Advocates:
['ADV MAITHILI SHARAD PRABHU CHODNEKAR', '', 'ADV ARAUJO ASHVINI AFONSO', 'ADV ASHWIN D BHOBE R', '', '', '', '', '', '', 'ADV BHOBE SHRADHA SUBHASH R', '', 'amp', 'ADV BHOBE SHRADHA SUBHASH R', 'amp', 'ADV ASHWIN D BHOBE', 'ADV ASHWIN D BHOBE', 'amp']

vinita -- 1 -- wp600 of 2018

IN THE HIGH COURT OF BOMBAY AT GOA

WRIT PETITION NO. 600 OF 2018

AMAR SUBHA NAIK AND ORS.,

... Petitioners.

Versus

DEVU KESHAV NAIK AND 43 ORS.

... Respondents.

Shri S. D. Lotlikar, Senior Advocate with Shri Terence Sequeira,

Advocate for the petitioner.

Shri A. D. Bhobe and Ms. A. Fernandes, Advocates for the respondents.

Coram:- DAMA SESHADRI NAIDU, J.

Reserved on:- 16th January 2020.

Pronounced on:-15^th March, 2021.

ORAL ORDER

Facts:

This Writ Petition has ten petitioners and 44 respondents.

Respondent nos. 1 to 36 were the original plaintiffs; they filed Regular

Civil Suit No.56/2014/A before the Civil Judge, Senior Division, Ponda,

seeking various reliefs. Of the 18 defendants, defendant nos. 6 and 18

filed one written statement. Besides, they raised a counterclaim; they

wanted a declaration that the plaintiffs are strangers to the Trust. They

have also sought a permanent injunction, besides other incidental

reliefs.

2. Similarly, defendant nos.2, 9 and 13 filed a separate written

statement. In fact, they too have acknowledged the counterclaim and

sought the Court's leave to adopt and maintain that counterclaim.

Defendant no.5 filed a separate written statement; he also wanted to be

a part of the counterclaim. Then comes the written statement of

defendant nos.10,11, and 16. It, too, proceeds on the same lines.

vinita -- 2 -- wp600 of 2018

3. At one stage in June 2016, the plaintiffs applied for amending

the pleadings, but the trial Court, through its Order, dated 23.2.2016,

rejected it. It has reckoned that the plaintiffs are trying to withdraw an

admission. Then, five days later, the trial Court dismissed the

defendants' application for a temporary injunction. It was on the

grounds that the Trust was a necessary party to the suit, but it was not

made a party and that they sought no leave under section 92 CPC.

4. Aggrieved, the defendants filed Misc. Civil Application No.

86/2016 before the District Judge-II, Panaji, sitting at Ponda. Through

its judgment, dated 12.3.2018, the learned District Judge confirmed the

trial Court’s findings and refused to interfere. Eventually, the

defendants have filed this Writ Petition.

Petitioners:

5. Shri S. D. Lotlikar, the learned Senior Counsel, instructed by

Shri Terence Sequiera, has contended that it is entirely untenable for

the Courts' below to dismiss the interlocutory application on the

premise that the defendants in their counterclaim have not added the

necessary party. According to him, it is not a dispute among the Trust

members; it is, on the contrary, a dispute involving the members and a

third party. So, he stresses that Trust is not a necessary party. In that

context, the learned Senior Counsel has drawn my attention to section

37 of the Trust Act, besides Section 92 of the C.P.C. He has also

referred to the Deed of Trust, with a specific reference to clause 19.

According to him, viewed from another perspective, the Courts below

could have exercised their discretion and injuncted the plaintiffs as the

defendants had sought.

Respondents:

6. In response, Shri Bhobe, the learned counsel for the

respondents-plaintiffs, has submitted that Trust is a juristic person. In

vinita -- 3 -- wp600 of 2018

its absence, as rightly held by the Courts below, the defendants could

have sought no relief in the counterclaim. He has also pointed out that

the Trust Act prohibits delegation, but the application was signed only

by the defendants nos.6 and 18. According to him, it violates section

47. In this context, Shri Bhobe reiterates that the Trust is a legal

entity, and its abse