Gokulbhai Govindbhai Barvaliya vs Indian Oil Corporation Ltd
2021 Latest Caselaw 13548 Guj

     C/SCA/7215/2019                               JUDGMENT DATED: 07/09/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 7215 of 2019


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE B.N. KARIA                            Sd/-

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1     Whether Reporters of Local Papers may be allowed                  Yes
      to see the judgment ?

2     To be referred to the Reporter or not ?                           Yes

3     Whether their Lordships wish to see the fair copy                 No
      of the judgment ?

4     Whether this case involves a substantial question                 No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                       GOKULBHAI GOVINDBHAI BARVALIYA
                                     Versus
                         INDIAN OIL CORPORATION LTD
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Appearance:
S M KIKANI(7596) for the Petitioner(s) No. 1
MR AKSHAY A VAKIL(5473) for the Respondent(s) No. 1 & 2
MR VIBHUTI NANAVATI(513) for the Respondent(s) No. 4
NOTICE SERVED(4) for the Respondent(s) No. 2,3
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    CORAM:HONOURABLE MR. JUSTICE B.N. KARIA

                               Date : 07/09/2021

                              ORAL JUDGMENT

1. Rule. Learned advocate Mr. Akshay Vakil waives service of Rule on behalf of the respondent Nos. 1 & 2, and learned advocate Mr. Vibhuti Nanavaty waives service of Rule on behalf of the respondent No. 4.

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Nobody appears for the respondent no. 3.

2. The petitioner, who is the original plaintiff in the Special Civil Suit No. 1 of 2018 pending before the Court of learned Principal Senior Civil Judge, Palitana, has challenged the order dated 15.03.2019 passed by the learned Principal Senior Civil Judge, Palitana below Exh.

15.

3. The short facts of the case are summarized as under :

3.1 In Special Civil Suit No. 1 of 2018 preferred by the petitioner, it was averred that he was residing in the joint family with his brother and other family members. On 18.05.2010, one LPG gas connection was availed by the family member of

from the respondent no. 2. Since then, the brother of the petitioner is the consumer of the respondent Nos. 1 and 2 and taking services of gas connection. The present petitioner, being an elder member of the family, was paying all the bills of his family including the gas bills. On 04.11.2016, gas cylinder was replaced by the respondent no. 2 and new gas cylinder was given which was using by the petitioner. However, as there was some leakage in the cylinder, a complaint was made to the respondent no. 2, which was resolved.

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3.2 On 14.12.2016, the wife of the petitioner namely Gauriben went to the kitchen and when she switched on the light, cylinder came to be blast, whereby wife and nephew of the petitioner namely Tushar came to be blazed seriously. Both of them were taken to the Government Hospital at Gariyadhar as well as Bhavnagar and thereafter they were taken to the private hospital at Surat, wherein on 25.12.2016, the wife of the petitioner died, whereas nephew Tushar could be saved.

3.3 The petitioner, on account of gross negligence on the part of the respondent nos. 1 and 2, had filed a Civil Suit for compensation on 03.01.2018 before the learned Principal Senior Civil Judge, Palitana in his name as he was residing in the joint family and his wife was died due to negligence on the part of respondent no. 2. The respondent nos. 1 and 2 filed their reply, wherein contention was raised that the suit suffers from non-joinder of necessary and proper parties and as brother of the petitioner in whose name the gas connection was given and the Insurance Company of respondent no. 2 were not made party in the suit. The petitioner to avoid any technicalities in future, moved an application below Exh. 15 before the Court below seeking impleadment of the respondent no. 3 as plaintiff and respondent no. 4 as defendant. The respondent nos. 1 and 2 had endorsed that they have no objection if the respondent no. 4 herein be joined as party

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defendant no. 3 in the suit. However, by order dated 15.03.2019, the learned Judge had rejected the application of the petitioner below Exh. 15. Hence, this petition under Article 227 of the Constitution of India.

4. Heard learned advocate Mr. S.M. Kikani for the petitioner, learned advocate Mr. Akshay Vakil for the respondent Nos. 1 & 2, and learned advocate Mr. Vibhuti Nanavaty for the respondent No. 4. Nobody appears on behalf of the respondent no. 3.

5. Learned advocate for the petitioner has submitted that the apparent error is committed by the learned trial court in dismissing the application at Exh. 15 as not maintainable. He further submitted that the petitioner was unaware about the agreement with the respondent no. 2 - Distributor and respondent No. 4 - Insurance Company. It is further submitted that the written statement was filed by the respondent no. 2 in the suit by disclosing the said fact of agreement with the Insurance Company, the petitioner came to learn about the respondent no. 4, and therefore, he immediately filed an application at Exh. 15 to join the respondent no. 4 herein as a party defendant in the suit. He submitted that the learned Judge failed to appreciate the fact that the respondent nos. 1 and 2 in its reply have admitted that they have no objection if the respondent no. 4 be joined as party defendant. It is further submitted that the learned Judge has ignored the provisions of Order 1 Rule 10 of Civil Procedure Code, which provides that the

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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. That presence of the Insurance Company and brother of the petitioner were necessary party, the trial Court ought to have been permitted to join them as necessary party to avoid any technicalities, dispute or issue with regard to non-joinder of the necessary party or proper party as the gas connection was in the name of brother of the petitioner - respondent no. 3, and the respondent no. 4 is the Insurance Company of the respondent Nos. 1 and 2. Hence, it is requested by the learned advocate for the petitioner to quash and set aside the impugned order dated 15.03.2019 passed by the learned Principal Senior Civil Judge, Palitana below Exh. 15.

6. From the other side, learned advocate Mr. Akshay A. Vakil appearing for the respondent Nos. 1 and 2 objected for joining the brother, respondent no. 3 as the party in the suit. It was further submitted that the petitioner was well aware with the facts that the gas connection was allowed in favour of the brother namely Madhubhai Govindbhai Barvaliya when the suit was filed by him. It was further submitted that the suit itself is not maintainable when the petitioner was never allowed the gas connection. That however, the petitioner was aware with the facts that Gas connection was provided to his brother, he never tried to join his brother as a plaintiff or as a defendant in the suit. That lateron, he

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tried to implead him as a party plaintiff no. 2 in the suit, which is not permissible under Order 1 Rule 10 of the Civil Procedure Code. It is further submitted that the Court has also observed in his order below Exh. 15 that no proper explanation was made by the plaintiff as necessary parties were not joined at the time of filing of the suit by the present petitioner. It is further submitted that at the belated stage, no permission to join as a party can be granted as prayed for by the plaintiff. Hence, it is requested by the learned advocate for the respondent Nos. 1 and 2 to dismiss the petition.

7. Learned advocate for the respondent No. 4 has supported the arguments advanced by the learned advocate for the respondent Nos. 1 and 2, and he further submitted that unawareness of the plaintiff in respect of the agreement executed between the defendant Nos. 1 and 2 can never be a ground to permit the petitioner to apply for joining as party under Order 1 Rule 10 of the Civil Procedure Code. That at a proper time, necessary care was to be taken by the petitioner to join the Insurance Company and that at the belated stage, no such permission can be granted by the Court. That trial court has committed no patent error in dismissing the application at Exh. 15. Hence, it was requested by the learned advocate appearing for the respondent No. 4 to dismiss the petition.

8. Having gone through the contents of the suit preferred by the present petitioner i.e. Special Civil Suit No. 1 of 2018, the application Exh. 15, the order passed

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below it on 15.03.2019 and the arguments advanced by the learned advocates appearing from the respective parties, it appears that in the suit itself, it was clearly stated by the plaintiff that he was staying in the joint family at village Damrala. That the gas connection was allotted to his brother namely Madhubhai Govindbhai Barvaliya on 18.05.2010 and he was paying the bills of the gas consumed by the family. On a leakage occurred on 14.12.2016, there was a huge blast in the kitchen, wherein his wife and nephew namely Tusharbhai Madhubhai Barvaliya got seriously injured. Treatment was taken by both of them and wife of the petitioner namely Gauriben was expired on 25.12.2016. In the suit, it was prayed to pay compensation to the petitioner on account of sad demise of his wife and serious injury received by his nephew. The suit was filed against the General Manager of the Indian Oil Corporation Ltd. and Indian Gas Distributor. It appears that written statement was filed by the defendant Nos. 2 in the suit preferred by the petitioner, wherein dispute of mis- joinder and non-joinder of the parties as cause of action was raised. It was contended that the insurance of the defendant No. 1 in respect of the accident in connection with the gas facility was taken with the New India Insurance Company Ltd. which was not joined as a party in the suit. It was further contended that the Insurance Company may be liable for the compensation and therefore, it was necessary party. It was requested to direct the petitioner to join the Insurance Company in the suit. In alternative, it was requested to dismiss the suit on failure to join the Insurance Company by the

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petitioner - plaintiff.

9. The written statement was filed by the defendant No. 2, thereafter immediately, the petitioner moved an application under Order 1 Rule 10 of the Civil Procedure Code as well as under Order 6 Rule 17 read with Section 151 of the Code of Civil Procedure with a request to join the proposed parties i.e. the Insurance Company as defendant and his brother as plaintiff No. 2. The learned Judge of the trial court was pleased to dismiss the application of the petitioner vide order dated 15.03.2019. Admittedly when the suit was filed by the plaintiff, he was never aware with the facts that the Insurance was taken by the defendant no. 1 with the Insurance Company. For the first time, when the written statement was filed by the defendant No. 2 in the suit, dispute was raised of non-joining of the necessary party or mis-joinder of the parties. It was specifically contended that the insurance of the accident in connection with the gas facility was received by the defendant No. 1 from the New India Insurance Company Ltd, and therefore, in absence of necessary party, either plaintiff should be directed to join the Insurance Company or the suit may be dismissed on account of non-joinder of the parties. As per the averments made in the plaint, the respondent No. 3 was the real brother of the present petitioner in whose name gas connection was allotted by the defendant no. 1. Order 1 Rule 10 of the Civil Procedure Code provides as under : -

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"ORDER 1, RULE 10 : SUIT IN NAME OF WRONG PLAINTIFF

(1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted thought a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.

(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.

(3)No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent.

(4)Where defendant added, plaint to be amended-- Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copes of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant.

(5)Subject to the provisions of the Indian Limitation Act, 1877 (15 of 1877), section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons."

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10. From the bare reading of the provision, the Court can, at any stage of the proceedings, either on an application made by the parties or otherwise, direct impleadment of any person as a party who ought to have been joined as plaintiff or defendant or whose presence before the court is necessary for effective and complete adjudication of the issue involved in the suit. At the initial stage, the plaintiff has not prayed for any relief against the Insurance Company which is objected by the defendant no. 2 in the written statement with whom the agreement was executed. The Insurance Company, being the insurer of the defendant no. 1, would be necessary party to adjudicate the suit filed by the plaintiff. There was no objection in joining respondent no. 4 - Insurance Company as per the endorsement of the defendant No. 1 and 2, however, the trial court overlooked the facts of no objection raised by the defendant no. 1 and 2 and the legal proviso under Order 1 Rule 10 of Civil Procedure Code. The brother of the plaintiff - petitioner was the consumer of the respondent no. 2 in whose favour the gas connection was allotted, was certainly necessary party to be joined as the plaintiff no. 2 in the suit. The respondent no. 4 being the Insurance Company of the defendant No. 1 would be also necessary party to be joined in the suit. The learned trial court has committed an error in refusing to permit the plaintiff to join them either as plaintiff no. 2 or defendant no. 3. Therefore, the prayer made by the present petitioner requires to be allowed.

11. The petition is hereby allowed accordingly. The

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order passed by the learned Principal Senior Civil Judge, Palitana dated 15.03.2019 below Exh. 15 in Special Civil Suit No. 1 of 2018 is hereby quashed and set aside. The application Exh. 15 shall be allowed. Rule is made absolute to the aforesaid extent.

Sd/-

(B.N. KARIA, J) AMAR SINGH