O.S.A. No.307 of 2022

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved on: 24.07.2023

Pronounced on : 11.08.2023

CORAM

THE HONOURABLE MR.JUSTICE R.MAHADEVAN

AND

THE HONOURABLE MR.JUSTICE MOHAMMED SHAFFIQ

O.S.A. No.307 of 2022

and

C.M.P. No.21024 of 2022

1.Sri Dwaraka Doss Goverdhan Doss &

SowbhagyavathyGangabai Memorial Trust

Rep. By its Trustees

(1) Govinddas

(2) Bharat Kumar K.Shah

2.Govinddas Purushothamdas

3. Bharat Kumar K Shah

...Appellants/ Defendants

Vs.

1.Haridas Purushothamdas @ P.Haridas

2.D.Parthasarathy

...Respondents/ Plaintiffs

(As per the order dated 01.03.2022 in A. No. 543 of 2022 the 2^nd plaintiff has been

deleted)

PRAYER: Original Side Appeal filed under Order 36 Rule of O.S. Rules read

with Clause 15 of Letters Patent, praying to set aside the Order and Decreetal

Order dated 22.09.2022 made in Application No.3862 of 2022 in C.S. No.232 of

2021 on the file of this Court.

1/30

https://www.mhc.tn.gov.in/judis

O.S.A. No.307 of 2022

For Appellants

: Mr.R.Thiagarajan

For Respondents : Mr.K.V.Babu

for Mr.K.Shakespeare (for R1)

JUDGMENT

MOHAMMED SHAFFIQ, J.

A short question that arises for consideration herein is whether a suit under

Section 92 of the Civil Procedure Code, 1908 (hereinafter referred to as “the

CPC”) having been instituted by two persons on obtaining the leave of the Court,

can be maintained/ continued though one of the two persons / plaintiffs withdraws

himself from the suit during its pendency resulting in a sole plaintiff alone

remaining to prosecute the suit.

1.1.

For the sake of convenience, the parties are referred to as per their

ranking in the suit in C.S.No.232 of 2021.

2. Brief Facts:

2.1. The 1st appellant herein (1^st defendant in the suit) is a Public Trust

created under a Deed of Declaration of Trust dated 07.03.1961, registered as

Document No.1100 of 1961. The Trust was created for religious and charitable

purpose as set out in the Trust deed dated 16.03.1961. Subsequently, another Deed

2/30

https://www.mhc.tn.gov.in/judis

O.S.A. No.307 of 2022

of Declaration of Trust dated 24.10.1964 was created and registered, in order to

deal with the assets to meet the objects of the Trust as well as the management of

the combined Trust. Thereafter, one more Trust was created on 01.09.1965 which

was also duly registered.

2.2. The 1^st and 2^nd respondents herein (plaintiffs 1 & 2 in the suit) viz., Mr.

Haridoss Purushothamdas and Mr.D.Parthasarathy filed the suit under Section 92

of the CPC as against the appellants herein viz., Sri Dwaraka Doss Goverdhan

Doss and Sowbhagyavathy Gangabai Memorial Trust, and its two Trustees viz.,

Mr. Govinddas Purushothamdas and Mr. Bharat Kumar K Shah inter alia with the

following prayers viz.,

a. To declare the removal of the 3rd appellant/ 3rd defendant viz., Mr.

Bharat Kumar K Shah from the office of the Managing Trustee.

b. Consequential injunction restraining the 3^rd defendant therein from

interfering with the management of the 1st appellant/ 1st defendant Trust and other

consequential relief.

2.3. The plaintiffs/ respondents herein also filed an application in

A.No.1936 of 2021 seeking leave of this Court to institute the suit on the premise

that the 3^rd appellant herein (3^rd defendant in the suit) who is acting as the

3/30

https://www.mhc.tn.gov.in/judis

O.S.A. No.307 of 2022

Managing Trustee of the Trust has been mismanaging and misappropriating the

Trust funds and properties, contrary to the objects of the Trust, taking undue

advantage of the old age of the 2^nd appellant herein (2^nd defendant in the suit) viz.,

Mr. Govindas Purushothamdas. By an order dated 21.06.2021, leave was granted

on the basis of the averments contained in the affidavit filed in support of the

application that the 1^st Respondent herein is directly interested in the welfare of

the Trust as one of the legal heirs of the founder Trustee and also entitled to be

induc