Delhi High Court
Shri Suneal Mangal vs M/S Prime Maxi Mall Management & ... on 17 April, 2014
$~ 21
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 3453/2012
% Judgment dated 17.04.2014
SHRI SUNEAL MANGAL ..... Plaintiff
Through: Mr.Gaurav Mitra, Ms.Swati and
Ms.Samreen, Advocates
versus
M/S PRIME MAXI MALL MANAGEMENT & ANR..... Defendant
Through: Mr.B.B. Gupta and Mr.Udyan Srivastava,
Advocates for defendant no.1
Mr.Mukta Kapoor, Advocate for D=2
Mr.Aman Nandrajog, Advocate for the
proposed defendant no.3
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
G.S.SISTANI, J (ORAL)
I.A. 11566/2013
1.
This is an application under Order 1 Rule 10 CPC filed by the plaintiff
seeking impleadment of one of the directors of the defendant no.1, as a
party to the present suit.
2. The foundation which has been laid in this application for impleading one
of the directors as a party to the suit is that the agreement dated 4.5.2005
was signed by the proposed defendant as a director of defendant no.1 and
therefore, he would be a necessary party and secondly that the plaintiff
has placed some documents on record, exchanged between the plaintiff
and the proposed defendant, which bear the signatures of the proposed
defendant and the same cannot be proved till the time the said director
(proposed defendant) steps into the witness box, in his personal capacity
and not as a director of the defendant company.
3. Counsel for the plaintiff/ applicant in support of his submission has relied
upon Mumbai International Airport Private Limited Vs. Regency
Covention Centre and Hotels Pvt. Ltd. and Ors. reported at (2010) 7
SCC 417 and more particularly paragraph 13, to show that the general
rule with regard to impleadment of parties is that plaintiff being the
dominus litis may choose any person against whom he wishes to litigate.
Paragraph 13 of the judgment reads as under:
"13. The general rule in regard to impleadment of parties is that
the plaintiff in a suit, being dominus litis, may choose the persons
against whom he wishes to litigate and cannot be compelled to sue
a person against whom he does not seek any relief. Consequently, a
person who is not a party has no right to be impleaded against the
wishes of the plaintiff. But this general rule is subject to the
provisions of Order I Rule 10(2) of Code of Civil Procedure ("the
Code" for short), which provides for impleadment of proper or
necessary parties. The said sub-rule is extracted below:
"10. (2) Court may strike out or add parties. The Court may
at any stage of the proceedings, either upon or without the
application of either party, and on such terms as may appear
to the Court to be just, order that the name of any party
improperly joined, whether as plaintiff or defendant, be
struck out, and that the name of any person who ought to
have been joined, whether as plaintiff or defendant, or whose
presence before the Court may be necessary in order to
enable the Court effectually and completely to adjudicate
upon and settle all the questions involved in the suit, be
added."
4. Reliance is also placed on Ramesh Hirachand Kundanmal Vs.
Municipal Corporation of Greater Bombay and Ors. reported at JT 1992
(2) CC) 116 and more particularly paragraph 6, in support of his argument
that though the proposed defendant may not be a proper party, but he is
surely a necessary party and his presence therefore is necessary for a
complete and final decision on the question involved in these proceedings.
Relevant portion of the judgment reads as under:
"6. Sub-rule(2) of Rule 10 gives a wide discretion to the Court to
meet every case of defect of parties and is not affected by the
inaction of the plaintiff to bring the necessary parties on record.
The question of impleadment of a party has to be decided on the
touch stone of Order I Rule 10 which provides that only a necessary
or a proper party may be added. A necessary party is one without
whom no order can be made effectively. 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. The addition of parties is generally not
a question of initial jurisdiction of the Court but of a judicial
discretion which has to be exercised in view of all the facts and
circumstances of a particular case."
5. The present application is opposed by the proposed defendant as also by
counsel for the defendants on the ground that since the relief claimed by
the plaintiff is against the defendant no.1, it is not necessary to implead
individual directors as parties to the present suit. It is further submitted
that the application does not give reasons for impleading the proposed
defendant as a party; and the plaintiff can always summon a person as a
witness in case the plaintiff so chooses. Reliance is also placed on
Ramesh Hirachand (Supra) and more particularly paragraph 14, which
reads as under:
"14. It cannot be said that the main object of the rule is to prevent
multiplicity of actions though it may incidentally have that effect.
But that appears to be a desirable consequence of the rule rather
than its main objectives. The person to be joined must be one
whose presence is necessary as a party. What makes a person a
necessary party is not merely that he has relevant evidence to give
on some of the questions involved; that would only make him a
necessary witness. It is not merely that he has an interest in the
correct solution of some questions involved and has thought or
relevant arguments to advance. The only reason which makes it
necessary to make a person a party to an action is that he should be
bound by the result of the action and the question to be settled,
therefore, must be a question in the action which cannot be
effectually and completely settled unless he is a party. The line has
been drawn on wider construction of the rule between the direct
interest or the legal interest and commercial interest. It is, therefore,
necessary that the person must be directly or legally interested in
the action in the answer, i.e., he can say that the litigation may lead
to a result which will affect him legally that is by curtailing his
legal rights. It is difficult to say that the rule contemplates joining
as a defendant a person whose only object is to prosecute his own
cause of action. Similar provision was considered in Amon v.
Raphael Tuck & Sons Ltd., (1956) 1 All E.R. 273, wherein after
quoting the observations of Wynn-Parry, J. in Dollfus Mieg et
Compagnie S.A v. Bank of England,(1950) 2 All E.R.611, that the
true test lies not so much in an analysis of what are the constituents
of the applicants' rights, but rather in what would be the result on
the subject-matter of the action if those rights could be established,
Devlin, J. has stated:-
"The test is „May the order for which the plaintiff is asking directly
affect the intervener in the enjoyment of his legal rights.‟"
6. Counsel has also placed reliance on Gastech Process Engineering (India)
Pvt. Ltd. Vs. Saipem 159 (2009) DLT 756, wherein another Single Judge
of this court has held that a person, who can be summoned as a witness, is
not necessarily a proper party. Reliance is also placed on Kasturi Vs.
Iyyamperumal And Ors. reported at (2005) 6 SCC 733, wherein the
Supreme Court has laid down the test for impleading a person as a party
to the suit.
7. I have heard counsel for the parties and considered their rival
submissions. I am of the view that the present application does not lay
down sufficient grounds to show as to why the proposed defendant, who
is one of directors of the defendant, should be impleaded as a party.
Twin criteria has been laid down by the Supreme Court in the Kasturi
(supra) for impleadment of a party under Order 1 Rule 10 CPC are that
two tests are to be satisfied for determining the question who is a
necessary party. Tests are - (i) there must be a right to some relief
against such party in respect of the controversies involved in the
proceedings; (ii) no effective decree can be passed in the absence of such
party.
8. Also in the case of Ramesh Hirachand (supra) it was held that a
necessary party is one in the absence of whom no order can be made
effectively. It has further been held that a proper party is one in whose
absence an effective order can be made but his presence is still necessary
for a complete and final decision in the issue involved.
9. In my view the tests laid down do not apply to the director of the
defendant no.1, who is sought to be impleaded by the plaintiff, who is
neither a proper nor a necessary party, as the agreement dated 4.5.2005
has been signed by the proposed defendant in the capacity of a director of
defendant no.1 and not in his personal capacity. Also, in case the plaintiff
succeeds a decree can be passed in the present suit, without impleading
the proposed defendant in his individual capacity. With regard to the
submission of the plaintiff that it is imperative to place the proposed
defendant in a witness box, in my view, as discussed in the Ramesh
Hirachand (supra), at best makes him a witness but not a necessary party.
In case the plaintiff wishes to put certain questions to the said director, it
is always open for the plaintiff to summon the said director as a witness at
the appropriate stage.
10. For the above reasons, in my considered view, the application is without
any merit and the same is accordingly dismissed.
I.A. 11565/2013
11. By the present application under Order 6 Rule 17 CPC plaintiff seeks to
amend the plaint. Counsel for the plaintiff submits that the amendments
sought are formal in nature and do not change the character of the suit.
12. Mr.B.B. Gupta, counsel for defendant no.1 without admitting
amendments on merit very fairly submits that he does not oppose the
present application. The application is accordingly allowed. Let the
amended plaint be filed within two weeks.
13. Application stands disposed of.
CS(OS) 3453/2012
14. Let written statement to the amended plaint be filed within two weeks
after filing the amended plaint.
15. List the matter before the Joint Registrar for admission /denial of
documents on 4.8.2014.
16. List the matter before Court on 29.8.2014 for framing of issues. Parties
shall bring suggested issues to Court on the next date of hearing.
G.S.SISTANI, J
APRIL 17, 2014
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