Capt. D.P. Verma vs Air Sahara And Ors.
2005 Latest Caselaw 1369 Del

JUDGMENT

Swatanter Kumar, J.

1. The plaintiff, who worked in Indian Airlines as senior Commander from 1972 to July, 1994 and thereafter worked for Jet Airways from August, 1994 to 6th October, 1995 and joined the defendants' organisation i.e. Air Sahara on 6th October, 1995, has filed the present suit for recovery of Rs.40 lakhs.

2. The plaintiff has founded his claim that under the policy of the defendant, he was entitled for ownership of residential accommodation costing around Rs.36 lakhs, which have been wrongfully denied by the defendants in the suit. On an application filed by the plaintiff, the plaint of the plaintiff was permitted to be amended and the amended plaint was filed in this Court on 28th October, 2002. By way of amendment, he added defendant No.4 to the plaint as well as made detailed allegations against all the defendants alleging conspiracy and collusion between the defendants to frustrate the legitimate and rightful claim of the plaintiff. According to the case pleaded by the plaintiff in the amended plaint, the plaintiff had completed three years of service on 8th October, 1998 and thereby rendered himself eligible for ownership of the residential accommodation costing Rs.36 lakhs but to his utter surprise, the defendants not only ill treated the plaintiff but also failed to act on the repeated representations of the plaintiff. The plaintiff for this purpose had relied upon para 3 of the scheme of the defendants, which is attached to the plaint as Annexure P-1. It is specifically averred in the plaint that defendants vide their letter dated 15th February, 2000 had conceded the request of the plaintiff and his resignation was accepted with effect from 16th November, 2000. Specific and definite averments have been made against the defendants particularly defendant No.4, who had issued the letter dated 18th November, 1995 and which now according to other defendants was issued without authority and as such is not binding. In the written statement filed by these defendants earlier to the un-amended plaint where defendant No.4 was not a party issuance and contents of this letter were denied. According to the plaintiff these defendants have colluded and conspired together and defrauded the plaintiff and have denied the lawful authority of the defendant No.4 just to deny the legitimate claim of the plaintiff earlier departmentally and now before the Court.

3. The defendants have now filed an application under Order 1 Rule 10(2)(C) praying that names of defendants 2 to 4 be struck off from the array of defendants and also strike out the name of Shri Subroto Roy, Chairman of defendant No.1 as representing defendant No.1 company, which is now to be represented by Mr. Gaurav Kumar, Principal Officer and Authorised Representative of defendant No.1. The whole emphasis of the application is that there is no liability jointly and/or severally of the defendants and there is no personal liability as well and the relief which the plaintiff can claim is available to him against defendant No.1 alone. Reference has also been made to the order of the High Court in Criminal Writ Petition No.316/2004 dated 9th August, 2004 wherein the Court held that no case under Section 420 IPC was made out against the defendants of which the learned Magistrate could take cognizance. But the applicants have themselves stated in para 12 of the application that such findings would not be binding on the civil Court and defendant No.1 is and ought to be sued through the authorised representative of the company.

4. This Court in a recent judgment of this Court passed in IA 6175/2005 in CS (OS) No. 1750/2000 had discussed in detail the scope of the findings of the criminal court in relation to the matter in issue in a civil Court. The Court held as under :-

8. Be that as it may, the acceptance of the report of cancellation by the learned special court would no way directly or by necessary implication can be a finding in relation to the matter in issue in a civil suit. It is a settled canon of law that findings of a criminal court are not binding on civil court more so in the facts of the present case when the report of cancellation has been accepted by the criminal court. It is not even stated whether the said order has attained finality. Even if, it would no way have the effect of operating as a res judicata or be barred on applied principles of constructive res judicata so as to require the court to reject the plaint at the threshold. It is a settled principle of law that the averments made in the plaint and the documents filed by the plaintiff are to be considered prima facie correct for the purposes of determining the fate of an application under order 7 Rule 11. Reference in this regard can be made to the judgment of ABN-Amre Bank v. the Punjab Urban Planning and Development Authority 1993(3) PLR 479, where the court held as under:-

7. It is a settled rule of law that the plea of rejection of plaint is founded on the "PLEA OF DEMURRER". A person raising such plea in law has to take the facts as stated by the opponent as correct. Despite tentative admission of such correctness, the plaint does not disclose a complete or even partial cause of action or the relief claimed is barred by law and thus, the plaint is liable to be rejected within the provisions of Order 7 Rule 11 of the Code of Civil Procedure. Plain language of this rule shows that for determination of an application under this provision, the Court has to look into the plaint. This concept has been extended by judicial pronouncement of various courts so as to take within its ambit even the documents filed by the plaintiff Along with plaint or subsequent thereto but prior to the hearing of such application....

9. Reference can also be made to the judgment of Supreme Court in Liverpool & London S.P. & I. Association Ltd. v. M.V. Sea Success I and another , wherein the Supreme Court held as under:-

139. Whether a plaint discloses a cause of action or not is essentially a question of act. But whether it does or does not must be found out from reading the plaint itself. For the said purpose the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in their entirety, a decree would be passed.

10. Coming to the averments made in the plaint. The suit is filed for recovery of damages by the company for a wrongful loss caused by the defendants while misusing their official status in the course of their employment with the plaintiff company. Paragraph Nos. 8(a) to (e), 9 and 18, clearly indicate a definite cause of action against the defendants and the bare reading of the plaint read in conjunction with the documents placed on record cannot at least prima facie lead to a conclusion that the plaint does not discloses any cause of action. The cause of action has to be an integral cause of action and there are specific averments clearing indicating the chain of events which have resulted in institution of the suit. The company ex facie has a legal right to take recourse to the civil remedy despite the fact that the cancellation report filed by the CBI has been accepted. The ingredients of a criminal offence cannot be placed at power with determination of issues in a civil court. The scope of both these proceedings is distinct and different and they cannot overlap each other particularly criminal proceedings cannot over- shadow or frustrate the civil proceedings by the court of a competent jurisdiction. In the present case, it needs to be mentioned that the person who is stated to have given writing before the court and did not appear, is no longer in the employment of the plaintiff company. However, that is not the subject matter of the present application. Suffice it to note that the finding of the criminal court cannot be treated, in fact and in law, an admission of the plaintiff company that it has no cause of action against the defendants. The defendants have to meet the case pleaded in the plaint which is possible only during the course of trial. The thrust of submissions made on this application is ex facie opposed to the basis principles of law.

5. It is settled principles of law that findings recorded by a criminal Court are not binding on the civil Court. The fact that the Court did not find prima-facie a case under Section 420 IPC against the defendants herein would by itself be of no consequence to striking off names of these defendants from the array of defendants. In the original plaint certainly the plaintiff has made no specific averments against these defendants but in the amended plaint, which was permitted by this Court and to which the defendants have filed written statement, definite allegations of some consequence have been made. These allegations, if proved, would have relevancy to matter in issue and are material facts for the purpose of granting or declining relief to the plaintiff as prayed for. Reference in this regard can be made to para 2, 6, 9, 10, 10A, 10B, 10C and 11 of the plaint where averments have been made against defendants 2 to 4. These averments are not vague or so irrelevant that on the cumulative reading of the plaint even a prima facie finding can be recorded that plaintiff has disclosed no cause of action against the said defendants and they are neither necessary nor proper parties to the suit. The dimension of necessary and proper party are wide enough to take within its ambit such defendants whose presence before the Court may be proper and not necessary for determining the controversy between the parties and for granting and declining the relief prayed for by the plaintiff. In this regard reference can be made to a recent judgment of this Court dated 25th August, 2005 in the case of Arunesh Punetha Vs. Boston Scientific Corporation & Ors. (CS (OS) 951/2004) wherein this Court held as under :-

"Order VII Rule 11 contemplates rejection of a plaint on the grounds stated therein. Mis-joinder of cause of action and/or mis-joinder of parties is not explicitly stated to be a ground for rejection of a plaint in that provision. Strenuous argument was raised on behalf of the applicant that a plaint suffering from defect of mis-joinder of parties and/or cause of action would be liable to be rejected under Clause 'd' of Order VII Rule 11 of the Code. Under this provision, the plaint shall be liable to be rejected in the cases where the suit appears, from the statement in the plaint, to be barred by any law. The contention is that mis-joinder of parties and/or cause of action would bar the plaintiff from claiming a relief and ultimately a suit may be liable to be dismissed on that ground. As such it would automatically have to be treated as a bar to the maintainability of the suit. This argument is apparently mis-conceived. Firstly, it cannot be disputed that mis-joinder of cause of action or parties is not a stated ground per se for rejection of a plaint. Secondly, it cannot in law be treated as a bar to the maintainability of the suit. The purpose of rejecting a plaint is to avoid vexatious, frivolous or a suit which in the eye of law is not maintainable. It is the maintainability of the suit which will be a paramount consideration before the court. While considering such an objection at the threshold of the proceedings, it is obligatory upon the plaintiff to frame a suit so as to afford ground for final decision upon the subjects and disputes and to prevent further litigation. The suit of the plaintiff should include the whole of the claim of the plaintiff which he is entitled to make in respect of the cause of action. Rule 3 of Order 2 deals with joinder of cause of action which enables a plaintiff to unite in the same suit, several causes of action against the same defendant. In other words, the plaintiff has a right to join causes of actions against the defendants in a common suit. However, such joinder of cause of action, if are mis-joined, the defendant in the suit under Rule 7 of Order 2 is required to take such objection at the earliest opportunity failing which it could be said that the defendant has waived the objection. Even if the plea of the defendant in regard to mis-joinder of cause of action has any merit, the court in exercise of its power under Rule 6 of the same Order may even direct separate trials on each cause of action or make such orders as may be expedient in the interest of justice. Similarly, a plaintiff can also join different persons as defendants where any right to relief in respect to or arising out of the same act or transaction or series of acts or transactions is alleged to exist against such persons whether jointly and/or severally. It is equally the obligation of the defendant to take such objection at the earliest opportunity in terms of Rule 13 of Order 1. Under Sub-rule 2 of Rule 10 of Order I of the Code, the power is vested in the court to strike out or add parties. The argument raised on behalf of the applicant is completely mis-placed in view of the unambiguous language of Rule 9 of Order I which provides that no suit shall be defeated by reason of mis-joinder or non-joinder of parties and the court may in every suit deal with the matter in controversy so far as record the right and interest of the parties actually before it. Exception to the Rule, of course, is in regard to non-joinder of a necessary party which is not the case herein. Thus the bare reading of the relevant provisions of the CPC shows that no suit can normally be dismissed for non-joinder of parties or cause of action with the exceptions as stated and in any case not at the threshold of the proceedings while taking recourse to the provisions of Order VII Rule 11 of the CPC. In this regard, not only the plaintiff but the defendant would also require an opportunity to substantiate their contention of mis-joinder of parties or cause of action.

21. The court has to give a meaningful reading to the plaint and if it is a manifestly vexatious or merit-list in the sense of not disclosing the clear right to sue, the court may exercise its powers under this provision and consider the request for rejection of a plaint. Non-disclosure of cause of action would not be understood as non-disclosure of complete facts. The plaintiff is to prima facie show that he has an actionable remedy in law on the facts stated in the plaint read in conjunction with the documents. Even where the plaintiff has not paid the adequate court fee, the court normally would grant him an opportunity to make up the deficiency in payment of court fee and not dismiss the suit under Order VII Rule 11 of the Code. Reference can be made to the case of Buta Singh v. UOI . Ends of justice and opportunity to prove a case are the twin essentials running like a golden thread under the provisions of the CPC. The claim of the plaintiff in regard to joinder of cause of action or parties is a subject matter which can safely be gone into by the court during the course of the trial and by passing appropriate directions as afore-noticed. None of them can be read into the provisions of Order VII Rule 11 clause 'd' by necessary implication or otherwise. The language of the legislature is unambiguous and incapable of being such an interpretation. Where the court would not unnecessarily limit the powers of the court under a provision, there it would also not permit enlargement of such power by incorporating what is not even intended by the legislature to be included in such provision. As far as defendant No. 3 is concerned, the plaintiff has shown from the bare reading of the plaint that it has sufficient and definite cause of action against the said defendant.

6. Applying the above principles to the facts of the present case it cannot be said that the names of defendants can be struck off the record by the Court under Order 1 Rule 10 (2) (C) of the Code. The conditions precedent to grant of such relief is that a party should not be imp leaded to a suit which is improper or whose presence before the Court may not be necessary in order to enable the Court effectively and completely adjudicate all the questions in the suit. Besides this, the Court has to be satisfied that it would be just and proper to pass such an order.; Neither of these ingredients are satisfied in the present case. The applicants have not even demonstrated in the application as to how are they improper and not necessary party in the present suit particularly in the face of the fact that defendant No.4 had written letters as an authorised person of defendant No.1, which now has been denied by defendants 2 and 3. The allegations of collusion and conspiracy between the said defendants to defeat the legitimate claim of the plaintiff certainly would require answer by the Court before the plaintiff can be denied or granted the relief prayed for.

7. As far as the name of Subroto Roy is concerned, the same can be substituted by the principal officer of the company. For this, reasons are two. Firstly, there is no allegations against Subroto Roy except mentioning in para 2 of the plaint that he is the chairman of the company. Secondly, under the Articles of Company and provisions of the Company Law, a company can sue and be sued in its own name and is normally represented through the principal officer of the company. Once the defendants themselves have come forward to say to that defendant No.1 is to be represented by the principal officers of the company Mr. Gaurav Kumar, I see no prejudice will be caused to the plaintiff if the said name of Subroto Roy is permitted to be substituted by the name of Gaurav Kumar, principal officer of the company.

8. For the reasons afore-recorded, this application is allowed limited to the extent that the plaintiff is directed to amend the memo of parties and sue defendant No. 1 through its Principal Officer Mr. Gaurav Kumar in place of Mr. Subroto Roy. The prayer in regard to striking out the names of defendant Nos. 2 to 4 from array of defendants is rejected.

9. The application is disposed of accordingly.