Delhi High Court
Durga Parshad vs Ghaziabad Development Authority on 26 November, 2010
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 26.11.2010
+ RSA No. 140/2010
DURGA PARSHAD
...........Appellant
Through: Mr.V.Shukla, Advocate.
Versus
GHAZIABAD DEVELOPMENT AUTHORITY
..........Respondent
Through: Nemo.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J. (Oral)
1. This second appeal has impugned the judgment and decree
dated 29.3.2010 which had endorsed the finding of the trial judge
dated 25.7.2009 thereby dismissing the suit of the plaintiff. The
plaintiff Durga Parshad had filed a suit for recovery of Rs.36,000/-.
It was alleged that a scheme had been floated by the defendant i.e.
Ghaziabad Development Authority (GDA) in the year 1989; plaintiff
applied for a plot on 28.07.1989; in terms thereof he deposited a
sum of Rs.11,220/-; he was declared an unsuccessful allotee; he
was assured that a new scheme will be floated as such he
deposited another sum of Rs.1140/- under the new scheme on
24.07.1990. On 18.4.2002 he addressed a letter to the defendant
seeking refund of his money; on 25.4.2002 this demand was
reiterated. He thereafter approached the District Consumer Forum
who vide its communication dated 16.11.2005 advised him to
approach the civil court. Thereafter, suit was filed.
2. Defendant contested the suit. Written statement was filed
wherein it was stated that the unsuccessful candidates were
required to contact the Oriental Bank of Commerce (OBC) for their
refund. Proceedings before the District Consumer Forum had been
dismissed for want of jurisdiction.
3. Defendant was thereafter proceeded ex-parte. Ex-parte
evidence by way of affidavit had been led. The suit of the plaintiff
was dismissed on the ground that the plaintiff had filed a suit in the
year 2006 to recover money which had been deposited by him in
the year 1990; suit being barred by limitation was dismissed.
4. The first appellate court endorsed the finding of the trial
judge i.e. of dismissal of the suit but for different reasons.
Applying the provisions of Article 22 of the Indian Limitation Act,
1963 (hereinafter referred to as 'the said Act') it was held that the
suit was within time. Para 9 of the impugned judgment stated that
the amount had been deposited by the plaintiff as per his case on
24.7.1990; he had however not filed any documentary proof to
substantiate this averment. Clause 9.60 of the Application
Form/Brochure had also been adverted to which clearly stated that
unsuccessful candidates like the complainant should contact the
Manager of the OBC personally or by post for refund of their
registration amount and not the GDA.
5. Written statement filed before the trial judge by the GDA
who stated that the plaintiff should have contacted the OBC in
terms of clause 9.60 of the application form for return of its
registration amount as all unsuccessful candidates were required
to do so. For reasons best known, the plaintiff however, did not
implead the OBC as a party.
6. This is a second appellate court. Arguments have been
addressed on the maintainability. Learned counsel for the
appellant has submitted that the provisions of Order 1 Rule 10 of
the Code of the Civil Procedure (hereinafter referred to as 'the
Code') permits a party to add or strike out a party at any stage of
proceedings; non-joinder of a necessary party would not
necessarily defeat the suit; for this propostion reliance has been
placed upon a judgment of Bombay High Court reported in 2005
(5) RCR (Civil) 247 Devchand Constructions vs. Board of Trustees
of the Port of Mormugao & Anr. It is submitted that the judgment
of the court below non-suiting the plaintiff only on this count was
an arbitrary and erroneous exercise of its discretion.
7. The arguments addressed before this court are without any
merit. The plaintiff had applied for allotment of a plot in the GDA
in terms of his application form/brochure Clause 9.60
(undisputedly) stated that the unsuccessful allottees may get their
refund from the OBC where they had deposited the said amount.
This had been specifically averred by the GDA in its written
statement; it stated that the OBC was the necessary party. In spite
of this the plaintiff chose not to implead the OBC. There is also not
a single averment in the pleadings that any communication had
been sent by the plaintiff to the OBC claiming its refund. The first
appellate court had also noted that not a single document had been
placed on record by the plaintiff to substantiate his submission that
he had deposited a sum of Rs.11,220/- in cash vide application
no.34156 dated 28.7.1989.
8. Order 1 Rule 9 of the Code reads as follows:
Order 1 Rule 9. Mis-joinder and non-joinder - No suit shall be
defeated by reason of the mis-joinder or non-joinder of parties,
and the Court may in every suit deal with the matter in
controversy so far as regards the rights and interests of the
parties actually before it:
[Provided that nothing in this rule shall apply to non-joinder of
a necessary party.]
9. In the instant case, the OBC was a necessary party; absence
of such a party would have made the decree ineffectual; it would
have remained a paper decree only. The money had to be
recovered by the plaintiff from the OBC and not from the GDA as
was clear from clause 9.60 of the application form. No question of
law, much less any substantial question of law has arisen; the
appeal is dismissed in limine.
INDERMEET KAUR, J.
NOVEMBER 26, 2010
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