1 (wp 4692 of 2011 with 4683 of 2011) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4692 OF 2011 WITH WRIT PETITION NO.4683 OF 2011 M/s. Unitex Products Limited and Anr. ...Petitioners Vs. Leela Shantikumar Gandhi (since deceased) and Ors. ...Respondents ----- Mr.P.S. Dani for Petitioners Mr.P.K. Dhakephalkar, Senior Counsel i/b. Mr. Ameet Gandhi for Respondent Nos.3 to 7 ----- CORAM: V.M. KANADE J. DATED: 13th July, 2011 P.C. 1. Both the petitions can be disposed of by a common order since the parties are same, though the petitions are filed challenging two different orders passed by the Trial Court, one filed by the Plaintiffs and the other filed by the Defendants. 2. So far as writ petition No.4692 of 2011 is concerned, an application is filed by the Plaintiffs for amendment of the plaint for bringing on record the names of the applicants in the said application in place of original plaintiffs and for other consequential amendments. The said application was allowed. Various contentions were raised by the defendants -Petitioners 2 (wp 4692 of 2011 with 4683 of 2011) herein. The Trial Court, however, after passing a reasoned order, observed that these objections could be considered at the time of hearing of the suit. This was challenged in appeal before the Appellate Bench. The Appellate Bench, however, observed that in view of Order 22 Rule 10, the Plaintiffs were entitled to continue the proceedings and therefore, observed that it was necessary to interfere with the said order passed by the Trial Court. It was also observed that the revision was not maintainable since the order passed by the Trial Court was procedural. Both these orders are challenged by the Defendants-Petitioners in Writ Petition No. 4692 of 2011. 3. So far as Writ Petition No. 4683 of 2011 is concerned, an application was filed by the Petitioners- Original Defendants for dismissal of the suit on various grounds. The Trial Court also observed that these issues could also be considered at the time of hearing of the suit and, therefore, rejected the said application and this order was confirmed by the Appellate Court. 4. The learned counsel appearing on behalf of the Petitioners submitted that the suit was filed by three trustees in their individual names without making any reference to the trust in the cause title. Though it is referred in paragraph 1 of the plaint that they are the 3 (wp 4692 of 2011 with 4683 of 2011) trustees of the family Trust. It is submitted that the Plaintiff No.2 died on 11.3.1999. The Plaintiff No.3 resigned on 28.1.2003 and the Plaintiff no.1 expired on 11.7.2008. It is submitted that after almost 11 months, a resolution was passed on 22.6.2009 and an application was filed for bringing on record the Applicants whose names were substituted as trustees after the Trust was registered for the first time in 2008. It is submitted that suit having been abated on expiry of Plaintiff No.1; firstly, the Applicants could not have been brought on record the name of the Trust which was mentioned in the cause title; secondly, it was not registered; thirdly it was registered after the plaintiff No.1 expired. It was submitted that, therefore, under Order 22 Rule 10, the Court could not have substituted the names of the Applicants in the said application as the original trustees. It was submitted that though the Trial Court had kept the issue open, the Appellate Court had held that by virtue of Order 22 Rule 10, the issue has become final. 5. On the other hand, Shri Dhakephalkar, Senior Counsel appearing on behalf of the Respondents submitted that the suit was filed in 1992 and the suit was ready for final hearing, and at the fag end these objections are raised by filing the applications and the 4 (wp 4692 of 2011 with 4683 of 2011) application regarding maintainability of the suit filed by the Defendants-Petitioners herein. It was submitted that the Trial Court had kept the issue open and the Revisional Court though held that such an order could be passed under Order 22 Rule 10 of CPC, at the same time it has observed that the revision application was not maintainable. Similarly, it was submitted that in respect of application regarding maintainability also was filed belatedly and, therefore, both the Courts have rightly held that the said issue could be decided at the time of hearing of the trial. 6. In my view, so far as the application for substitution filed by the Respondents herein is concerned, it is observed by the Trial Court that all these issues can very well be decided at the time of hearing of the trial. The observation of the Lower Appellate Court that the application could be allowed in Order 22 Rule 10 will have, therefore, to be modified and the direction will have to be given to the Trial court to decide the said question at the time of final hearing, particularly, since the Revisional Court had held that the revision application is not maintainable. Similarly the applications which are filed by the Petitioners- Original Defendants also are kept open by the Trial Court itself. 7. Under these circumstances, it is not necessary to 5 (wp 4692 of 2011 with 4683 of 2011) interfere with the order passed on both the applications, save and except, the observation made by Appellate Court in respect of applications filed by the Respondents for substitution. Both the Writ Petitions are, accordingly, disposed of. The Trial Court is directed to decide the suit within one year. All contentions raised by both the parties are kept open. (V.M. KANADE J.)