Madras High Court
Sriman Madhwa Sidhanta Onnahini ... vs Sanjay R. Mohta And Anr. on 25 August, 2000
Equivalent citations: [2003]115COMPCAS214(MAD)
Author: Prabha Sridevan
Bench: Prabha Sridevan
JUDGMENT Prabha Sridevan, J.
1. The dismissal of a petition filed under Order 1, Rule 3 of the Code of Civil Procedure, 1908, by the defendant is attacked in this revision petition. The first respondent filed O. S. No. 7123 of 1993 for recovery of Rs. 53,350 with interest. The petitioner which is a Nidhi Ltd., received a cheque dated September 14, 1991, for Rs. 40,000 and deposited the same. Since the petitioner failed to pay the interest in spite of demand made by the first respondent, the suit was filed.
2. The petitioner filed his written statement stating that one A. K. Rajendran brought the cheque dated September 14, 1991, for a sum of Rs. 40,000 drawn by the first respondent in favour of the petitioner. On the representation made by the said A.K. Rajendran this cheque was credited by the petitioner to the account of the said A.K. Rajendran. The amounts were also withdrawn. According to the written statement, since, A. K. Rajendran was a proper party the suit ought to be dismissed in limine for non-joinder of him and that this should be treated as a preliminary issue. This written statement was filed in 1995. In 1998, the petitioner filed I. A. No. 18546 of 1998 under in Order 1, Rule 3 Civil Procedure Code, with an affidavit which was identified with its contents in the written statement. This was resisted by the first respondent herein, on the ground that A. K. Rajendran was a total stranger to the transaction and cannot be made liable for the said claim. Notice was also issued by the court below to A. K. Rajendran the proposed party. He also denied the case set out by the petitioner herein, and categorically stated that he was neither a necessary nor a proper party. This application was dismissed by the IV Assistant City Civil Judge.
3. Learned counsel for the petitioner vehemently argued that if the implead-ing of A. K. Rajendran were not allowed he would be deprived of all opportunity to prove his case. According to learned counsel, A. K. Rajendran was the only person who was fully aware of the facts of the case and therefore, it was necessary that he should be impleaded. He relied on two decisions Chami Narayanan v. V.R. Krishna Iyer, and Aliji Mornonji and Co. v. Lalji Mavji .
4. In reply learned counsel for the respondent would submit that the plaintiff cannot be burdened with a party who was in no way connected with the suit claim. The receipt of the suit cheque was admitted by the petitioner who had also deposited the same. The respondent had made the cheque in favour of the petitioner and this was also not denied. Therefore, the legal link as far as the suit cheque was concerned was between the petitioner and the first respondent alone. The suit is a simple suit for recovery of money and if as the petitioner claims this proposed party was vital to prove the case, he could always be summoned as a witness. Learned counsel relied on two judgments in Furkan Ahmad v. Sayed Ahmed Raza, and Lakshmi Narain v. District Judge, Fatehpur, .
5. The question is whether this stranger is a proper party to the suit. Learned counsel for the petitioner of course, stated that it is not necessary that relief should be sought against this new party. In the decision in Aliji Momonji and Co. v. Lalji Mavji , the lessee filed a suit against the Municipal Corporation for injunction restraining them from demolishing a portion of the building. The question was whether the landlord is a necessary or proper party. The Supreme Court held that even if no relief is sought for, the presence of a respondent is necessary for complete and effectual adjudication of the dispute. He would be a proper party. Whereas if in the absence of a person no effective and complete adjudication of the dispute can be made nor relief granted, he would be a necessary party. The landlord, whose direct and substantial interest in the building would be affected, if the Municipal Corporation proceeded with a demolition, was definitely a proper party and in those circumstances the Supreme Court in that case directed the impleading of the landlord. The following passage throws light on what the court should bear in mind in such matters (page 381) :
"The only reason which makes it necessary to make a person a party to an action is that he should be bound by the result of the action and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party."
6. The other decision relied on by learned counsel for the petitioner rendered by the High Court of Kerala was one in which the court held that even after the suit was barred by time new parties could be impleaded and only for the limited purpose of legal right and application of the newly added party being put in motion the date on which he was substituted or added had to be taken into account and noting else.
7. In this case, as rightly held by the court below, the suit is one for recovery of money. The defendant has admitted that the cheque was issued by the first respondent and that the same was also deposited by them in their account. Of course, the attendant circumstances surrounding the manner in which the cheque was given and received by the petitioner are elaborately explained in the written statement. But as far as the first respondent is concerned he had parted with the money and it was received by the petitioner. If one A.K. Rajendran had played a confidence trick on the petitioner as alleged by them he cannot be made a party so as to enable the petitioner to prove that case. The only question is whether the petitioner is liable to repay the money and this can be factually and completely settled in his absence. If the petitioner had received and encashed the cheque, the amount has to be repaid. If the petitioner had not received or encashed the same the amount need not be repaid. How and in what manner and in what circumstances the petitioner received the money is really not an answer to the claim of the first respondent As held in the two decisions cited by learned counsel for the first respondent he is the dominus litus and has the prerogative to choose whom to implead in his suit. The court cannot implead additional defendants on the mere asking only because the defendant feels that it will be in a better position to defend itself if the new party is impleaded. Here, the question of recovery of money can be settled in the absence of A. K. Rajendran. He need not be impleaded. His presence is not necessary to enable the court either for the effective or complete adjudication upon the questions involved. In fact, when asked what steps the petitioner had taken against the second respondent for the alleged act of fraud, learned counsel could not give any answer satisfactorily. In these circumstances, the plaintiff cannot be saddled with the burden of another defendant
8. The order of the court below is correct. This revision is dismissed. No costs. Consequently C. M. P. No. 11360 of 2000 is closed. It is made clear that the observations made herein will not have a bearing on the trial of the suit, especially if the petitioner chooses to examine the proposed party as a witness.