1 wp-2611.11.sxw lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2611 OF 2011 Mr. Jan Paulsen & ors. : Petitioners versus Mr. Francis Mathew and anr. : Respondents. Mr.Mohan Pungliya i/by Neel M Pungliya for the Petitioners. Mr. J B Chinai, Senior Advocate, with Ms. Ashtha Tahmankar & Mr. Vikas Mahangare for the Respondents CORAM : R M SAVANT, J. DATE : 14th November 2011 P.C. 1 The above Petition takes exception to the order dated 25/2/2011 passed by the 3rd Joint Civil Judge, Senior Division, Pune by which order the Application -Exhibit 284 filed by the Petitioners herein, who are the original Defendant Nos.2 to 25 for deleting them from the array of Defendants in the suit filed by the Respondent No.1 herein came to be rejected. The Respondent No.1 herein is the original Plaintiff, who has filed a suit against the Defendant No.1 i.e. General Conference of Seventh-Day Aventists claiming an amount of Rs.65 crores as and by way of his fees for the professional services that he has rendered in the said suit and towards damages. The Defendant Nos.2 to 25 who are the Petitioners herein were joined to the said suit in a representative capacity by the Plaintiff after permission was obtained by the Plaintiff in the year 2006. The said Defendants have appeared in the said suit from time time and have also filed their written statement. The said Defendants had moved an 2 wp-2611.11.sxw application for amendment of their written statement which was rejected by the trial court which rejection was confirmed by this Court which order was challenged by the said Defendants by filing an SLP in the Apex Court which was dismissed by the Apex Court by its order dated 8/12/2010 2 From the point of view of the present Petition the relevant excerpt of the order of the Apex Court is reproduced herein under :- "Therefore there is no need for defendants to amend the written statement as the existing pleadings will permit and enable them to urge what they want to plead by way of amendment. When there is no claim against them, the question of their amending the written statement to contend that they are not liable personally, may not arise. The High Court has also made it clear that plaintiff will have to establish that defendants 2 to 25 are the members of first defendant." The Petitioners i.e. the Defendant Nos. 2 to 25 thereafter filed the said Application Exhibit 284 seeking their deletion and particularly on the ground that since no reliefs are claimed against them, they are neither necessary nor proper parties to the suit. The said application was opposed by the Respondent No.1 by filing a reply. The trial Court by the impugned order dated 25/1/2011 has rejected the said application. 3 The gist of the reasoning of the trial Court is that since the Plaintiff has impleaded the names of the Defendant Nos.2 to 25 alleging that they are the members of the Defendant No.1, the Plaintiff has to establish that the said defendants are the members of the Defendant No.1 and that they are liable as 3 wp-2611.11.sxw such members in the present suit. The trial Court was of the view that the said issue which is material viz whether the Defendant Nos.2 to 25 are the members of the Defendant No.1 is yet not decided and it cannot be decided without recording of evidence of the parties and without holding complete trial of the said suit. The trial Court also took into consideration the fact that at the relevant time, the evidence of the Plaintiff was being recorded and was not complete. The trial Court therefore in the said conspectus of facts rejected the said application Exhibit 284. 4 It is sought to be contended by Shri Pungliya, the learned counsel appearing for the Petitioners that since no claim is made against the said Defendants, they are neither necessary nor proper parties to the said suit. In the said context it is required to be noted that the said defendants have been arrayed as defendants pursuant to the permission granted by the trial Court under Order 1 Rule 8 of the Code of Civil Procedure. They have been sued in a representative capacity as members, representing the common interest qua the property of the Defendant No.1. It is also required to be noted that the said suit has been set down for hearing and is at the stage where the evidence of the Plaintiff is being recorded. It is pertinent to note that the Defendants prior to the said Application, did not file any proceedings to challenge the permission granted by the trial Court to the Plaintiff under Order 1 Rule 8 of the code of Civil Procedure. They have in fact also filed their written statement. Since the issue as regards whether the said Defendants are the members of the 4 wp-2611.11.sxw Defendant No.1 is a material issue which can only be decided after the evidence is led by the parties, in my view, the order passed by the trial Court in rejecting the Application-Exhibit 284 cannot be faulted with. In that view of the matter, no case for interdiction is made out. The above Writ Petition is accordingly dismissed. [R.M.SAVANT, J]