JUDGEMENT 1. Heard learned counsel for the appellants and learned counsel for the respondent 1st set, Respondents 2nd set although have entered appearance but no one appears on their behalf in the matter. 2. These two Miscellaneous Appeals have been filed against the orders dated 2-12-2004 and 29-4-2006, passed by the Additional District Judge XI, Patna in Title Suit No. 14 of 2001, by the earlier of which order he has granted ad-interim injunction in favour of the plaintiff-respondent 1st set restraining the defendants-appellants from using the trade mark AVASTIN till the disposal of the case under Order 39, Rule 1 and 2 of the Code of Civil Procedure, and by the subsequent order he has extended the order dated 2-12- 2004 till the disposal of the suit. 3. The title suit was filed by the plaintiff- respondent 1st set praying for declaration that the defendants are indulging in the act of passing off their product as of the plaintiff and further for seeking permanent injunction restraining the defendants from using the trade mark AVASTIN for marketing their product or any other mark, which is similar to it in respect of medical and pharmaceutical products and for further consequential reliefs. 4. The case of the plaintiff is that it is engaged in manufacturing and trading of medicine and pharmaceutical preparations and one of its product carries the brand name AVASTIN, for which after ensuring that the said brand name is not being registered by any one else, it filed an application on 20- 10-2000 for registration of the trade mark in respect of the said product under Section 18(1) of the Trade and Merchandise Marks Act, 1958.The further case was that the trade mark/brand name was being carried on all its packings and medical and trade literature and are exported to other countries also. By virtue of the extensive and voluminous sales/ sale promotion of the said product AVASTIN, the said trade mark/trade name has acquired a very high reputation among the general public, the physicians, whole sellers/dealers in pharmaceutical products as well as the consumers. The said trade mark AVASTIN has, thus, acquired the status of a property mark. It was further stated that the said drug under the brand name AVASTIN was being prescribed by a large number of well known physicians and medical practitioners throughout the country as also in foreign countries. The said trade mark AVASTIN has, thus, acquired the status of a property mark. It was further stated that the said drug under the brand name AVASTIN was being prescribed by a large number of well known physicians and medical practitioners throughout the country as also in foreign countries. Subsequently on learning that one M/s. Mano Pharmaceuticals Private Limited, Chennai, defendant No.1,. was manu- factoring and marketing one of its pharmaceutical products using the said trade mark AVASTIN, which was identical and deceptively similar to that of the plaintiffs trade mark AVASTIN to dupe and cheat the consumers, the plaintiff served a legal notice to the said defendant No. 1 at its Chennai address on 12-7-2001, but the same was ignored and by letter dated 13-8-2001, defendant No. 1 asked for irrelevant particulars about filing of the application for registration, etc. in respect of its product AVASTIN. It was alleged that the defendant-company was still continuing to market its product in the brand name AVASTIN fraudulently imitating and misusing the plaintiff-companys trade mark. It was further alleged that Defendant Nos. 3 and 4 (Respondent Nos. 2 and 3 herein) are local dealers in Patna, which were selling the product of the defendant-company by the trade name AVASTIN-10 and similarly many shops in Patna and elsewhere were also selling this product under this trade name, least suspecting that general public would be able to detect the misuse, which fact is evident from the cash memos dated 13-8-2001 issued by defendant Nos. 3 and 4. The plaintiff-company had, in order to verify the fact that the companys trade mark was being misused, sent its employee to the above shops to purchase the product in question and accordingly the two cash memos were obtained. Reference was also made to a complaint before the Drug Inspector, who had seized some of the illegally branded Avastin on 17-8-2001 at Patna. It was stated that the said action of the defendants has caused wrongful gain to them and huge loss to the plaintiff and accordingly, the prayer was made permanently to restrain the defendants, etc. as stated above. 5. Subsequently, the plaintiff filed applications under Order 39, Rules 1 and 2 read with Section 151 of the Code of Civil Procedure on 26-11-2001 and 3-8-2001 praying for ad interim injunction to restrain the defendants/from using the trade mark AVASTIN. 6. as stated above. 5. Subsequently, the plaintiff filed applications under Order 39, Rules 1 and 2 read with Section 151 of the Code of Civil Procedure on 26-11-2001 and 3-8-2001 praying for ad interim injunction to restrain the defendants/from using the trade mark AVASTIN. 6. A written statement was filed on behalf of defendant Nos. 1 and 2 in which it was stated that defendant No. 1 was taken over by M/s. Orchid Healthcare a Division of Orchid Chemicals and Pharmaceuticals Limited (defendant No. 5-appellant No. 1) with effect from 2-1-2003. It was further stated that defendant No. 1 is producing the pharmaceutical product in the name and style of AVASTIN-10 and also has agent for selling the same at different places including at Patna in the State of Bihar. It was stated that defendant No. 2 was using the said trade mark from 1-11-2000 and had applied before Mumbai Registry Office for allotment of Trade Mark much prior to filing of the suit of which number has also been allotted. It is further stated that from a perusal of documents filed on behalf of the plaintiff-company in its application dated 20-10-2000, it appears that the plaintiff has proposed to use. the trade mark AVASTIN and, therefore, it was non-user of the said trade made at that time. The statements of the plaintiff-company regarding voluminous sales/sale promotion of the said product AVASTIN in the country and its exportation to foreign countries as well as its reputation and status of a property mark are highly mischievous and are not based on any iota of evidence. It is also, pointed out that the complaint made by the plaintiff before the authority under the Drugs and Cosmetics Act. on a consideration of the drug licence of the defendants, was not further proceeded with and no proceedings were initiated under the said Act against the defendants. The further case of defendant No. 2 is that he had adopted the trade mark AVASTIN 10 and Drug Licence was obtained duly for the said product as defendant Nos. 1 and 2 were using the said trade mark from 1-11-2000 and also filed an application before the Trade Mark Registrar on 21-8- 2001. It was, accordingly, claimed that the defendant No. 2 was the prior user after getting due Drug Licence and had been using the impugned trade mark openly, continuously, uninterruptedly, explicitly and widely. 7. 1 and 2 were using the said trade mark from 1-11-2000 and also filed an application before the Trade Mark Registrar on 21-8- 2001. It was, accordingly, claimed that the defendant No. 2 was the prior user after getting due Drug Licence and had been using the impugned trade mark openly, continuously, uninterruptedly, explicitly and widely. 7. Defendant Nos. 5 to 7 were made parties to the suit subsequently on the basis of the statements made in the written statement of defendant Nos. I and 2 on the ground that the defendant No. 1 company had been sold to the said defendants and by the written statement filed on 19-2-2004, they adopted the written statement filed earlier on behalf of defendant Nos. 1 and 2 in the year 2003. 8. In the Court below it was argued on behalf of the plaintiff that the plaintiff started using the trade mark AVASTIN with all paraphernalia and formalities from September, 2000 whereas the original defendants from March, 2002, which was apparent from Annexure-6 being ORG IMS Retail Audit for Pharmaceutical Product in India published in May, 2004. The contention of learned counsel for the plaintiff is that the plaintiff was prior user after taking all care and caution, whereas no document has been filed on behalf of the defendants to show that they have taken all precautions before using the said trade mark as per the provisions of the Trade Marks Act. 9. On a consideration of the submissions of the parties, the learned Additional District Judge held that in the letter dated 21-8-2001, the period of user was written in pen ink as 1-11-2000 and instead of applying for AVASTIN-1.0 as per claim of the defendants in the written statement, they applied for AVASTIN for which the plaintiff had already applied. It was further held that from perusal of Annexure-6 filed by the plaintiff, it appeared that it was, prior user of the products of trade mark AVASTIN than the defendants. For the said reasons, the learned trial Court held that the plaintiff was prior user of the trade mark AVASTIN than the defendants and there was a prima facie case and the balance of convenience in its favour and accordingly restrained the defendants till the disposal of the application under Order 39, Rules 1 and 2 of the CPC by the aforesaid impugned order dated 2-12-2004. Subsequently, the said order was extended by order dated 29-4-2006 restraining the defendants till the disposal of the suit. 10. Learned counsel for the appellants submits that the findings of the Court below are illegal, perverse and not supported by any evidence. It is submitted by him that AVASTIN is not the registered trade mark of either the plaintiff or the defendants, rather they are merely applicants for the same. In the said circumstances, the prima facie case can only be proved by showing as to who had started using the said trade mark earlier. It is contended by learned counsel that it is nowhere disclosed in the plaint as to who were using the trade mark AVASTIN from before. Learned counsel submits that an amendment application was filed for amending paragraph No. 2 of the plaint to show that the plaintiff started using the trade mark since January, 2001 and the amendment was allowed on 11-3-2002, but the same was not incorporated in the plaint and something entirely different was incorporated therein, it is thus contended that in view of the mandatory provisions of Order 6, Rule 18, it has to be held that no such amendment is on the record and the plaintiff cannot be permitted to take any benefit of the said amendment. In the absence of any pleadings on the record in that regard, it is urged that even no such evidence on behalf of the plaintiff can be allowed and the suit must fail on that count alone. 11. In support of the aforesaid proposition, learned counsel relies upon a decision of this Court in the case of Mostt. Kanti Devi v. Surendra Prasad Singh (2004) 4 PLJR 1775, in paragraph No. 5 of which it has been held as follows : "5. It is evident from the aforesaid provision that within fourteen days of the order of amendment it has to be incorporated by the parties or within the time extended by the Court. It appears that the aforesaid provision is mandatory. In the case of failure to incorporate the amendment the party would not be permitted to incorporate the amendment after expiration of time as indicated above. Counsel for the petitioners, however, stated that because the clerk of the counsel was ill and the counsel missed to incorporate the amendment, it could not be incorporated within the time as required under the Law. Counsel for the petitioners, however, stated that because the clerk of the counsel was ill and the counsel missed to incorporate the amendment, it could not be incorporated within the time as required under the Law. However, in the case of Dilbagh Rai Jerry v. Union of India, AIR 1974 SC 130 the Apex Court has held that on failure to incorporate the amendment allowed within time the authority is justified in refusing the permission to incorporate the amendment after expiry of such time. In the instant case petition was filed for permission to incorporate the amendment after nine years of the order of amendment." also stating that as per contents of the Will, probate was required to be granted to Yadvinder Thakur. 8. On 18.5.1990, learned counsel for Uma Aggarwal stated that he had no objection if Yadvinder Thakur v/as transposed as co-petitioner and granted probate. However, there being dispute with regard to Codicil raised by respondent No.l, issues were framed and finally on 16.4.1991, probate was granted. It was held that the Will and the Codicil were duly executed. LPA No. 559 of 1989 against the said order was dismissed on 13.7.1992. 9. Though, probate application was disposed of, as above, impugned order has been passed on Misc. applications moved in the probate case itself. Yadvinder Thakur filed CM No. 1733-CII of 1993 under section 151, CPC for placing on record amended schedule of moveable and immovable properties mainly with regard to Bagichi in Bagh Rama Nand, Amritsar, claimed to have fallen to the share of Soni Bai in partition deed dated 3.4.1986 (registered on 11.4.1986). He also filed application for being put in possession of Chandigarh House and for direction to Bank to pay court-fee for probate out of account of the testator. CM No. 2565-CII of 1993 was filed by Shanti Devi, sister of the testator, under section 301 of the 1925 Act for removal of Yadvinder Thakur as Executor on the ground that Yadvinder Thakur and Om Parkash Aggarwal had started misappropriating corpus of the C.C. Trust for their personal use. Prem Tuteja, Advocate (trustee) had resigned on 26.3.1990, while M.P. Joshi, Advocate (trustee) resigned on 14.4.1990. Uma Aggarwal, who was fifth trustee, was not taken into confidence with regard to management of C.C. Trust property. Prem Tuteja, Advocate (trustee) had resigned on 26.3.1990, while M.P. Joshi, Advocate (trustee) resigned on 14.4.1990. Uma Aggarwal, who was fifth trustee, was not taken into confidence with regard to management of C.C. Trust property. It was further alleged that there was misappropriation of rental income of the trust for personal gains; failure to use Bagichi which fell vacant after death of Soni Bai for purposes of trust; collection of rent by allowing trust property for parking purpose and using the money for personal gains; closing the hospital which was being run by the trust by dispensing with the services of the doctors and the compounders and not recovering income from Bagichi at Amritsar and land in Vil- lage Kapat. 10. Yadvinder Thakur contested the application under section 301. His stand was that Uma Aggarwal had not handed over possession of Kothi No.31, Sector 9A, Chandigarh. Shanti Devi and Uma Aggarwal had filed suit under Section 92, CPC for removal of trustees, which was dismissed by Additional District Judge, Chandigarh. The application was to defeat order of giving of possession of Chandigarh House. The Bagichi at Amritsar had come to the share of Soni Bai and other properties in Katra Karam Singh and Gate Man Singh had come to the share of Sanjay Kumar. Om Parkash Aggarwal had opened his office in the Bagichi as tenant under Soni Bai. Sanjay Kumar executed gift deed dated 9.5.1989 in favour of C.C. Trust. Soni Bai created trust vide registered trust deed dated 8.12.1989 and had bequeathed her property to the said trust. The dispensary was not functioning on account of lack of funds. Rental income of the trust was only Rs.3150/- p.m., which was accounted for. 11. CM No.l357-CII of 2001 was filed in CM No. 2565-CII of 1993 seeking grant of direction for appointment of new trustees for running the C.C. Trust or the properties of the trust be transferred or donated to any other institute carrying on similar objects. The said application was filed by the Advocate after the death of Shanti, without her heirs having been substituted. In reply to the said application, Yadvinder Thakur took the stand that after resignation of Prem Tuteja and M.P. Joshi, Uma Aggarwal failed to respond to notice dated 5.5.1990 and on that account, Bansi Lal Chhapria and Santosh Bajaj were substituted in place of the trustees who had resigned. In reply to the said application, Yadvinder Thakur took the stand that after resignation of Prem Tuteja and M.P. Joshi, Uma Aggarwal failed to respond to notice dated 5.5.1990 and on that account, Bansi Lal Chhapria and Santosh Bajaj were substituted in place of the trustees who had resigned. On death of Bansi Lal Chhapria on 30.3.1996, Dr. Vibhakar Sharma was appointed as trustee. On resignation of Santosh Bajaj on 21.12.1996, Major Tara Chand and Sanjay Aggarwal were appointed as trustees in meeting held on 3.2.1997. The application having been filed by Advocate, of his own, was not maintainable. The Executor had not started functioning, in absence of certificate of probate and in these circumstances, the application was not maintainable. 12. Keys of Chandigarh House having been surrendered by Uma Aggarwal, proceedings for leasing out of Kothi No. 31, Sector 9A, Chandigarh during pendency of the main case also took place. The said property was leased out at monthly rent of Rs. 65,000/- for some period. The said lease came to an end. On 5.2.1996 by an interim order, Yadvinder Thakur was restrained from acting as Executor. 13. Findings recorded by learned Single Judge after considering the pleadings and rival contentions, can be summed up as under: (i) Application under section 301 of the 1925 Act was maintainable. Removal of Executor and appointment of his successor can be only under section 301. Reliance was placed on judgment of Lahore High Court in Karma Devi v. Radha Kishan and others, AIR 1935 Lahore 406. (ii) Non-issuance of probate was no bar to maintainability of the application. Putting forward of an untenable right by the Executor which was in conflict with rights of beneficiaries or any mala fide act of the Executor or failure to act for welfare of beneficiaries was sufficient to invoke jurisdiction under section 301. Reliance was placed on judgment of Madias High Court in P. B. Srinivasan and another v. T. P. S. Varadhan, 1981(ii) Madias Law Journal Reports 158. Judgment of this Court in S. B. Ranjit Singh and another v. S.Santokh Singh Rais and others, 1950 PLR 313 was distinguished. (iii) Conduct of the Executor was mala fide. Reliance was placed on judgment of Madias High Court in P. B. Srinivasan and another v. T. P. S. Varadhan, 1981(ii) Madias Law Journal Reports 158. Judgment of this Court in S. B. Ranjit Singh and another v. S.Santokh Singh Rais and others, 1950 PLR 313 was distinguished. (iii) Conduct of the Executor was mala fide. As against the stand of the testator in the Will that he had no male issue and no other relatives except his wife and sisters and that there was nobody to look after his properties after his death, Soni Bai pleaded adoption of Sanjay Kumar on 13.4.1975, which was reduced into writing on 13.4.1981. The Executor Yadvinder Thakur referred to partition deed dated 3.4.1986 which records Sanjay Kumar as adopted son of late Seth Bhagirath Dass and thus, contradicted the contents of the Will. Further in his reply to CM No. 2565-CII of 1993, he took a stand that Sanjay Kumar was adopted son of Late Seth Bhagirath ©ass and some of the properties mentioned in the Will had fallen to his share which he had retransferred by way of a gift. Plea of partition being against the contents of the Will and provision having been made for residence and maintenance of his wife, conduct of Yadvinder Thakur in pleading untrue facts was not appreciable. (iv) Plea of the Executor that while deciding application under section 301, the Court could not determine title of the property, it was held that while deciding the conduct of the Executor, all necessary facts could be seen. Judgment of Calcutta High Court in The Goods of Nanda Lal Sett, deceased, AIR 1955 Calcutta 88, was distinguished. (v) With regard to plea of Om Parkash Aggarwal being tenant under Soni Bai, it was observed that the rent was insignificant and even that amount was not accounted for. Similarly, income from land in Village Kapat was not accounted for. Dispensary had been closed. These facts made out a case for removing Yadv inder Thakur from the office of Executor. (vi) Dealing with the contention that a suit was earlier filed by Uma Aggarwal under section 92, CPC which was dismissed, it was held that if petition under section 301 was maintainable, earlier resort to remedy under section 92, CPC was no bar. Judgment in Maganlal Parikshawala v. Samson Shalom, AIR 1938 Allahabad 197, was held to be distinguishable. (vi) Dealing with the contention that a suit was earlier filed by Uma Aggarwal under section 92, CPC which was dismissed, it was held that if petition under section 301 was maintainable, earlier resort to remedy under section 92, CPC was no bar. Judgment in Maganlal Parikshawala v. Samson Shalom, AIR 1938 Allahabad 197, was held to be distinguishable. In that case, Section 301 was held not to be applicable as there was no Executor in the Will in that case. (vii) As regards functioning of Yadvinder Thakur as trustee and also functioning of other trustees, it was observed that exercise of power for removal of Executor under section 301 would include power of removing trustees if the trustees were inter-connected with the functioning of Executor. (viii) Dealing with the question of Executor having ceased to have that capacity, it was observed that functions of the Executor were not over, in the present case The Executor had to consolidate the C. C. Trust properties and utilize the properties for the trust. Judgments in The Goods of Samath Sanyal v. Hrisikesh Sanyal, AIR 1949 All 93 and Patel Vrajlal Bhagwandas v. Patel Jamnadas Tribhovandas and others, AIR 1956 Saurashtra 51 were held to be distinguishable. (ix) As per Will, number of trustees could not be less than three but the trust was being run by Yadvinder Thakur and Om Parkash Aggarwal. No accounts had been rendered. They had disowned ownership of the trust in the Bagichi. No effort was made to take care of the income of the property. Dispensary had been closed. (x) As regards objection that Advocate alone could not pursue the application, it was observed that litigation was for benefit of general public and same could not be dismissed on technical grounds. (xi) The Executor in the Will was required to execute the Will as well as to administer the estate of the deceased. 14. LPA No. 112 of 2006 has been filed by Tara Chand Sharma and Dr. Vibhakar Sharma who are stated to have been substituted as trustees, while LPA No. 132 of 2006 has been filed by Yadvinder Thakur and LPA No. 134 of 2006 has been filed by Om Parkash Aggarwal. 15. 14. LPA No. 112 of 2006 has been filed by Tara Chand Sharma and Dr. Vibhakar Sharma who are stated to have been substituted as trustees, while LPA No. 132 of 2006 has been filed by Yadvinder Thakur and LPA No. 134 of 2006 has been filed by Om Parkash Aggarwal. 15. We have heard S/Shri J. C.Verma, Senior Advocate, appearing for the appellant in LPA No. 134 of 2006, H. S.Giani, Advocate for appellant in LPA No. 132 of 2006 and R. K. Chhibbar, Senior Advocate in his capacity mentioned earlier and perused the record. 16. Shri Verma submits that conduct of Shanti Devi, applicant in CM No. 2565-CII of 1993 was not aboveboard. She had filed suit on 3.6.1990 under Section 92, CPC which was dismissed for non-prosecution in the year 1996 and the same operated as res judicata. Application was to avoid handing over of possession of Kothi No. 31, Sector 9A, Chandigarh in spite of order granting probate. C.M.No. 1357-CII-2001 was filed purporting to be on behalf of Shanti Devi. Shanti Devi had already died and no legal heir had been substituted. The said application was not Supported by any documents or affidavit in support of the allegations. Uma Aggarwal who filed probate application gave her statement in her replication that she had no objection to Yadvinder Thakur obtaining probate of the Will. Appearing as PW2, she admitted that Soni Bai was collecting and keeping the rent. She admitted that she did not attend the Kirya ceremony of late Seth Bhagirath Dass. She denied knowledge about family partition. She also admitted that Soni Bai had income from the Bagichi (which literally means garden but which is in fact a house). She also admitted that house of late Seth Bhagirath Dass at Chandigarh was in possession of her mother-in-law and herself as trustee and that she was willing to hand over possession to the Executor. She filed LPA No. 559 of 1991and statement was made that grievance in the LPA was not to relief granted in main probate application but to orders passed in miscellaneous applications allowing possession to be taken over by Executor. She took stand that possession was not with her but with her mother-in-law which was rejected. She filed LPA No. 559 of 1991and statement was made that grievance in the LPA was not to relief granted in main probate application but to orders passed in miscellaneous applications allowing possession to be taken over by Executor. She took stand that possession was not with her but with her mother-in-law which was rejected. Shanti Devi had earlier filed suit for removal of the Executor with a view to get over the order passed in probate proceedings and to avoid handing over possession. The suit was pending when application CM No. 2565-CII of 1993 for removal of Executor was filed and the said application was barred under section 10, CPC. Shanti Devi was a witness to the gift deed executed by Sanjay Kumar. Shanti Devi and Uma Aggarwal obstructed taking over of possession by the Executor. Details of the rent from the property were duly given. The tenants were old tenants and the amount of rent received was insignificant. No details were available of the property in Hoshiarpur District. All allegations in the application were duly replied by Yadvinder Thakur vide his reply dated 30.5.1995. The trustees deposited a sum of Rs. 6 lacs to save the property. No probate was actually granted. After grant of probate, the court was functus officio and application being CM No. 2565-CII of 1993 was not maintainable. He relied upon following judgments : 46-A-Bhavika.htm 17. Shri Giani submitted that the Will was in favour of trust and the Executor was trustee as per the Trust deed. Factum of adoption of Sanjay Kumar was mentioned by wife of the testator herself. CM No.l357-CII of 2001 was unauthorized as the original applicant had died and legal representatives were not brought on record. Trustee could not be termed as Executor to invoke Section 301 of 1925 Act. This Court could not be stated to be Court of District Judge. Allegations of misconduct against the trustees were not substantiated. Partition deed had been duly executed by testator late Seth Bhagirath Dass, his wife and the adopted son. It had been duly registered and the same was never challenged. The applicant herself had frustrated working of the trust. Sanjay Kumar having returned the property by way of gift deed, plea of his adoption was irrelevant. No Executor had been appointed in the Will. Only executive trustee had been named. It had been duly registered and the same was never challenged. The applicant herself had frustrated working of the trust. Sanjay Kumar having returned the property by way of gift deed, plea of his adoption was irrelevant. No Executor had been appointed in the Will. Only executive trustee had been named. In any case, the property having been bequeathed to the trust, the executor had no role. He relied on CIT v. Estate of V. L. Ethiraj, (1979) 120 ITR 271 : 1980 Tax LR 400 (Mad.) and Amba Parshad and another v. Lt. James Skinner, AIR 1929 Lahore 600, to submit that executorship comes to an end on_ obtaining a probate. 18. Shri R. K. Chhibbar, Seniqr Advocate who was representing the respondents-applicants in CM No. 2565-CII of 1993 and CM N0.1357-CII of 2001 stated that even if the applicant died and he did not receive any instructions, he has continued to appear as member of general public who is the beneficiary under the Will. He relied on judgment of the Privy Council in Letterstedt v. Broers (1884) UK PC 1, to submit that trustee exists for beneficiaries. He also submitted that LPA was not competent as order of learned single Judge was discretionary and did not amount to judgment. He relies on judgment of Patna High Court in Basudeo Narain Singh v. Prayag Dutt Narain Shahi, AIR 1962 Patna 69. He also relies on judgment of this Court in M/s. Sakow Industries v. SBI, 1976 PLR 783 and judgment of Honble Supreme Court in Shanti Kumar v. Home Insurance Co., AIR 1974 SC 1719 , about maintainability of LPA against order of single Judge which may not be held to be judgment. He also relies on judgment of this Court in M/s. Sakow Industries v. SBI, 1976 PLR 783 and judgment of Honble Supreme Court in Shanti Kumar v. Home Insurance Co., AIR 1974 SC 1719 , about maintainability of LPA against order of single Judge which may not be held to be judgment. Reliance has also been placed on L. Janakirama Iyer and others v. P. M. Nilakanta Iyer and others, AIR 1962 SC 633 , to submit that under Section 48 of Trust Act, 1882, all trustees had to jointly act; judgment of this Court in Jarnail Singh v. Intezamia Committee, 1972 PLR 654, to submit that under Section 14 of the Trust Act, trustees could not set up title adverse to the interest of beneficiary; judgment of Honble Supreme Court in Chiranjilal v. Jasjit Singh, 1993 (2) SCC 507 : (1993 AIR SCW 1439) to submit that under Section 213 of the Succession Act, role of probate Court is only of deciding of factum of Will and not to decide the question of title. He supported the findings recorded by learned single Judge and opposed the submissions made on behalf of the appellants. 19. The questions which arise for consideration in this appeal are: (i) Whether LPA against order of single Judge is maintainable? (ii) Whether application under section 301 of the 1925 Act was maintainable? (iii) Whether there are grounds justifying order of removal of Executorand the trustees and passing further consequential order? 20. We proceed to deal with the said questions. 21. Objection raised by Shri Chhibbar that no appeal could lie against order of removal of Executor under section 301 of the Succession Act, cannot be accepted. No doubt, in judgment of Patna High Court in Basudeo Narain (supra), such a view was expressed by holding that the power of removal of Executor being discretionary, such an order was not judgment, we are unable to subscribe to the view that order under section 301 is discretionary in the sense that no adjudication is involved. Such an order requires recording a finding of misconduct. Other judgments relied upon by Shri Chhibbar on maintainability of LPA are distinguishable. Such an order requires recording a finding of misconduct. Other judgments relied upon by Shri Chhibbar on maintainability of LPA are distinguishable. In Shah Babulal Khimji v. Jayaben D. Kania and another, AIR 1981 SC 1786 , it has been held that when an order which goes to the root of action, is passed against a party, it amounts to judgment (Paras 101,106). It was also held that word judgment in Letters Patent had wider meaning than it had under CPC. Even an interlocutory order may be judgment which decides matters of moment or affect vital and valuable rights (Para 115). Objection raised by Shri Chhibbar as to maintainability of the appeal has, thus, to be overruled. Question (i) is answered against the respondent and in favour of the appellants. Re: (ii) 22. Section 301 of the 1925 Act is as under: "301. Removal of executor or administrator and provision for successor.The High Court may, on application made to it, suspend, remove or discharge any private executor or administrator and provide for the succession of another person to the office of any such executor or administrator who may cease to hold office, and the vesting in such successor of any property belonging to the estate." Section 92, CPC is as under: "92. Public charities: (1) In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or,where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate-General, or two or more persons having an interest in the trust and having obtained the leave of the Court mayinstitute a suit, whether contentious or not in the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate to obtain a decree? (a) removing any trustee; (b) appointing a new trustee; (c) vesting any property in a trustee; (cc) directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property; (d) directing accounts and inquiries; (e) declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust; (f) authorizing the whole or any part of the trust property to be let, sold, mortgaged or exchanged; (g) settling a scheme; or (h) granting such further or other relief as the nature of the case may require. (2) Save as provided by the Religious Endowments Act, 1863 (20 of 1863) or by any corresponding law in force in the territories which, immediately before the 1st November, 1956, were comprised in Part B States, no suit claiming any of the reliefs specified in sub-section (1) shall be instituted in respect of any such trust as is therein referred to except in conformity with provisions of that sub-section. (3) The Court may alter the original purposes of an express or constructive trust created for public purposes of a charitable or religious nature and allow the property or income of such trust or any portion thereof to be applied cy pres in one or more of the following circumstances, namely: (a) where the original purposes of the trust, in whole or in part,? (i) have been, as far as may be, fulfilled; or (ii) cannot be carried out at all, or cannot be carried out according ,to the directions given in the instrument creating the trust or, where there is no such instrument, according to the spirit of the trust; (b) where the original purposes of the trust provide a use for a part only of the property available by virtue of the trust; or (c) where the property available by virtue of the trust and other property applicable for similar purposes can be more effectively used in conjunction with, and to that end can suitably be made applicable to any other purpose, regard being had to the spirit of the trust and its applicability to common purposes; or (d) where the original purposes, in whole or in part, were laid down by reference to an area which then was, but has since ceased to be, a unit for such purposes; or (ii) ceased, as being useless or harmful to the community, or (iii) ceased to be, in law, charitable, or (iv) ceased in any other way to provide a suitable and effective method of using the property available by virtue of the trust, regard being had to the spirit of the trust." 23. A plain reading of Section 301 shows that an Executor can be removed by this Court. Remedy under Section 92, CPC cannot, in any manner, affect jurisdiction of this Court. It is also well settled that a Court of Record always has jurisdiction unless shown otherwise. Reference may be made to judgment of the Honble Supreme Court in Naresh Shridhar Mirajkar and others v. State of Maharashtra and another, AIR 1967 SC 1 , Para 59. 24. There is no force in the contention that order in proceedings under Section 92, CPC operated as res judicata or is a bar to proceedings under section 301 of the Succession Act. The said proceedings were not pending before court competent to try application for removal of Executor nor order dismissing application under Section 92, CPC for non-prosecution could be said to be by court having jurisdiction to grant relief sought under section 301 of the Succession Act so as to operate as res judicata. 25. The said proceedings were not pending before court competent to try application for removal of Executor nor order dismissing application under Section 92, CPC for non-prosecution could be said to be by court having jurisdiction to grant relief sought under section 301 of the Succession Act so as to operate as res judicata. 25. Thus,contention of Shri Verma that proceedings under section 301 of the Suc- cession Act were barred on the principle of sub judice under section 10, CPC or on the principle of res judicata under section 11, CPC, cannot be accepted. 26. As regards the plea that invoking of jurisdiction has to be bona fide, this relates to exercise and not existence of jurisdiction. 27. Contention of Shri Giani that Will was in favour of trust and the Executor was acting in his capacity as a trustee and was not, therefore, covered under Section 301 of the Succession Act, can also not be accepted. Merely because Executor is trustee also is not enough to exclude Section 301. It can also not be held that an executor having applied for probate, his role comes to an end. Judgments in V. L. Ethiraj and Amba Parshad (supra) are distinguishable. In the present case, role of Yadvinder Thakur as executor had not come to an end, as rightly held by learned single Judge. Yadvinder Thakur himself made an application in probate proceedings for being joined as co-applicant in his capacity as Executor. Order dated 16.4.1991 granting probate clearly mentioned that Yadvinder Thakur was the Executor and he was transposed as petitioner by order dated 18.5.1990 in that capacity. Mere fact that he was also to act as trustee and the property was bequeathed in favour of the trust itself did not affect the position of Yadvinder Thakur as being Executor. Yadvinder Thakur is estopped from pleading that he was not the Executor under the Will. The application duly filed under section 301 of the Succession Act was not liable to be dismissed merely because original applicant had died and his legal representatives were not brought on record. 28. The question of existence of power under section 301 has, thus, to be answered in favour of the applicant and against the appellants. Re :(iii) 29. Question which survives is whether jurisdiction under section 301ought to have been exercised. 28. The question of existence of power under section 301 has, thus, to be answered in favour of the applicant and against the appellants. Re :(iii) 29. Question which survives is whether jurisdiction under section 301ought to have been exercised. No doubt any person coming to Court has to come with clean hands and his conduct has to be aboveboard. At the same time, while dealing with an application alleging misconduct of an Executor, the Court cannot shut eyes to conduct of Executor and allow an Executor to continue, irrespective of his working to the detriment of the property bequeathed merely because complainants conduct was not aboveboard. The Court has to take an overall view of the matter. We are in agreement with the view taken by the learned single Judge that when the Will specifically mentions that the testator was not survived by any issue and that he owned properties including one described as Bagichi, Bagh Rama Nand, Amritsar, the very fact of pleading directly or indirectly factum of adoption of a son by the testator will not be conduct which will be above- board. Similarly, even after death of widow of late Seth Bhagirath Das, there is nothing to show that the property was put to use for purposes indicated in the Will. Thus, conduct of an Executor was not aboveboard and he rendered himself liable to be removed. We are also in agreement with the learned Single Judge that appointment of other trustees to which the Executor was a party, has to be annulled. Conduct of Om Parkash Aggarwal in setting up tenancy and continuing in possession of the trust for his personal benefit and there being hardly tangible account of use of the property for the las.t 20 years, sufficient grounds are made out for exercise of power under section 301. Contention of Shri Verma that application under section 301 of the Succession Act was moved only to avoid handing over of possession, can also not be accepted. The possession stands handed over and unless finding of learned single Judge about the misconduct of the appellants can be set aside, there is no ground to reject the application. Conduct of the appellants cannot be held to be good merely because conduct of the applicant was not aboveboard. The possession stands handed over and unless finding of learned single Judge about the misconduct of the appellants can be set aside, there is no ground to reject the application. Conduct of the appellants cannot be held to be good merely because conduct of the applicant was not aboveboard. The real issue is whether the Will of the testator was being given effect to and whether the Executor instead of discharging his duty as per Will was abusing his position to divert the property of the testator for his personal benefit. The finding of learned single Judge that as against clear statement in the Will that the testator had no issue, plea of testator having adopted a son was raised apart from plea of partition which affected the title of the testator to the bequeathed property and the fact that one of the trustees was allowed to plead his own tenancy on the property bequeathed for the benefit of the public have not been shown, in any manner, to be erroneous, which by itself were sufficient grounds justifying removal of an Executor, acting in dual capacity as Executor and the trustee. Continuance of substituted trustees is inter-connected to finding of conduct of Executor and chief trustee. The removal of Executor was clearly called for under section 301 and removal of other appellants was consequential being inter-connected to the functioning of the Executor. There is, thus, no ground to interfere with the finding recorded by the learned single Judge. The question is answered against the appellants and in favour of the respondents. 30. The appeals are, thus, liable to be dismissed as far as the appellants are concerned. We order accordingly. 31. However, one consequential matter remains to be considered. Learned single Judge had made arrangement to substitute the appellants but the chief trustee appointed in the impugned order expressed inability to function and was allowed to withdraw from the office of Executive Managing Trustee vide order of this Court dated 11.9.2006. Vide order dated 23.8.2007, it was directed that the appellants will not deal with the property of the trust in any manner without permission of this Court. Thereafter, on 26.5.2008, a Senior Advocate of this Court was substituted as trustee in place of Sh.Tara Chand Sharma but on 1.8.2008, the said order was also withdrawn on the request of Senior Advocate who was so appointed. Thereafter, on 26.5.2008, a Senior Advocate of this Court was substituted as trustee in place of Sh.Tara Chand Sharma but on 1.8.2008, the said order was also withdrawn on the request of Senior Advocate who was so appointed. There has been an interim order of stay of operation of impugned judgment. In view of this, question of suitable arrangement for making the Will operative and functional, ought to be decided afresh. The matter has to be remanded to learned single Judge for this purpose. We order accordingly. To consider suitable arrangement, since properties are either in the State of Punjab or at Chandigarh, notice ought to be issued to Advocate General, Punjab and Senior Standing Counsel, UT, Chandigarh, to suggest appropriate mechanism. 32. Till mechanism is worked out or till any further order is passed by learned single Judge, status quo will continue. List for further directions before learned single Judge on 26.10.2009.