PARSHVACHANDRAGACHCHH JAIN TRUST Vs. HITESH MULCHAND SHAH

JUDGEMENT

(1.) Challenge in this petition under Article 227 of the Constitution of India, is to the order dtd. 29/1/2011, passed below Exh. 19 in RCS No. 29 of 2011, by which, the learned Additional District Judge, Bhavnagar, transposed the defendant no. 6 Mulchand Lalji Shah, in the category of plaintiff and directed him to join as plaintiff no. 3 in the said suit.

(2.) Mr. Brijesh Trivedi, learned counsel for the petitioners - original defendants, has submitted that, the impugned order is dehors to the provisions of Order 1 Rule 10 of the Code of Civil Procedure, as the Court below, without appreciating the pleadings of the parties and ignoring the settled principles of law, transposed the defendant as a plaintiff, whereby, the court has committed patent jurisdictional error. That, the suit is filed by sons of Mulchand Lalji Shah under Sec. 56A of the Bombay Public Trust Act, 1950 for declaration and injunction with regard to administration of the Trust. It is in this context, he submitted that, the Trust had decided to construct a building for religious purpose at Palitana and for the donation, the advertisement was published on 15/2/2007. That, the defendant no. 6 Mulchand Shah, who is the father of the plaintiffs - respondents agreed to donate Rs.51.00 lakhs as he was the highest bidder and the proposal was accepted subject to meeting agenda held on 14/8/2007. The defendant no. 6 Mulchand Shah being a Trustee and highest bidder did not make any payment despite repeated request by the Trustees. The defendants petitioners again published advertisement for the donation and in pursuance of the notice, Rs.55.00 lakhs was proposed by the family of Kakubhai Shamjibhai, It is in this background facts, the sons of the Mulchand Shah filed a suit before the District Court, Bhavnagar for declaration and injunction, inter-alia, praying that the Trust be restrained in putting the name of donor on the proposed building. The said suit is filed against the petitioners including Mulchand Shah, Trustee. The plaintiff - respondent Nos. 1 and 2 moved an application for transposition of the party i.e. the defendant no. 6 Mulchand Shah be transposed and impleaded as plaintiff in the suit. The Court below considering the status as a Trustee of the trust, allowed the application and directed him to join as plaintiff no. 3.

(3.) Aggrieved with the impugned order dtd. 29/1/2011, the Trustees of the Trust i.e. original defendants are before this Court, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India.