Dulchand Omprakash and Others vs Dhirendra Mullick and Others

Debangsu Basak, J.—The applicants wanted to be added as parties to the instant suit. The suit was for specific performance of an agreement. The plaintiff wanted execution and registration of a deed of lease in its favour on the terms and conditions mentioned in the so-called approved draft lease deed being Annexure ''C'' to the plaint and a decree for possession of Premises No. 7A, Kiran Shankar Roy Road, Kolkata. The suit property was owned by a trust. Some of the trustees were defendants in the suit. The applicants contended that the Defendant No. 5 was the elder son of the Defendant No. 3. The Defendant No. 5 as a trustee applied for being added as a party defendant in the instant suit. Such application was rejected by an Order dated July 7, 2011. Being aggrieved the Defendant No. 5 carried an appeal which was allowed by an Order dated March 20, 2013. The Defendant No. 5 was added as a party defendant to the present suit.

On behalf of the applicant it was contended that, the Applicant No. 1 was appointed as a trustee on September 22, 2010 by the Defendant No. 3. The Applicant No. 1 was another son of the Defendant No. 3. The Defendant No. 3 appointed the Applicant No. 2 as the trustee on September 18, 2012. The Applicant No. 2 was the grandson of the Defendant No. 3 and the son of the Applicant No. 1. The Defendant No. 3 was one of the trustees of the trust and by virtue of Clause 14 of the deed of trust dated August 16, 1949 the Defendant No. 3 was entitled to appoint new trustees. The applicants as trustees were entitled to be added as party defendants in the instant suit. Written statement in the instant suit was already filed by the existing trustee. In the event the applicants were added as party defendants in the instant suit they would not file any further written statement and would adopt the written statement already on record.

On behalf of the plaintiff it was submitted that, written statement in the instant suit was already filed by the trustees. Every time a new trustee was appointed it was not necessary to have such new to appoint trustee added as party defendant in the instant suit. The instant suit was for specific performance of an agreement. The applicants by making the application for addition of party were seeking to convert the suit to a proceeding for resolution of disputes inter se between the trustees. There was undue delay and at least such delay was unexplained on the part of the applicants as to why they did not make the present application earlier. The suit was ready for hearing.

The Defendant No. 5 opposed the application. Initially the Defendant No. 5 wanted directions for filing affidavits. The Defendant No. 5, however, changed his stand before the application was taken up for hearing on the stand of the plaintiff that the plaintiff did not want to file any affidavit. On behalf of the Defendant No. 5 it was then contended that, since the plaintiff was not using any affidavit and since the carriage of proceedings was on the plaintiff, the Defendant No. 5 would also not use any affidavit to the application. On such basis the application was taken up for final hearing. In the course of hearing, it was submitted on behalf of the Defendant No. 5 that it was not the allegation of the applicants that the existing trustees were compromising with the plaintiff to the prejudice of the trust. It was further submitted that, the applicants were guilty of taking action with regard to the trust properties which were prejudicial to the interest of the trust. The applicants were appointees of the Defendant No. 3. Clause 14 of the deed of trust did not allow the Defendant No. 3 to act singularly in appointing new trustees. The order of the Division Bench dated March 20, 2013 did not allow the applicants to be added as parties to the suit.

On behalf of the Defendant No. 3, the disputes inter se between the Trustees was sought to be raised.

I have considered the application and the materials on record. The suit was for specific performance of an agreement. The plaintiff sued the trustees of a trust for specific performance. From time to time the trustees of the trust changed due to death and due to new appointments. The Defendant No. 5 was a new appointment during the pendency of the suit. The Defendant No. 5 was allowed to be added as a party defendant by the Order dated March 20, 2013 subsequent to his appointment as a trustee. The applicants herein were similarly situate as that of the Defendant No. 5. The applicants were appointed as trustees by the Defendant No. 3. The Defendant No. 5 was also appointed by the Defendant No. 3.

The apprehension expressed by the plaintiff that, the added defendants would file written statement and would delay the disposal of the suit was allayed by the submission on behalf of the applicants that they would adopt the existing written statement and would not file any new written statement.

In the premises I allow the applicants to be added as party defendants to the instant suit.

There will be orders in terms of prayers (a), (b), (c) and (d) of the petition. The department will carry out the amendment within a fortnight from the communication of the order.

G.A. No. 652 of 2014 is disposed of accordingly. There will be no order as to costs.