Delhi High Court
Shri Golesh Kumar vs Ganesh Dass Chawla Charitable Trust ... on 27 April, 2006
Equivalent citations: 129(2006)DLT638
Author: Swatanter Kumar
Bench: Swatanter Kumar, Sanjiv Khanna
JUDGMENT Swatanter Kumar, J.
1. This regular first appeal is directed against the judgment and decree dated 31st March, 01 vide which the suit of the plaintiff for recovery of Rs. 2,37,696/- being suit No. 48/96 was dismissed on the ground of non joinder of parties. During the pendency of this appeal, the appellants also filed an application being CM No. 1106/01 under Order 1 Rule 10 r/w Section 151 of the Code of Civil Procedure. In this application the prayer is that the cause title of the appeal be permitted to be amended and the members of the respondent/trust be permitted to be imp leaded as party/respondents and/or in alternative the judgment and decree be set aside and suit remanded for fresh trial.
2. This application has been filed primarily to overcome the defect of non-joinder of necessary parties in the suit so that suit of the plaintiff be not dismissed and upon amendment may be decreed in accordance with law. The applicants have filed the present application to correct the said defect.
3. This application as well as the appeal is contested by the respondents on merits as well as on maintainability. According to them, the suit of the plaintiff was bad for non-joinder of necessary parties and that issue has been correctly decided by the Trial Court and if the application of the appellant for impleadment is allowed, it will amount to serious prejudice to the rights of the respondents. The claim of the plaintiff against the defendants/respondents, now sought to be imp leaded, has already become barred by time.
4. The necessary facts are that plaintiff is a registered contractor with the Central Public Works Department for labour work of building and sanitary work and have been doing the said work and other ancillary work thereof for quite some time. The defendant is a charitable trust which is registered and it is running a hospital namely Saroj Charitable Hospital situated at Madhuban Chowk, Rohini, Delhi. The plaintiff had approached the defendant for completion of the sanitary work and sewer line work. An agreement was signed between the parties which was signed by the plaintiff and on behalf of the defendant by Mr.Pawan Kumar, the Trustee. One Mr.T.S.Bindra was appointed as Architect. The agreement was executed on 26th February, 1994. Thereafter, according to the plaintiff, he had been working to the satisfaction of the defendant and the work was verified by the Architect and the defendant. The plaintiff submitted a bill of Rs. 4,98,296/- on 5th March, 1995 and other bills dated 8.5.95 for a sum of Rs. 22,250/-. All these bills, according to the plaintiff, were duly verified by the Architect but the defendant only paid a sum of Rs. 2,83,120/- thus leaving the balance of Rs. 2,37,696/-. The plaintiff called upon the defendant to pay the said amount and even visited their office several times but no payment was received by the plaintiff and the defendant only made false promises. The plaintiff served a legal notice dated 1.8.96 upon the defendant demanding the said amount. In response to that no payment was received nor any reply was submitted. The plaintiff filed the present suit for recovery of the said amount. The suit was contested by the defendants who disputed the claim on merits and stated that in terms of Clause 7 of the agreement dated 26.2.94 entered into between the parties, the payment was to be made only when the bills were duly certified by the Architect and nothing was due to the plaintiff. The defendants have also took a preliminary objection that all the trustees are necessary parties to the suit and as the plaintiff has not imp leaded all the trustees, the suit was bad for non joinder of the parties and deserve to be dismissed. Vide its order dated 4th November, 1997, the learned Trial Court framed the following issues:
1. Whether the suit is not maintainable as per preliminary objection No. 1? OPD
2. Whether the suit is bad for non-joinder of necessary parties? OPD
3. Whether the plaintiff is entitled for suit amount, if so, what sum? OPP
4. Whether the plaintiff is entitled for interest if so, what rate and for which period? OPP
5. Relief.
5. The parties were permitted to lead evidence and finally the Trial Court answered issue No. 1 against the defendant and in favor of the plaintiff but decided issue No. 2 against the plaintiff and in favor of the defendant and declined to record findings on issue Nos. 3 and 4 in view of the findings recorded on issue No. 2 vide its judgment and decree dated 31st March, 2001 giving rise to the filing of the present appeal. The learned Trial Court while relying upon the judgment of the Calcutta High Court in the case of Norendra Nath Kumar and Anr. v. Atul Chandra Bandhopadhyaya and Ors. AIR 1918 Calcutta 810 and Madras High Court in the case of Vedakannu Nadar and Ors. v. V. Nanguneri Taluk Singikulam Annadana Chatram and Ors. AIR 1938 Madras 982 while referring to the provisions of Order XXXI Rule 2 held that in view of EX PW1/D1 the agreement which had been executed between the parties and was signed on behalf of the registered Charitable Trust by one of its trustees it was obligatory upon the plaintiff to implead all the 14 members of the trust as defendants to the suit. This finding can hardly be assailed in law. The provisions of Order XXXI Rule 2 make it mandatory for a plaintiff to join all the trustees as parties to the suit. In this case there are several trustees of the trust and it has been proved on record and, in fact, was an admitted fact on the basis of Ex PW1/D1 that it is a registered trust and has number of trustees. There was no escape for the plaintiff but to join/implead all these trustees as defendants in the suit. We have no reason to differ with the view taken by the Calcutta High Court and Madras High Court in the cases of Norendra Nath and Anr. (supra) and Vedakannu Nadar and Ors.(supra).
6. The Courts have insisted upon due compliance to the provisions of Order XXXI Rule 2 of the Court. Even where suits are instituted by and on behalf of the trust, it was held that willing trustees should be joined as plaintiffs while all other unwilling trustees should be joined as defendants. Thus, the suit without inclusion of all the trustees members of the trust would not be maintainable where either a suit is instituted or is filed against the trust.
7. Another very pertinent fact of the case is that the defendants had taken objection in regard to maintainability of the suit at the very first available opportunity in unambiguous terms. They had taken this objection in the written statement filed by them. Despite such warning, the plaintiff took no steps to amend his plaint though the suit remained pending for more than five years before the Trial Court. The conduct of the plaintiff is such which cannot be ignored by the Court even if Order XXXI Rule 2 of the Code of Civil Procedure is construed and understood liberally. The discretion of the Court has to be exercised in consonance with the settled principles of law. A party who intentionally sleeps over its rights or remedies available to it in law, cannot be heard to say that the Court should exercise discretion in its favor particularly when a valuable right has accrued in favor of the other side.
8. It is contended on behalf of the defendants that whatever amount were claimed by the plaintiff that amount has already been paid. In fact, according to them, the plaintiff had abandoned the work after suffering losses. Be that as it may, that is not the controversy necessary for us to examine in the present appeal. Suffice it to say that the claim of the plaintiff is disputed on merits as well as in law.
9. CM No. 1106/01 is an application which again is as vague as possible. No specific averment has been made in this application and all that has been stated in this application is that Civil Procedure Code empowers the applicant to add necessary party at any stage of the proceedings with the permission of the Court and the balance of convenience is in favor of the applicant thus he should be allowed to amend the cause title of the suit by adding necessary party or the judgment of the Trial Court be set aside in view of this application and suit be remanded for fresh trial in accordance with law. This application even on facts is not maintainable. A simple application under Order 1 Rule 10 would hardly be maintainable and the applicant is expected to make some averments against the defendants sought to be added and basic averments or variation in the plaint would thus be required. All these facts are missing from the application filed by the applicant. In accordance with the provisions of Order XXXI Rule 2, it was necessary for the plaintiff to implead all the trustees as defendants which he failed to do so despite a specific objection and for a long period of five years. As per Section 21 of the Limitation Act, 1963, where after institution of a suit, a new plaintiff or a defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party. The proviso to Section 21 is again of no help to the applicant inasmuch as there is no omission or a bona fide mistake or a mistake made in good faith as the defendants had taken the objection at the very first instance and despite such an objection no steps were taken by the plaintiff before the Trial Court. It cannot be disputed that the present suit has become barred by time against the defendants who are sought to be imp leaded by the applicant in the present appeal. By filing the present application, the Court cannot extend the period of limitation in favor of the plaintiff and against the defendants. Except negligence on the part of the plaintiff, there is no ground whatsoever for not taking steps in accordance with law at the appropriate stage and expeditiously.
10. The order of the Trial Court does not suffer from any legal infirmities or factual errors which would justify interference by this Court in exercise of its appellate jurisdiction. For the reasons afore-stated, both the appeal and CM No. 1106/01 are dismissed while leaving the parties to bear their own costs.