Bombay High Court

Mr. Nikhilesh Kashrichand ... vs M/S New Era Fabrics Ltd. And Ors on 20 September, 2017

Bench: M.S. Sonak

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    CIVIL APPELLATE JURISDICTION

                        WRIT PETITION NO. 5917 OF 2017

        Ms Daksha Keshrichand Jhaveri & Ors.                ..Petitioners
              vs.
        Mr. Nikhilesh Keshrichand Jhaveri & Ors.            ..Respondents


                                       WITH
                       WRIT PETITION NO. 13794 OF 2016


        Mr. Nikhilesh Keshrichand Jhaveri & Ors.            ..Petitioners
              vs.
        M/s. New Era Fabrics Ltd. & Ors.                    ..Respondents


        Mr. G. S. Godbole with Ms Mamta Sadh i/b. Ms Poonam Utekar
        for Petitioners in WP 5917 of 2017.
        Mr. Gautam Ankhad i/b. Ms Sushma Singh for Petitioners in WP
        13794 of 2016 and for Respondent Nos. 4 to 6 in WP 5917 of 2017.
        Mr. P. K. Dhakephalkar - Senior Advocate with Mr. J. P. Narula i/b.
        Jhangiani Narula & Associates for Respondent No. 7 in WP 13794
        of 2016.
        Aparna Devkar i/b. M. P. Vashi & Associates for Respondent No. 1
        in WP 13794 of 2016.


                                     CORAM : M. S. SONAK, J.

Date of Reserving the Judgment : 15 September 2017 Date of Pronouncing the Judgment : 20 September 2017

COMMON JUDGMENT :-

1] Heard learned counsel for the parties. They agree that these

two petitions can be disposed of with a common order.



        2]      Accordingly, Rule in both the petitions. With the consent of







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and at the request of the learned counsel for the parties, Rule is

made returnable forthwith.

3] In writ petition no. 13794 of 2016, the challenge is to the order

dated 19th October 2016 made by the Small Causes Court (trial

court) directing the plaintiff Nos. 4 to 6 ( petitioners in writ petition

no. 13794 of 2016) in T.E. & R. Suit No. 48/62 of 2009 to implead

Gnani Investment & Trading Co. Pvt. Ltd. (GITCPL) (applicant in

application at Exhibit No. 321 of 2016 in T.E. & R. Suit No. 48/62 of

2009) as co-plaintiff.

4] In writ petition No. 5917 of 2017, the challenge is to the order

dated 14th March 2017 made by the trial court in the aforesaid suit,

this time, at the instance of plaintiff No. 4 in the suit, ordering the

deletion of plaintiff Nos. 2, 7 to 10 and 12 (petitioners in writ petition

No. 5917 of 2017).

5] The T.E. & R. Suit No. 48/62 of 2009 was instituted by, in all,

12 plaintiffs against the 6 defendants, seeking inter alia eviction of

the defendants from the suit premises and other consequential

reliefs.



        6]      There is no dispute that during the pendency of this suit,








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plaintiff Nos. 2, 7 to 10 and 12 (petitioners in writ petition No. 5917

of 2017) have assigned their rights in the suit premises in favour of

GITCPL. There is some dispute between these plaintiffs and the

plaintiff Nos. 4 to 6, as to whether these plaintiffs have assigned

their entire interest in the suit premises to GITCPL or whether,

these plaintiffs have transferred only 75% of their interest in the suit

premises to GITCPL.

7] On the basis of three separate deeds of assignment, GITCPL

took out an application (Exhibit 321) before the trial court seeking a

direction to the plaintiffs in the suit to implead GITCPL as plaintiff

no. 13 in the suit i.e. a co-plaintiff along with the remaining 12

plaintiffs. By impugned order dated 19th October 2016, the learned

trial Judge has allowed GITCPL's application at Exhibit 321 and

directed plaintiff Nos. 4 to 6 to implead GITCPL as 'co-plaintiff' in

the suit. The trial court issued this direction only to plaintiff Nos. 4 to

6, because, by separate order dated 14th March 2017 below Exhibit

330, trial Court, has ordered deletion of plaintiff Nos. 2, 7 to 10 and

12. As noted earlier, the order dated 14 th March 2017 is a subject

matter of challenge in writ petition No. 5917 of 2017.

8] Mr. Ankhad, learned counsel for the petitioners in writ petition

No. 13794 of 2016 contends that the impugned order dated 19 th

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October 2016 made by the learned trial Judge is ex facie in excess

of jurisdiction. He submits that the court ought not to foist a party as

a co-plaintiff, upon the plaintiffs who had originally instituted the suit.

He submits that if the impugned order is sustained the very

progress of the suit will be embarrassed. He submits that there is

clear conflict of interest between plaintiff Nos. 4 and 6 on one hand

and GITCPL on the other. To require the suit to proceed with

GITCPL as a co-plaintiff, is a sure recipe for disaster. He relies upon

the decision of this Court in Bayajabai Ganpat Patil vs. Keval

Rambhau Patil & Anr.1

9] Mr. Dhakephalkar, learned Senior Advocate for GITCPL

defends the impugned order dated 19th October 2016 by submitting

that GITCPL is an assignee from majority of the plaintiffs in the suit.

He submits that in terms of Order XXII Rule 10 of CPC, the

assignee, as a matter of right is required to be made a party to the

suit, if it so desires. He further submits that at the stage of grant of

leave under Order XXII Rule 10 of CPC a detailed enquiry as to the

validity or the extent of the assignment is totally inappropriate.

Prima facie satisfaction is all that is required. Mr. Dhakephalkar

submits that in case GITCPL is not impleaded as a co-plaintiff,

there is possibility that the plaintiff Nos. 4 to 6 may either abandon

the suit or collude with the defendants in the suit, to the utmost 1 1953 ILR (Bombay Series) 424

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detriment of GITCPL. Mr. Dhakephalkar submits that there is

absolutely no jurisdictional error in the impugned order dated 19 th

October 2016 and this Court, may therefore not interfere with the

same. Mr. Dhakephalkar has relied upon the decisions in the case

of Amit Kumar Shaw & Anr. vs. Farida Khatoon & Anr.2 and Sri

Jagannath Mahaprabhu vs. Pravat Chandra Chatterjee & Ors.3

in support of his submissions.

10] Mr. Godbole, learned counsel for the plaintiff Nos. 2, 7 to 10

and 12, who are the petitioners in writ petition No. 5719 of 2017 and

for some of the respondents in writ petition No. 13794 of 2016

adopts the submissions made by Mr. Dhakephalkar. He further

submits that the decision in Bayajabai Patil (supra) is clearly

distinguishable, because that was a case concerning a sole

plaintiff, whereas, in the present case, the suit was instituted by no

less than 12 plaintiffs and no less than 6 plaintiffs support the

impleadment of GITCPL as a co-plaintiff in the suit. Mr. Godbole

submits that the courts have extensive powers under Order I Rule

10 of CPC to strike out or add parties. The exercise of such powers

is discretionary and the learned trial Judge has exercised the

discretion reasonably when it comes to making of order dated 19 th

October 2016 but exercised discretion quite unreasonably when it

2 (2005) 11 SCC 403 3 AIR 1992 Orissa 47 (Full Bench)

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comes to making the impugned order dated 14th March 2017 and

ordering the striking out of plaintiff Nos. 2, 7 to 10 and 12, on the

spacious plea that these plaintiffs have assigned some of their

rights in the suit premises in favour of GITCPL. Mr. Godbole also

joins Mr. Dhakephalkar in expressing apprehensions that the

plaintiff Nos. 4 to 6 in the suit might either abandon the suit or

compromise the suit with the defendants, so as to prejudice not only

GITCPL but also the plaintiffs whom he represents. Mr. Godbole

relies upon the decision in the case of Mumbai International

Airport Pvt. Ltd. vs. Regency Convention Centre and Hotels

Pvt. Ltd. & Ors.4 in support of his submissions.

11] Mr. Godbole, in support of writ petition No. 5917 of 2017

submits that the plaintiff Nos. 2, 7 to 10 and 12 have not assigned

their entire rights in the suit premises in favour of GITCPL. He

submits that they have assigned only 75% of their rights to

GITCPL. In such circumstances, Mr. Godbole submits that there

was no question of ordering deletion of these plaintiffs from the

array of parties in the suit. Mr. Godbole relying upon Dhurandhar

Prasad Singh vs. Jai Prakash University & Ors.5 submits even if

these plaintiffs are taken to have assigned their entire rights in the

suit premises in favour of GITCPL (which he contends they have

4 (2010) 7 SCC 417 5 (2001) 6 SCC 534

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not) still, these plaintiffs have the right to remain in the carriage of

the suit, because, there is implied covenant to assign a good title in

favour of the assignee. Mr. Godbole submits that the impugned

order dated 14th March 2017, by which, these plaintiffs have been

ordered to be deleted is in excess of jurisdiction or in any case

constitutes a patently unreasonable exercise of jurisdiction.

12] Mr. Ankhad, learned counsel for the petitioners in writ petition

No. 13794 of 2016 and some of the respondents in writ petition No.

5917 of 2017 joints issues of the submissions of Mr. Dhakephalkar

and Mr. Godbole. He submits that plaintiff Nos. 2, 7 to 10 and 12

have chosen to assign their entire rights in the suit premises in

favour of GITCPL. Accordingly, they cannot be permitted to

continue as parties in the suit since, they have no surviving interest

in the suit premises. However, without prejudice, he submits that

the plaintiff Nos. 4 to 6 will have no objection if GITCPL as also

plaintiff Nos. 2, 7 to 10 and 12 remain in the suit as defendants.

Mr. Ankhad submits that in view of the conflicting positions, it will

not be possible for the plaintiffs to be represented by one and the

same Advocate. He submits that even otherwise, several plaintiffs

in a suit cannot be permitted to be represented by several

Advocates. In any case, he submits that this will completely frustrate

and embarrass the trial in the suit. He submits that such

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embarrassment will only benefit the defendants to the suit. He

relies on Ram Gopal Sah vs. Dhirendra Nath & Anr.6, Sm.

Sukumari Debi & Anr. vs. Shri Ramdas Ganguli 7, Venkatrao A.

Pai and Sons Ltd. vs. Narayanlal Bansilal 8 and Chitralekha

Builders & Anr. vs. G.I.C. Employees Sonal Vihar Co-operative

Housing Society Ltd. & Ors.9

13] The rival contentions now fall for determination.

14] There is a serious dispute as to whether the plaintiff Nos. 2, 7

to 10 and 12 have assigned their entire rights in the suit premises in

favour of GITCPL as contended by Mr. Ankhad who represents

plaintiff Nos. 4 to 6 in the suit or whether the plaintiff Nos. 2, 7 to 10

and 12 have only assigned 75% of their rights to the suit premises

as contended by both Mr. Godbole and Mr. Dhakephalkar. GITCPL

relying upon the deeds of assignment, has applied for impleadment

and relied upon the provisions in Order XXII Rule 10 of CPC. At the

stage of deciding whether leave is to be granted under Order XXII

Rule 10 of CPC, a detailed enquiry is really not contemplated. Only

a prima facie satisfaction would normally suffice. From this

perspective, it will be only appropriate that both GITCPL as well as

plaintiff Nos. 2, 7 to 10 and 12 continue as parties in the suit. The 6 AIR 1981 Patna 298 7 AIR 1994 Calcutta 85 8 AIR 1961 Bom. 94 9 2005 (4) Mh. L.J. 360

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question really is about capacity in which they ought to continue in

this suit.

15] In Dhurandhar Prasad Singh (supra), the Supreme Court has

held that under Order XXII Rule 10 of CPC when there has been a

devolution of interest during pendency of a suit, the suit may by

leave of the Court be continued by or against persons upon whom

such interest has devolved and this entitles the person who has

acquired an interest in the subject matter of the litigation by

assignment or creation or devolution of interest pendente lite to

apply to the court for leave to continue the suit. But it does not

follow that it is obligatory upon them to do so. If the party does not

ask for leave he takes the obvious risk that the suit may not be

properly conducted by the plaintiff on record and yet as held in Moti

Lal vs. Karrabuldin10, he will be bound by the result of the litigation

even he is not represented at the hearing unless it is shown that the

litigation was not properly conducted by the original party or he

colluded with the adversary.

16] There is also no warrant for the proposition that a party to the

suit who may have assigned its interest in favour of a third party, is

required to be necessarily struck out from the array of parties. The

party to the suit who may have assigned its interest is entitled to 10 ILR (1898) 25 Cal. 179

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continue as a party in the suit, because, in a given case, the

covenant to supply a good title to the assignee and to assign

property free from any encumbrances or litigations may continue

upon such party. In the present case, there is a serious dispute as

to whether the plaintiff Nos. 2, 7 to 10 and 12 have assigned their

100% rights or the assignment is restricted to only 75% of the rights

which they claim to have in the suit premises. In these

circumstances, there was no justification to order deletion of the

plaintiff Nos. 2, 7 to 10 and 12 from the array of parties in the suit.

17] Although, GITCPL is entitled to become a party, the learned

trial Judge, was not at all justified in impleading the GITCPL as 'co

plaintiff' particularly when there is a serious conflict of interest

between plaintiff Nos. 4 to 6 on one hand and GITCPL on the other.

Although, the exercise of power under Order I Rule 10 of CPC is

discretionary, the discretion in such matters, cannot be exercised in

unreasonable manner. In fact, this is what is held in Mumbai

International Airport Pvt. Ltd. (supra) upon which reliance was

placed by Mr. Godbole. In Bayajabai Patil (supra) Chief Justice M.

C. Chagla, in the context of exercise of power under Order I Rule 10

of CPC has held that a party may be added as a co-plaintiff, when

the plaintiff does not dispute the right of the co-plaintiff to the decree

which might be passed; but where his right to property in suit is

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disputed by the plaintiff, the proper procedure is to join him as a

defendant and not as a co-plaintiff. The principle in such matters

appears to be that the original plaintiff, who is even otherwise

dominus litis, cannot be compelled to proceed with the suit with a

co-plaintiff, with whom, such original plaintiff may have a conflict of

interest.

18] There is also substance in the contention of Mr. Ankhad that

there will be considerable difficulties in the carriage of the suit, if,

various plaintiffs insist upon engaging different Advocates to

represent their own conflicting interest in the suit. In such a

situation, the trial, or for that matter further proceedings in the suit

will be embarrassed. In Venkatrao A. Pai and Sons Ltd. (supra), the

learned Single Judge of this Court has held that two or more

persons would agree to join as co-plaintiffs in a suit only if there is

any common question of law or fact between them, and their

respective claims arise out of the same transaction. The law

permits these different plaintiffs to join in one action by filing one

common plaint only with a view to save multiplicity of suits and

consequent wastage of time of the court. If this is the object of

allowing several persons to join as plaintiffs in one action, the object

would be frustrated if each of these persons is allowed to be

represented by a separate counsel and each one of the counsel is

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also permitted to be in charge of the case for his own client. If such

things are permitted, the waste of the time of the Court, which is

otherwise intended to be saved by allowing several persons to join

another as co-plaintiffs in one action, would not at all be saved. On

the contrary, far more time would be taken and a number of

unnecessary complications would arise in trying one such action if

every one of the plaintiffs is allowed to be represented by his own

counsel and each counsel is allowed to conduct the case

separately for his own client. In this case, learned Single Judge of

this Court has taken cognizance of the traditions at the bar both, in

the Bombay High Court as well as in England that in cases where

more than one person join as co-plaintiffs in one action, they should

all be jointly represented by one or more counsel. It may be that at

some stage or the other of the action some of the plaintiffs might

feel that there is a conflict of interest between them and the other

plaintiffs. Just for that reason, however, as the plaintiffs cannot be

allowed to engage different counsel. If they so wish that might will

apply to the court to transpose them as defendants. The learned

Single Judge of this Court has referred to Wedderburn vs.

Wedderburn11 decided as far back as in 1853, where Master of the

Rolls observed (p. 993) :

"..... When persons undertake the prosecution of a suit, they must make up their minds whether they will become Co-

plaintiffs; for if they do, the must act together. I cannot allow 11 (1853) 51 E.R. 993

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one of several plaintiffs to act separately from and inconsistently, with the others."

19] Applying the aforesaid principles to the fact situation in the

present case, the direction issued to plaintiff Nos. 4 to 6 in the

impugned order dated 19th October 2016 to implead GITCPL as co-

plaintiff in the suit is quite unsustainable and is hereby set aside.

However, as noted earlier, since GITCPL claims assignment from

plaintiff Nos. 2, 7 to 10 and 12 there can be no difficulty in ordering

the impleadment of GITCPL as a defendant No. 7 in the suit.

Plaintiff Nos. 4 to 6 are accordingly directed to implead GITCPL as

defendant No. 7 in the suit. Necessary amendment to be carried out

within a period of two weeks from the date of this order.

20] Since, there is a dispute as to whether the plaintiff Nos. 2, 7 to

10 and 12 have assigned their entire rights to the suit premises in

favour of GITCPL or not and further even assuming, that they have,

there is no reason to strike out these plaintiffs from the array of the

parties. However, considering the changed scenario where, these

plaintiffs, have assigned a major portion of their interest in favour of

GITCPL and further considering that it is only appropriate that

GITCPL is impleaded as a defendant in the suit, it will be only

appropriate that the plaintiff Nos. 2, 7 to 10 and 12 are also

transposed as defendants in the suit. Such a course of action is

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permissible under Order I Rule 10 of CPC. On account of the

assignment of their rights or in any case their substantial rights,

there has arisen a conflict of interest between them and plaintiff

Nos. 4 to 6 who have not chosen to assign their rights in the suit

premises in favour of GITCPL. If continuance of GITCPL and

plaintiff Nos. 4 to 6 as 'co-plaintiff' will result in embarrassment to

the further proceedings in the suit, by the same logic, the

continuance of plaintiff Nos. 2, 7 to 10 and 12 who have on their

own say, assigned 75% of their rights to the suit premises in favour

of GITCPL, will also constitute an embarrassment to the further

progress in the suit. The same issue of representation by separate

set of lawyers is bound to arise apart from several other inevitable

complications. Since, the plaintiff Nos. 4 to 6 have chosen not to

assign their rights, it is only appropriate that they continue in the

carriage of the suit the GITCPL as well as the plaintiff Nos. 2, 7 to

10 and 12 are impleaded as defendants in the suit.

21] In this case, the suit is for eviction of the tenants. In such a

suit, there is really no scope to adjudicate in inter se disputes

between the plaintiffs themselves. Therefore, the presence of

GITCPL or for that matter plaintiff Nos. 2, 7 to 10 and 12 who have

on their own say assigned 75% of their rights to the suit premises

in favour of GITCPL, as defendants may really make no substantial

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difference or impact. However, it is obvious that disputes have

arisen between plaintiff Nos. 2, 7 to 10 and 12 on one hand and

plaintiff Nos. 4 to 6 on the other, mainly on account of the former set

assigning their rights or substantial portion of their rights to GITCPL.

It is also possible that the former set and GITCPL seek to pressure

plaintiff Nos. 4 to 6 to also assign their rights and in furtherance of

this, seek carriage of this suit. However, the interests of justice will

be met if both the impugned orders are modified and plaintiff Nos. 4

to 6 are directed to implead GITCPL as defendant No. 7 and to

transpose plaintiff Nos. 2, 7 to 10 and 12 as defendant Nos. 8 to 13

in the suit.

22] There is really no basis for the apprehension that plaintiff

Nos. 4 to 6 might abandon the suit or collude with the defendant

tenants. In any case, suitable directions can always be issued to

ally such apprehensions. In the light of apprehensions expressed by

Mr. Dhakephalkar and Mr. Godbole, the directions are issued to the

trial Court not to grant leave to plaintiff Nos. 4 to 6 to withdraw or

abandon the suit without furnish giving at least 30 days prior to

notice to GITCPL and plaintiff Nos. 2, 7 to 10 and 12 (who are

ordered to be impleaded as defendants) of their intention to do so.

In such an eventuality the GITCPL as well as the plaintiff Nos. 2, 7

to 10 and 12 can always apply to the court for their transposition as

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plaintiffs if they wish to continue with the suit against the original

defendants.

23] Similarly, if at any stage, of the conduct of the suit, GITCPL or

the plaintiff Nos. 2, 7 to 10 and 12 apprehend collusion, they are

always at liberty to apply to the trial court for appropriate orders,

including orders for transposition. No doubt, such application, if

made, will be considered on its own merits and in accordance with

law. This will substantially ally the apprehensions expressed by Mr.

Dhakephalkar and Mr. Godbole even though, it is necessary to note

that at least at present, there does not appear to be any basis for

such apprehensions.

24] It is settled position in law that the civil court has ample

powers to mould the relief. In the suit as instituted, there is really no

scope for resolution of inter se disputes between the plaintiffs.

However, in case there are any apprehensions that in the course of

resolution of disputes with the tenants, there might arise some

impact upon the inter se rights between the plaintiffs, the civil court,

has ample powers to mould the reliefs and clarify the position. The

mere circumstance that some of the landlords are impleaded as

defendants, will really not make any significant impact. If ultimately,

a case is made out to secure eviction of the original defendants -

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tenants, the trial Court can always mould relief and direct the

delivery of possession of the suit premises, not just to plaintiff Nos.

4 to 6 but also to plaintiff Nos. 2, 7 to 10 and 12 and GITCPL, who

are now ordered to be impleaded as defendant Nos. 7 to 13. This is

yet another reason as to why powers under Order I Rule 10 of CPC

are required to be exercised so as to implead GITCPL and plaintiff

Nos. 2, 7 to 10 and 12 as defendants Nos. 7 to 13.

25] These petitions are therefore disposed of with the following

order :

(A) The impugned order dated 19th October 2016 to the

extent it directs plaintiff Nos. 4 to 6 to implead GITCPL as co-

plaintiff is set aside. Instead, plaintiff Nos. 4 to 6 are directed

to implead GITCPL as defendant No. 7 in the suit;

(B) The impugned order dated 14th March 2017 made by

the learned trial Judge ordering deletion of plaintiff Nos. 2, 7 to

10 and 12 is hereby set aside. Instead, the plaintiff Nos. 4 to 6

are directed to transpose plaintiff Nos. 2, 7 to 10 and 12 as

defendant Nos. 8 to 13 in the suit;