Shashikant Das S/O Late Balwant ... vs Rajkumar
2022 Latest Caselaw 5455 MP

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IN THE HIGH COURT OF MADHYA PRADESH AT INDORE
                 SECOND APPEAL NO.1221 OF 2021
                       (Shashikant Das Vs Rajkumar)

Indore, Dated 13.04.2022

      Mr. Santosh Kumar Meena, counsel for the appellant.
      Heard on admission.
      This second appeal is admitted on the following substantial
questions of law:
       (a) that whether the suit filed by the respondent was

not maintainable because all trustees of the respondent trust have not been joined as plaintiffs?

Trust being not a juristic person, it cannot sue in its own name and all trustees are necessary parties as per the provisions of Order 31 Rule 2 CPC. Reliance may be placed on Khasgi Trust vs. Maheshkumar 1992 JLJ 315?

(b) that whether the exemption f rom the provisions of the MP Accommodation Control Act, 1961, purportedly granted by the Government by notification dated 07.09.1989 can be availed by the respondent, whereas they have failed to prove that the suit's accommodation is owned by the respondent trust ?

Since the respondents have failed to prove that the Jain Bhawan in which the suits accommodation is located is owned by the respondent trust. As such the exemption from the provision of the act purportedly granted by the government by the said notification cannot be availed by the respondents.

(c) that whether the learned lower appellate court has committed a grave error of law in passing the impugned order without considering and deciding the application for additional evidence filed by the appellant u/o 41 Rule 21 CPC.

The appellant has submitted an application u/o 41 Rule 27 CPC before the lower appellate court and filed certified copy of the public document with it.

While arguing the appeal finally the counsel for the appellant also pressed the application, but the lower appellate court without considering and deciding the said application passed judgment and thus have committed a grave error of law by not deciding the substantial application of the appellant ?

(d) Whether the learned lower appellate court has failed to discharge the obligation placed on it as a first appellate court by not realign with all issues and evidence led by the parties and does not reflect its conscious application of mind as required by the provision of Order 41 Rule 31 CPC.

It is obvious from the impugned judgment passed by the lower appellate court that it has failed to discharge the obligation placed on it as a first appellate court by not dealing with all issues and evidence led by the parties and does not reflect its conscious application of mind as required by the provisions of Order 41 Rule 31 CPC.

(e) Whether findings arrived at by the learned courts below are perverse nd resulted into miscarriage of justice to the appellant ?

Issue notice to the respondent on payment of process-fee within seven working days. Notice be made returnable within six weeks.

(ANIL VERMA) JUDGE

Arun/-

ARUN NAIR 2022.04.14 13:30:13 +05'30'