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2021 DIGILAW 106 (CAL)

Sunrit Deb v. Sudip Deb

2021-02-11

SHIVAKANT PRASAD

body2021
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. 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 Court and the Court in its turn considers as to whether the questions are within the ambit of the rules of the Original Side and can be conveniently dealt with by way of an originating summons. In the event, however, the Court upon such consideration finds it otherwise, the Court will relegate the party applying to an ordinary suit." 10. Taking cue from the above cited decision, it is submitted that Originating summons is available to proceedings which are not of an involved nature or on which there would hardly be any scope for any oral evidence. Personal allegations against trustee cannot be decided in an Originating Summons Suit and for that the proper procedure is to file a regular suit. The scope of an Originating Summons Suit is restricted to interpretations and constructions of deeds and documents and for answering questions framed for determination and not beyond that. Any other dispute has to be decided by filing a regular suit by paying appropriate court fees. 11. In rebuttal, Mr. Debraj Bhattacharya, learned counsel for the plaintiff submitted that the petitioners/defendants cannot in law be entitled to any order expunging their names on the plea that they had decided to quit their office of Trustee of the said Anath Nath Deb Trust Estate in 2018 as the said Trust Estate was declared by a Division Bench of this Hon'ble Court vide order dated 10th May, 1972 to a religious and charitable public trust from the day of its inception, entails discharge of certain duties and obligations pertaining to its nature that cannot be disowned by a Trustee by simply resigning that office in the manner not unlike withdrawing from the membership of a private club. This is because of the fiduciary nature of his relationship with the said trust estate of a recognized religious and charitable character. For the breach of duties and obligations that inhere to that relationship, the trustee remains answerable in law even though he resigns the office. 12. This is because of the fiduciary nature of his relationship with the said trust estate of a recognized religious and charitable character. For the breach of duties and obligations that inhere to that relationship, the trustee remains answerable in law even though he resigns the office. 12. It is further submitted that the plaint in the Originating Summons Suit contains averments disclosing instances of such breach which constitute its cause of action in or about the year 2008 and the pleadings are essentially and inextricably connected with the questions that the plaintiff has raised in the said originating summons suit filed under the Chapter XIII of the Original Side Rules which have to be answered by the said petitioners/defendants being necessary parties and that the said pleadings cannot be now expunged after lapse of 10 years from the date of institution of the said Originating Summons Suit, simply because the petitioners/defendants chose to resign their office of trustee some time in 2018. 13. In my opinion if the plaintiff alleges breach of trust by the petitioners who resigned as trustee is liable to be removed from the office of Trust Estate, but such breach of trust has to be proved on evidence in a regular suit. 14. As regards expunging of pleadings of allegations against the defendants in the plaint, it is submitted that as in law, it can be done only under the provisions of Order VI Rule 16 of the Code. The pleadings shall have to be proved at the trial to have been either unnecessary or scandalous or frivolous or vexatious or that they may tend to prejudice, embarrass or delay the fair trial of the said Originating Summons Suit or that they constitute an abuse of the process of Court. 15. It is pointed out by Mr. The pleadings shall have to be proved at the trial to have been either unnecessary or scandalous or frivolous or vexatious or that they may tend to prejudice, embarrass or delay the fair trial of the said Originating Summons Suit or that they constitute an abuse of the process of Court. 15. It is pointed out by Mr. Bhattacharya, learned counsel for the plaintiff that the petitioners/defendants neither averred anywhere nor have their counsel made the least effort to demonstrate that any of the aforesaid mandatory requirements of Order VI Rule 16 for expunging the plaintiff's pleadings or any part thereof was satisfied in the instant case in any manner whatsoever and allegations in the plaint against the petitioners/defendants and each of them are based on the plaintiff's knowledge of contemporary material facts and events of the year 2008 and thereabouts that indicate the negligent, mismanagement and maladministration of the affairs of the said Trust and egregious violation of the letter and spirit of the Trust Deed that was executed by the Settlors Trustees a century ago in the year 1919. 16. A brief summary of cause of action as made in the plaint is narrated to the effect that since April, 2008, contrary to Article 4(c) of the Trust Scheme, the defendants particularly the applicant Sudip Deb and following him the applicant Debasis Deb who successively acted as Secretary Trustees of the said Trust Estate deliberately kept the plaintiff uniformed about all major facts of the administration of the said Trust. They made it their business that the plaintiff came to know nothing about them. In May-June 2008 they caused a payment of Rs. 1,00,000/- out of the Trust funds to be made to one Rabindra Nath Dutta purportedly to buy up his tenancy of a part of the trust premises no. 81A, Beadon Street. No reason, no fact necessitated their decision to acquire the said part of the premises for such large sum withdrawn from the Trust funds at that time. Neither the plaintiff was informed nor was his consent sought for making such large payment at any time nor was the same included in contemporaneous Board meeting of Trustees in total violation of Article 4(f) of the said Trust Scheme. Apart from the said fact such payment was made extra-budgetary in violation of Article 9 of the said Scheme. Neither the plaintiff was informed nor was his consent sought for making such large payment at any time nor was the same included in contemporaneous Board meeting of Trustees in total violation of Article 4(f) of the said Trust Scheme. Apart from the said fact such payment was made extra-budgetary in violation of Article 9 of the said Scheme. Amongst other acts of unlawful maladministration of Trust affairs, the said unwarranted payment of Rs. 1,00,000/- in course of MayJune 2008 contributed in substantial measure to a cash flow crisis a few months later in and about the festive season of the Pujas that year and imperiled the normal functioning of the said Trust. The defendant Sudip Deb acting then as Secretary Trustee in collusion with the other defendants attempted to coerce the plaintiff into agreeing to a purported Joint Venture Agreement to develop the said Trust property viz. the premises no. 81A, Beadon Street. It was represented to the plaintiff by the said petitioners/defendants that such Agreement would enable a large cash in-flow from their proposed Joint Venture partner, i.e. the Developer and thereby help the Trust Estate tide over the crisis. The plaintiff was thereby misled and constrained to affix his signature to the said Joint Venture Agreement on 17th August, 2008. Only after the plaintiff had so affixed his signature that the plaintiff was allowed to inspect the contemporaneous financial records of the said Trust which revealed to him for the first time that the aforesaid wrongful and unwarranted payment of Rs. 1,00,000/- to the said Rabindranath Datta was made by withdrawal of substantial amounts successively by cheques drawn by the said defendants on the Bank mostly in May-June 2008 without communication thereof to the plaintiff. It was the practice long agreed by the Bank that any three trustees by cheques signed by them were competent to withdraw monies from the trust funds lying with the Bank. This was done recklessly and/or negligently in this case without concern for the welfare of the Trust and stability of its financial state. Essential repairs of the prime property of the said Trust viz. This was done recklessly and/or negligently in this case without concern for the welfare of the Trust and stability of its financial state. Essential repairs of the prime property of the said Trust viz. the building of the Anath Nath Deb (Chhatu Babu's) Bazar on the premises 9/4 Beadon Street had been long overdue and Bazar tenants were clamoring for at least temporary shed on a part thereof because the ceiling thereof had partly collapsed on 13th January, 2007 causing an accident. The rainwater was continuously allowed to drip through most parts of the ceiling causing inconvenience to traders and customers. The plaintiff would never have agreed to the said payment of Rs. 1,00,000/- had such facts been considered at Board Meeting called by the defendant Sudip Deb as the Secretary Trustee. No provision of such expense was to be found in the Trust's Budget for 2008-2009 that was duly considered and passed on 28th March, 2009. Article 9 of the said Trust Scheme explicitly prohibited all extra budgetary expenses that were not made out of additional income already accrued to the Trust during the current financial crisis in August, 2008 which was the defendants' own making on the eve of the festive season of the year. It became evident to the plaintiff upon discovery of such illegal payments made out of trust funds that he had been subjected to calculate deceit practiced on him because there could have been no legal necessity whatsoever for virtually alienating certain parts of the said valuable Trust property (81A Beadon Street premises) by way of the aforesaid Joint Venture Agreement to be entered into with a somewhat unknown and dubious promoter/developer of the choice made by the petitioners/defendants. He therefore had no alternative to expressly repudiate and rescind the said allege Joint Venture Agreement that he had been made to sign on 17th August, 2008 because the same was procured from him by misrepresentation, deceit and fraud in flagrant breach of the fiduciary duties pertaining to the Office of Trustee held by the petitioners/defendants in their own interests. 17. It is, thus, contended that Originating Summons Suit directly arose out of and is inextricably connected with and related to the aforesaid acts and omissions of the petitioners/defendants committed in clear breach of their fiduciary duties and obligations owed to the said public and charitable trust, the Anath Nath Deb Trust. 18. 17. It is, thus, contended that Originating Summons Suit directly arose out of and is inextricably connected with and related to the aforesaid acts and omissions of the petitioners/defendants committed in clear breach of their fiduciary duties and obligations owed to the said public and charitable trust, the Anath Nath Deb Trust. 18. In view of the aforesaid facts, plaintiff has sought for dismissal of said two applications for expungement of any of the averments in the plaint in the said Originating Summons suit in CSOS 5 Of 2008 or CSOS 4 of 2010 inasmuch as the same is not permissible under the mandatory terms and conditions of Order VI Rule 16 of the Code. 19. Though, such power of the Court is an extraordinary power to strike out a pleading and has to be exercised with extreme care, caution and circumspection. So, in my view, striking out pleading at any stage of the proceedings is not mandatory under the provisions of Order VI Rule 16 of the Code. 20. In this context the plaintiff referred to a decision in the case of ANIIDCO limited vs. M/S DYC Self Help Group & Anr., (2013) 2 CalLJ 576 wherein it has been held thus : "The question whether the defendant no.2 has been improperly joined or not should be considered in the background of the plaint in Money Suit No.17 of 2011. While dealing with the issue, it should be considered whether there is cause of action against the said defendant and whether it has been specifically pleaded in the plaint and consequently whether specific relief has been claimed against the said defendant. Moreover, it should be seen whether the said defendant has a direct link in the litigation and what role the defendant no.2 has to play for effective adjudication. Perusing the plaint, I find neither there is any specific pleading as to the cause of action against the said defendant no.2 nor there is any specific prayer against the said defendant. Therefore, the learned Judge while passing the order dated 19.3.2012 was justified in holding that there was no personal liability of the defendant no.2 who was also representing as the Secretary of the defendant no.1. The judgment in R.L. Jain (supra) is not applicable as perusing the paragraph 4 I find therein not only specific pleadings were against the applicant/defendant no.5 but specific prayer was also made. The judgment in R.L. Jain (supra) is not applicable as perusing the paragraph 4 I find therein not only specific pleadings were against the applicant/defendant no.5 but specific prayer was also made. So far as the applicability of section 6 and its proviso of the Societies Registration Act, 1860 is concerned, it is clear that under the statute a society may be sued in the name of its President, Chairman or through Secretary. In the instant case, as the defendant no.1 is represented by the Secretary and, as noted, the defendant no.2 has no role to play, it shows that the order passed was just and proper." 21. It is contended that the applicants have not averred in their applications that the pleadings in the plaint in the O.S Suit constitutes an abuse of the process of Court and refers to decision in K.K Modi Vs. K.N Modi, (1998) 3 SCC 573 , AIR (1998) SC 1297 wherein the Hon'ble Court observed that expunging of pleading is a matter of discretion to be exercised with circumspection in special case to hold that the contents of a pleading amount to an abuse of the process of Court. 22. This decision also does not support the case of the plaintiff. Firstly, this is in respect of an arbitral dispute. Secondly, the court held that it is the discretion of the court to strike out the pleading if the court is satisfied that there is no chance of success in the suit. The suit being an Originating Summons Suit, the allegations are qua trustees. In an Originating Summons Suit the court does not go into the allegations and only decides the questions. Accordingly, it is submitted that allegations should be expunged. 23. It would be apt to take note of provision of Order VI Rule 16 of the Code which provides that the Court may, at any stage of proceedings strike out or amend any matter in any pleading- (i) which may be unnecessary, scandalous, frivolous or vexatious, or (ii) which may tend to prejudice, embarrass or delay the fair trial of the suit, or (iii) which is otherwise an abuse of the process of the Court. 24. 24. It is now submitted that the burden of proving that the impugned pleadings of the plaintiff or any part of it is vitiated by reason of (i) or (ii) or (iii) lies entirely on the petitioners/defendants who have not made the faintest attempt to aver and/or demonstrate that the requirements of such conditions or of any of them. 25. The test is whether the words complained of as set out in the pleadings amount to allegations necessary for the formulation of the plaintiff's case, either in the way of establishing his cause of action or relevant for the purposes of decision of any of the issues or could form part of the evidence which the plaintiff would be bound to lead by his documents or otherwise for the purpose of obtaining the relief sought. 26. Learned counsel for the plaintiff refers to case of MTNL Vs. VK Jain, (1998) 71 DLT 467 wherein scandalous and vexatious pleadings made by the respondent/plaintiff against the defendant No. 3 Dy. General Manager (Legal) were expunged as they have found wholly unnecessary adjudication of the suit apart from being scandalous and vexatious. 27. This decision clearly goes against the plaintiff's argument, rather supports the case of the petitioners. In the said case Order 1 Rule 10 application which was filed alongwith the prayer for expunging the allegation were in fact allowed. The court categorically held that if the allegations made are unnecessary or vexatious for the purpose of the suit, the same should be expunged and court also allowed the application under Order 1 Rule 10 holding that if a person's presence is not necessary then his name should be deleted from the array of defendants. 28. It is pointed out that there is not a single sentence in the instant applications stating that any of the pleadings contained in the plaint cannot be permitted to stand by virtue of the requirements of Order VI Rule 16 of the code. There can therefore be no question of striking out or expunging any of the said allegations at this pre-trial stage. That would amount to withdrawal of the plaintiff's cause of action in full or in part and therefore appear absurd and impermissible in law. 29. There can therefore be no question of striking out or expunging any of the said allegations at this pre-trial stage. That would amount to withdrawal of the plaintiff's cause of action in full or in part and therefore appear absurd and impermissible in law. 29. As regards striking out of the names of the petitioners/defendants from the array of defendants in the cause title of the O.S. Suit, learned counsel for the plaintiff has relied on a decision reported in AIR 1926 P.C. 88 to contend that where a cause of action against the defendants is specially pleaded and a distinct relief is claimed against them, an order directing the removal of their names from the array of defendants in the cause title would be in substance a decree. That would prejudice the merit of the suit against the plaintiff without trial of the materials issues in controversy between the parties. 30. The cited decision in my view is not apposite to the facts and circumstances of the case because in the Originating Summons Suit questions pertaining to management of the Trust Estate has been sought to be answered and the same is to be decided summarily. Therefore, it cannot be treated to be a decree. 31. Learned counsel for the plaintiff also relied in case of Monohar Lal & Ors. Vs. Roshan Lal and another, (1938) AIR Lahore 799 Beckett, J. to submit that where Order I Rule 10 provides that the Court may strike out the name of a party who has been improperly joined as a plaintiff or defendant, such words refer to the time as and when the suit was framed and instituted against them i.e. the commencement of the suit and not later. The petitioners/defendants will have to show that the joining or impleading Sudip Deb and Debasish Deb as the defendants to the O.S. Suit was improper on the date in the years 2008 and 2010 when the said Originating Suits were instituted and not on the dates they successively resigned their office of Trustees a decade later in the year 2018. There is even no averment in their application that they were improperly joined as defendants at the commencement of the said suit. There is even no averment in their application that they were improperly joined as defendants at the commencement of the said suit. The basic foundation for striking out their names as defendants only upon its finding that the petitioners are not necessary nor proper parties to the proceedings for the Court to come to an effective and complete adjudication of all the issues involved. 32. This judgment is distinguishable from the instant case inasmuch as it relates to a mortgage suit and not to an Originating Summons Suit and such a suit is not decided on fullfledged trial. In the cited case, trial Court came to the conclusion that the claims of two of the persons should be dismissed, however, proceeded to strike out their names under Order 1 Rule 10 of CPC on the ground that they have not been properly impleaded as parties to the suit. Learned District Judge in appeal ordered that the name of one of the plaintiff should be restored but not the other name. A second appeal was preferred by the defendants asking that the name which has been restored should be struck off. The Hon'ble Court directed that two names which have been struck off should again be restored to the record until a preliminary decree is passed and becomes final. In the present case, it is argued by the learned counsel for the petitioners that their presence is not at all necessary and since allegations cannot be decided, those should be expunged and emphasized that once it is recognized that a probability exists for enquiring into the questions whether the petitioners/defendants are necessary or not in the scheme of the plaint as pleaded, the issues must be decided at the trial and not on an application for deletion of those parties. Since the contentions raised in the plaint entail a determination of facts, the issues raised must necessarily be determined at the trial. 33. Since the contentions raised in the plaint entail a determination of facts, the issues raised must necessarily be determined at the trial. 33. Learned counsel for the plaintiffs relied on the observations in the unreported judgment in case of ITC Limited Vs Morgan Mutual Fund India decided on 24th August, 2018 to submit that for deletion or striking out the names of the petitioners from the array of defendants in the cause title of the said Originating Summons Suit is not permissible and the rights and obligations of the parties vis a vis the trust properties qua trustees shall have to be determined at the trial for adjudicating the issues in controversy between them as indicated by the pleadings contained in the Plaint read with the question raised by the plaintiff under the provision of Chapter XIII of the Original Sides Rules and urged that the presence of the petitioners/defendants shall be necessary and appropriate, if not imperative at the trial. 34. On the contrary, it is argued by learned counsel for the petitioners that the unreported decision in ITC Limited case does not apply to the present case, firstly, because the cited case is in respect of a commercial suit and not an originating summons suit and secondly, in the said case no application under Order I Rule 10 was filed rather an application under Order VII Rule 11 was filed. On the face of it the said judgment has no manner of application in the present case. I fully agree with said submission of learned counsel that the cited decision is not apposite to the fact of the instant case because provision of Order VII Rule 11 relates to rejection of plaint. 35. Now, it is pertinent to narrate the questions raised by the plaintiff for determination in the Originating Summons Suit as under : I. Are the defendants, particularly the Defendant no. 1, not bound or obliged to effect forthwith repairs to the existing structures in the market premises of the Trust at 9/4, Beadon Street, Kolkata-700 006, starting with the structures in immediate need of repair, in terms of the said Scheme? II. Are the defendants, particularly the Defendant no. 1, not bound at all material times to offer to inspection of the accounts, books papers and documents of the trust estate to the plaintiff and/or his agents which have been refused? III. II. Are the defendants, particularly the Defendant no. 1, not bound at all material times to offer to inspection of the accounts, books papers and documents of the trust estate to the plaintiff and/or his agents which have been refused? III. Are the defendants, particularly the Defendant no. 1, not obliged to furnish true, full and faithful accounts of the income from the trust estate and its disbursements to the plaintiff when demanded by him? IV. Is the Defendant no. 1 not obliged to supply (at copy cost) xerox copies of statements detailing the income and expenditure of the trust estate or of any other papers or records thereof to the plaintiff, if so requested? V. Is the Defendant no. 1, not obliged to decide important matters relating to the trust estate such as transfer and assignment of tenancies and premium offered therefor and emergent or urgent repairs to the said trust properties at 9/4, Beadon Street and 81A, Beadon Street in the meetings of the Board of trustees convened by the Defendant no.1? VI. Is the Defendant no. 1 not obliged to keep all the trustees including the plaintiff informed in writing of each and all of the current affairs of the trust estate? VII. Is the Defendant no. 1 not obliged to call meetings of the Board of trustees at least once a month upon the notice of such meetings served on all trustees including the plaintiff incorporating or listing all current and/or emergent matters in the Agenda for such meetings? VIII. Are any of the two defendants trustee not obliged to call a meeting of the Board of trustees with proper notice and with the Agenda therein listing all important and/or emergent matters to be considered or discussed in such meetings in the event of the failure of the Defendant no. 1 to do so? IX. Is the Defendant no. 1 not obliged and bound to totally and faithfully record proceedings of the meetings of the Board of trustees in the Minute Book of the trust maintained for the purpose inter alia by engaging a competent stenographer? X(a) Is the Defendant no. 1 or are the other defendants entitled to disburse income or funds of the said public trust in excess of or in contravention to what has been provided for in Article 9 of the said Scheme? X(b) Is the Defendant no. X(a) Is the Defendant no. 1 or are the other defendants entitled to disburse income or funds of the said public trust in excess of or in contravention to what has been provided for in Article 9 of the said Scheme? X(b) Is the Defendant no. 1 and are the other defendants entitled to disburse trust funds or rents, profits and income of the said public trust or any part thereof for prosecuting their private defence in the said CSOS 5 of 2008? X(c) Are the Defendants not liable to refund and/or repay all such amounts disbursed for prosecuting their private legal defendant in the said CSOS 5 of 2008 to the trust upon furnishing true and faithful account of the same? XI. Are the trustees not obliged to offer food and help to poor students receiving education to the full extent of the funds available therefor in terms of Article 6 of the said Scheme? XII. Are the defendants, particularly the defendant no. 1, not obliged to distribute clothes among the poor, indigent and needy persons in terms of Article 10(g) of the said Scheme? XIII. Are the defendants, particularly the defendant no. 1, not obliged to allow and abstain from interfering with the full participation of the plaintiff in the various traditional religious rites and customary observances of the trust and distribution of Bhog in terms of Article 12 of the said Scheme? 36. A bare reading of the affidavit filed in support of the Originating Summons Suit would reveal that the questions raised for determination relates to management, administration and function of Anath Nath Deb Trust Estate. It would appear that the plaintiff has also prayed for determination of question relating to reconstruction/renovation of Bazaar premises being Chhatu Babu Bazaar situated at 9/4, Beadon Street, Kolkata-700006 as also premises no. 81A, Beadon Street, Kolkata-700006 and also prayed for determination of the questions whether there was at all any legal necessity for reconstruction/renovation or development of the said two properties. 37. The defendant no. 4 resigned as Trustee on 19th January, 2018 and appointed his uncle Mr. Shyamal Kumar Deb as new Trustee in his place and stead and his resignation has been accepted by the Board of Trustees appointing Mr. Shyamal Kumar Deb as new trustee who has been acting as Trustee of the Anath Nath Deb Trust Estate since then. 38. The defendant no. Shyamal Kumar Deb as new Trustee in his place and stead and his resignation has been accepted by the Board of Trustees appointing Mr. Shyamal Kumar Deb as new trustee who has been acting as Trustee of the Anath Nath Deb Trust Estate since then. 38. The defendant no. 1 also resigned as trustee on 29th November, 2018 appointing his cousin Subhodeep Deb as new Trustee in his place and instead after acceptance of his resignation by the Board of Trustees and Sri Subhodeep Deb has been functioning as new Trustee. 39. It is pointed out that the defendant no. 2 had passed away and in his place and instead, Mr. Debaditya Deb was appointed as the new Trustee as desired by the defendant no. 2 when he was a minor and he is being represented by his mother as his natural guardian. 40. Therefore, upon appointment of new trustee, the petitioners' involvement into the affairs of the said Trust is not at all necessary for adjudication of the disputes raised by the plaintiff for the aforesaid questions to be answered because the allegations raised are all qua trustees of the trust estate and not against them. 41. It would not be out of the context to take notice of a letter dated 27th August, 2008 of the plaintiff addressed to the then Secretary of the Trust advising the Secretary to carry out the valuation of the premises 81/A, Beadon Street, Kolkata-700 006 by M/s. Talbot and Company to determine current market value in order to ensure that the price fetched by developer closely adheres to and approximates such value. It would be evident that plaintiff was well in the knowledge of the affairs of the trust estate and proposed development of the property of trust being a signatory to the agreement. Be that as it may, allegations averred in the summary facts of the case in the background of trust scheme and the questions raised by the plaintiff can be heard and answered in presence of the newly appointed trustees who have jolly well stepped into the shoes of the outgoing trustees. Ergo, I am of the opinion and hold that presence of petitioners is not necessary for the answers to be given against the questions raised by the plaintiff in the Originating Summons Suit. Accordingly, names of the outgoing trustees being defendant Nos. Ergo, I am of the opinion and hold that presence of petitioners is not necessary for the answers to be given against the questions raised by the plaintiff in the Originating Summons Suit. Accordingly, names of the outgoing trustees being defendant Nos. 1, 2 and 4 be struck off from the cause title and in their place the names of the newly appointed trustees be impleaded in the cause title of the Originating Summons Suits. 42. Having argued to the rival contentions, I am of the view that the allegations are qua trustees which can be decided while answering the questions mentioned in paragraph 9 of the application being GA No. 351 of 2019 and GA No. 350 of 2019, however, the petitioners prayer for expunging the allegations contained in the affidavits in support of the summons in the above suit is not countenance to, as those allegations are common in nature qua the trustees but, the names of petitioners be struck off from the array of defendants in view of the provision of Section 71 of Indian Trust Act, 1882 which clearly spells out that once a new trustee is appointed in place of the existing trustee, the existing trustee may be discharged because the petitioners are no longer the Trustee of the said Trust Estate and can no longer be a party relating to dispute in connection with Anath Nath Deb Trust Estate. 43. In the context of what has been discussed above the GA applications being IA GA 6 of 2019 (GA No. 351 of 2019) in CSOS No. 5 of 2008 and IA GA 3 of 2019 (GA No. 350 of 2019) in CSOS No. 4 of 2010 are disposed of. 44. Urgent certified photocopy of this Judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.