1981 (10) TMI 186 - HC - Indian Laws

Summary

Issues Involved:
1. Bar under Order 2 Rule 2 of the Civil Procedure Code (CPC)
2. Competency and defectiveness of the appeal filed by trustees
3. Joint liability and representation of trustees in the appeal

Detailed Analysis:

1. Bar under Order 2 Rule 2 of the Civil Procedure Code (CPC)
The plaintiff originally filed a suit (Regular Civil Suit No. 618 of 1972) to recover Rs. 2,322/- plus interest and costs, claiming unpaid salary for the period from November 12, 1969, to June 11, 1970. The defendant-Trust argued that the suit was barred by Order 2 Rule 2 CPC due to a previous suit (Regular Civil Suit No. 529 of 1969) for the first six months of the academic year 1969-70, which had already been decreed in favor of the plaintiff. The trial court held that the bar under Order 2 Rule 2 CPC did not apply as the cause of action for the two suits was different. The first suit was for the initial six months, while the present suit was for the subsequent period, making the cause of action recurring and not barred by Order 2 Rule 2 CPC.

2. Competency and Defectiveness of the Appeal Filed by Trustees
The appeal against the trial court's decree was filed by only three trustees (defendant Nos. 3, 5, and 6) without including the other co-trustees as appellants or respondents. The plaintiff's counsel argued that the appeal was incompetent and defective since the decree was passed against the Trust, not individual trustees. The appellate court reversed the trial court's decree based on the bar under Order 2 Rule 2 CPC but did not address the competency of the appeal adequately.

3. Joint Liability and Representation of Trustees in the Appeal
The plaintiff's counsel argued that the appeal by only three trustees was untenable as the Trust's interest is joint and all trustees should be represented. The defense cited Section 2(18) of the Bombay Public Trusts Act, 1950, which allows any trustee to represent the Trust. However, the court found that the appeal was defective since the other trustees were not parties to the appeal, leading to potential conflicting decrees. The court emphasized that the office of a trustee is a joint one, and all trustees must be before the court in matters involving trust properties.

Conclusion:
The High Court allowed the plaintiff's appeal, setting aside the appellate decree dated February 9, 1976, and restoring the trial court's decree dated April 11, 1974. The court held that the appeal filed by defendant Nos. 3, 5, and 6 was incompetent due to the absence of other co-trustees, thus vacating the findings of the appellate court. The plaintiff succeeded on a technical point, and the appeal was allowed with costs awarded to the plaintiff.