Bombay High Court
In The High Court Of Judicature At ... vs Unknown on 4 September, 2017
Bench: A.S. Chandurkar
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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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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
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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.
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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
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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
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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
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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/
