Sri Bhagavathy Dyes and Chemicals, 'Sri Padmam' vs Alleppey Parcel Service and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **FRIDAY, THE 19TH DAY OF JUNE 2020 / 29TH JYAISHTA, 1942** ## **OP(C).No.246 OF 2015(O)** **AGAINST THE ORDER IN O.S.827/2010 OF SUB COURT, ERNAKULAM** ## **PETITIONER:** **SRI BHAGAVATHY DYES AND CHEMICALS, 'SRI PADMAM', 4/500 U, P.V.SREEDHARAN ROAD, KUMBALAM P.O, KOCHI 682 506, REPRESENTED BY ITS PROPRIETOR, SRI.B.RAVINDRANATH.** ## **BY ADV. SRI.MILLU DANDAPANI** ## **RESPONDENTS:** **1 ALLEPPEY PARCEL SERVICE HEAD OFFICE, VAZHICHERRY JUNCTION, ALAPPUZHA 688 001, REPRESENTED BY SRI. T.T.KURUVILA, PROPRIETOR.** - **2 T.T.KURUVILA, PROPRIETOR, M/S. ALLEPPEY PARCEL SERVICE, VAZHICHERRY JUNCTION, ALAPPUZHA 688 001.** - **3 SOMAN, REGIONAL MANAGER, M/S. ALLEPPEY PARCEL SERVICE, T.D ROAD, ERNAKULAM 682 035.** **(Addl.defendants sought to be impleaded)** - **4 P.K.VIJAYAN, S/O.GOVINDAN NAIR, PROPRIETOR, M/S. V.N.H TRADERS, NEELAMBARI, DAVI APARTMENTS, ROOM NO.3, K.PURAM, THANOOR, MALAPPURAM 676 107.** - **5 K.MOHAMMED ASHRAF HAJI S/O.LATE MOHAMMED HAJI, KAINIKKARA HOUSE, MUSTHAFA MANZIL, PAN BAZAR, THIRUR, 676 101.** **R1-2 BY ADVS. SRI.ANTO THOMAS** **SRI.V.SANTHARAM** **SRI.P.S.SISHOY SRI.LAKSHMEESH.S.KAMATH R4-5 BY ADVS. SRI.P.VENUGOPAL (1086/92)** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 19.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** OP(C).No.246 OF 2015(O) 2 **'CR'** ## **JUDGMENT** The parameters of the exercise of jurisdiction by a Trial Court to add or strike off parties in a pending suit, within the confines of Order X of the Code of Civil Procedure (CPC), has been called upon to be examined by this Court. 2. The plaintiff, in O.S.No.827/2010 on the files of the Sub Court, Ernakulam, has filed this Original Petition impugning Ext.P6 order, which allowed the impleadment of themselves sought for by respondents 4 and 5, who are strangers to the suit. According to the petitioner, Ext.P6 order could have been issued by the Court only under Order I Rule 10(2) of the CPC, but that nothing is stated therein to show how it entered into a finding that respondents 4 and 5 are necessary to be on the party array for it to effectively and completely adjudicate upon and settle the questions involved in the suit. 3. The petitioner alleges that Ext.P6 order has mechanically accepted all the averments of respondents 4 and 5 and has allowed themselves to be impleaded as additional defendants merely saying that “having considered the rival contention of the parties, I find that I.A can be allowed for the OP(C).No.246 OF 2015(O) 3 just decision of the suit” (sic.). They assert that the impugned order does not satisfy the rigor of Order I Rule 10 (2) of the CPC and thus prays that the same be set aside. 4. I have heard Sri.Millu Dandapani appearing along with Smt.Meera Ramesh for the petitioner; Sri.V.Santharam, learned counsel appearing for respondents 1 and 2 and Sri.P.Venugopal, learned counsel appearing for respondents 4 and 5. 5. In response to the afore submissions made on behalf of the petitioner, Sri.V.Santharam commenced by saying that even though Ext.P6 does not detail the reasons that weighed in the mind of the learned Judge, the impleadment of respondents 4 and 5 are absolutely necessary, particularly when the pleadings on record would show that they are intrinsically involved in the transaction alleged by the petitioner. He submits that the consignments in question in the suit were released to the fourth respondent by his clients' agent, namely the fifth respondent, with the full concurrence and knowledge of the plaintiff/petitioner and therefore, that they could not have filed a suit against his clients alone, without impleading respondents 4 and 5. He says that it is, therefore, that the Court has found OP(C).No.246 OF 2015(O) 4 that they are necessary parties and, consequently, that the impugned order can only be construed to be one issued under Order I Rule 10(2) of the CPC. 6. Sri.P.Venugopal, learned counsel for respondents 4 and 5, affirmed the above submissions of Sri.V.Santharam, adding that his clients had been compelled to file the application to implead themselves in the suit because, otherwise, they apprehend that once a decree is issued against respondents 1 to 3, they will proceed against them for either return of the said amounts or for consequential damages, since the records involved in the case would show that the fifth among them had released the goods to the fourth among them with the knowledge and permission of the plaintiff. He says that unless respondents 4 and 5 are permitted to be on the array of parties, these aspects can never be brought to the notice of the Court and the Court may, therefore, enter in to an erroneous decision merely based on the assertions of the plaintiff. He adds to this by saying that, as is stated in the application for impleadment, namely Ext.P4, his clients had already paid substantial amounts to the plaintiff, which had been suppressed by them in the suit and resultantly, that their presence on the party array becomes imperative and unexpendable. He thus prays that this Original OP(C).No.246 OF 2015(O) 5 Petition be dismissed. 7. When I consider the afore submissions and evaluate them from the touchstone of the pleadings on record, I find certain grave problems with the impugned order issued by the Trial Court. This is because Ext.P6 order has been issued without adverting to or referring to Ext.P3 order earlier issued by the same Court. This order has vital importance in this matter because Ext.P3 was passed by the Trial Court on an application filed by respondents 1 to 3/defendants 1 to 3 to implead respondents 4 and 5 herein as additional defendants under the provisions of Order I Rule 10(2) of the CPC. The specific allegations of defendants 1 to 3 were that respondents 4 and 5 herein are necessary for the proper adjudication of the suit since they had released the consignment and had paid substantially to the plaintiff. However, the Trial Court issued Ext.P3 order rejecting their application and concluding, rightly or wrongly, that respondents 4 and 5 are not necessary for adjudication of the issues in the suit and left the question as to whether the suit is hit by the vice of non-joinder of necessary parties to be decided at the trial stage. 8. Since it is conceded before me by Sri.V.Santharam, OP(C).No.246 OF 2015(O) 6 learned counsel for respondents 1 to 3/defendants 1 to 3 that Ext.P3 order was never challenged and it remains unassailed even today, it is obvious that the attempt by the said defendants to implead respondents 4 and 5 had failed. 9. It is in this factual context that I am to assess the worth and merits of Ext.P6 order. 10. Through Ext.P6, what the Trial Court has done is to implead respondents 4 and 5 under Order I Rule 10(2) of the CPC, however, without saying so in the order; and it thus becomes rather evident that what the original defendants could not achieve through Ext.P3 has been now achieved on account of the suo motu application by respondents 4 and 5. There is something rather intriguing in this because the application does not say how respondents 4 and 5 came to be aware of the proceedings pending against the original defendants and this is more so because they have now volunteered to say in their application that they are responsible for the plaint amount, thus exonerating the original defendants completely, albeit, maintaining that the amounts due from them to the plaintiff is lower than what has been claimed in the suit. The approach of respondents 4 and 5 is virtually confessional in the sense that OP(C).No.246 OF 2015(O) 7 they accede responsibility for a part of the suit amount, while maintaining that the original defendants are not responsible for any portion thereof, further admitting that they are liable to pay amounts to the plaintiff, after adjusting the alleged sums already paid by them. 11. Even though I have recorded the above, I do not propose to say anything further since I am of the view that it will not be proper or prudent for this Court to affirmatively evaluate these issues at this stage, for the reasons I will presently state. 12. When one glances through the impugned order, it is indubitable that it could have been issued by the Trial Court only under Order I Rule 10(2) of the CPC which is as below: “Court may strike out or add parties - The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party 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.” 13. The ambit of the afore provision grants the Trial Court wide powers in admitting any person as an additional party in OP(C).No.246 OF 2015(O) 8 the suit, if it is found necessary for an effective adjudication of the issues in the suit. For this, the Court does not even require an application to be made by either party and it can on its own do so, provided, it is convinced that it is necessary in order to enable the Court to effectually and completely adjudicate upon and settle all the questions involved in the suit. Hence, what is vitally important is that the Court must arrive at a considered opinion, either on the application of the parties on its own, that it is necessary to bring on record an additional party for an effective and complete adjudication and decision of the questions involved in the suit. Without such a decision being arrived at, it is certain that no Court can allow the impleadment of an additional party and the opinion of the Court to such effect must certainly be discernible from the order itself. 14. However, the impugned order does not say how and in what manner the Court has found the presence of respondents 4 and 5 in the array of defendants to be necessary for the adjudication of the suit; nor does it say how the said order could have been issued when it was earlier found by the same Court, through Ext.P3 order, that they are not necessary parties. OP(C).No.246 OF 2015(O) 9 15. It is, therefore, that I am of the firm opinion that the application of respondents 4 and 5 to implead themselves, namely Ext.P4, requires to be reconsidered by the Trial Court taking note of my observations above and after affording necessary opportunities to both sides. 16. I, however, deem it appropriate to clarify that I have not considered if respondents 4 and 5 should be impleaded or otherwise on its merits, since it will be up to the Trial Court to decide this strictly within the confines of Order I Rule 10 (2) of the CPC and it is certainly at liberty to take an independent decision thereon, adverting to Ext.P3 order, since the present application has been filed by the said respondents to come on record stating that, otherwise, they are liable to be put to prejudice. While doing so, the Trial Court will necessarily also be guided by the various judgments covering the field, particularly **Salim v. Saru Umma** [2011 (3) KLT 280] and **Pankajbhai Rameshbhai Zalavadiya v. Jethabhai Kalabhai Zalavadiya** [(2017) 9 SCC 700], which had been cited by Sri.V.Santharam at the Bar in support of his contentions that notwithstanding Ext.P3 order, the Trial Court is bound to consider Ext.P4 impleading application, since this is one filed by third parties and not by an existing defendant. OP(C).No.246 OF 2015(O) 10 Consequentially, the Trial Court will issue appropriate orders on Ext.P4 application in the manner ordered above as expeditiously as is possible, but not later than three months from the date of receipt of a copy of this judgment, after affording necessary opportunities to both sides. This original petition is thus ordered. **Sd/- DEVAN RAMACHANDRAN** Stu **JUDGE** OP(C).No.246 OF 2015(O) 11 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1 COPY OF THE PLAINT IN OS 827/10 ON THE FILES OF THE SUB COURT, ERNAKULAM.** - **EXHIBIT P2 COPY OF THE WRITTEN STATEMENT OF DEFENDANTS 1 TO 3 IN OS 827/10 DATED 31.1.11.** - **EXHIBIT P3 COPY OF THE ORDER DATED 12.4.13 IN IA 7400/11 ON THE FILE OF SUB COURT, ERNAKULAM.** - **EXHIBIT P4 COPY OF THE AFFIDAVIT AND PETITION, IA 3284/13 IN OS 827/10 ON THE FILES OF SUB COURT, ERNAKULAM FILED ON 29TH JUNE 2013.** - **EXHIBIT P5 COPY OF THE OBJECTION IN IA 3284/13 IN OS 827/10 FILED BY THE COUNSEL FOR THE RESPONDENT ON 24.7.13.** - **EXHIBIT P6 COPY OF THE ORDER DATED 31.3.14 IN IA 3824/13 IN OS 827/10 ON THE FILES OF THE SUB COURT, ERNAKULAM.** ## **RESPONDENTS' EXHIBITS** - **EXHIBIT R2(a) COPY OF I.A.NO.7400/11 IN OS 827/10 FILED BY RESPONDENTS 1 & 2.** - **EXHIBIT R2(b) TRUE COPY OF THE OBJECTION IN I.A.NO.7400/2011 FILED BY THE COUNSEL FOR THE PLAINTIFF.** - **EXHIBIT R2(c) TRUE COPY OF THE WRITTEN STATEMENT DATED 01.07.2014 FILED BY THE ADDL.RESPONDENTS 4 AND 5 IN O.S.NO.827/2010.** **EXHIBIT R2(d) TRUE COPY OF I.A.NO.2762/2013 IN O.S.NO.220/2011 FILED BY THE ADDL.RESPONDENTS 4 & 5.** **EXHIBIT R2(e) TRUE COPY OF THE ORDER DATED 31.03.2014 IN I.A.NO.2762/2013 IN O.S.NO.220/2011.** **EXHIBIT R2(f) TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE ADDL. RESPONDENTS 4 AND 5 IN O.S.NO.220/2011.** //TRUE COPY// P.A TO JUDGE.