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Rupam Pictures Vs. Chaganlal Gulabchand Chandak - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case Number Civil Revision Application Nos. 24, 29 and 30 of 1969
Judge
Reported in(1970)72BOMLR827; 1970MhLJ260
AppellantRupam Pictures
RespondentChaganlal Gulabchand Chandak
DispositionAppeal dismissed
Excerpt:
.....can, therefore, maintain a suit without the true owner being made a party to it. if, however, the real owner wants to intervene in the action he could be added as a party.;ch. gur narayan v. sheolal singh [1918] a.i.r. p.c. 140, pitchayya v. rattamma [1929] a.i.r. mad. 268, saimpatbai v. madhusingh [1860] a.i.r. m.p. 84, ramchandra v. gajanan (1919) 22 bom. l.r. 296 : s.c. [1920] a.i.r. bom. 90, murlidhar v. paramanand (1981) 84 bom. l.r. 104 and narendra nath v. midnapore zamindary co. [1940] a.i.r. cal. 115, referred to. - - 29 as well as c. all these three applications deal with common questions of law as well as facts. 1 has filed a suit for recovery of a certain sum against the applicant as well as the other opponents on the ground that he had deposited a certain sum with the..........in each of these suits. they have pleaded that one ramchandra balmukund heda of amravati is the real owner of these sums and that the plaintiff is only a benamidar of ramchandra balmukund heda. their further plea is that the entire sums under the deposit receipts were paid to the said ramchandra heda and that entries also were accordingly made in the account-books of ramchandra heda. it was, therefore, contended that ramchandra heda was a necessary party to these suits and, therefore, he should be made a party to these suits. it was, therefore, prayed by them in an application to the court that ramchandra balmukund heda should be added as a party. this prayer was rejected by the trial court. therefore, the applicant-defendant has come here in revision. the only point, therefore, that.....
Judgment:

Bhole, J.

1. In all these revision applications the applicant is the same. Opponents Nos. 1 and 2 in this application and opponent No. 1 in the other two applications are different, being the plaintiffs in the three respective suits and the other opponents in all these applications are common defendants in all those suits along with the applicant and all the defendants who are partners in 'M/s Rupam Pictures, Motion Picture Distributors', the applicant. While hearing revision application No. 80 of 1969, the learned advocates on both sides requested that Civil Revision Application No. 29 as well as C.R.A. No. 24 be also heard along with C.R.A. No. 80 of 1969. After calling for the records, we found that opponents Nos. 1, 2, 8, 4 and 5 in C.R.A. No. 29 of 1960 and opponents Nos. 1, 8 and S in C.R.A. No. 24 of 1969 were served and the notices in so far as the other opponents are concerned are not yet received. A few of the opponents against whom the notices were not yet received after service are partners of the contesting applicant Rupam Pictures. The learned Counsel on both sides, therefore, consented that all these three applications should be heard together. Therefore, all these applications are heard together. All these three applications deal with common questions of law as well as facts.

2. The plaintiff opponent No. 1 has filed a suit for recovery of a certain sum against the applicant as well as the other opponents on the ground that he had deposited a certain sum with the defendants on the basis of a deposit receipt and that the defendants did not pay the amount in spite of the demand. Therefore, these three suits are instituted against them.

3. The suit which is the subject-matter of C.R.A. No. 24 of 1969, was instituted for the recovery of a sum of Rs. 17,588, whereas the deposit receipt was of a sum of Rs. 25,000 and Rs. 11,000 were said to have been repaid. The suit which is the subject-matter of C.R.A. No. 80 of 1969 was filed for the recovery of Rs. 18,860, whereas the deposit receipt is of a sum of Rs. 12,000. The suit which is the subject-matter of C.R.A. No. 29 of 1969, is for the recovery of a sum of Rs. 28,100 whereas the deposit receipt is of a sum of Rs. 20,000. Because all these monies were not paid by the defendants, therefore, these suits came to be filed.

4. The applicant-defendant and the other opponents contested the claim of the plaintiff in each of these suits. They have pleaded that one Ramchandra Balmukund Heda of Amravati is the real owner of these sums and that the plaintiff is only a benamidar of Ramchandra Balmukund Heda. Their further plea is that the entire sums under the deposit receipts were paid to the said Ramchandra Heda and that entries also were accordingly made in the account-books of Ramchandra Heda. It was, therefore, contended that Ramchandra Heda was a necessary party to these suits and, therefore, he should be made a party to these suits. It was, therefore, prayed by them in an application to the Court that Ramchandra Balmukund Heda should be added as a party. This prayer was rejected by the trial Court. Therefore, the applicant-defendant has come here in revision. The only point, therefore, that arises here is to see whether that order is legal and proper.

5. The learned advocate for the applicant contends here that Ramchandra Balmukund Heda should be added as a party because the plaintiff is only a benamidar of Bamchandra Heda. The contention, of the defendants in these suits being that all the money was paid to Bamchandra Balmukund Heda, he has to be made a party to these suits. If he is not made a party to these suits, then these defendants will be prejudiced. According to the learned advocate for the applicant, there will also be multiplicity or litigations following the decision of the trial Court if Bamchandra Balmukund Heda is not made a party to these suits. It is also contended that the trial Court acted with material irregularity and failed to exercise jurisdiction in rejecting the applicant's prayer under Order I, Rule 10 of the Civil Procedure Code, We will, therefore, have to examine these contentions.

6. Sub-rules (1) and (2) of Rule 10 of Order I of the Civil Procedure Code, are as follows :

R. 10, (1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.

(2) 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 question involved in the suit, be added.

Therefore, the Court may not only strike out parties but also add parties if it is necessary for the purpose to effectually and completely adjudicate upon and settle all the questions involved in the suit. The point, therefore, in the present circumstances of our case is whether the Court should allow Bamchandra Balmukund Heda to be added as a party at the instance of the applicant. The plea of the applicant is that the plaintiff is a benamidar of Bamchandra Balmukund Heda. Because the plaintiff is the benamidar of Bamchandra Heda, therefore, the applicant wants Bamchandra Balmukund Heda also to be a party. Is he a necessary party and will the applicant gain anything more than he would gain in the present set up and frame of the suit? In Ch. Gur Narayan v. Sheolal Singh A.I.R.[1918] P.C. 140, while considering the status of 'Benamidar', the Privy Council observed as follows ( p. 148) :

So long, therefore, as a benami transaction does not contravene the provisions of the law the Courts are bound to give it effect. As already observed, the benamidar has no beneficial interest in the property or business that stands in his name; he represents, in fact, the real owner, and so far as their relative legal position is concerned he is a mere trustee for him. Their Lordships find it difficult to understand why, in such circumstances, an action cannot be maintained in the name of the benamidar in respect of the property although the beneficial owner is no party to it. The bulk of judicial opinion in India is in favour of the proposition that in a proceeding by or against the benamidar, the person beneficially entitled is fully affected by the rules of res judicata. With this view their Lordships concur. It is open to the latter to apply to be joined in the action; but whether ho is made a party or not, a proceeding by or against his representative in its ultimate result is fully binding on him. In case of a contest between an alleged benamidar and an alleged real owner, other considerations arise with which their Lordships are not concerned in the present case.

Therefore, the well-settled proposition that the benamidar represents, in fact, the real owner and that he is merely a trustee of the real owner, is laid down here. In other words, an action against the benamidar would be as good an action as the action against the real owner in respect of the property, although the real owner may not be a party to that action. A benamidar, therefore, fully represents the true owner and so far as the outside world is concerned can maintain all suits and actions. If, therefore, he fully represents the true owner, can Bamchandra Balmukund Heda be said to be a necessary party? He could not be a necessary party. He need not, therefore, be added if the applicant would gain nothing by making Bamchandra Balmukund Heda a party to the action.

7. But the learned advocate for the applicant invites my attention to Pitckayya v. Rattamma A.I.R.[1929] Mad. 268 and Sampatbai v. Madhusingh A.I.R.[1860] M.P. 84 and says that there is nothing wrong if the real owner is added as a party to the action and that, on the other hand, his addition as a party would facilitate the effectual and complete adjudication of the suit. But both these cases which were before those High Courts were oases in which the real owner intervened and wanted to be added as a party. These are not cases in which the defendants were anxious to add the real owner as a party. If the real owner wants to intervene in the action instituted by a plaintiff against a benamidar, there should not be certainly any objection to his being added as a party. In our case, Ramchandra Balmukund Heda does not want to intervene. It is the applicant-defendant who wants him to be added as a party. Whether he is added as a party or whether he is not added as a party, the applicant would get the same kind of relief in the action brought by the plaintiff. I do not, therefore, think that these Madras as well as M.P. High Court, cases will in any way help the applicant.

8. The well-known propositions laid down by the Privy Council in the above cited case (Ch. Gur Narayan v. Sheolal Singh) are also followed with approval by this High Court in Bamchandra v. Gajanan (1919) 22 Bom. L.R. 296, A.I.R.[1920] Bom. 90 and Murlidhar v. Parmanand (1981) 84 Bom. L.R. 104 as well as by the Calcutta High Court in Narendra Nath v. Midnapore Zamindary Co. : AIR1940Cal115 . It appears to me, therefore, that the order of the trial Court in the above view is quite legal and proper.

9. These three applications, therefore, should fail. I, therefore, dismiss all the three applications with one set of costs.


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