VIJAYSINGH GORDHANDAS Vs. DWARKADAS MULJI

JUDGEMENT

(1.) THIS writ petition, under Article 227 of Constitution of India, takes exception to the order passed by the Small Causes Court, Bombay dated 21st November, 1995 in Interim Notice No. 659 of 1995 in L. E. Suit No. 147/195 of 1979.

(2.) THE above-said suit has been filed by the petitioners for possession of the suit property against the respondent-licensee on the ground that the subject license has been revoked. In the said suit an application was preferred on behalf of the petitioners-plaintiffs praying that Vijaysingh Gordhandas-plaintiff No. 1 be allowed to give evidence after the evidence of their witnesses P. W. 1 and P. W. 2 was already recorded. This application was filed in terms of the provisions under Order 18, Rule 3-A of Civil Procedure Code. The Court below has, however, rejected the said application on the ground that the plaintiff witness P. W. 1-Mr. Shreenarayana Shivmangal Mishra has already been examined in his capacity as Constituted Attorney of the plaintiffs and therefore it was not open to the plaintiffs to give evidence thereafter. This order is the subject matter of challenge in the present writ petition.

(3.) THE learned Counsel for the petitioners submits that the Court below has clearly misdirected itself in rejecting the application. According to him, the purport of Order 18, Rule 3-A would, on the contrary, enable the Court to grant such permission in appropriate cases depending on the facts and circumstances of the case. He further submits that the Court below has clearly over looked the crucial fact that P. W. 1 S. S. Mishra has been examined in his capacity as Constituted Attorney of Vijayasingh Gordhandas-plaintiff No. 1 and not on behalf of the trust the plaintiffs. He submits that the plaintiffs are only trustees of a public trust and have filed the subject suit for and on behalf of the trust. In that sense, it is submitted that, the evidence of P. W. 1 in his capacity as constituted Attorney of Vijaysingh Gordhandas will have to be treated as in his personal capacity and cannot be of any avail to the Trust. To buttress this submission he relies on the cross-examination of P. W. 1 where this witness has categorically stated that he was deposing only as the Power of Attorney of Vijaysingh Gordhandas. The learned Counsel for the petitioners submits that, the plaintiffs, being trustees of the public trust, in law, were not entitled to delegate their powers that of trustees but could only delegate their ministerial act and in that view of the matter it is not possible to comprehend that the plaintiff No. 1 could have given his power as a trustee in favour of any other person to depose on his behalf in his capacity as trustee. He further submits that having regard to the totality of the circumstances and particularly the cause shown in the subject application that the plaintiff No. 1 wants to examine himself to establish the fact that the property in question was let out by him personally to the respondent-defendant, no other person will have authority to depose in his behalf. In the circumstances, he submits that the entire approach of the Court below is unsustainable-both on facts and in law.