Animadverting upon the order dated 26.08.2008 passed by the learned I Assistant City Civil Judge, Chennai in I.A.No.13368 of 2008 in O.S.No.4447 of 2007, this civil revision petition is focussed.
2. Heard both sides.
3. The facts giving rise to filing of this revision as stood exposited from the records could pithily and precisely, tersely and briefly be set out thus:
The first respondent herein filed the suit O.S.No.4447 of 2007 seeking the following reliefs:
"a) directing the defendants jointly and severally to pay a sum of Rs.2,50,000/- to the plaintiff, towards the damage for the breach of contract as well as towards the compensation for the mental agony and harassment meted out by the plaintiff, at the hands of the defendants;
b) directing the defendants to pay the cost of the suit."
4. The defendants entered appearance and filed their written statement, whereupon the trial commenced. It appears during the pendency of the trial, with the permission of the Court, additional written statement was also filed by the defendants. Thereupon, reply statement was filed by the plaintiff. After the trial got concluded the matter was posted for arguments on the plaintiffs' side and the arguments were also over and at the time of the matter coming up for defendants' arguments, the plaintiff came forward with an I.A.No.13368 of 2008 under Order 1 Rule 10 of C.P.C. for impleading the proposed party, namely M/s Sharfunnissa Begam Saheba, whereupon the revision petitioners herein objected to it. However, the trial Court allowed the petition for amendment. Being aggrieved by and dissatisfied with the order of the trial Court, this revision is focussed on various grounds.
5. The learned counsel for the revision petitioners placing reliance on the grounds of revision would develop his argument to the effect that at the fag end of the suit, the plaintiffs were not justified in filing such an application for impleading the Mosque. In fact, the plaintiffs were fully aware of the fact that their contract was between Mosque and the plaintiffs; the plaintiffs did choose to focus their relief only as against the defendants 1 to 4, so to say the Office bearers on the sole ground that they had the mala fide intention in committing breach of contract and accordingly damages was claimed as against them only and not as against the Mosque; it is not as though as on the date of filing of the suit, the plaintiffs were not aware of the contract which emerged between the Mosque and the plaintiffs; nonetheless the plaintiffs did choose to restrict their claim of damages only as against D1 to D4. Accordingly he prays for setting aside the order of the lower Court by allowing this civil revision petition.
6. Whereas the learned counsel for the respondents/plaintiffs would develop his argument to the effect that only in the additional written statement, the defendants did choose to put forth the plea that the suit was bad for non-joinder of the Mosque; the law is to the effect that at any time necessary party could be impleaded as per Order 1 Rule 10; the consistent stand of the plaintiffs is that defendants 1 to 4 only, were the root cause for such breach of contract which emerged between the Mosque and the plaintiffs; in fact the subsequent amendment application which is pending and which has been brought to the knowledge of this Court by the other side counsel, would also be to the effect that only an alternative prayer was sought as against the Mosque and that too only in the event of the Court finding that only the Mosque would be liable to pay damages and not D1 to D4; as such the consistent stand of the plaintiffs is that D1 to D4 are primarily liable to pay damages to the plaintiff for such breach of contract. Accordingly, the learned counsel prayed for dismissal of the revision petition.
7. When all said and done, considering the pro et contra, I am of the view that undoubtedly in proper cases at any stage as highlighted in various decisions of the Courts, necessary party could be impleaded, but there should be sufficient reason for that. A bare perusal of the lower Court's order would reveal that the proposed party, namely the Mosque was a necessary party and not a formal party. Whereas the contention of the plaintiffs is to the effect that as per the original plaint, their claim is only as against D1 to D4 and even after filing of the I.A. for impleadment, their consistent stand is only that the plaintiffs want damages only from D1 to D4 and only as an alternative measure and that too in the event of the Court coming to the conclusion that D1 to D4 are not liable to pay damages, the Mosque would be liable to pay damages.
8. In support of his contention, the learned counsel for the plaintiffs cited the following decisions. It is therefore just and necessary to refer to those decisions.
(i) 2005 (4) MLJ 36 (S.C.)[Amit Kumar Shaw and another v. Farida Khatoon and another] The said decision is on the point that a transferee pendente lite is also a necessary party so that multiplicity of suit could be avoided. As such it is ex facie and prima facie clear that the facts involved in this case are entirely different from the decision cited supra.
(ii) 2006(3)MLJ 105 S.C. [Bhogadi Kannababu and others vs. Vuggina Pydamma and others] This decision is also concerning a case where the dispute was between the tenancy rights and in those circumstances, the Apex Court held that impleading of parties who were in possession of the suit properties is just and necessary as per Order 1 Rule 10 C.P.C.
(iii) 2006(5)CTC 609 [Hi. Sheet Industries, a partnership firm, carrying on business at 61-D, D.V.Road, Ambur Town, Vellore District v. Litelon Limited, Hosur] This decision is on the point that subsequent changes could rightly be taken into account by the Court and necessary amendments could be allowed. Here, it is not the case of the plaintiffs that any subsequent changes took place.
9. However, the learned counsel for the plaintiffs would argue that after commencement of trial, additional written statement was filed and only in that the defendants raised the plea of non joinder of necessary party namely Mosque. I would like to disagree with the point put forth by the learned counsel for the plaintiffs because the Full Bench decision of this Court would contemplate subsequent changes, so to say factual changes which took place pendente lite and filing of additional written statement by no stretch of imagination be taken as subsequent change.
10. The plaintiff being a dominus litis, is enjoined to put forth his case in the plaint. A bare reading of the original plaint would leave no doubt in the mind of the Court that the plaintiffs were fully aware of the fact that the contract was entered into between the Mosque and the plaintiff. It is the specific case of the plaintiff that D1 to D4 were instrumental for committing such breach of contract emerged between the Mosque and the plaintiff. As such, having full knowledge about the contract which emerged between the Mosque and the plaintiff, the plaintiff did choose not to proceed as against the Mosque and claim damages, wherefore the plaintiff restricted her claim only as against D1 to D4. The trial Court at the time of entertaining the application under Order 1 Rule 10 should have seen as to whether the impleadment of the party is in commensurate with the averments in the original plaint. As the learned counsel for the plaintiffs would correctly put across his point that at the stage of considering the I.A. under Order 1 Rule 10 CPC, the question of applying Order 6 Rule 17 does not arise. I would like to agree with his view, however even as per the affidavit of the plaintiff if the matter is analysed, the averments in the plaint would not permit the impleadment of Mosque. In the cause of action paragraph the plaintiff did not choose to lay her claim as against the Mosque. The entire focus is only on the alleged mala fide intention of D1 to D4 and accordingly the plaint was drafted and filed. Even in the reply statement filed by the plaintiff to the additional written statement in paragraph 7 it is stated thus:
"The plaintiff deny the averments in para 6 and 7 of the additional written statement. The plaintiff submit that the defendants 1 to 4 have colluded together to terminate the contract granted in favour of the plaintiff without any reason with a view to favour the 5th defendant with ulterior motive. The termination of contract was only due to the malafide and recalcitrant attitude of the defendants 1 to 4, and the 5th defendant being the beneficiary of the Contract after the termination of the Contract issued in favour of the plaintiff are jointly and severally liable to pay the compensation for the damages suffered by the plaintiff."
11. A bare perusal of the aforesaid excerpt from the reply statement of the plaintiff would demonstrate and exemplify that despite the additional written statement filed by the defendants, the plaintiff's consistent stand was that D1 to D4 only are liable to pay damages and even at that time there was no whisper about the liability of the Mosque to pay damages. As such in this view of the matter, the decisions cited supra by the learned counsel for the plaintiff are not relevant to the facts and circumstances of this case. Whereas, on the side of the defendants, the learned counsel for the revision petitioners cited the following decision:
2008(2)TLNJ 393 (Civil) [Rajkumar Gurawara (Dead) Thro. L.Rs. vs. M/s S.K.Sarwagi and Co. Pvt. Ltd. and another] A bare perusal of the said decision would indicate and evince that application under Order 1 Rule 10 should not be entertained mechanically and as has been rightly pointed out supra, for valid reasons undoubtedly at any stage, necessary party could be impleaded in a suit. But in this case the entire focus is only as against D1 to D4 and with that plaintiffs conducted the full trial and the defendants also resisted the plaintiff's case. Hence allowing of the application for impleadment and then permitting the plaintiff to seek for alternative relief at the fag end of the suit, in my opinion is not contemplated under law and that lead to travesty of justice in the litigative process.
12. I would like to highlight that simply because in the litigative process the defendant raised one plea or the other either factual or legal, the plaintiff was not justified in trying to implead parties or get the plaint amended. The plaintiff should have a specific case of her own and she should stand or fall on her own pleadings. In this case, the main thrust of the argument on the side of the plaintiff is to the effect that because the defendants took a plea of non-joinder in the additional written statement, the plaintiff was constrained to take out an application under Order 1 Rule 10 and subsequent application under Order 6 Rule 17. That being the stand, the Mosque is not at all a necessary party as per the original plaint and it is quite obvious and axiomatic. In the affidavit accompanying the I.A. under Order 1 Rule 10 CPC, there was no whisper that for seeking alternative relief, the plaintiff wanted the Mosque to be added as a party. Hence, while allowing this civil revision petition, I would like to recollect and call up order 1 Rule 9 C.P.C. also and it is extracted hereunder for ready reference.
"9. Misjoinder and non-joinder.- No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it."
13. Put simply, now Mosque is not added as a party in the suit, the trial Court shall not construe that the suit itself should fail on that ground. It is the duty of the trial court, from the available evidence to decide on merits the case based on the evidence. Accordingly with this observation, this revision petition is allowed and the order in I.A. is set aside. No costs. Consequently, connected miscellaneous petition is closed.
21.01.2009 Index :Yes Internet:Yes gms To I Asst.City Civil Judge, Chennai.
G.RAJASURIA,J., gms C.R.P.(PD)No.3737 of 2008 21.01.2009