1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR APPEAL AGAINST ORDER NO. 28 OF 2007 (Bhaskar Laxman Sojwal vs. Warluji G. Khobragade through LRs Asha & Ors. ) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. SEPTEMBER 08, 2008. Heard Shri Masood Shareef, Advocate for the appellant – original defendant and Shri Khati, Advocate for respondent No.4 – original plaintiff. Shri Shareef, Advocate states that lower appellate Court has found that M/s. Prakash Institute of India was registered as Public Trust and suit as filed was not against that Trust and Trustees were not joined as parties and it was not in accordance with the provisions of Bombay Public Trust Act, 1950. He states that in view of these findings, lower appellate Court ought to have completely allowed the appeal, dismissed suit filed by plaintiff in stead of remanding the matter back to it. He invites attention of this Court to the discussion in relation to it in the judgment of the trial Court as also appellate Court. Shri Khati, Advocate, on the other hand, contends that before lower appellate court, only 2 grievance made was that the present appellant did not get an opportunity to defend itself appropriately during trial. He contends that lower appellate Court found that such an opportunity needed to be extended and therefore, matter has been remanded. He states that all questions are left open during trial in Civil Suit. A perusal of judgment delivered by the trial Court as also lower appellate Court reveal that the present appellant had resisted claim and denied the ownership of original plaintiff. He contended that vide two different sale deeds, total 7 Acres of land was purchased “by it”. The description of defendant is as under : “Shri B.L. Sojwal, General Director, aged major, “Prakash Institute of India”, Wadi, Nagpur, Amravati Road, Nagpur.” It is, therefore, not clear whether suit was being defended by Shri B.L. Sojwal in his personal capacity or on behalf of Prakash Institute of India. Shri Shareef states that it was in personal capacity and therefore, all objections were raised before lower appellate Court. However, at this stage, considering the defence, I find it difficult to accept this position. The matter needs to be gone into by the trial Court, where the parties will get an opportunity to lead 3 appropriate evidence in this respect. It is also made clear that the issues being canvassed by Shri Shareef, Advocate, in this Appeal Against Order are left open for consideration by the trial Court at appropriate stage. No case for interference is being made out, in the order of remand in present facts. Appeal Against Order is dismissed. However, there shall be no order as to costs. JUDGE *GS.