Richard Fernandes And Others vs Laila Kabir Fernandes And Another
2012 Latest Caselaw 2398 Del

*         HIGH COURT OF DELHI: NEW DELHI

%                                    Judgment delivered on: 13.04.2012

+             I.A. No.272/2012, I.A. Nos.2090-91/2012 in
              CS (OS) No.469/2010

RICHARD FERNANDES AND OTHERS              ..... Plaintiffs
                Through  Mr. Akshay Makhija, Adv. with
                         Ms. Sanjugeeta, Ms. Mahima Bahl
                         and Mr. Vikas Bhadauria, Advs.

                     versus


LAILA KABIR FERNANDES AND ANTOHER           ..... Defendants
                  Through Ms. Meenakshi Lekhi, Adv. with
                          Ms. Priti Goswami & Ms. Srishti
                          Saxena, Advs. for defendants.
                          Mr. Colin Gonsalves, Sr. Adv. with
                          Ms. Sveltana Corriya, Adv. for
                          applicant in I.A. Nos.2090-91/2012.

CORAM:
HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

I.A. No.272/2012

1. The four plaintiffs, namely, Richard Fernandes, Aloysious Fernandes, Michael Fernandes and Paul Fernandes who are the brothers of Mr. George Fernandes, have filed the suit for permanent and mandatory injunction against the two defendants, namely, Laila Kabir Fernandes - wife and Mr. Sean Fernandes - son, of George Fernandes, inter-alia seeking

their right to have unrestricted and complete access to Mr. George Fernandes and to meet, communicate, care and monitor/supervise the medical treatment being provided to him and also for restraining the defendants from taking Mr. George Fernandes outside the territorial borders of India and further for commanding the defendants to take Mr. George Fernandes back to his own house, i.e. 3, Krishna Menon Marg, New Delhi.

2. By order dated 16.03.2010 the defendants were restrained from taking Mr. George Fernandes outside the territorial jurisdiction of this Court without the permission of the Court. The issues were framed on 23.09.2010. The evidence of PW-1 Mr. Richard Fernandes was filed. However, he was partly cross-examined by the defendants' counsel.

3. In the meanwhile, the plaintiffs have filed the present application, being I.A. No.272/2012, with the prayer to direct the Joint Registrar to hold trial of this case on day-to-day basis and to conclude the same at an early date, due to the reason that Mr. George Fernandes is about 82 years of age and he is suffering from an advanced stage of Alzheimer's disease. It is also stated in the application that the plaintiffs are having an apprehension that the proceedings may become infructuous even before the trial is concluded if some unfortunate event is happened in due course. It is also stated that the cross-examination of PW-1 was conducted by the defendants on various dates, but despite of that, the same is still unconcluded and the matter has been adjourned from time to time.

4. Mr. Akshay Makhija, learned counsel appearing on behalf of the plaintiffs submits that since the Joint Registrar is busy in various matters for recording the evidence, it would be appropriate if this Court may

appoint a Court Commissioner to conclude the trial at an early date, as the plaintiffs are prepared to pay the fee of the Court Commissioner. Though the request of the plaintiffs is opposed by the defendants, however, considering the statement made in the application, I am inclined to allow this application, as no prejudice would be caused if the trial is concluded at an early date. Hence, I appoint Mr. G.P. Thareja, Retired Additional District Judge is appointed as Court Commissioner to record the evidence of the parties. Let the matter be listed before the Court Commissioner on 30.04.2012 for directions regarding the recording of evidence of the parties in the High Court premises. His fee, at the first instance, is fixed at Rs.1,00,000/- which shall be paid by the plaintiffs. The remaining fee would be fixed, if necessary, depending upon the evidence and time consumed in the matter. The Dealing Assistant of the matter will produce the record of the case before the Court Commissioner on all the dates fixed by him for the purpose of recording the evidence of the parties. He/she be paid diet money as per rules, by the parties concerned. The parties are also granted liberty to take the assistance of the Registry for the purpose of summoning the witness(s). A copy of this order be sent to the Court Commissioner.

I.A. No.2090/2012

5. The present application has been filed by the applicant, Jayalakshmi Jaitly under Order I, Rule 10 CPC for impleading her as the plaintiff in the instant suit.

6. It is averred in the application that the applicant being a close friend and colleague of Mr. George Fernandes, is a necessary party to the present

proceedings and her presence is required for proper adjudication of the present suit, as she has a direct interest in the outcome of these proceedings. The applicant, a close political colleague and confidante of Mr. George Fernandes for more than 30 years, she was managing and organizing his political work to the necessary extent as well as taking care of his domestic needs and medical treatment. She has referred various letters written to her by Mr. George Fernandes in the year 1984 enumerating immense trust and reliance reposed by him in the applicant. Excerpts from the said letters are given in para-6 A to H of the application.

7. It is submitted that Mr. George Fernandes, who is suffering from Alzheimer's disease is hardly able to communicate anymore, he cannot walk or eat, he is being fed through a tube and his condition has deteriorated considerably. Defendant No.1 who is the estranges wife of Mr. George Fernandes and defendant No.2 who is his estranged son are not the idle company for him and to make the situation worse the defendants have denied the applicant and his other close confidants access to Mr. George Fernandes. It is further submitted that after 11.08.2011, when last visited Mr. George Fernandes, the applicant despite her various request, has not been allowed by the defendant No.1 to see him again. The details of the text messages of the replies of defendant No.1 to the requests of the applicant is given in para 39 of the application.

8. The applicant submits that Mr. George Fernandes being deprived of socialization with familiar persons with whom he has spent over two decades and if this continues, the applicant apprehends that the condition of Mr. George Fernandes will deteriorate further. Therefore the applicant has

filed this application for impleadment after talking to the plaintiffs and being assured by them that they would agree to the applicant being impleaded as the plaintiff and moreover they were always of the view that the applicant ought to have the same visiting rights as they have and denial of visiting rights to her is illegal.

9. The respondents/defendants in reply to the instant application have stated that the impleadment of the applicant as a plaintiff in the suit is not permissible as the plaint is by the brothers of Mr. George Fernandes against his wife and son and the applicant has no locus standi to be impleaded as a plaintiff. The applicant has not co-habited with Mr. George Fernandes, nor has she defined her relationship of closeness, or given any other evidence to establish her locus standi to justify her impleadment as a plaintiff in this suit.

10. It is further stated in the reply that the present suit is at an advance stage and the applicant is one of the witnesses in the present suit and the lawyer of respondent/defendant No.1 has already examined one of the main witnesses from the list of witnesses. Only after the completion of his examination, the applicant filed the impleadment application which is not permissible at this stage. It is also stated that the applicant, who had emphatically denied having anything to do with the plaintiff's suit in her earlier emails can file a case independently.

11. The applicant has relied several instances from her life including political career in order to show the close proximity with that of Mr. George Fernandez professionally and personally. It is thus averred that the impleading party may be allowed to join as a co-plaintiff as the relief which

is sought against the defendants is the same what the other plaintiffs are claiming. Learned counsel appearing on behalf of the applicant has also relied upon heavily on the human rights and UN conventions in this respect to show that the disabled persons have equal rights before the law and it is a basic tenet of human right to have access to his close relations. The said disabled persons need aid and assistance from every circle particularly from the family members and the old friends. Therefore, the applicant may be allowed to enable Mr. Fernandez to exercise his basic human right and this court should not come in the way in precluding the applicant to have access to Mr. Fernandez and rather should assist in exercising that right.

12. I have given careful consideration to the application for impleadment, reply filed by the defendant and the submissions advanced by the learned counsel for the parties at the bar. I am of the view that the applicant case does not fall within the ambit of the parameters prescribed for impleading the party under order 1 rule 10. Let me first discuss the law on the subject.

13. It is well settled that under Order 1, Rule 10 CPC, a person may be joined as a party to the proceeding only when the party is a necessary party without whose presence, the question in the suit cannot be decided. On the other hand, a proper party is one in whose absence, an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding. However, it is to be looked into by seeing the facts and circumstances of the each case whether the person can be categorized as a proper party or necessary party to the proceeding by

evaluating the role of the person in the proceeding as well as his legal right and entitlement of relief in the suit if he is being joined as a co-plaintiff.

14. It is also well settled that the exercise of the powers under Order 1, Rule 10 CPC is discretionary in nature and the same should be exercised on the sound judicial principles. The mere fact that some person may incidentally affected by the judgment of the court in the proceeding will not give a legal right to person to join in the suit proceeding which is purely a private lis.

15. In the case of United India Insurance Co Ltd v. Sharda Adyanathya, reported in AIR 1998 Kant 141 (FB), the High Court has held that the provisions contained in Order 1, Rule 10 is discretionary. While considering whether an order should be passed under order 1 rule 10 of Code of Civil procedure, the court must take into account all the circumstance of the case.

16. The tests of determining interest of the person as a proper or necessary party to the proceedings under order 1 rule 10 CPC were laid down in the leading case of Moser v. Marsden, reported in (1) [1892] 1 Ch. 487, Lindley L. J. has held that a party who is not directly interested in the issues between the plaintiff and the defendant, but is only indirectly or commercially affected cannot be added as a defendant because the court has no jurisdiction, under the relevant rule, to bring him on the record even as a "proper party". That was a suit to restrain the alleged infringement of the plaintiff's patent by the defendant, Marsden. The Court held, reversing the order of the trial judge, that the party sought to be added had no direct interest in. the subject-matter of the litigation, and all that could have been

said on behalf of the party intervening was that the judgment against the defendant would affect his interest commercially.

17. To the same effect is the decision in Re I. G. Farbeninadusrie A. G. Agreement, (1943) All England Reports 525, The Court held that in order that a party may be added as a defendant in the suit, he should have a legal interest in the subject-matter of the litigation-legal interest not as distinguished from an equitable interest, but an interest which the law recognizes. Lord Greene M. -R. giving the judgment of the Court, also observed that the court had. no jurisdiction to add a person as a party to the litigation if he had no legal interest in the issue involved in the case. (Emphasis Supplied).

18. The aforequoted observations find approval of courts in India from time to time. Thus, a person in order to implead himself as a party must have some legal interest in the issue not merely a sentimental grievance or commercial interest or the interest which is based on other political consideration. Applying the said ratio to the present case, it cannot be said that the applicant who is merely showing an interest based on herself being an acquaintance with him in the past in order to join in the proceedings will confer any interest in the law to make her as proper or necessary party to the proceedings. This court is conscious that there are human rights which are required to be respected. But this court cannot be unmindful of the fact that the present case is a civil suit based on the legal rights of the parties and their entitlement to the relief is based on the legal rights and not on sentimental grievance. Thus, the rights of the plaintiffs being real brothers

of the plaintiff cannot be equated with that of the applicant solely on the ground of sentimental or political considerations.

19. The matter can be seen from another perspective too which is that in the cases involving a declaration of status unlike the property, the courts have relaxed the doctrine of the direct interest but in that case the cause in the suit must relate to the persons legal status. In the cases involving the declaration of rights filed by the personal relatives, the Supreme Court in the case of Razia Begum vs. Anwar Begum, reported in AIR 1958 SC 886 wherein the Apex Court observed thus:

"That in a suit relating to property in order that a person may be added as a party, he should have a direct interest as distinguished from a commercial interest in the subject matter of the litigation;

Where the subject-matter of a litigation is a declaration as regards status or a legal character, the rule of present or direct interest may be relaxed in a suitable case where the court is of the opinion that by adding that party it would be in a better position effectually and completely to adjudicate upon the controversy; (4)The cases contemplated in the last proposition have to be determined in accordance with the statutory provisions of ss. 42 and 43 of the Specific Relief Act." (Emphasis Supplied).

20. Even applying the said principles of the law to the present case, it can be said that she has admittedly no relation with Mr. George Fernandes, nor there is any legal status which is accorded to the applicant in order to claim such right to access Mr. Fernandez except on the basis of the acquaintance or sentimental or political consideration. The said position of the applicant is unlike to that of the real brothers who have their legal

status. The present suit is merely of permanent injunction and not of declaration. The defendant is disputing the locus of the applicant. Till the time, the applicant attains a declaration of the legal status or join in the proceedings involving declaration of the legal status by initiating the separate proceedings, the interests of the plaintiffs who are already the brothers cannot be equated with that of the applicant. Thus, even applying the relaxed rule of direct interest, the lack of legal status of the applicant clearly does not make her either a necessary or a proper party to the proceeding.

21. Therefore, considering the scope of Order 1, Rule 10 CPC and law enunciated by the courts from time to time, I am of the considered view that the prayer made in the application cannot be granted due to the reason that she is not the necessary and proper party in the dispute in the suitt. The application is accordingly dismissed.

I.A. No.2091/2012

22. In view of the order passed in I.A. No.2090/2012 to the effect that she is neither a proper nor a necessary party to the present suit and she is not in a relation with Mr. George Fernandes as that of the plaintiffs, I am of the considered view that the visiting rights also cannot be granted under the above-mentioned circumstances. In case she wants to exercise her visiting rights to meet Mr. George Fernandes on the various reasons given in the application, she has to take the appropriate remedy in accordance with law. The application is accordingly dismissed.

MANMOHAN SINGH, J.

APRIL 13, 2012/ka