LAWS(BOM)-1943-8-13

CHAMPAKLAL PURSHOTTAMDAS Vs. BAI NARBADABAI

Decided On August 06, 1943
CHAMPAKLAL PURSHOTTAMDAS Appellant
V/S
BAI NARBADABAI Respondents

JUDGEMENT

(1.) THIS suit was filed on April 3, 1940, by plaintiff No., 1 and the original plaintiff No.2 against defendants Nos. 1, 2 and 3 as the executors of one Gordhandas Ranchhodas Bhagat. The suit is to enforce a public charitable trust and was filed with leave obtained from the Advocate General under Section 92 of the Civil Procedure Code, 1908. The1 defendants filed their written statement on July 1, 1940, and one of the points taken was that the suit was bad for non-joinder inasmuch as Shapurji Rustomji Bhownagri was a necessary party to the suit because he was appointed a trustee along with defendants Nos. 1, 2 and 3 to carry out the trusts created by the will of Gordhandas Ranchhoddas Bhagat. On November 14, 1940, a consent order was taken in chambers whereby Shapurji Rustomji Bhownagri was brought on re cord as defendant No.4 to the suit. Before bringing him on record and amending the plaint and proceedings, pursuant to the chamber order I have just referred, no leave of the Advocate General was taken under Section 92 of the Civil Procedure Code Trie newly-added defendant filed his written statement on April 17, 1941, and he took the point, as he was obviously bound to do, that no leave of the Advocate General having been obtained under Section 92 of the Civil Procedure Code, the suit was not maintainable. The newly-added defendant having taken this defence in his written statement, a notice of motion was taken out on July 24, 1941, by the plaintiffs for leave to withdraw the suit against defendant No.4 with liberty to file a fresh suit against him, and on August 5, 1941, the Court granted leave to the plaintiffs to withdraw the suit, as against defendant No.4 with liberty tq them to file a fresh suit against him on the same cause of action. By the same order the plaintiffs were also ordered to pay to defendant No.4 the sum of Rs. 325 being his costs of the suit. Plaintiff No.2 died on August 23, 1941, and pursuant to a chamber order obtained on October 24, 1941, the name of plaintiff No.2 was struck off. The plaintiffs obtained leave of the Advocate General, and pursuant to an order dated November 28, 1941, the plaintiffs brought Shapurji Rustomji Bhownagri again on record as defendant No.4. On January 16, 1942, a consent Judge's order was taken whereby the chamber order dated October 24, 1941, by which plaintiff No.2's name was struck off and the consent Judge's order dated November 28, 1941, by which defendant No.4 was again brought on record were vacated, and it was ordered that after obtaining the previous consent of the Advocate General the name of the original plaintiff No.2 should be struck off and the name of the present plaintiff No, 2 should be brought on record and also the name of Shapurji Rustomji Bhownagri be added as defendant No.4 to the suit.

(2.) THE newly-added defendant No.4 has filed another written statement on June 19, 1942, by which he takes up the contention that his addition as a party defendant to this suit and the amendments! in the plaint made pursuant to the order of January 16, 1942, are not in terms of and/or are not warranted by the order dated August 5, 1941, and/or are not lawful. Defendant No.4 further takes up the contention that as the original plaintiff No.2 died after August 5, 1941, the leave given to file a fresh suit against-defendant No.41 by the order of that date is not available to the present plaintiffs.

(3.) I, therefore, hold that in bringing defendant No.4 on record pursuant to the order of January 16, 1942, the plaintiffs had instituted a fresh suit as against him ; and they having obtained leave to file, this fresh suit in respect of the same subject-matter by the order of August 5, 1941, they are entitled to maintain the suit as against defendant No.4.