trust, the appeal filed by defendants Nos. 3,5 and 6 is untenable, because they cannot be said to be the persons aggrieved or adversely affected by the decree. I have already quoted the extract of the operative portion of the decree and from that it appears that decree and not show that original defendants Nos. 2 to 11 are made liable under the said decree.
10. Mr. Kankaria, the learned Advocate for the respondents has urged before the that the framing of the appeal before the Appellate Court is not detective, because defendants Nos. 3 5 and 6 are co-trustees along with other trustees and the Trust is duly represented by them and their interest being joint, they are entitled to challenge the decree, which adversely would affect the Trust. He invited my attention to the provisions of S. 2 (18) of the Bombay Public Trusts Act, 1950 (hereinafter referred to as the 'Trust Act') which reads thus:-
'2 (18) 'trustee' means a person in whom either alone or in association with other persons, the trust property is vested and includes a manages.'
Mr. Kankaria also invited my attention to the definition of 'public Trust' and contended that any one of the trustees being interested can file the appeal, and therefore the framing of the appeal and therefore the framing of the appeal is out defective. He tried to substantiate his case by citing certain circumstances. Especially he invited my attention to the authority reported in Rameshwar Prasad v. Shambehar Lal. : 3SCR549 . Relying on the provisions of Civil P. C. Contained in O. 41 R 4 as interpreted by the Supreme Court in Rameshwar Prasad v. Shambehari Lal (supra) he this appellate decree has filed this second appeal in the High court.
8. It may be noted here that the first defendant is a Trust and there were as many as defendants Nos.2 to 11 as trustees originally on record. Mr.V.Z. kankaria, the learned Advocated for the respondents had told that defendants Nos. 3, 5 and 6 were represented by lawyers and original defendants No.11 died and all other respondents were ex parte. Original defendant No.2 pandharinath Thapade is not the appellant before me.
9. Mr.J.R. Lalit for the appellant has raised preliminary point that t he appeal filed by defendant Nos. 3,5 and 6 before the Appellate court is incompetent and defective, because the other defendants who were co-trustees are not joined in the said appeal either as appellants or respondents. Secondly, he says that as the decree is only passed against the Trust, the appeal filed by defendants Nos. 3,5 and 6 is untenable. Because they cannot be said to be the persons aggrieved or adversely affected by the decree. I have already quoted the extract of the operative portion of the decree and from that it appears that that decree does not show that original defendants Nos.2 to 11 are made liable under the said decree.
10. Mr.Kankaria, the learned Advocate for the respondents has urged before me that the framing of the appeal before the Appellate court is not defective, because defendants Nos.3,5 and 6 are co-trustees along with other trustees and the Trust is duly represented by them and their interest being joint, they are entitled to challenge the decree, which adversely would affect the Trust. He invited my attention to the provisions of S.2 (18) of the Bombay public Trusts Act, 1950 (hereinafter referred to as the 'Trust Act') ,which reads thus:-
'2 (18) 'trustee' means a person in whom either alone or in association with other persons, the trust property is vested and includes a manager.'
Mr.Kankaria also invited my attention to the definition of 'public Trust' and contended that any one of the trustees being interested can file the appeal, and therefore the framing of the appeal is not defective. He tried to substantiate his case by citing certain circumstances. Especially he invited my attention to the authority reported in Rameshwar prasad v.shambehari Lal, : 3SCR549 . Relying on the provisions of Civil P.C. contained in O.41, R 4 as interpreted by the supreme court in Rameshwar prasad v. Shambehari Lal (supra), he contended that one of the plaintiffs or defendants under R.4 represents the non-appealing defendants and thus can file the appeal when the decree proceeds on any ground common to all. He also invited my attention to other two cases in support of his contention that one co-trustee can file appeal. He also relied on the case reported in B.sailendra Nath v.shib Dass , which case according to me is not applicable to the facts of the present case, because the said case deals with the appointment of new trustees under section 92 of the civil P.C. There is no quarrel with the proposition that the new trustees can be appointed in place of old trustees in a case which governed by section 92 of the Civil P.C. for removal of the trustees. The present suit is not a suit as contemplated by sec. 92 of the civil P.C. Mr.Kankaria again referred to an authority reported in Gurunath Khandappagouda v. Venkatesh Lingo AIR 1937 Bom 101, which case has no bearing on the present facts of the case, because that case related to a decree for costs which was made against A,B, and C in the trial court and after execution of the decree against A, on appeal by B and C to which A was not party , the decree was reversed and A applied for restoration of that decree. It was held in that case that A was entitled to restoration though he was no party to the appeal. This case again is not any assistance to Mr.Kankaria in any way.
11.There is another aspect, which is important in this case, that the first defendant-Trust was the public trust and defendant No.2 was managing the affairs of the trust as stated in the judgment of the trial court. It would have been expected that at least defendant No.s should be have been on record to file the appeal. Mr.Kankaria is unable to show me from the memo of appeal of the Appellant court or the plaint that the trustees were described as such of that the present respondents Nos. 1 to 3 were mentioned as managing trustees. In the absence of the other co-defendants against whom the decree was not passed by the trial court, in my opinion, the decree of the trial court has become final and if it is allowed to be reopened at the instance of defendants Nos.3,5 and 6 as the remaining co-defendants are not parties to this appeal as stated above, I think that it will give rise to conflicting decrees. If the decree is joint and one, then it is difficult to see how in this particular case at least defendants Nos.3,5 and 6 could represent the other trustees of the Trust when defendant No.2 was actually described as managing trustee as stated above In the judgment.
12. The learned Advocated Mr.Kankaria further contended that In view of the provisions of O.41 R.4 of the civil P.C. as the trust properly vests in the trustees as stated in the definition of 'trustee' contained in S.2 (18) of the public Trusts Act and in view of the cases, which are cited by him to support his contention that the appeal before the Appellate court was competent one, he also relied on the provisions of O.41 , R.33 to support his contention that the decree can be passed against non-appealing defendants and the Appellate court is entitled to exercise power under O.41, R.33 of the Civil P.C.
13. I need not discuss the provisions of o.41 , R.33 of the civil P.C. It is sufficient to say that reliance on the provisions of order 41, Rule 33, is quite misconceived. Order 41, Rule 33 deals with the powers of the appellate court to pass a decree against non-appealing respondent or under certain special circumstances. The power is wide and therefore it is also to be exercised sparingly. The power cannot be invoked for the simple reason, because the appeal filed by defendants. Nos.3,5 and 6 before the learned District judge is inherently defective and no formal application for amendment of the defect has ever been given even to-day. I have not prevented Mr.Kankaria to address his arguments although he has not formerly made any application for amendment, but that does not solve the controversy in regard to the preliminary point. In my opinion, reliance on O.41 R.4 of civil P.C. is also not correct. Order 41, Rule 4 deals with the case where there are more plaintiffs or more defendants than one in a suit and the appellate decree proceeds on any ground common to any one of them. In view of the contention of mr.Kankaria that the interest of the Trust and the trustees is one and same, it is difficult to see how the provisions of O.41, R.4 can be availed of.
14. It is true that in case of trust, one of the trustees interested in the property can certainty take proceedings, but in this case I am concerned with the decree which is already passed by the trial court and the trial court having not held the respondents liable under the decree, I do not see now this principle will be applicable to the facts of the present case. The memo of appeal in the District court as well as the plaint is silent about the actual description and designation of the other respondents who are trustees although the plaintiff has himself stated in his plaint that he is suing the Trust and made the other trustees as party defendants to the suit. But that position is not being availed of by the defendants, because the suit was tried and the decree was passed by the trial court. As the decree as interpreted is only against the Trust, it is not possible to accept the contention of mr.Kankaria that the other trustees are averse affected or can be said to be the aggrieved persons.
15. Mr. Lalit, the learned Advocate for the appellant has invited my attention to a case reported in vendakannu Nadar v.Naguneri Taluk Singikulam Annadana chatram AIR 1938 Mad 982 and reliance was placed on Head Note (e), which reads as follows :
'The general principle of law is that the office of a trustee, irrespective of the number of trustees,is a joint one and co-trustees from , as it were one trustee and must therefore execute the duties of their office jointly. Hence no suit in regard to trust properties would be maintainable by one or some of the trustees only, if the remaining trustees are not before the court either as plaintiffs or even as defendants.'
Following ratio of this decision, I see no difficulty in accepting the contention raised by Mr.Lalit. It is further found in the said authority that the other co-trustees were not made parties and even formal amendment application for bringing them on record was not made. In this case also, Mr. Kankaria has also not made any attempt to make any application to bring the other trustees on record. Therefore, in my opinion, the appeal filed before the District court is defective. Mr.Lalit also derived support fro the Gujarat High court (FB) , case reported in Atmaram Ranchhodbhai v.Gulamhusein Gulam mohiyaddin, : AIR1973Guj113 which reiterates the same principle that all the trustees must be before the court when the question of liability of trust properties is involved. In view of this legal position, In hold that the appeal filed by defendants nos.3,5 and 6 before the learned District Judge, Jalgaon being civil Appeal No.124 of 1974 was not competent appeal and, therefore, the findings recorded by the learned District judge in the appeal are liable to be vacated. I do not think it necessary to deal with the other point regarding bar of O.2, R.2 of the Civil P.C. as the appeal stands disposed of on the preliminary point raised by mr.Lalit.
16. In the result, the appeal is allowed. The appellate decree, dated Feb.9, 1976 in Appeal No.124 of 1974 is set aside and the decree of the trial court in civil suit No.618 of 1972, D/- April 11, 1974 is restored and confirmed.
Mr. Lalit for the appellant pressed for costs throughout. I do not agree with the learned Advocate as the appellant has succeeded on a technical point and therefore the appellant will be entitled to the costs of this appeal.
17. Appeal allowed.