Final Order 1

Order Details: Notice of Motion
Pdf Text: 1
IN THE COURT OF CITY CIVIL COURT AT GR.BOMBAY
NOTICE OF MOTION NO.141 OF 2019
IN
SUIT NO.2426 OF 2018
1. Watumull Foundation (India) and
another ..Plaintiffs
V/s
1. MPIL Corporation Limited and
others ..Defendants
Ld. Adv. Harsha Shah for plaintiffs
Ld. advocate Raheja for defendant no.4
CORAM: HIS HONOUR JUDGE
SHRI M.SALMAN AZMI
DATE: 07/09/2020
ORAL ORDER
1. This notice of motion is tendered by defendant no.4
interalia for rejection of the plaint u/o. 7 rule 11 of
the Civil Procedure Code(hereinafter referred to as
CPC) and alternatively under clause (a) of order 1
rule 10(2) of CPC.
2. Heard.
2
-- 1 of 6 --
2
3. The contention of defendant no.4 is that the present
suit is initially between plaintiff and defendant no.1.
The allegations are that defendant no.1 vacated the
suit premises and inducted defendant no.2.
Defendant no.2 is a rank trespasser.
4. Ld. Counsel for defendant no.4 argued that
defendant no.2-is a registered company being juristic
person having separate legal entity has it’s own right
and obligation. Defendant no.4 is an independent
director of defendant no.2 company and not entitled
to be impleaded as a party.
5. The plaintiffs have filed reply to the notice of motion
and contended that the plaintiffs by their letter
sought inspection of the documents relied upon by
defendant no.4. But, defendant no.4 did not give the
inspection of the documents. It is the contention of
the plaintiffs that this notice of motion is filed to
protract the trial. Defendant no.4 is concerned with
the affairs of business of defendant no.2-company
and has been rightly joined as party to the suit.
6. At the outset it is necessary to mention here that the
application u/o. 7 rule 11 of the CPC has to be
considered on the basis of plaint avernments. The
3
-- 2 of 6 --
3
arguments of Ld. Counsel for defendant no.4 is that
he is an independent director and he is not
concerned with the day today affairs of defendant
no.2-company, cannot be taken into account.
7. On perusal of the avernments in plaint, it appears
that the relief is claimed against defendant nos.1 to
4. The entire plaint is silent as regard the role of
defendant no.4 and reason for claiming the relief
against him. The plaint averments suggest that
defendant no.2 is a registered company and has
trespassed the suit premises belonging to the
plaintiffs. The plaint does not disclose any act or
omission of defendant no.4. Ld. Counsel for
defendant no.4 argued that it is settled position of
law that impleadment of the party is based upon twin
conditions for determination the question as to who
is the necessary party i.e. (a)there must be some
right to some relief against such person in respect of
the controversies involved in the proceedings and (b)
no effective decree can be passed in the absence of
such party. The proper party is in whose absence
effective order can be made but his presence is still
necessary for complete and final decision for the
issue involved.
4
-- 3 of 6 --
4
8. He placed reliance upon the following judgments:-
(i)Kasturi V/s Iyyamperumal and others, SC (2005) 6
SC cases 733
(ii)Suneal Mangal V/s M/s.Prime Maxi Mall
management and another of Hon’ble Delhi High
Court, SCC On Line Del 2662.
9. I have considered the law laid down in the above
cited judgment. On perusal of the plaint avernments
it reflects that relief is claimed against defendant
no.4 without disclosing the right for claim. There is
no whisper in the plaint as regard any right to claim
the relief against defendant no.4. No cause of action
for claiming the relief against defendant no.4 is made
out in the plaint avernments. As already held by
Hon’ble Apex Court in the case of Kasturi(supra) twin
conditions for ascertaining the question who is
necessary party are that (i)there must be right to
some relief against such party in view of the
controversy involved in the proceedings, (ii)no
effective decree can be passed in the absence of such
party.
5
-- 4 of 6 --
5
10. The Hon’ble Apex Court further held that
power has been conferred on the Court under sub-
rule (2) of order 1 rule 10 of CPC to strike out the
name of any party improperly joined whether as
plaintiff or defendant.
11. From the perusal of the avernments in the
plaint, it appears that defendant no.4 is neither
necessary nor a proper party and hence his presence
is not required for a just decision of this case and
therefore his name is to be strike off as the party
defendant. Hence, it is expedient to pass following
order:-
ORDER
1.N/M No.141 of 2019 is allowed in terms of
prayer clause (b).
2.Plaintiff to carry out necessary amendment in
the plaint.
07/09/2020 M.SALMAN AZMI
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 07/09/2020
Transcribed on: 21/09/2020
Signed on: 21/09/2020
6
-- 5 of 6 --
6
'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER”.
22/09/20 at 02.16 pm.
Mrs.Tanushree C.Kamble
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of judgment/
order
07/09/2020
Judgment and order signed by P.O. 21/09/2020
Judgment/order uploaded on 22/09/2020
-- 6 of 6 --