1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4942 OF 2008 ALONGWITH CIVIL REVISION APPLICATION NO.502 OF 2008 Eknath Dinanath Purandare .. Petitioner/Applicant versus Ramdas Janardhan Purandare & Ors. .. Respondents Mr.Uday P. Warunjikar for the petitioner/applicant. Mr.Atul Singh i/by Mr.D.R.Shah for the respondents. CORAM : A.S.OKA, J. DATE : 30th April 2010. P.C.: . These two petitions are ordered to be heard together. The petitioner in these two petitions is the defendant. Originally, the suit was filed by Suresh, Ramdas and Sharad in their capacity as the trustees. The suit was filed against the petitioner for mandatory injunction directing the petitioner to remove articles in the passage and/or common bathroom more particularly described in the plaint. The suit was filed by the said three persons claiming to be trustees. They relied upon the Deed of Settlement dated 15th August 1975 under which the said Suresh and Ramdas were appointed as trustees and property was settled on them. It is stated that after the death of settlor, the 3rd plaintiff Sharad was appointed on 25th August 1981 as a trustee. It appears that during the pendency of the suit the 1st and 3rd plaintiffs (Suresh and Sharad) expired. An application was made by the petitioner on the basis 2 of which a preliminary issue was framed which reads thus: “Whether defendant proves that the suit is not maintainable in wake of death of two trustees of the plaintiff’s trust?” 2. The said preliminary issued was framed on 27th June 2007. After framing of the preliminary issue, a chamber summons was moved by the surviving plaintiff for adding plaintiff Nos.1a to 1c as parties on the ground that they were appointed as trustees. The preliminary issue was decided in favour of the plaintiffs by the learned trial Judge by order dated 15th March 2008 by holding that now the other trustees have been impleaded as parties. Civil Revision Application No.502 of 2008 has been filed for challenging the said order. Writ Petition No.4942 of 2008 has been filed for challenging the order passed on the chamber summons. 3. The learned counsel appearing for the petitioner in support of the writ petition pointed out that on the basis of indenture dated 12th November 2007 it was claimed that the plaintiff Nos.1a to 1c were appointed as trustees. He submitted that documentary evidence of appointment was not placed on record and without hearing the petitioner, chamber summons has been made absolute. He submitted that though the order on chamber summons was stayed to enable the petitioner to take appropriate steps, the Court permitted the plaintiffs to carry out amendment. He submitted that issue of jurisdiction was framed on the ground that the 2nd plaintiff being the sole beneficiary could not have maintained the suit as a sole trustee and could 3 not have prosecuted the suit. He submitted that the petitioner has not been heard on chamber summons and at the same time, preliminary issue has been answered against the petitioner on the ground that chamber summons has been made absolute. His submission is that both the orders will have to be set aside and after giving an opportunity of being heard to the petitioner on chamber summons, the preliminary issue will have to be taken up for hearing. 4. I have considered the submissions. The effect of the order passed on chamber summons is that three persons (plaintiff Nos.1a to 1c) who are claiming to be trustees under the indenture dated 12th November 2007 have been impleaded as plaintiffs alongwith the plaintiff No.2. The order on the chamber summons shows that the petitioner had filed a reply to the chamber summons. The order records that the petitioner was present in person and was heard. If according to the case of the petitioner/defendant, the said persons are not trustees or are not entitled to act as trustees, the said contention can be always raised by the petitioner by filing written statement or additional written statement to the amended plaint. If the said contention is accepted by the trial Court at the time of final hearing, the question whether the suit can continue at the instance of the 2nd plaintiff will arise for consideration and it will have to be considered by the Court. Merely because the chamber summons has been allowed, the same will not prevent the petitioner from challenging the status of plaintiff Nos.1a to 1c as alleged 4 trustees and the said issue remains open for consideration. As a consequence of joinder of plaintiff Nos.1a to 1c, the preliminary issue did not survive for the time being as rightly held by the trial Court. 5. Hence, there is no merit in the petitions and the same are rejected. It is made clear that if additional written statement is not filed by the petitioner, he will be entitled to do so within a period of eight weeks from today. It will be open for the petitioner to challenge the status of plaintiff Nos.1a to 1c as trustees by filing the additional written statement. All contentions of the parties on merits are kept open. There will be no orders as to costs. (A.S.OKA,J)