1981 (10) TMI 183 - HC - Indian Laws

High Court restores trial court decree, deems appeal incompetent for trustee non-inclusion. Appellant awarded appeal costs.

Shrikrishna Annaji Sonatake Versus Ramnarayan Pannalal Lathi

The High Court allowed the second appeal, setting aside the appellate decree and restoring the trial court's decree. The appeal filed by certain trustees ... - Issues Involved:1. Bar under Order 2 Rule 2 of the Civil Procedure Code (CPC)2. Competency and defectiveness of the appeal filed by certain trustees3. Joint liability and representation of trustees in the appealIssue-wise Detailed Analysis:1. Bar under Order 2 Rule 2 of the Civil Procedure Code (CPC):The plaintiff initially filed a suit (Regular Civil Suit No. 529 of 1969) to recover his salary for the first six months of the academic year 1969-70, which was decreed in his favor. Subsequently, the plaintiff filed another suit (Regular Civil Suit No. 618 of 1972) to recover the remaining salary for the period from November 12, 1969, to June 11, 1970. The defendant-Trust argued that this second suit was barred by Order 2 Rule 2 of the CPC, which prevents splitting of claims arising from the same cause of action. However, the trial Judge held that the bar was not attracted as the cause of action for the two suits was different. The first suit was for the salary of the initial six months, while the second suit was for the remaining period, making the cause of action a recurring one. The appellate court, however, reversed this decision, holding that the second suit was barred by Order 2 Rule 2 of the CPC.2. Competency and Defectiveness of the Appeal Filed by Certain Trustees:The appeal against the trial court's decree was filed by only three trustees (defendant Nos. 3, 5, and 6) before the District Judge, Jalgaon. The appellant argued that this appeal was incompetent and defective because the other co-trustees were not joined either as appellants or respondents. The decree was passed against the Trust, and the three trustees who filed the appeal could not be considered aggrieved or adversely affected by the decree. The appellate court did not address this defect, leading to the High Court's scrutiny of the appeal's validity.3. Joint Liability and Representation of Trustees in the Appeal:The High Court examined whether the appeal filed by the three trustees was valid, given that the Trust was represented collectively by all trustees. According to Section 2(18) of the Bombay Public Trusts Act, 1950, a 'trustee' includes a person in whom the trust property is vested, either alone or with others. The High Court referred to precedents and legal principles, emphasizing that the office of a trustee is a joint one, and all trustees must act together. The High Court found that the appeal was inherently defective as it did not include all trustees, leading to the possibility of conflicting decrees. The absence of a formal amendment to rectify this defect further invalidated the appeal.Conclusion:The High Court allowed the second appeal, setting aside the appellate decree dated February 9, 1976, and restoring the trial court's decree dated April 11, 1974. The appeal filed by defendant Nos. 3, 5, and 6 was deemed incompetent due to the non-inclusion of all trustees, which was a critical defect. Consequently, the High Court did not address the issue of the bar under Order 2 Rule 2 of the CPC, as the appeal was disposed of on the preliminary point of its defectiveness. The appellant was entitled to the costs of the appeal, having succeeded on a technical point.