Delhi District Court
Sh. Padam Singh vs Sh. Tarsem Lal on 6 January, 2011
Suit No.351/2010
Sh. Padam Singh,
Versus
Sh. Tarsem Lal,
06.01.2011
Present: Sh. Naresh Kumar counsel for the plaintiff.
Sh. Satwant Singh counsel for the defendant.
Arguments heard on the application under order 1 Rule 10 CPC as well as leave to defend application. The application under O 1 Rule 10 of CPC has been filed by the wife of the plaintiff. The case of the applicant is that on 01.10.07, Rs. 2.5 lakh was given to the defendant by the plaintiff as well as the applicant. A mortgage deed was executed in favour of the applicant by the defendant. However, a cheque and promisery note were executed in favour of the plaintiff and not the applicant, as the applicant due to her health would not have been in a position to pursue the court case. The defendant has repaid an amount of Rs. One lakh out of the said amount. The applicant had filed a civil suit for permanent injunction being suit no. 432/08 before the Ld. Civil Judge, Tis Hazari Court, Delhi. Since the mortgaged deed was not registered and part payment had been made, the applicant did not pursue the court case and the same was Padam Singh Vs Tarsem Lal 1 of 4 Suit no. 351 of 2010 dismissed in default by Ms. Naya Bindu, Civil Judge. On these averments, the present application has been filed for impleadment as plaintiff no. 2.
The application was filed on 03.11.2010 along with the reply to leave to defend application and the certified copies of the record of the suit no. 432/08 dismissed by Ms. Naya Bindu, Civil Judge. The defendant has not filed his reply to the said application but has orally argued and stated that the present application has been filed to counter blast the stand taken in the leave to defend filed on 03.06.2010. The defendant has submitted that the plaintiff has filed the present suit only on the basis of the promisery note and the cheque in his favour. The plaintiff could have impleaded his wife at the time of filing of present suit but decided not to so implead her. It was only when the defendant took a stand that the cheque was given blank to the wife of the plaintiff that the present application has been filed.
In my view, there is some force in the submissions made by the counsel for defendant. The applicant is not claiming any right adverse to the plaintiff rather has prayed that she be arrayed as a co plaintiff. It is a settled proposition of law that plaintiff is dominus litus and decides whom he wants to implead in his suit. No one can force Padam Singh Vs Tarsem Lal 2 of 4 Suit no. 351 of 2010 himself or herself to be impleaded as coplaintiff. Plaintiff was free to implead his wife but choose not to do so. Now, at this stage, the plaintiff's wife cannot be allowed to be impleaded as a plaintiff in present suit. More specifically, when this is now sought to be done as a counter blast to the defence taken by the defendant. The application under order 1 Rule 10 is ,therefore, dismissed.
Application for leave to defend The stand of the defendant is that the wife of the plaintiff had earlier filed a suit based on the mortgage deed, and admittedly pursuant to the same loan amount and in the said case after the issuance of summons, the parties had some talks of compromise. The defendant paid the entire amount to the wife of the plaintiff, therefore, the suit was not prosecuted any further and the same were dismissed in default. Nothing is due and payable to the wife of the plaintiff or the plaintiff against the said loan amount of Rs. 2.5 lakh. The blank cheque and the promissory note which was in the possession of the wife and the plaintiff was however, not returned by the plaintiff's wife and the plaintiff has misused the said cheque and promisery note to Padam Singh Vs Tarsem Lal 3 of 4 Suit no. 351 of 2010 institute the present suit.
The plaintiff has admitted the fact that the suit was dismissed in default and that mortgaged deed had been executed in the name of his wife against the loan for which the earlier suit and even the present suit has been filed. Only the element of compromise and repayment of the entire loan amount is in dispute.
In my view, since the earlier suit and the present suit against the defendant pertain the same loan amount, although one suit was for permanent injunction based on mortgage deed in favour of plaintiff's wife and the other is for recovery, the defence riased by the defendant in the present case is a good defence, which requires a trial on merits after leading of evidence. Accordingly, the leave to defend application is allowed. Let WS be filed within 3 weeks with advance copy to the plaintiff to the replication, if any be filed within two weeks thereafter.
List for admission/denial of documents and framing of issues on 19.2.2011.
Harjyot Singh Bhalla
Civil JudgeI, South District
New Delhi06.01.2011
Padam Singh Vs Tarsem Lal 4 of 4
Suit no. 351 of 2010