Rajesh vs Himalayan Times Pvt. Ltd.& Anr
2012 Latest Caselaw 4847 Del

28$~
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   CM(M) 913/2012

                                           Decided on 17.08.2012

RAJESH                                 ..... Petitioner
                            Through    Mr. Pranay Trivedi, Advocate.

                   versus

HIMALAYAN TIMES PVT. LTD.& ANR                   ..... Respondent
                 Through

CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

M.L. MEHTA, J. (Oral)

+ CM No. 14030/2012 (Exemption) in CM(M) 913/2012

Allowed, subject to all just exceptions.

The application is disposed of

+ CM(M) 913/2012 & CM No. 14031/2012 (stay)

This petition under Article 227 of the Constitution of India is

directed against the order dated 4.6.2012 of Learned ADJ whereby

application U/O 1 Rule 10 CPC filed by the respondent No.1, the

plaintiff in the suit, was allowed and petitioner was permitted to be

impleaded as defendant No.2 in the suit.

The petitioner has assailed the said order alleging the same to be

in violation of the principles of natural justice and also illegal.

I have heard learned counsel for the petitioner and perused the

record and the impugned order.

The suit was filed for recovery of money against defendant

Lokesh Chaudhary, proprietor of M/s Vaishali Infotech. In the written

statement filed by Lokesh Chaudhary, his stand was that he has nothing

to do with M/s Vaishali Infotech and had never been in business of

computer parts under the name and style of this firm at the address as

given by the plaintiff. Subsequently, the plaintiff discovered that

defendant Lokesh was doing business in the aforesaid firm as its

proprietor in the name of his brother Rajesh. This fact was discovered

from the Sales Tax (VAT) record that it was Rajesh Chaudhary who was

the proprietor of the aforesaid firm doing business from some other

address. On this premise, he moved the application under Order 1 Rule

10 CPC for impleading Rajesh Chaudhary as defendant No.2, which

came to be allowed by the impugned order, which is under challenge in

this petition.

The main grievance of the petitioner who was impleaded as

defendant No.2 is that the suit was filed by the plaintiff against the

proprietor of the firm, namely, Lokesh Chaudhary and it would be

deemed to be against the proprietor Lokesh Chaudahry only. It was also

his grievance that he was not heard and principle of natural justice was

violated by the learned ADJ.

All the pleas which have been taken by the petitioner are

misconceived and are not tenable. The suit was filed against the firm

M/s Vaishali Infotech through its proprietor Lokesh Cahduarhy. The

address of firm, as per the record with the plaintiff was G-11, Suryadeep

Building, Commercial Complex, Wazirpur, Delhi-52. It was at this

address that the dealings of the business was done by the plaintiff with

the firm. Since it was Lokesh Chaudhary who was representing himself

to be the proprietor of the said firm and dealing with the plaintiff, he

was mentioned as proprietor of the said firm in the plaint. However, on

coming to know that the actual proprietor was his brother Rajesh

Chaudhary and not he, that the plaintiff sought to implead Rajesh

Chaudhary also as a defendant. The fact that summons issued in the

name of Lokesh Chaudhary as proprietor of M/s Vaishali Infotech was

served at the address of Suryadeep Building, Commercial Complex,

Wazirpur, Delhi-52, confirms Lokesh Chaudhary to be having some

relation or concern with the said firm. If he had no concern or relation

with the said firm, he ought not to have accepted the summons and

rather informed as to who was the proprietor of the said firm. It was on

receipt of the summons at this address that Lokesh Chaudahry filed

written statement alleging to be having no concern with the said firm.

He nowhere disclosed either at the time of receipt of summons or in the

written statement that it was not he, but his brother Rajesh who was the

proprietor of the said firm. The entire conduct of both the brothers seem

to deceive the plaintiff at the end of termination of the trial and escape

the liability. The presence of Rajesh Chaudahry is essential and

necessary for the just decision of the case inasmuch as undisputedly he

was the proprietor of M/s Vaishali Infotech from whom the recovery

was sought by the plaintiff. I do not see any infirmity or illegality in the

impugned order. The petition has no merit and is hereby dismissed.

M.L. MEHTA, J

AUGUST 17, 2012 pkv