Lsp IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT PETITION NO. 6904 of 2008 The Bank of Rajashtan Ltd. ....Petitioners v/s. Hasmukhbhai Sabarlal Parikh & ors. ....Respondents Mr. G.S.Godbole i/b. SRS Legal for the petitioners. Mr. P.S.Dani i/b. R.a.Shah for the respondents. CORAM CORAM CORAM : A.M.KHANWILKAR,J. : A.M.KHANWILKAR,J. : A.M.KHANWILKAR,J. DATED DATED DATED : 2ND FEBRUARY, 2009 : 2ND FEBRUARY, 2009 : 2ND FEBRUARY, 2009 P.C. . Heard Counsel for the parties. 2. The first contention raised is that there was absolutely no pleading to the effect that Trustees had passed Resolution consequent to which the legal notice was issued. This argument is devoid of merits. The Resolution dated 20th January, 2001 has been proved in evidence. The same has been taken on record by consent of the defendant as is noted by the Court while recording the evidence of PW1 at more than one place. The Resolution clearly provides that legal notice for terminating the tenancy to be issued and the same to be taken to its logical end. The Suit has been filed on that basis. 3. The argument that there is no pleading in the 2 plaint for which reason the Resolution even if has been proved in evidence cannot be considered, will have to be stated to be rejected. Indeed, Counsel for the petitioners has relied on the exposition of the Apex Court in the case of Prataprai N. Kothari v/s. John Prataprai N. Kothari v/s. John Prataprai N. Kothari v/s. John Braganza Braganza Braganza reported in (1999) 4 SCC 403 in particular reported in (1999) 4 SCC 403 in particular reported in (1999) 4 SCC 403 in particular paragraph paragraph paragraph 10 10 10 and (2003) 4 SCC 161 paragraph 7 and (2003) 4 SCC 161 paragraph 7 and (2003) 4 SCC 161 paragraph 7 thereof to contend that if there is no pleading, no amount of evidence can be permitted and would be admissible. The argument clearly overlooks the fact that defendants themselves allowed the Resolution to be taken on record, by consent. The Resolution is proved in the context of the issue as to whether the suit instituted was under proper authority of the Trustees and consistent with the Trust Deed stipulations. 4. The next argument is that the Trust Deed was not produced before the Court for which reason the suit was not maintainable. Insupport of this submission, reliance is placed on the Judgment of our High Court in the case of Nagar Wachan Mandir, Pandharpur v/s. Nagar Wachan Mandir, Pandharpur v/s. Nagar Wachan Mandir, Pandharpur v/s. Akbaralli Akbaralli Akbaralli Abduilhusen & Sons & ors. reported in 1994 Abduilhusen & Sons & ors. reported in 1994 Abduilhusen & Sons & ors. reported in 1994 MH.L.J. MH.L.J. MH.L.J. page 280. page 280. page 280. That judgment is of no avail, in the fact situation of the present case. The exposition in the said judgment is that unless the instrument of trust provides otherwise all trustees must join as plaintiffs 3 in suit seeking recovery of possession of property from tenant. The observation that the instrument of trust was not produced on record would militate against the plaintiffs has no application in the fact situation of that case. In the present case, it is not in dispute that all the three trustees had joined together as plaintiffs to institute the present suit on the basis of Resolution dated 1st March, 2002. It is not the case of the petitioners that all the trustees had not joined together as plaintiffs. The question of producing instrument of trust would have arisen if all the trustees were not the plaintiffs. It is only in that situation, the question that ought to be addressed is whether the plaintiffs/trustees had authority for and on behalf of other trustees to pursue the proceedings. That issue could be addressed upon examining the instrument of trust, if it provides for delegation of such authority. That is not the case on hand. In the circumstances, even this submission is devoid of merits. 5. It is then contended that the Resolution which is proved in evidence Exhibit D dated 20th January, 2001 resolved to issue legal notice to the tenant. However, it is common ground that the first legal notice sent by registered A.D. was not duly served on the tenant and was returned ‘unclaimed’. The Suit is not filed on the basis of the first legal notice but on the basis of 4 second legal notice which was duly served in person. According to petitioner, there is no Resolution authorising issuance of second legal notice. The argument is obviously an argument of desperation. In that, it is not the second legal notice issued by the landlord but it was second copy of the legal notice which was sent by registered post and could not be served. It is not the case of the petitioners that the copy of the said notice which was served was defective in any manner. In my opinion, this argument of the petitioner does not take the matter any further. 6. It was then contended that the suit was originally filed by three trustees out of whom one died during the pendency of the suit and after his demise, three other trustees have been brought on record as plaintiffs. However, there is nothing to indicate that the said newly added plaintiffs have signed the plaint and therefore the production of instrument of trust would be imperative, so as to ascertain whether the said three trustees who have delegated their power to the original surviving plaintiffs/trustees could do so. Once again this is an argument of desperation. This objection, if at all, ought to have been raised at the threshold before the Trial Court. No such plea was taken before the Trial Court. Assuming that the said plaintiffs had not signed the plaint, it is well established position 5 that it was a curable defect. The plaintiffs could have taken remedial steps to overcome the said defect before the first Court itself. The petitioners cannot be permitted to raise new contention for the first time before this Court which is exercising writ jurisdiction. 7. No other contention has been raised before this Court. Taking over all view of the matter, therefore, this petition deserves to be dismissed. Hence, dismissed. 8. At this stage Counsel for the petitioners prays that the petitioners may be interested in carrying the matter in appeal for which reason execution of decree be stayed for some reasonable time. Although this request is opposed by the respondents, in the interest of justice, it is ordered that the decree of eviction passed by the Lower court which has been confirmed by this order shall not be proceeded for a period of six weeks from today. However, this indulgence is shown on the condition that the petitioners shall file usual undertaking and pay all the outstanding dues within one week from today, failing which it will be open to the respondent landlord to proceed with the execution of the decree. [A.M.KHANWILKAR,J.] [A.M.KHANWILKAR,J.] [A.M.KHANWILKAR,J.]