The main legal point established in the judgment is that the presence of outgoing trustees may not be necessary for answering questions raised in an Originating Summons Suit once new trustees have been appointed, and the provision of Section 71 of the Indian Trust Act, 1882, allows for the discharge of outgoing trustees upon the appointment of new trustees.

JUDGMENT

Shivakant Prasad, J. - The plaintiff filed two Originating Summons Suits viz. CSOS 5 of 2008 and CSOS No. 4 of 2010 against the petitioners arraying them as defendants in which proceedings, defendants have filed two separate applications for striking out their names from the array of defendants after expunging allegations leveled against them.

2. Accordingly, learned counsel for both parties have been heard at length. In the first Originating Summons Suit, the petitioners have been impleaded as defendant No. 1 and 2 and in the second Originating Summons Suit, the petitioners have been impleaded as defendant No. 1 and 4 respectively.

3. Since the parties in GA No. 351 of 2019 in CSOS No. 5 of 2008 and GA being No. 350 of 2019 in CSOS No. 4 of 2010 and the issues involved in the proceedings arise out of the said two Originating Summon Suits are same, both applications can be decided and disposed of by a common judgment.

4. The petitioners have prayed for striking out their names from the array of defendants in the cause title of the said Originating Summons Suit because they have tendered their resignation as trustees duly accepted by the Board of Trustees and new Trustees have been appointed but they have not yet been brought on record. The defendant No. 2 in CSOS No. 5 of 2008 is the defendant No. 4 in CSOS No. 4 of 2010 who has passed away but his name has not been substituted. Mr. Shyamal Kumar Deb who was appointed as trustee by the defendant No. 4 in CSOS No. 5 of 2008 has also died and his name has also not been substituted.

5. It is submitted that an Originating Summons Suit is different from a regular suit and can only be filed if it falls under Rule 1 of Chapter XIII of the Original Side Rules which specifically provides as to who may take out Originating Summons and in respect of what matters tried under Chapter XIII of the Original Side Rules and in fact only certain questions can be decided by the court under this Chapter and its power is restricted to interpretation and constructions of documents only.

6. It would be evident from the questions raised by the plaintiff in the two Originating Summons Suits (paragraph 9 at page 7 of the application being GA No. 351 of 2019 and in paragraph 9 at page 7 of the application being GA No. 350 of 2019) that those relate to development of two properties of the trust and also relating to proper administration and functioning of the trust.

7. In order to decide the said questions, the presence of the petitioners are not at all necessary because the petitioners have already resigned as trustees and are in no way connected and/or associated with the management and administration of the trust. The allegations which have been made against the petitioners in the affidavits are all qua trustees of the trust estate and not against them personally.

8. It is submitted that the questions raised by the plaintiff being the senior most trustee in the said two suits can be answered by the newly appointed trustees inasmuch as they are now directly associated and involved in the day to day activities of the trust since the petitioners have resigned as trustees and will no longer be able to answer any of the questions in the said two Originating Summons Suit because they do not have access to any documents lying in the trust office.

9. Mr. Surojit Nath Mitra, Sr. Counsel placed reliance in case of State Bank of India Vs. Mohuragang Gulma Tea Estate & Anr., (1988) 2 CalLT 167 to contend as to what issues can be decided in an Originating Summons Suit filed under Chapter XIII of Original Side Rules and the law is well settled in the cited decision as under :

"Chapter XIII of the Original Side Rules of this Court provide a special procedure by way of an originating summons which had its origin in English Rules of Supreme Court. This is undoubtedly a suit in the: Original Side, but cannot be equated with it, since under the rules questions are framed for the purpose of being answered by this