In CM (M) 1674/2019 & CM APPL. 50559/2019-DEL HC- Defendant in plaint cannot insist that plaintiff should sue third party: Delhi HC Justice C. Hari Shankar [24-05-2022]



Mansimran Kaur

New Delhi, May 28, 2022:  The Delhi High Court has held that a defendant cannot insist that the plaintiff should sue a party whom the plaintiff has not chosen to sue. If the plaintiff fails to sue a necessary party, it would  be at the risk and cost of the plaintiff, noted the High Court.

A Single Bench of Justice Hari Shankar was considering a petition under Article 227 of the Indian Constitution against the order passed by the ADJ whereby the application filed by the petitioner under Order1 Rule 10  was dismissed. 

Facts in brief for adjudication of the present petition were that the respondent sold his car to the appellant. According to the averments, the delivery receipt issued by the petitioner to the respondent required the petitioner to get the vehicle transferred in the petitioner’s name and to take full responsibility for maintenance, accidents, road tax, police challans etc., in respect of the car. It was the case of the respondent that the petitioner reneged on the said assurance and did not have the car transferred in the name of the petitioner. 

The respondent was apprised of the said fact when the car got involved in a fatal accident and summons from the Motor Vehicle Acts Tribunal were received by the respondent.  Consequently, the respondent sued the petitioner for an amount of Rs 1.8 lakh along with interest representing the expenses that the respondent claimed to have suffered in prosecuting the litigations which arose from the aforementioned accident.  In pursuance of the same, the petitioner instituted an application under Order 1 Rule 10 of the Code of Civil procedure seeking impleadment of the persons to whom the car was transferred after the petitioner. However, the application was rejected by the ADJ.  Aggrieved by the same, the petitioner was preferred under Article 227 of the Constitution of India. 

With respect to the imputed order passed by ADJ, the Court stated that the ADJ rightly observed that choice of persons to be sued is the prerogative of the plaintiff and in the instant case the plaintiff chose to sue the petitioner.  It was also noted by this Court that there was no privity of contract between the respondent and Gulshan, Shamshad or Amit, who the petitioner was seeking to impede as party. The suit was directed against the petitioner and the ADJ held that impleading the others as party was unnecessary.

The Court further observed that the defendant in a plaint cannot compel the plaintiff to sue the third party.  He can only defend the plaint qua the allegations against him. It is open to a defendant to contest his liability, qua the plaintiff, and, in an appropriate case, the defendant may also be entitled to move an application for rejection of the suit outright, if it fails to make out any sustainable cause of action against the plaintiff invoking, for the purpose, Order VII Rule 11 of the CPC.

The Court further noted that the test for determining the parties who would be necessary or proper in a lis are by now, trite and well established.  In view of the same the Court submitted that the parties against whom reliefs are claimed in the petition and parties who would be prejudicially affected if the reliefs in the petition/plaint are granted are necessary parties in the plaint. Parties whose presence is necessary in order to enable the court to meaningfully adjudicate the controversy in the plaint are proper parties.

Further reliance was placed in the judgment of the Apex Court in the case of Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay.  Thus, in view of the above findings, the Court observed that the order of the ADJ needed no interference and did not suffer from any legal infirmity. Accordingly, the petition was dismissed. 

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