Delhi High Court
M/S Dunlop India Limited & Anr vs Dr. Kamal Mitra Chenoy & Anr on 19 September, 2014
$~26
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of hearing and order: 19th September 2014.
+ FAO(OS) 413/2014
M/S DUNLOP INDIA LIMITED & ANR
..... Appellant
Through: Mr. C. Mukund, Mr. Ashok Kumar
Jain and Mr. Amit Kasera, Advocates
Versus
DR. KAMAL MITRA CHENOY & ANR
..... Respondent
Through: Mr. Sandeep Sethi, Senior Advocate
with Mr. Jeevesh Nagrath and Ms.
Akanksha Singh Rohatgi, Advocates.
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
HON'BLE MR. JUSTICE NAJMI WAZIRI
ORDER
% 19.09.2014
KAILASH GAMBHIR, J. (ORAL)
1. The challenge in the present appeal is the composite order dated
24.07.2014 passed by the learned Single Judge dismissing the appellant
application under Order 7 Rule 11 CPC, and Order 1 Rule 10, read with
Section 151 CPC, while allowing the respondent/plaintiff's application
under Order 6 Rule 17 CPC.
2. The appellant's principle grievance is that the respondent/plaintiff has
joined two distinct cause of actions in one suit which arise out of two
different agreements. Secondly, it is argued, the valuation of the two distinct
reliefs have been clubbed together to invoke jurisdiction of this Court.
Lastly, it is contended that there is a mis-joinder of plaintiff No.2 in the suit,
because the plaintiff No.2 is not a necessary or proper party in a suit for
possession filed by plaintiff No.1 against the appellants.
3. We have heard Mr. C.Mukund, the learned counsel appearing for the
appellants and Mr. Sandeep Sethi, the learned Senior Advocate appearing
for the respondent Nos. 1 and 2, who appears on advance notice.
4. The suit for eviction/permanent injunction has been filed by
respondent No. 1/plaintiff against the appellants in respect of property
bearing No.19, Block No.171, Sunder Nagar, New Delhi. As per the case set
up by the plaintiffs , plaintiff No.1 has claimed himself to be the owner of
the said property, which were let out by him to the appellant/defendant No.1
for the residence of the appellant No.2/defendant No. 2, viz. Dr. A.P. Singh
and his family members, through a registered Lease Deed for a period of
three years w.e.f. 1st August 2009. It is also the case of the plaintiffs that a
separate Hire Agreement dated 1st August 2009 was executed between the
appellant no. 1 and respondent No. 2/plaintiff No.2 for the hire of the fittings
and fixtures, this Hire Agreement was to expire alongwith the Lease
Agreement i.e., after a period of three years. The rent of the premises were
Rs.1,60,000/- which were payable by appellant No. 1 to the plaintiff No.
1/Respondent No. 1. The hire charges of Rs.2,14,000/- were payable by the
appellant No. 1 to the respondent No.2/plaintiff No. 2.
5. Two separate applications were preferred by the appellant No. 1: one
under Order 1 Rule 10 read with Section 151 CPC and the other under Order
7 Rule 11 read with Section 151 CPC. The former application sought
deletion of respondent No. 2/plaintiff No.2 from the array of the parties on
the ground that she was an unnecessary and improper party in a suit for
eviction filed by the respondent No. 1/plaintiff No.1. The learned Single
Judge has dismissed both the applications filed by appellant No.
1/Defendant No. 1. We find ourselves in complete agreement with the
reasoning given by the learned Single Judge dismissing the applications. The
learned Single Judge is correct in observing that if a suit confirms to the
requirement of Order 1 Rule 1 CPC, which lays down that all persons may
be joined in one suit as plaintiffs, subject to the satisfaction of two
conditions namely; (i) any right to relief in respect of, or arising out of, the
same act or transaction or series of acts or transactions and (ii) the matter
must be such that if plaintiffs brought separate suits, any common question
of law or fact would arise.
6. It is not disputed that the rented premises is the same, in respect of
which two separate Agreements were executed; one for letting out the
property itself and the other by hiring the movables. Both the Agreements
were for a period of three years and evidently the Hire Agreement is not
independent of the Agreement of lease as its existence and tenure was
dependant on the lease Agreement. Although, the Hire Agreement was
separately executed, it arises out of the same transaction i.e. of leasing out
the property in question in favour of the same parties. Filing of separate suits
by respondent No. 2/plaintiff No. 2 to claim the hire charges would lead to
multiplicity of litigation between the parties, although common questions of
facts and of law would arise, even if separate suits were brought by the
respondents/plaintiff.
7. In an application filed under Order 7 Rule 11 CPC, the objection is
raised to the effect that the plaintiffs have joined two distinct cause of
actions in the same suit, just to invoke the jurisdiction of this Court. Here
too, we find no infirmity or perversity in the reasoning given by the learned
Single Judge in dismissing the application under Order 7 Rule 11 CPC.
8. Once we find that the respondent No. 2/plaintiff No. 2 could be joined
alongwith plaintiff No. 1/respondent No. 1 in the same suit as the reliefs
claimed by them arise out of the same acts and series of transactions, then
this plea that the respondent No. 2 was intentionally made a party, so as to
bring the suit within the jurisdiction of this Court, cannot sustain. So far as
the valuation of the suit for the purposes of Court fee and jurisdiction is
concerned, the same has to be assessed as per the reliefs claimed in the suit
and based on the total valuation of the suit. The learned Single Judge is also
right in observing that for any deficiency in the Court fee the plaintiffs can
always be directed to pay the same at any stage of the suit. The judgment of
the Division Bench of this Court in the case of Mahesh Gupta vs. Ranjit
Singh & Ors., 159(2009) DLT 624 (DB) also will be of no help to the case
of the appellants as the fact situation and the legal issues that arose in that
case are clearly distinguishable from the facts of the present case. In
Mahesh Gupta (supra) the Court was dealing with the issue where an
amendment was sought to increase the valuation of the suit so as to bring it
within the pecuniary jurisdiction of the High Court and the view taken by
the Court was that once the Court did not have the pecuniary jurisdiction,
then it could not have passed any order allowing an application seeking
amendment of a plaint, so as to bring the suit within the pecuniary
jurisdiction of a Court.
9. As far as the application moved by the plaintiff/respondent under
Order 6 Rule 17 CPC is concerned, we find no infirmity in the order passed
by the Learned Single Judge in so far it permits the respondents/plaintiffs to
amend their plaint.
10. In view of the aforesaid discussions, we find no merit in the present
appeal. Accordingly, it is dismissed.
KAILASH GAMBHIR, J
NAJMI WAZIRI, J
SEPTEMBER 19, 2014
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