SHRIKANT MANTRI Vs. RADHESHYAM CHOTIA

JUDGEMENT

(1.) Heard the learned advocates for the respective parties. The defendant Nos. 1 to 4 in a suit being C.S. No. 232 of 1999 have preferred this appeal challenging an order dated June 20, 2005 passed by the Hon'ble First Court in G.A. No. 61 of 2005. The respondent Nos. 1 and 2 are the plaintiffs in the suit and the respondent Nos. 3 and 4 are the defendant Nos. 5 and 6 in the suit.

(2.) The plaintiffs/respondents filled the suit claiming leave under section 92 of the Code of Civil Procedure and also under Order 1 Rule 8 of the Code of Civil Procedure. The plaintiffs/respondents prayed inter alia for a decree for removal of the defendants/appellants as trustees of a certain Smt. Kamla Devi Mantri Charity Trust and for appointment of fit and proper persons as trustees, framing of a scheme for the purpose of proper management and administration of the trust and for enquiry into the funds and accounts standing in the name of the trustees and a decree for a certain sum of money with interest etc. It appears that sometime in May 1999, the plaintiffs moved an interlocutory application for injunction for restraining the defendants/appellants from dealing with the shares which were subject oof the Trust Fund and the plaintiffs/ respondents also filed an application for adding certain parties as party defendants in the suit. Both the said applications are pending hearing. The defendants/appellants, on coming to know of such proceedings, sometime in July 1999, moved an application for taking the plaint off the file alleging that the leave granted under section 92 and Order I Rule 8 of the Civil Procedure Code was granted on an incorrect basis and such leave is liable to be revoked and that on such application an order was passed sometime in July 1999 directing inter alia that the suit not be transferred to the undefended list. The said application is also pending hearing. The appellants/petitioners have alleged in their application being G.A. No. 61 of 200)5 that on enquiry it transpired that the suit was filed by the plaintiffs/respondents on 12th April, 1999 and till the filing of the said application no Writ of Summons was lodged with the Sheriff. According to the defendants/appellants, the plaintiffs/ respondents have no real intention to prosecute the suit and the suit has been filed with an ulterior purpose and as such the suit be dismissed. The defendants/appellants made the aforesaid application being G.A. No. 61 of 2005 praying; inter alia that the plaint in the said suit be rejected and taken off the file. According to the defendants/ appellants the writ of summons remained un-served for 6 years and no explanation was given why the notice in terms of leave granted under Order 1 Rule 8 of the Code of Civil Procedure could not be published in newspapers within the stipulated time or at any time thereafter.

(3.) The plaintiffs/respondents made an application being G.A. No. 1286 of 2005 for extension of the returnable date of the writ of summons and condonation of delay in making the application. The said G.A. No. 61 of 2005 and G.A. No. 1286 of 2005 were taken up for hearing by the Hon'ble First Court and by the Order dated June 20, 2005 the Hon'ble First Court was pleased to dismiss the defendants/appellants application being G.A. No. 61 of 2005 and was pleased to allow the plaintiffs/respondents application being G.A. No. 1286 of 2005. This appeal has been filed for dismissal of the defendants/appellants application being G.A. No. 61 of 2005. Another appeal being No. 459 of 2005 has been filed by the defendants/appellants challenging the order by which the Hon'ble First Court allowed the G.A. No. 1286 of 2005.