2006 Supreme(Bom) 1316

IN THE HIGH COURT OF BOMBAY
(V. C. Daga, J.)
DEVCHAND CONSTRUCTIONS -Petitioner
vs.
BOARD OF TRUSTEES OF
THE PORT OF MORMUGAO and another -Respondent
Advocates Appeared
For petitioner: Nitin Sardesai
For respondent No. 1: V.B. Nadkarni, Senior Counsel with Y.V.Nadkarni
For respondent No. 2: M.S. Sonak with N.K. Sawaikar

Headnote:Civil Procedure Code, 1908 - Order I, Rule 10 Suit for recovery of outstanding dues Addition of parties Court is expected to exercise discretion in judicious manner. The plaintiff/petitioner entered into a contract with defendant No. 1 respondent No. 1 herein; to execute the contracted work. During the course execution of contract, defendant No. 1 appears to have purchased certain goods from defendant No. 2 and the said goods appear to have been used in the execution of the contracted work. According to the plaintiff, defendant No. 1 did not pay its outstanding bills. With the result, the plaintiff was required to file suit for recovery of its outstanding dues. The Court is expected to exercise discretion in a judicious manner. Reading of the entire impugned order would show that there is absolutely no whisper with regard to ingredients of Order 1, Rule 10 of Civil Procedure Code. What is relied upon by the Court is wherein the defendant No. 1 has stated that in view of the contesting claim of plaintiff and defendant No. 2/the intervenor, defendant No. 1 is contemplating to deposit the said amount in the Court under Section 88 of Civil Procedure Code. It is, thus, clear that the trial Court has acted upon the defence of defendant No. 1. This approach is erroneous. The impleadment cannot be to facilitate one of the defendants to widen the scope of the controversy involved in the suit. The defendant No. 1 is trying to take advantage of the inter se dispute, if any, between the plaintiff and the intervenor/defendant No. 2. The impugned order has given this scope to defendant No. 1. The core question involved in the suit would be as to whether or not the original defendant No. 1 is liable to pay outstanding dues to the plaintiff. If this be a core issue, then presence of defendant No. 2 would hardly be necessary in order to effectually and completely adjudicate upon the issue as to the liability of defendant No. 1 towards plaintiff. This issue, in absence of defendant No. 2, can be decided, as such impleadment of defendant No. 2, is not necessary. It is, thus, clear that the trial Court has exercised discretion on erroneous consideration. In this view of the matter, this is a fit case; wherein writ jurisdiction can be exercised to set aside the impugned order, 2005 (3) Mh LJ 330, AIR 1958 SC 886 and AIR 1963 SC 786, Ref.

       Civil Procedure Code, 1908 - Order I, Rule 10(2) Object The object behind sub-rule (2) of Rule 10 of Order I is to discourage contests on technical pleas, and to save honest and bona fide claimants from being non-suited The power to strike out or add parties can be exercised by the Court at any stage of the proceedings Under this rule, a person may be added as a party to a suit in the following two cases : (1) when he ought to have been joined as plaintiff or defendant, and is not joined so, or (2) when, without his presence, the questions in the suit cannot be completely decided It enables the Court to add any person as a party at any stage of the proceedings if the person whose presence before the Court is necessary in order to enable the Court to effectively and completely adjudicate upon and settle all the questions involved in the suit Avoidance of a multiplicity of proceedings is also one of the objects of the said provision in the Code.

       CONSTITUTION OF INDIA, 1950 - Article 226 Writ petition Challenging order allowing an application under Order I, Rule 10 of CPC passed by Civil Judge (SD) in a special suit Petitioner filed suit against defendant No. 1 for recovery of Rs. 1,11,73,756/Tender and contract terms settled between them in 1999 Defendant No. 2/respondent No. 2 not a party to said contract Defendant No. 1 stated in written statement that he withholding final payment of plaintiff since plaintiff owes certain amount to defendant No. 2 No privity of contract between defendant Nos. 1 and 2 Defendant No. 2 filed application under Order I, Rule 10 of CPC in 2004, claiming that plaintiff liable to pay Rs. 8,03,553/to him Objected by plaintiff No whisper about ingredients of Order I, Rule 10, CPC in impugned order Trial Court erred in acting upon defence of defendant No. 1 Exercised discretion on erroneous consideration Impugned order liable to be set aside Submission of defendant No. 2 devoid of any substance A strange r cannot be permitted to be present in a suit against whom no relief claimed Defendant No. 2 not entitled to be a party defendant to suit filed by petitioner Petition allowed Impugned order quashed and set aside Trial Court directed to delete name of defendant No. 2 from array of parties to suit.