1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.5126 OF 2008 WITH CIVIL APPLICATION NO.5263 OF 2008 IN FIRST APPEAL NO.1480 OF 2008 Joybroto S. Biswas & anr. ..Applicants V/s. Municipal Corporation of ..Respondents Greater Mumbai & ors Mr.Rajiv Narula with Mr.Pramod Bhosale i/b.M/s.Jhangiani, Narula and Associates, Advocate, for the applicants Mr.J.J.Xavier, Advocate, for the respondent Nos.1 to 3 Mr.D.H.Mehta with Mr.D.D.Mehta, Advocate, for respondent No.4 Mr.M.P.Vashi i/b.M/s.M.P.Vashi & Associates, Advocate, for respondent No.5 CORAM : C. L. PANGARKAR, J. DATE : 3RD FEBRUARY, 2010 P.C. . Heard the learned counsel for the parties. 2. This application has been moved by the original plaintiffs, who are the applicants 2 herein under Order 1, Rule 10 of the Code of Civil Procedure, 1908. 3. Suit was instituted by the original plaintiffs/the applicants, the notice issued by the Municpal Corporation of Greater Mumbai under Section 351 of the Mumbai Municipal Corporation Act. It was declared by the said Mumbai Municipal Corporation that the structure standing on the plot was unauthorized and it needs to be removed. The plaintiff Nos.1 & 2 therefore, instituted the Suit challenging that notice and claimed protection from the action sought to be taken by the Mumbai Municipal Corporation. 4. The Suit was initially instituted by the two plaintiffs i.e. one Joybroto S. Biswas and Parshwanath Digamber Jain Mandir Trust. 5. The Suit came to be dismissed on merits. 3 6. Since the Suit came to be dismissed this Appeal came to be preferred. 7. After the Appeal was preferred, this application has been moved in the month of October, 2008. The contention raised by the original plaintiffs/the applicants is that plaintiff No.2, who was then an unregistered Trust has now been registered and they are merely seeking to amend the cause title of the plaint in as much as they now want to describe plaintiff No.2 as registered Trust and there is a slight change in the name of the said Trust. 8. The application is opposed by the other side mainly on the ground that the plaintiffs want to grab the land which belongs in fact to the Society. It is also contended that plaintiff No.2 is claiming through plaintiff No.1 and he is not contesting the 4 Suit, in as much as plaintiff No.1 has not cared to appear either in Trial Court or in Appellate Court. 9. He submits that the plaintiffs are, therefore, playing a fraud on the Court and Court should not use discretion in favour of a party. Seeking the Orders from the Court. 10. The learned counsel for the applicants submits before me that the question as to whether the plaintiff has or has no right to seek protection of the Suit structure cannot be gone through at this stage and the only point Court is required to be seen as to whether an amendment as sought should be allowed to be carried out or not. 11. Order 1, Rule 10 of the Code of Civil Procedure, 1908, contemplates not only addition of a party but even substitution of the plaintiff, if it is found that the Suit 5 has been instituted in the wrong name. It was contended on behalf of the applicants that the suit was instituted in the wrong name and the plaintiffs have a right to continue the suit. There cannot be two opinions in this regard. Order 1, Rule 10 permits such substitution where such Suit is instituted in the wrong name. The question as to whether the Suit structure is illegal cannot be gone into at this stage. It is not disputed that the Trust which is plaintiff No.2 came to be registered as a Trust after the decision in the Suit and during the pendency of this Appeal. It was, therefore, but natural for plaintiff No.2 to move an application for bringing to the notice of the Court that the said Trust now has been registered and it has every right to continue the Suit. 12. The learned counsel for the applicants had brought to my notice a decision reported in 1987 (2) Scale 67 in the matter of Bal 6 Niketan Nursery School Versus Kesari Prasad and 1961 AIR(SC) 325 in the matter of Purushottam Umedbhai and Company Versus Manilal and Sons. The Supreme Court has held that where there is misdescription of the party, amendment of the plaint has to be allowed and a right person can always be brought on record. In this particular case the learned counsel for the applicants states that there is no misdescription as such. What had happened is that Suit came to be dismissed before registration of the Trust which was then not registered Trust. The learned counsel brings to my notice another decision of this Court reported in 1972 Mh.L.J. Page 102 in the matter of MRS. JANKIBAI PRAHLADRAJ BRIJLAL SEKSARIA v. KASHINATH RAGHUNATH KELKAR wherein Section 31 has been reproduced by the Court and the Court has made following observation. 17. In the view I have taken, the learned Judge was in error in taking the view that the suit of the plaintiffs did fall within the 7 purview of section 50 and the bar under section 80 of the Bombay Public Trusts Act could not consequently arise. But even though I have taken the view that the suit under section 50 is not competent, it seems to me that it would hardly be in the interest of justice to throw away the suit on the basis of this finding. The suit has been instituted by the trustees in respect of the property alleged to be of the ownership of the Trust as far as back as January 30, 1960 and now in 1971 it would hardly be fair to dismiss the suit and drive the plaintiffs to a separate proceeding under sections 18, 19 and 22 of the Bombay Public Trusts Act. The fairest course in this case would, I think, be to direct that the proceedings of this suit shall be stayed and in the mean time the plaintiffs would approach the Charity authorities to obtain a declaration under section 22A that the properties in suit belong to the Trust made by the late Bhagoji Keer. In this connection, it may be useful to note the provisions of section 31 (1) of the Bombay Public Trusts Act, 1950. That sub-section only says : No suit to enforce a right on behalf of a public trust which has not been registered under this Act shall be heard or decided in any Court. The bar, therefore, is to the suit being heard and decided and not to the suit being instituted. In the present case so far as certain properties are concerned, they are not registered as properties belonging to the Trust and as soon as that defect is overcome, the bar under section 31 (1) would no longer 8 arise. It is to be hoped that after the plaintiffs approach the Charity authorities, they would deal with the matter as expeditiously as possible. 13. Institution of such suit is not prohibited but the Court can proceed with the Trial only after such Trust is actually registered. Now, the Trust has been registered. The Suit can certainly proceed. The law is well settled that an appeal is continuation of the suit. In view of this, there is no impediment in allowing the application as is filed. The description of plaintiff No.2 be accordingly corrected. 14. Both the above two Civil Applications are allowed. The First Appeal is fixed for final hearing at the stage of admission alongwith Civil Application No.3438 of 2008 on 23rd February, 2010. (C.L.PANGARKAR, J.) 9