ARYA VAIDYA SALA Vs. K.C. VIJAI KUMAR

JUDGEMENT

(1.) The applicants are trustees of the Plaintiff-trust, Arya Vaidya Sala, and through this application under Order 1, Rule 1 read with Order 1, Rule 10(2) of the Code of Civil Procedure seek to implead themselves as plaintiffs in the present (case) on the ground that they are seven trustees in the plaintiff trust and the suit has been filed by the trust through the Managing Trustees, namely, Shri P.G.Vijai. In fact the suit has been filed by the Managing Trustees on the basis of the authorisation by the trustees of the trust but in order to avoid any technical objection on the maintainability of the suit the applicants seek the addition of their names along with the Managing Trustee as the plaintiffs in the present suit. Such an addition, according to the applicants, as plaintiffs will not in any way prejudice the case of the defendant. The defendant has opposed this application on the ground that the application is highly belated, more particularly when the suit was finally argued and judgment was reserved. In fact, according to the defendant, the applicants have not taken any steps to file such an application even then such an objection was taken in the written statement which was filed long back and as such the present application is time barred. Moreover, this application can only be maintainable if the addition of certain parties is sought for but in this case it is the complete substitution of the parties as it is the trust which has filed the suit and not even one of the trustees.

(2.) During the course of hearing, counsel for the defendant strenuously opposed this application. His main contention was that the suit has been filed by the trust through the Managing Trustee and no suit has been filed by the trustee(s) and by allowing such an application it will amount to substitution of the parties and not of addition of parties, which is not permissible under the law. Furthermore the application is highly belated and time barred.

(3.) I have given careful consideration to the contention of the learned counsel for the defendant but to my mind they are wholly unacceptable. No doubt the suit has been filed by the trust but that has been filed through the Managing Trustee, Shri P.K. Varier. Therefore, one of the trustees, i.e., the Managing Trustee is the plaintiff in the suit in case it is held that the trust is not a legal entity. Therefore, it would not be unreasonable to hold that the addition of other six trustees as plaintiffs would not be the substitution but would be the addition of the parties as plaintiffs. Even if it is assumed that the Managing Trustee cannot be construed to be as one of the plaintiffs as he has filed the suit on behalf of the trust, in such a situation as well the Courts have power under Order 1, Rule 10 at any stage of the suit to substitute the plaintiff if it is satisfied that the suit has been instituted through a bona fide mistake and that it is necessary for the determination of real matter in dispute to do so. In this connection it may be noticed that the trust is a charitable trust and the suit has been filed to recovery possession of the premises from a trespasser. Secondly there has been a considerable misunderstanding regarding the filing of the suit as present one and it has been assumed by the lawyers that the suit can be filed in the name of trust inasmuch as in Birdhi Chand Jain Vs. Kanhaiyalal Shamlal, 1972 Rajdhani LR 142 Deshpande, J. held that a resolution could be passed authorising one of the trustees. In these circumstances the filing of the suit by the trust through the Managing Trustee has been a doubtful proposition and such a filing, therefore, can be termed as out of bona fide mistake. Further, the nature and character of the suit does not change in anyway and remains the same, i.e., the suit is by the charitable trust for the recovery of possession of the premises. The present application has been filed by the trustees only to avoid the technical objection of the non-maintainability of the suit and is necessary for the determination of real matter in dispute. Therefore, in the aforementioned circumstances it would be expedient in the interest of justice to allow the substitution or addition of the parties as prayed for in the application by the applicants-trustees.