Full Text
% 30.8.2011
Present: Mr.Bhuvan Gugnani,Advocate for the petitioner.
+CM No.l6195/2011(for exemption)in CM No.1006/2011
*
Allowed subject tojust exceptions.
CM No.1006/2011 & CM No.l6194/2011(for stay)
The order impugned before this Court is the order dated
26.7.2011 vide which the application filed by the defendant under
Order 1 Rule 10 of the Code of Civil Procedure (hereinafter referred to as 'the Code') seeking impleadment of Kamal Bansal had been dismissed.
The averments made in the application under Order 1 Rule
10 of the Code have been perused. Contention is that although the suit admittedly has been filed Pawan Kumar Bansal as proprietor of
M/s Bansal Sales Corporation yet on 23.11.2007 Kamal Bansal on behalf of M/s Bansal Sales Corporation had given a letter dated
23.11.2007 in full and final settlement of the claims of the parties; contention is that in these circumstances Kamal Bansal has become a necessary party and his impleadment has become imperative.
Learned counselfor the petitioner to support his submission placed reliance upon ajudgment of Apex Court reported in (199w)2 SCC
JUDGMENT
524 Ramesh Hirachand Kundanmal Vs. Municipal Corporation of 2011:DHC:7633 2^ GreaterBombay; submission being that presence of Kamal Bansal would be necessary to prevent multiplicity of proceedings keeping in view the further fact that Kamal Bansal has already come into witness box and denied the signature on the aforenoted letter dated 23.7.2011. The provision of Order 1 Rule 10 of the Code is no doubt a provision which is available for the impleadment of new parties and the court may suo moto also resort to this provision oflaw in order to avoid multiplicity of action where a person has become a necessary party. The test is that without the presence ofthat party the controversy in dispute cannot be adjudicated upon and the prayer made in the plaint cannot be answered. However, a distinction has to be drawn between a person who is necessary party and whose evidence may be relevant to resolve the dispute. In the instant case Kamal Bansal at best can be treated as a relevant witness. Defendant is at liberty to call him into witness box to examine or seek answer on the aforenoted letter dated 23.11.2007. The present suit has been filed by Pawan Kumar Bansal as proprietor of M/s Bansal Sales Corporation; the averments in the plaint show that all the transactions between the aforenoted three defendants was with the plaintiff alone; even if a letter written on behalf of an employee or an agent of the plaintiff is a document which is being relied upon, it would in no manner be necessary that the said person or agent become a necessary party. The impugned order has noted the above contentions in the correct perspective. The impugned order calls for no interference. Dismissed. INDERMEET KAUR,J. AUGUST 30,2011 nandan
JUDGMENT