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Shyam Sundar Kajaria Vs. Eastern Commercial Corporation - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberSuit No. 512 of 1975
Judge
Reported inAIR1982Cal437
ActsCode of Civil Procedure (CPC) , 1908 - Order 1, Rule 10 - Order 6, Rule 17
AppellantShyam Sundar Kajaria
RespondentEastern Commercial Corporation
DispositionApplication dismissed
Excerpt:
- .....had stated that the plaintiff did not make any claim in this suit against the defendant no. 2 ramdeoprosad agarwalla, who was sought to be impleaded in order that the issues involved in the present suit may be adjudicated upon in his presence. however, from the averments made in the petition, it appears that no ground has been disclosed by the petitioner for which the proposed amendment has been sought for. the said ramdeo prosad agarwalla, according to the petitioner, also known as ramdeo kajaria, is the brother of the plaintiff who had already deposed in the suit on commission. save and except the averments in paragraph 8 of the petition that in view of the nature and character of the defence taken by the defendant, the petitioner had been advised to take out this application for.....
Judgment:
ORDER

Padma Khastgir, J.

1. This is an application by the plaintiff Shyam Sundar Kajaria for amendment of the plaint. The suit was filed by Shyam Sundar Kajaria for recovery of a sum of Rupees 60,656/- and for other consequential reliefs. It was the positive case of the plaintiff, as made out in the plaint, that on 3rd Dec. 1974 and on 18th Dec. 1974 the plaintiff lent and advanced short term commercial loan on Khatapeta account to the defendant amounting to Rupees 25,000/- and Rupees 30,000/- respectively, aggregating Rs. 55,000/-. The defendant agreed to repay the said sura with interest at the rate of 15%. Acknowledging receipt of the said loan the defendant executed Purjas at the request and direction of the plaintiff in the name of Ramdeo Prosad Agarwalla. The defendant acknowledged its liability to pay with interest at the rate of 15%. Inasmuch as according to the plaintiff the defendant failed and neglected to make payment of the said loan in spite of demands, the plaintiff had been compelled to file the present suit and the suit was filed oil the 9th September, 1975.

2. After the suit was in part heard, an application was taken out for examination of the plaintiff's witness on commission. Examination of witness on commission, had been concluded. Now an application has been taken out by the plaintiff for amendment of the plaint impleading therein Ramdeo Prosad Agarwalla as a party defendant. In paragraph 8 of the proposed amended plaint the plaintiff had stated that the plaintiff did not make any claim in this suit against the defendant No. 2 RamdeoProsad Agarwalla, who was sought to be impleaded in order that the issues involved in the present suit may be adjudicated upon in his presence. However, from the averments made in the petition, it appears that no ground has been disclosed by the petitioner for which the proposed amendment has been sought for. The said Ramdeo Prosad Agarwalla, according to the petitioner, also known as Ramdeo Kajaria, is the brother of the plaintiff who had already deposed in the suit on commission. Save and except the averments in paragraph 8 of the petition that in view of the nature and character of the defence taken by the defendant, the petitioner had been advised to take out this application for necessary amendment, no other ground whatsoever has been stated therein. Although it has been stated in the petition that the proposed amendment would not prejudice the defendant in any way but the fact remains that the claim, if any, of the said Ramdeo Prosad Agarwalla against the defendant today stands barred by the laws of limitation. There are no compelling circumstances which have been set out in the petition for allowing such an amendment even after the laws of limitation have set in. Order 1. Rule 10 sub-rule (2) provides as follows :

'The Court may at any stage of the proceedings, either upon or without the application of either party, and on such term as may appear to the Court to be just, order that the name of any parly 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.'

The facts disclosed in the petition do not indicate that the said Ramdeo Prosad Agarwalla is a necessary party who ought to have been joined as a party defendant inasmuch as his presence before this Court is not necessary in order to effectually and completely adjudicate upon and settle all questions involved in this suit. It is the definite case of the defendant as made out in the written statement that the present transaction in suit has no connection whatsoever with the transaction that the defendant had with Ramdeo Prosad Agarwalla. It is thecase of the defendant in the written statement that the plaintiff had no transaction and/or dealing with the defendant on any occasion as no money was lent and advanced by the plaintiff to the defendant. The defendant did not execute any purja at the request or direction of the plaintiff in the name of Ramdeo Prosad Agarwalla acknowledging receipt of the loans nor acknowledged liability in respect thereof. In paragraph 3 it has been stated that the defendant borrowed a sum of Rs. 55,000/-from one Ramdeo Prosad Agarwalla by executing relevant documents and upon production of the original purjas, it was the case of the defendant, that the defendant paid up the loan in two instalments. The defendants craved reference to various correspondence that passed between B. M. Bagaria, Solicitor acting on behalf of Ramdeo Prosad Agarwalla and the defendant. From the said correspondence it would appear, according to the defendant, that the transaction that the defendant had with Ramdeo Prosad Agarwalla had no connection whatsoever with the transaction that had been stated by the plaintiff in the plaint. In the circumstances the defendant Ramdeo Prosad Agarwalla is not a necessary party and his presence is not required for the purpose of proper adjudication of the disputes between the plaintiff and the defendant. In the case reported in : AIR1974Cal358 it had been held that a person is not to be added as a defendant merely because he or she would be incidentally affected by the judgment. The main consideration is whether or not the presence of such a person is necessary to enable the Court to effectually and completely adjudicate upon and settle the questions involved in the suit. If the question at issue between the parties can be worked out without any one else being brought in, the stranger should not be added as a party. Similar view had been expressed in the case reported in : AIR1980Cal106 where it has been held by a Division Bench of this High Court that the Court would surely not encourage any attempt to implead a party who may be called a spectator or a dummy defendant. The plea of bringing one on record simply to watch proceedings is not proper. Similar views have been expressed in the case reported in : AIR1968Mad287 where in paragraph 2 it has been observed thata proper party is one without whose presence the questions in the suit cannot be completely and effectually adjudicated upon. If he is neither a necessary party nor a proper party, the court has no jurisdiction to add him as a party. In view of the facts and circumstances of the case it appears that no order can be passed on the plaintiff's application inasmuch as Ramdeo Prosad Agarwalla is neither a necessary party nor proper party to be joined in as a defendant without whose presence the dispute by and between the plaintiff and the defendant cannot be adjudicated effectually and completely by this Court. In view of the fact that the alleged claim of Ramdeo Prosad Agarwalla as on today stands barred by the laws of limitation, it would not be proper and not fair to add him as a party to this suit.

3. In the circumstances, I dismiss this application with costs.


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