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2022 Supreme(Del) 422
IN THE HIGH COURT OF DELHI AT NEW DELHI
C. HARI SHANKAR, J.
Aaa Vehicleades Pvt. Ltd. – Appellant
Versus
Balkishan Gupta – Respondent
CM (M) 1674 of 2019 & CM Appl. 50559 of 2019
Decided on : 24-05-2022
Advocate Appeared:
For the Appellant : Mr. Aman Shanker, Adv.
For the Respondent: Ms. Hena Lamba and Mr. Amit Kumar, Advs.
The plaintiff has the prerogative to choose whom to sue, and a defendant cannot insist that the plaintiff should sue a party whom the plaintiff has not chosen to sue.
Headnote:
Impleadment - Civil Procedure - Code of Civil Procedure, 1908 - Order I Rule 10
Fact of the Case:
The respondent sold a car to the appellant and alleged that the appellant failed to transfer the vehicle's registration and sued for expenses incurred due to a fatal accident. The appellant sought to implead subsequent buyers of the car, which was rejected by the lower court.
Finding of the Court:
The court found that the rejection of the appellant's application for impleadment was justified as the choice of parties to be sued is the prerogative of the plaintiff, and the subsequent buyers were not necessary or proper parties in the present case.
Issues: The main issue was the rejection of the appellant's application for impleadment under Order I Rule 10 of the Code of Civil Procedure.
Ratio Decidendi: The court held that the plaintiff has the prerogative to choose whom to sue, and a defendant cannot insist that the plaintiff should sue a party whom the plaintiff has not chosen to sue. The test for determining necessary or proper parties in a case was also discussed.
Final Decision: The petition was dismissed, and no order as to costs was made.
JUDGMENT :
C. Hari Shankar, J.
1. On 6th May, 2012, the respondent sold his Maruti Car to the appellant.
2. According to the averments in CS 577272/2016 instituted by the respondent against the petitioner, and from which the present petition emanates, the delivery receipt issued by the petitioner to the respondent required the petitioner to get the vehicle transferred in the petitioner’s name and to take full responsibility for maintenance, accidents, road tax, police challans etc., in respect of the car.
3. The respondent alleges that the petitioner reneged on the said assurance, and did not have the car transferred in the name of the petitioner. The respondent claims to have come to know of this fact when the car was involved in a fatal accident, and summons, from the learned Motor Accidents Claim Tribunal (MACT) were received by the respondent.
4. The plaint also acknowledges the fact that the car was successively sold, thereafter, by the petitioner to Gulshan and further, to Shamshad and to Amit. Despite this succession of transactions, the respondent alleged that the petitioner, in violation of the undertaking contained in the delivery receipt issued to the respondent, failed to have the car transferred in his name and that the car therefore continued to remain registered in the name of the respondent.
5. Predicated on these assurances, and the alleged failure by the petitioner to abide thereby, the respondent sued the petitioner for an amount of Rs. 18 lakhs along with interest, representing the expenses that the respondent claims to have had to suffer in prosecuting the litigations which arose out of the aforementioned accident.
6. Said suit (CS 577272/2016) is stated to be pending before the learned Additional District Judge (“the learned ADJ”).
7. The petitioner moved an application, under Order I Rule 10 of the Code of Civil Procedure, 1908 (CPC) in the aforesaid CS 577272/2016, seeking impleadment of the persons to whom the car was transferred after it left the hands of the petitioner, namely, Gulshan, Shamshad and Amit.
8. The impugned order dated 17th August, 2019, passed by the learned ADJ, rejects the said application.
9. Aggrieved thereby, the present petition has been preferred, invoking the jurisdiction of this court under Article 227 of the Constitution of India.
10. The learned ADJ has, in rejecting the petitioner’s applicant, noted that the choice of the persons to be sued is the prerogative of the plaintiff. In the present case, the respondent-plaintiff chose to sue the petitioner.
11. Admittedly, there is no privity of contract between the respondent and Gulshan, Shamshad or Amit, whom the petitioner seeks to implead in the suit. Inasmuch as the suit was directed against the petitioner, and damages were claimed only from the petitioner, the learned ADJ has held that the impleadment of Gulshan, Shamshad and Amit was unnecessary. The learned ADJ has, on this basis, rejected the petitioner’s application under Order I Rule 10 of the CPC.
12. In my view, the impugned decision of the learned ADJ is unexceptionable, both on facts as well as in law.
13. It is, truly, the prerogative of the plaintiff to choose whom to sue. In case the plaintiff sues a party who is not liable, and fails to sue the parties who are liable, she/he does so at her/his own risk and costs.
14. The impugned order of the learned ADJ notes as much, and protects the petitioner, by observing that the respondent-plaintiff would “(have) to face necessary implications as per law in case the said proposed defendants are found to be necessary parties after conclusion of trial”.
15. A defendant in a plaint cannot insist that the plaintiff should sue a third party. He can only defend the plaint qua the allegations against him. It is open to a defendant to contest his liability, qua the plaintiff, and, in an appropriate case, the defendant may also be entitled to move an application for rejection of the suit outright, if it fails to make out any sustainable cause of
