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Jabar Chand JaIn Vs. Firm Mangalchand Champalal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Revision Petition No. 94/1975
Judge
Reported in1977WLN(UC)58
AppellantJabar Chand Jain
RespondentFirm Mangalchand Champalal
DispositionPetition allowed
Cases Referred and Aminlal v. Hunua Mal
Excerpt:
.....be termed to be a valid consideration for ex 2. in face of this controversy the presence of the firm mangalchand champalal & co. beawar on record can be said to he necessary in order to enable the court effectually an completely to adjudicate upon and settle the controversy arising between the parties to the suit adding of this party as defendant to the suit is neither going to prejudice the case of the plaintiff in any way nor it is going to cause a surprise to the plaintiff.;(b) civil procedure code - section 115(2)--revision--trial court committing error in exercise of jurisdiction--held, case made out for interference under section 115(c).;revision allowed - - he urged that the trial court failed to appreciate the controversy between the parties and dismissed the application..........a number of pleas. his case before the trial court was thai he had business dealings with the firm mangalchand champalal & co, which was an unregistered firm, but nothing remained out-standing against the petitioner on account of these dealings, and he had no dealings with the plaintiff-non-petitioner. the plea regarding non-joinder of necessary party was also raised.3. on the pleadings of the pa? ties the learned munsiff framed six issues. on behalf of the plaintiff, a partner of the firm, pw1 shambu mal was examined on september 4, 1974, who under cross-examination on october 15, 1974 admitted that the amount of rs. 1950/- was not advanced to the defendant petitioner by the non-petitioner as cash, but a book entry in respect of the amount due from the defendant petitioner to m/s.....
Judgment:

M.L. Shrimal, J.

1. This revision petition under Section 115, C.P.C. filed by Jabarchand Jain (defendant in original suit No. 311 of 1972) is directed against the order of the Munsiff, Beawar dated January 27, 1975 whereby he dismissed the application dated January 22, 1975 filed by the petitioner praying to implead M/s Mangalchand Champalal & Co., Beawar as defendant.

2. The facts giving rise to this revision petition are that the plaintiff-non-petitioner, a registered partnership firm, Seth Mangalchand Champalal instituted a suit against the petitioner for an amount of Rs. 2330.70 paisa in the court of Munsiff, Beawar on October 12, 1972. The aforesaid amount consisted of Rs. 1950/- cash loan advanced to the petitioner on Match 8, 1971 by the non petitioner and the amount of interest, Rs. 373.10 paisa at the rate of Re. 1/- % from March 8, 1971 to October 12, 1972 and notice expenses; Rs. 7.60 paisa. The defendant contested the suit and raised a number of pleas. His case before the trial court was thai he had business dealings with the firm Mangalchand Champalal & Co, which was an unregistered firm, but nothing remained out-standing against the petitioner on account of these dealings, and he had no dealings with the plaintiff-non-petitioner. The plea regarding non-joinder of necessary party was also raised.

3. On the pleadings of the pa? ties the learned Munsiff framed six issues. On behalf of the plaintiff, a partner of the firm, PW1 Shambu Mal was examined on September 4, 1974, who under cross-examination on October 15, 1974 admitted that the amount of Rs. 1950/- was not advanced to the defendant petitioner by the non-petitioner as cash, but a book entry in respect of the amount due from the defendant petitioner to M/s Mangalchand Champalal & Co. Beawar was made in the 'Bahi' of the plaintiff. Therefore ,on January 22, 1975 the petitioner submitted an application under Order 1, Rule 10 read with Section 151, CPC for impleading M/s Mangalchand Champalal & Co. : Beawar as defendant in the suit. This application, was rejected 'by the impugned order dated January 27, 1975. Hence this revision petition.

4. The learned Counsel for the petitioner has challenged the correctness of the impugned order. He urged that the trial court failed to appreciate the controversy between the parties and dismissed the application by a cryptic order. The consideration for Ex. 2, as alleged in para No. 2 of the plaint was cash consideration. The plaintiff failed to prove it and' PW1 Shambu Mal, one of the partners, admitted that the suit amount was not paid by the plaintiff to the defendant in cash. In variance of the pleadings he tried to male out a new case and in support of that stated that the consideration for Ex. 2 was an amount outstanding from the petitioner to M/s Mangalchand Champalal & Co., Beawar. In order to meet the new case set up by the plaintiff against the original pleadings the petitioner filed an application dated January 22, 1975 under Order 1, Rule 10 read with Section 151;, CPC, praying that Mangal Chand Champalal & Co., Beawar be ordered to be impleaded as party to the suit, because in its absence it was not possible to effectually and completely adjudicate the questions arising in the suit. The trial court failed to appreciate the real controversy between the parties. It did not address itself to the requirement of Order 1, Rule 10 CPC, which enjoins upon the court to implead any person as party to the litigation whose presence is necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit. In passing the impugned order the learned Munsiff has committed a material defect of procedure affecting ultimate decision of the case, and as such the order is liable to be set aside.

5. The learned Counsel appearing on behalf of the. Non-petitioner has supported the order of the trial court, and urged that there are two firms, one known as Seth Mangalchand Champalal (plaintiff in this case) and the other M/s Mangalchand Champalal & Co., Beawar. The petitioner had, (dealings with the second firm Mangalchand Champalal & Co., and an amount of Rs. 2071/- remained outstanding against the defendant-petitioner on March 8, 1971. Against this amount a credit of Rs. 114/- was given to the petitioner and Rs. 7/- were relinquished. Thus there remained Rs. 1950/- outstanding against the petitioner to the firm M/s Mangalchand Champalal & Co., Beawar. The petitioner took a loan of Rs. 1950/- from the plaintiff firm. The amount of Rs. 1950/- instead of being paid in cash to the petitioner was paid to the firm Mangalchand Champalal & Co. Beawar and thereafter the petitioner executed Ex. 2 in favour of the plaintiff non-petitioner. Thus the consideration of Ex. 2 was a cash consideration. There is no variance between the pleadings and the proof. The Firm Mangalchand Champalal & Co., had no outstanding dues against the defendant-petitioner on the date of the filing of the suit because it was paid of by the plaintiff and as such the said firm can neither be said to be a necessary party nor a proper party for decision of the controversy arising in the suit on hand. In support of his contention he placed reliance on Hardeva v. Ismail 1970 RLW 316, Harakchand v. The State of Rajasthan 1970 RLW 320 and Aminlal v. Hunna Mal : [1965]1SCR393 . Both these cases Hardeva v. Ismail 1970 RLW 320 and Aminlal v. Hunua Mal : [1965]1SCR393 are distinguishable on facts.

6. I have given earful consideration to the arguments advanced by both the parties and have perused the record I feel persuaded to; agree with the contention of the petitioner. A party who e interests are directly affected and without whom ho order can be made effectively is a necessary party. In addition there may be parties who may be described as proper parties, that is, the parties whose presence is not necessary for making an effective order but whose presence may facilitate the settling of all the questions that may be involved in the controversy. The question of making such a person party to a proceeding depends upon judicial discretion of the court. Either one of the parties to the proceedings may apply for impleading such a party or such a may suo moto approach the court for being impleaded therein. In the case on hand the petitioner has vehemently challenged the fact that an amount of Rs. 1950/-remained outstanding against the petitioner in favour of the Firm Mangalchand Champalal & Co., Beawar on or before March 8, 1971. His contention before this Court is that an individual entry from his accounts with Mangalchand Champalal & Co., Beawar cannot form the basis of the suit and cannot be termed to be a valid consideration for Ex.2. In face of this controversy the presence of the firm Mangalchand Champalal & Co., Beawar on record can be said to be necessary in order to enable the court effectually and completely to adjudicate upon and settle the controversy arising between the parties to the suit. Adding of this party as defendant to the suit is neither going to prejudice the case of the plaintiff in any way nor it is going to cause a surprise to the plaintiff. No controversy beyond the scope of the suit would be introduced as after its joinder, the main evidence in the suit and the main enquiry will remain the fame. The trial court has failed to appreciate the effect of important admissions made by PW1 Shambhumal. It has committed a material defect of procedure affecting the ultimate decision of the case in dealing with the application of the petitioner dated, January 22, 1975. Thus the trial 'court' has committed an error in the matter of exercise of its jurisdiction. In this view of the matter, a case for interference has been made out under Section 115(c) of the Code of Civil Procedure.

7. Accordingly, I allow this revision petition, set aside the order dated January 27, 1975 pissed by the learned Munsiff, Beawar and order that the firm M/s Mangalchand Champalal & Co., Beawar be impleaded as defendant in suit No. 311 of 1972, provided the petitioner pays an amount of Rs. 75/-to the plaintiff within two months. The costs of this revision petition will abide the result of Case.

8. Let the record of this case be sent forthwith to the trial court for proceeding according to law.


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