9911796707
TMI Blog1978 (6) TMI 168X X X X Extracts X X X X X X X X Extracts X X X X ..... elow dismissed the applications filed by the petitioner-landlord invoking provisions of O. 1, R. 10, sub-rule (2) read with O. VI, R. 17 of the Civil P. C. Range Gowda, J., has referred these petitions to a Division Bench, and that is how they are before us. 2. The factual antecedents in so far as they are necessary for the decision of the question that arises in these petitions are the following: Petitioner herein is said to be a public trust the powers of management and governance respecting which are said to vest in a body of 10 trustees. Petitioner filed in the court below three petitions under the provisions of the Karnataka Rent Control Act, 1961 seeking eviction of the respondents in these three civil revision petitions on seve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a subsequent impleading of the other trustees. It is the correctness of these orders that is challenged in the three revision petitions here. 3. We have heard Sri B. V. Krishnaswamy Rao. Learned counsel for the petitioner in all the three cases and Sri S. K. Kulkarni, learned counsel for the respondents. Sri Krishnaswamy Rao contended that even assuming that all the 10 trustees of the Jain Swetambara Murthi Pujaka Samastha had had to institute the proceedings jointly by subscribing their signatures to the memoranda of eviction petitions in exercise of their joint powers and functions as trustees and were accordingly, necessary parties to the proceedings, the view taken by the Court below that the amendments were not allowable proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te the proceeding and that consequently institution of the proceedings is void ab initio and not merely an irregularity curable by a subsequent impleading of the rest of the trustees. Sri Kulkarni sought to rely upon some observations of the Supreme Court in Abdul Kayum v. Alibhai, [1963]3SCR623 , which were followed in a Full Bench ruling of the Gujarat High Court in Atmaram Ranchhodbhai v. Gulamhusein Gulam Mohiyaddin, AIR1973Guj113 (FB). 5. In Abdul Kayum v. Alibhai, [1963]3SCR623 , the Supreme Court referred to worth approval, the statement of the law contained in Lewin on Trusts (Sixth Edition, page 181) to the effect that in the case of the co-trustees of a private trust the office is a joint one and where the administration of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon these observations to support his contention that if one only amongst the body of trustees institutes proceedings for recovery of possession of trust property from a tenant the proceedings would, unless that is enabled by a specific provision in the Charter of Trust, be wholly illegal and void and not amenable to rectification by subsequent impleading of the other trustees. It must however be observed that in the two decisions i.e., in Abdul Kayum v. Alibhai and Atmaram Ranchhodbhai v. Gulamhusein Gulam Mohiyaddin, the consequences that flow from the institution of the proceedings by one only of the trustees in relation to and in the context of a subsequent application for brining the other trustees on record have not been specificall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said property devolved by succession under S. 12 of the Act. That, in fact, is the conclusion which the trial Court had reached and yet no action was taken by the appellant to bring the necessary parties on the record. It is true that under O. 1, R. 9 of the Civil P. C. no suit shall be defeated by reason of the misjoinder or non-joiner of the parties but there can be no doubt that if the parties who are not joined are not only proper but also necessary partied to it, the infirmity in the suit is bound to be fatal. Even in such cases, the Court can under O. 1, R. 10, sub-rule (2) direct the necessary parties to be joined, but all this can and should be done at the stage of trial and that too without prejudice to the said parties' plea ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
