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State Bank of Patiala Vs. Amar Nath and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revision No. 1372 of 1980
Judge
Reported in[1985]57CompCas628(P& H)
ActsCode of Civil Procedure (CPC) , 1908 - Order 1, Rule 10
AppellantState Bank of Patiala
RespondentAmar Nath and ors.
Appellant Advocate Vijay Tewari, Adv.
Respondent Advocate J.R. Mittal, Adv. for respondent No. 5
DispositionPetition dismissed
Cases ReferredBanarsi Das Durga Prashad v. Panna Lal Ram Richhpal Oswal
Excerpt:
.....the act. so viewed two inferences are clear viz., (1) sections 80 and 89 of the act read with rule 85 of the rules make it obligatory for the authorities making the order to communicate it to the applicant concerned and (2) the period of limitation for any appeal against the order is reckonable from the date of such communication of the reasons would imply communication of a copy of the written order itself, a party who knows about the making of an order cannot ignore the same and allow grass to grow under its feet and do nothing except waiting for a formal communication of the order or to choose a tenuous plea that even though he knew about the order, he was waiting for its formal communication to seek redress against the same in appeal. if a party does not know about the making of..........judge, first class, sangrur, dated january 11, 1980, dismissing its application to implead it as a party in a suit for dissolution of the partnership and rendition of accounts.2. briefly, the facts are that there was a firm known as hans raj des raj working at andheri, district sangrur. there were six partners of the firm. one of the partners instituted a suit for dissolution of the partnership and rendition of accounts against the other five partners. during the pendency of the suit, the plaintiff moved an application for appointment of receivers of the bricks manufactured by the firm and the coal in its stock. the court appointed two persons as receivers.3. the bank moved an application under order 1, rule 10, cpc, for becoming a party in the proceedings. it was, inter alia, stated.....
Judgment:

Rajendra Nath Mittal, J.

1. This revision petition has been filed by the State Bank of Patiala against the order of the Subordinate Judge, First Class, Sangrur, dated January 11, 1980, dismissing its application to implead it as a party in a suit for dissolution of the partnership and rendition of accounts.

2. Briefly, the facts are that there was a firm known as Hans Raj Des Raj working at Andheri, District Sangrur. There were six partners of the firm. One of the partners instituted a suit for dissolution of the partnership and rendition of accounts against the other five partners. During the pendency of the suit, the plaintiff moved an application for appointment of receivers of the bricks manufactured by the firm and the coal in its stock. The court appointed two persons as receivers.

3. The bank moved an application under Order 1, Rule 10, CPC, for becoming a party in the proceedings. It was, inter alia, stated that it advanced Rs. 50,000 as loan on the hypothecation of the goods which were to be taken possession of by the receivers. The application was disallowed. It has come up in revision against that order to this court.

4. It is contended by the learned counsel for the petitioner that the goods which have been taken possession of by the receivers have beenhypothecated with the petitioner. He argues that in case the goods are sold below the market price, the petitioner is likely to suffer a loss. According to him, in the aforesaid situation, the bank becomes a necessary party to the proceedings. In support of his contention, he places reliance on Bara Hanuman Temple Durgain v. Gurbux Lal Malhotra [1978] 80 PLR 187; AIR 1978 Punj 192 and Nawaneetdas Lakhmidas v. Gordhandas Lakhmidas, AIR 1955 MB 113.

5. I have given due consideration to the argument but regret my inability to accept the same. Order 1, Rule 10, CPC, inter alia, provides that a court may add a person as a party if the name of that person ought to have been joined, whether as a plaintiff or defendant or whose presence before the court is necessary in order to enable the court effectually and completely adjudicate and settle all the questions involved in the suit. Interpreting that section, R. S. Sarkaria J., as he then was, in Banarsi Das Durga Prashad v. Panna Lal Ram Richhpal Oswal [1968] 70 PLR 451 ; AIR 1969 Punj 57, observed that there is no jurisdiction to add a party in a case merely because that would save a third person the expense and botheration of a separate suit for seeking adjudication of a collateral matter which was not directly and substantively in issue in the suit into which he seeks instruction. The court should not add a person as a defendant when the plaintiff is opposed to such addition. The reason is that the plaintiff is the dominus litis. He is the master of the suit. He cannot be compelled to fight against a person, against whom he does not wish to fight and against whom he does not claim any relief. The word ' may ' in Sub-rule (2) imports discretion. In exercising that discretion, the courts will invariably taken into account the wishes of the plaintiff before adding a third person as a defendant to his suit. It is further observed that only in exceptional cases where the court finds that the addition of the new defendant is absolutely necessary to enable it to adjudicate effectually and completely the matter in controversy between the parties, it will add a person as a defendant without the consent of the plaintiff. Similar observations were made by the Division Bench in Bara Hanuman Temple Durgain's case [1978] 80 PLR 187 ; AIR 1978 Punj 192, referred to by the learned counsel for the petitioner. It is observed by the Bench that as a rule, the court should not add any person as a defendant in a suit against the wishes of the plaintiff but the word 'may' in Sub-rule (2) of Rule 10 of Order 1, CPC, gives a discretion to the court and where it finds that the addition of a new defendant is absolutely necessary to. adjudicate effectually and completely the matter in controversy between the parties, it will add a person as defendant even without the consent of the plaintiff.

6. From a reading of the sub-rule and the above observations, it is evident that if a person is not a necessary party to the litigation or hispresence is not necessary to adjudicate the case effectually and completely, he shall not'be added as defendant without the consent of the plaintiff. The ground that he is likely to suffer a loss if he is not made a defendant, is no ground to implead him as such.

7. In the present case, as already stated above, the suit is for dissolution of the partnership and rendition of accounts. The petitioner is a creditor of the firm. In the aforesaid situation, it is neither a necessary party nor it is necessary to implead it to decide the dispute between the parties effectually and completely. Even if it may be assumed that the goods are hypothecated with the petitioner, it does not mean that it is entitled to become a defendant in a litigation between the partners of the firm. The facts in Nawaneetdas Lakhmidas' case, AIR 1955 MP 113, are distinguishable. In that case no application was made by such a person to become a party. In my view, that case is of no avail to the petitioner.

8. For the aforesaid reasons, I do not find any merit in the revision petition and dismiss the same. No order as to costs.


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