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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
SECOND APPEAL NO.417 OF 2003
APPELLANT: Abdul Rehaman Khan S/o Haji Yakub
Khan, adult, businessman, r/o Dost
(Ori. Defendant)
Manjil, Mohd. Ali road, Baidpura, Akola,
Tq. And Distt. Akola.
-VERSUS-
RESPONDENTS: 1. Waqf-E-Khas Baid Biradari, Lalbangala,
(Orig. Plaintiffs) Fatteh Chowk, Chhoti Masjid, Hajrat
Pirana Peer le Chilla Khaja Trust, A
registered trust bearing No.B 75/Akola
through its Secretary Jamil Ahmed Khan
Ismail Khan, Tq. & Distt. Akola.
2. Yakub Khan Inayat Khan, aged about 45
years, President,
3. Yunus Khan Rasul Khan, aged 46 years,
Vice President,
4. Jamil Ahmed Khan Ismail Khan,
Secretary, aged 54 years,
5. Riyaz Ahmed Khan Dawood Khan, adult,
Vice Secretary,
6. Anique Ahmed Khan Maheboob Khan,
aged about 45 years,
7. Imtiyaz Ahmed Khan Niyaz Ahmed
Khan, aged 44 yrs.,
8. Gaffar Khan Jiwan Khan, aged about 45
years,
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9. Anwar Khan S/o Baheram Khan, aged
about 44 years,
10. Sujat Khan s/o Akbarkhan, aged about
46 years,
11. Raheman Khan Sattar Khan, aged about
46 years,
12. Afzal Khan Abdul Raheman Khan, aged
44 years,
All residents of Akola, Tq. And Distt.
Akola.
Shri C. A. Joshi, Advocate for the appellant.
Shri B. N. Mohta, Advocate for the respondents.
CORAM: A.S. CHANDURKAR, J.
DATED: SEPTEMBER 04, 2017.
ORAL JUDGMENT :
1. This second appeal under Section 100 of the Code of Civil Procedure, 1908 has been filed by the original defendant who is aggrieved by the decree passed by the trial Court directing him to pay an amount of Rs.60,000/- towards rent for a period of three years alongwith interest @6% per annum. Said decree has been partly modified by the appellate Court by excluding the amount paid by the appellant @ Rs.400/- per month for the period of three years.
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2. It is the case of the respondent - original plaintiff that Nazul Plot No.4 is owned by the Trust. After obtaining permission from the Charity Commissioner, the said property was permitted to be leased to the defendant. On that basis a lease deed was entered into and parties agreed to various terms and conditions. Said lease was dated 12-5-1989. According to the plaintiff, the defendant was entitled to pay annual lease amount of Rs.60,000/- and hence, a suit for recovery of said amount for a period of three years was filed.
3. In the written statement, it was not disputed that the permission was obtained from the Charity Commissioner to lease out the property. The liability however to pay lease amount of Rs.20,000/- per year was denied. It was further pleaded that the plaint was not signed by all the trustees nor were they made parties in the suit.
4. After the parties led evidence, the trial Court by its judgment dated 18-12-2000 decreed the suit. The first appellate Court partly modified the decree and directed the payment of Rs.400/- per month for a period of two years be adjusted towards the total recovery of Rs.60,000/-.
5. The second appeal was admitted on the following substantial question of law:
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SA417.03.odt 4/9 Whether in absence of the signature and verification of the plaint by the respondent Nos.2, 3 & 5 to 12 the suit was tenable?
6. Shri C. A. Joshi, learned Counsel for the appellant submitted that all the trustees were not joined as the plaintiffs in the suit. The plaint was also not signed by all the trustees. It was only signed by the Secretary and, therefore, the suit itself was not maintainable in the absence of necessary parties. He placed reliance on the judgment of the full Bench in Shyamabai Surajkaran Joshi and Ors vs. Madan Mohan Mandir Sanstha 2010 (2) Mh.L.J. 476 in that regard. Though the plaint was sought to be amended as per application at Exhibit-54 and the trustees were joined as parties, even after their joinder, they had not signed the plaint. In terms of provisions of Order VI Rule 14 of the Code, the decree as passed was not sustainable. It was then submitted that by misinterpreting the lease deed dated 12-5-1989 at Exhibit-33, the decree had been passed. The defendant was liable to pay lease amount @ Rs.400/- per month which had been duly paid. There was no liability to pay lease amount @ Rs.20,000/- per month. The liability was wrongly saddled on the appellant.
7. Shri B. N. Mohta, learned Counsel for the respondents supported the judgment of the appellate Court. According to him, the suit as filed was by the trustees through its Secretary who had ::: Uploaded on - 15/09/2017 ::: Downloaded on - 17/09/2017 00:51:07 ::: SA417.03.odt 5/9 been duly authorized by all the trustees in that regard. According to him, as per resolution at Exhibit-34 all the trustees had resolved to initiate proceedings against the appellant in the matter of recovery of arrears of lease amount. This resolution was not under challenge. After the trial Court passed an order below Exhibit-1 directing the Secretary to join all the trustees, the application below Exhibit-54 had been filed. This application was not opposed by the appellant as no say was filed. The suit was accordingly permitted to be amended and all the trustees were duly joined. There was no consequential amendment of the written statement. Similarly, the appellant did not lead any evidence despite grant of opportunity. Relying upon the provisions of Section 99 of the Code of Civil Procedure, 1908, it was submitted that on such a technical plea raised by the appellant the decree passed by both the Courts could not be faulted. At the most, it was an irregularity and not an illegality. In support of his submissions, the learned Counsel placed reliance on the following judgments:
(1) Shankar Narayan Goverdhan vs. The Bharat Pulverising Mills Pvt. Ltd. And another 1987 Mh. L. J. 817, (2) Sarda Edu. Trust vs. Mukund 2008(2) Mh.L.J. 395. (3) Meera Housing Private Ltd. Vs. Khatav Makanji and Co. Pvt. Ltd. 2015(3) All MR 739. ::: Uploaded on - 15/09/2017 ::: Downloaded on - 17/09/2017 00:51:07 :::
SA417.03.odt 6/9 It was, therefore, submitted that there was no merit in the contentions raised by the appellant.
8. I have heard the learned Counsel for the parties at length and I have also perused the impugned judgments. I have also gone through the records of the case. The lease agreement on the basis of which the defendant was put in possession is not in dispute. As per this lease agreement it was entered into after obtaining permission of the Joint Charity Commissioner. The lease was created for a period of forty years. The defendant was to make construction of a building on the said land within a period of three years from the date of the lease. Till the construction was completed, rent of Rs.400/- per month was to be paid. Thereafter the yearly rent was to be Rs.20,000/-. This lease deed at Exhibit- 33 is dated 12-5-1989. As the defendant did not abide by the stipulations of the lease deed, the trust passed a resolution on 5-11-1994 resolving to initiate action against the defendant. The authority in that regard was granted to the Secretary to initiate appropriate proceedings. This resolution is at Exhibit-34. The suit has been filed on 9-2-1996 by the Secretary. In the written statement it was pleaded that all the trustees were not joined as parties to the suit. The trial Court on 29-9-2000 directed the plaintiff - Secretary to implead all trustees to the suit. The plaintiff ::: Uploaded on - 15/09/2017 ::: Downloaded on - 17/09/2017 00:51:07 ::: SA417.03.odt 7/9 therefore sought for amendment to the plaint by moving application below Exhibit-54. Despite opportunity being granted to the defendant, he did not file any reply to the same. The amendment application was accordingly allowed by the trial Court on 1-11-2000. The record indicates that only the plaintiff led evidence. The defendant did not lead any evidence after which the suit came to be decreed.
9. In Shyamabai Suraj Karan Joshi (supra), the Full Bench of this Court while answering the questions referred to it held that where a suit is instituted only by one of the trustees, such suit was maintainable if one of the trustees has acted upon decision taken by the majority of the trustees or through express sanction by the co-trustees or where a co-trustee merely gives effect to the decision taken by the trustees jointly. Thus, from the aforesaid it is clear that though all trustees must execute the duties of their office jointly, the same is subject to the aforesaid exceptions which include express approval of the act by the co-trustees. As noted above, as per the resolution at Exhibit-34 all the trustees had jointly resolved to initiate action against the defendant and had authorized the Secretary to initiate such proceedings. In the light of aforesaid law, I find that the initiation of the proceedings by the Secretary on the strength of the resolution at Exhibit-54 was an ::: Uploaded on - 15/09/2017 ::: Downloaded on - 17/09/2017 00:51:07 ::: SA417.03.odt 8/9 action taken on behalf of the trustees for the trust.
10. Once it is found that the suit was initiated on the basis of approval granted by all trustees, the subsequent absence of their signatures on the Vakalatnama would be a mere irregularity. All the trustees were directed to be impleaded by the trial Court and this was done by amending the plaint. This direction was not opposed by the defendant. In terms of the provisions of Order VI Rule 14 of the Code, absence of signatures would be a mere irregularity. As held by the Division Bench in All India Reporter Ltd. Bombay vs. Ramchandra AIR 1961 Bombay 292, the defects or irregularities in the matter of signing or verifying the pleadings are mere matters of procedure and such defects or irregularities can be cured at any stage of the proceedings. An opportunity can always be granted to the concerned party to sign the pleadings so as to cure the defect. In that view of the matter, it cannot be said that absence of signatures of the other trustees on the pleadings or Vakalatnama would result in vitiating the entire proceedings. This technicality cannot override the adjudication on merits. The first appellate Court while considering point No.2 rightly found that the absence of such signatures did not result in any defect in the suit claim.
11. It is to be noted that the said trustees who were ::: Uploaded on - 15/09/2017 ::: Downloaded on - 17/09/2017 00:51:07 ::: SA417.03.odt 9/9 subsequently added as per the amendment to the plaint have been impleaded as respondents in this appeal. All the trustees have filed their Vakalatnama authorizing their learned Counsel to represent them. In other words, they have ratified the actions of the Secretary of filing the suit and have thereafter also defended the decree passed in favour of the Trust. Hence, the substantial question of law as framed is answered by holding that the absence of signatures and verification of the plaint by the subsequently joined trustees would not make the suit untenable.
12. As a result, the impugned judgment of the first appellate Court does not call for any interference. However, for completing the records the co-trustees who are presently available are directed to sign the plaint within a period of one month from the date the records are received by the trial Court. For said purpose, the trial Court may issue notices to those trustees for complying with this direction. With the aforesaid directions, the second appeal stands dismissed with no order as to costs.
JUDGE /MULEY/ ::: Uploaded on - 15/09/2017 ::: Downloaded on - 17/09/2017 00:51:07 :::