Delhi District Court
Vijay Pal Singh vs Vijay Berlia & Ors on 21 October, 2014
IN THE COURT OF SH. BALWANT RAI BANSAL,
ADDITIONAL DISTRICT JUDGE02 (SOUTHEAST),
SAKET COURTS, NEW DELHI
Civil Suit No. 506/12
Vijay Pal Singh
..... Plaintiff
Vs.
Vijay Berlia & Ors.
..... Defendants
O R D E R:
1. Vide this order I shall dispose of two applications, one filed under Order 1 Rule 10 CPC and the other under order 6 rule 17 CPC by the plaintiff.
2. It is stated in the application that at the time of filing the suit, the plaintiff could not add the Appejay Education Society in the array of the defendants, which is a necessary party in the proceedings. It is stated that on 27.05.2011, the defendant no. 1 assigned a tender for the civil work at Appejay Satya University at Sohna to the plaintiff on behalf of Appejay Education Society. The said work was assigned by the proposed defendant no. 4 Appeejay Education Society to plaintiff and, therefore, proposed defendant no. 4 being beneficiary of the work is liable to pay the amount for the said work. The plaintiff CS No. 506/12 Vijay Pal Singh Vs. Vijay Berlia & Ors. Page 1 of 6 wants to implead Appejay Education Society in order to meet the objection of the defendants and also for determination of the suit.
3. By way of the application u/o 6 rule 17 CPC, the plaintiff wants to amend para no. 2 to 5, 16 and wants to add para 15A as the consequent amendments to the impleadment of the proposed defendant no. 4 Appeejay Education Society.
4. The defendants contested the application by filing the reply in which it is stated that plaintiff filed the suit seeking recovery of money against the defendants and not against Appeejay Education Society. The plaintiff cannot change the entire nature of the suit by claiming relief against the society. The defendants have contended in the written statement that there was no privity of contract between the parties and on the above defence taken by the defendants, the plaintiff cannot seek the amendment and impleadment of the proposed defendant. It is stated that the original plaint does not contain any allegations against proposed defendant no. 4 and it is only after filing the written statement, the plaintiff wants to fill up the lacuna. It is stated that there is no cause of action against the defendant no. 4 and therefore the application is liable to be dismissed.
5. On the similar ground, the defendants contended that the application u/o 6 rule 17 CPC is liable to be dismissed as it will change the entire nature of the suit.
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6. I have heard the Ld. Counsel for the parties and perused the record carefully.
7. Perusal of the record reveals that plaintiff has filed the present suit for recovery of Rs. 15,71,796/ against the defendants. The case of the plaintiff is that the defendant no. 1 is Director, defendant no. 2 is President and defendant no. 3 is the Director (Civil) of Apeejay Education Society. In March, 2011, the defendant no. 1 assigned a tender for a civil work and also assigned another tender in May, 2011 for a civil work at Apeejay Satya University, Sohna to the plaintiff and the total tendered amount of civil works was Rs. 32,41,880/. The plaintiff had completed the work and submitted a bill for a sum of Rs. 15,71,767/ for part payment in the office of Director (Civil), but the defendants did not pay the said amount despite repeated requests and reminders. Hence, the plaintiff has filed the present suit seeking recovery of the said amount of Rs. 15,71,767/ from the defendants.
8. The defendants filed the written statement taking an objection that there is no privity of contract between the plaintiff and defendants. It is contended that no work was done by the plaintiff for the defendants and therefore they are not personally liable for any work done by the plaintiff for Apeejay Education Society. It is further contended that the work was assigned by Apeejay Education Society CS No. 506/12 Vijay Pal Singh Vs. Vijay Berlia & Ors. Page 3 of 6 to the plaintiff and same was not completed by the plaintiff, rather the plaintiff has abandoned the site leaving the work incomplete. The defendants have prayed for dismissal of the suit.
9. The plaintiff filed the replication reiterating the averments made in the plaint and controverting the averments made in the written statement.
10. Before framing of the issues, the plaintiff has filed the present applications under disposal. By way of present applications, the plaintiff wants to implead Apeejay Education Society in the array of defendants and also wants to amend the plaint as a consequence to the impleadment of proposed defendant Apeejay Education Society.
11. Before proceeding further, let us discuss the relevant provisions of law. Order 1 Rule 10 (2) CPC provides as under: "Court may strike out or add parties - The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.
12. From the aforesaid pleadings of the parties and documents placed on record, it is apparent that work was assigned by the Apeejay Education Society to the plaintiff and the contract was between the plaintiff and proposed defendant Apeejay Education CS No. 506/12 Vijay Pal Singh Vs. Vijay Berlia & Ors. Page 4 of 6 Society. The contract was signed by defendant no. 1 being the office bearer of Apeejay Education Society .
13. In view of above, since the contract was between the plaintiff and Apeejay Education Society, therefore, presence of proposed defendant Apeejay Education Society is necessary for proper adjudication of the present suit. Though, the plaintiff should have impleaded the Apeejay Education Society at the outset, but still the plaintiff cannot be nonsuited or the application cannot be dismissed on this ground only and further the case is at the initial stage.
14. The contention of the defendants that the impleadment of the proposed defendant Apeejay Education Society would change the nature of the suit is without any merit. The plaintiff by way of present suit is seeking recovery of amount for the work rendered by him to the Apeejay Education Society. Therefore, nature of the suit is not going to be changed even if the Apeejay Education Society is impleaded as defendant in the present case because still the claim of the plaintiff remains the same.
15. In the entire facts and circumstances of the present case, in my considered opinion, the presence of Apeejay Education Society with whom the plaintiff has privity of contract and on whose behalf the defendant no. 1 has assigned the work to the plaintiff, is a CS No. 506/12 Vijay Pal Singh Vs. Vijay Berlia & Ors. Page 5 of 6 necessary and proper party, in whose absence the matter cannot be effectively adjudicated upon. Accordingly, the application u/o 1 rule 10 CPC moved by the plaintiff is allowed and the Apeejay Education Society is impleaded as defendant no. 4 in the present suit. Similarly, since the plaintiff wants to amend the plaint as a consequent to the impleadment of Apeejay Education Society, the application moved by the plaintiff u/o 6 rule 17 CPC is also hereby allowed.
Announced in open Court (Balwant Rai Bansal)
on 21st October, 2014 Addl. District Judge 02 (SouthEast)
Saket Courts, New Delhi
CS No. 506/12
Vijay Pal Singh Vs. Vijay Berlia & Ors. Page 6 of 6
CS No. 506/12
Vijay Pal Singh Vs. Vijay Berlia & Ors.
21.10.2014
Present: None.
Vide my separate order of even date, the applications moved by the plaintiff u/o 1 rule 10 CPC and u/o 6 rule 17 CPC are allowed. Amended memo of parties and amended plaint are taken on record.
Issue summons of the suit to defendant no. 4 as per the amended memo of parties on PF/Speed Post for 27.11.2014.
(Balwant Rai Bansal) ADJ02/SE/Saket/New Delhi 21.10.2014 CS No. 506/12 Vijay Pal Singh Vs. Vijay Berlia & Ors. Page 7 of 6