IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO Nos. 171 of 2007 and 172 of 2007 Date of decision: 26.5.2008 CMPMO No. 171 of 2007 The General Public Petitioner. Versus Bhagwati Oberoi, Charitable Trust and others Respondents. CMPMO No. 172 of 2008 The General Public Petitioner. Versus Bhagwati Oberoi Charitable Trust and others Respondents. Coram The Hon’ble Mr.Justice Deepak Gupta, J. Whether approved for reporting?1 NO. For the petitioner: Mr. Neel Kamal Sharma, Advocate. For the respondents Mr. R.L.Sood, Sr. Advocate with Mr. Vikas Rajput, Advocate. Per Deepak Gupta, J. (oral) Both these petitions are being disposed of by a common order since common question of fact and law are involved and both petitions arise out of the same proceedings. Briefly stated, the facts of the case are that Bhagwati Oberoi Charitable Trust, duly registered under the Indian Trust Act, (here-in-after referred to as the Act) apply to the District Judge, Solan, under Section 34 of the 1 Whether the reporters of the local papers may be allowed to see the Judgment? Act, for permission to alienate some properties of the trust situate at Mauja Deon, Tehsil and District – Solan. A notice was issued to the general public. The present petitioner, Ashwani Sharma, filed objections to the petition. The thrust of the objections was that the Bhagwati Oberoi Charitable Trust, had purchased the property after taking permission of the Government of Himachal Pradesh under Section 118 of the H.P. Tenancy and Land Reforms Act for setting up an old peoples’ home and since this purpose had not been achieved it could not transfer the property without again seeking the permission of the Government. The trust contested these objections. The trust has specifically taken a plea that the proceeds of the sale(s) shall be used for furtherance of the objects of the trust and not for any other purpose what-so-ever. I have heard Mr. Rakeshwar Lal Sood, Senior counsel for the petitioner, who has also assured this Court that the money realized from the sale of the property shall be utilised only for the purpose of achieving the objects of the trust. It is pertinent to mention that the trustees have not sought any amendments of the objects of the trust. After the trust had led its evidence, the petitioner filed an application under Order 6 Rule 17 CPC to raise certain other objections. I have gone through the application under Order 6 Rule 17 CPC and I find that in fact the basic thrust remains the same and all that the petitioner wanted to do by way of amendment was to elaborate his case and plead evidence to amplify what he had already said in the original application. This application was rejected by the learned District Judge on the ground that it had been moved after commencement of the trial. CMPMO No. 171 of 2007 is directed against the order rejecting the prayer to amend the application. The petitioner also moved another application under Order 14 Rule 1(5) for framing of issues. No issue had been framed in the case. The learned trial Court held that since the evidence has already been recorded and parties know each other case, hence, there is no need to frame issues. This application was also rejected. The second petition being CMPMO No. 172 of 2007 is directed against this order. It would be pertinent to note that after this order was passed the objector examined his evidence and closed his evidence vide statement made by the objector himself on 4.8.2007. Proceedings under Section 34 of the Indian Trust Act are not really adversarial in nature. That is why, notice is issued to the General Public. The purpose behind this is to ensure that properties of the trust are not frittered-away or the trustees under the garb of sale of the properties do not use the proceeds thereof for purposes which was not inended by the settlor of the trust. It would have been better if the learned District Judge had framed issues. In fact the only issue that arises in the matter is whether the petitioner/trust is entitled to permission to alienate its property or not. But this point was well known to the petitioner and evidence has been led by both the parties. It would, therefore, not be appropriate in the present case to set the clock back. Since the parties have already led evidence and knew what was the dispute, no purpose will be served by framing issues. The Court while considering the petition under Section 34 of the Act must consider all the material placed before it by the petitioner and also by the objector, how to arrive at a proper conclusion whether the trustees have made out a case for disposal of the property in terms of the Act. It is not necessary to allow the application for amendment because Court itself being, in a sense, the guardian of the property of the trust, must itself ensure that the property of the trust is not wasted for any undesirable or illegal purpose. Even otherwise, the amendment is not necessary to decide the real issue in controversy between the parties. It is the duty of the Court to ensure that the objects with which the settlor created the trust are not set at nought by any action of the trustees. The trial Court shall decide the main petition keeping in view the entire material placed on record by both the parties. Both the petitions are disposed of with the aforesaid observations. Parties through their counsel are directed to appear before the learned District Judge, Solan on 7th July, 2008. May 26, 2008 (Deepak Gupta), J. ™