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1981 DIGILAW 897 (ALL)

State of U. P. v. Bank of Maharashtra Ltd. , Bombay

1981-09-29

T.S.MISRA

body1981
ORDER T.S. Misra, J. - This revision is directed against an order dated 6-9-1979 whereby the defendant-opposite-party's application was allowed and the plaintiff was directed to move within 15 days an application for amendment in the plaint so as to implead M/s. S. B. Joshi & Co. Ltd., also as defendant. 2. It appears that the State of U. P., filed a suit in the Court below against the Bank of Maharashtra Ltd., Bombay, for a decree for Rs. 10,21,250.00 alleging in the plaint that on 14-2-1964 the Superintending Engineer, VIII Circle, P.W.D. (Bridge) Lucknow, issued a tender notice inviting tenders for the construction of the bridge across river Ganga at Allahabad. M/s. S. B. Joshi & Co. Ltd., had submitted its tender which was accepted on 16-2-1966 for the tide girdar prestressed concrete design for a sum of Rs. 204.25 Lakhs, and the acceptance was communicated by letter dated 26-2-66. In terms of the acceptance of tender the Firm S. B. Joshi & Co. Ltd., was required to deposit 5% as security deposit which amounted to Rs. 10,21,250.00 on the total cost of construction amounting to Rs. 204.25 lakhs. For the fulfilment of the aforesaid terms of agreement between the State and M/s. S. B. Joshi & Co. Ltd., the* defendant Bank of Maharashtra Ltd., executed a bank guarantee for the said sum of Rs. 10,21,250.00 and undertook to indemnify and keep indemnified the plaintiff to the extent of Rs. 10,21,250.00 against any loss or damage caused to or suffered by the plaintiff by reason of any breach by the contractor M/s. S. B. Joshi & Co. Ltd., of any of the terms and conditions contained in the agreement executed between the plaintiff and the contractor M/s. S. B. Joshi & Co. Ltd. It is said that the contract was ultimately terminated on 3-2-73 and a penalty of Rs. 20,42,500.00 was imposed and as M/s. S. B. Joshi & Co. Ltd., did not deposit the said amount the bank guarantee for Rs. 10,21,250.00 given by the defendant was enforced and a letter demanding the payment of the said amount was sent to the defendant which the defendant failed to comply. In para 10 of the plaint it has been stated that under the terms of the bank guarantee issued by the defendant, the defendant is liable to pay the said amount of Rs. In para 10 of the plaint it has been stated that under the terms of the bank guarantee issued by the defendant, the defendant is liable to pay the said amount of Rs. 10,21,250.00 to the plaintiff since the contractor M/s. S. B. Joshi & Co. Ltd., committed a breach of the terms and conditions of the agreement entered into between M/s. S. B. Joshi & Co. Ltd., and the State of U. P., the plaintiff, as a result of which the contract given to M/s. S. B. Joshi & Co., was rescinded and a penalty of Rs. 20,42,500.00 was imposed on the said Company which the said Company, (M/s. S. B. Joshi & Co. Ltd.) failed to pay to the plaintiff-State of U. P. The defendant filed an application before the trial Court under O. I, R. 10, C.P.C., with a prayer that the said M/s. S. B. Joshi & Co. Ltd., be also impleaded as a defendant in the case. This application was opposed by the State of U. P., the plaintiff. The Court below has allowed that application holding that the said M/s. S. B. Joshi & Co. Ltd., is a necessary as well as proper party to the suit. Aggrieved by that order the plaintiff State of U. P. has preferred this revision petition. 3. For the revisionists it was submitted that M/s. S. B. Joshi & Co. Ltd., was neither a necessary nor proper party to the suit and at any rate it was open to the State Government to implead any party it liked and seek relief against it and the State Government cannot be compelled to implead M/s. S. B. Joshi & Co. Ltd., because no relief was sought for against it. This plea was raised before the Court below as well but was repelled. The question which falls for determination is as to whether M/s. S. B. Joshi & Co. Ltd. was a necessary or a proper party to the suit. It is by now well settled that a necessary party is one without whom no order can be made effectively whereas a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding (vide Udit Narain Singh Malpaharia v. Addl. It is by now well settled that a necessary party is one without whom no order can be made effectively whereas a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding (vide Udit Narain Singh Malpaharia v. Addl. Member, Board of Revenue, Bihar, AIR 1963 SC 786 .) Under O.1, R.10 (2), C.P.C., 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. Thus O. 1 R. 10 (2), Civil P. C. enables the Court to add at any stage of the suit any necessary or proper party. In other words, if the Court considers that the presence of any person is necessary in order to enable it effectually and completely to adjudicate upon and settle all the questions involved in the suit that person being a proper party can be ordered to be impleaded at any stage of the proceedings. 4. In the case in hand the averments made in the plaint go to show that M/s. S. B. Joshi & Co. Ltd., is a proper party. It cannot, therefore, be said that the Court below has exercised its jurisdiction illegally or improperly in passing the impugned order. It was not the case of the revisionists that the Court below had no jurisdiction to decide the matter. It is well settled that the revisional jurisdiction of this Court is confined to cases of illegal or irregular exercise or non-exercise or illegal assumption of the jurisdiction by the subordinate Courts. If a subordinate Court is found to possess the jurisdiction to decide a matter, it cannot be said to exercise it illegally or with material irregularity even if it decides the matter wrongly. If a subordinate Court is found to possess the jurisdiction to decide a matter, it cannot be said to exercise it illegally or with material irregularity even if it decides the matter wrongly. In other words, it is not open to this Court while exercising its jurisdiction under S. 115, C.P.C., to correct errors of fact howsoever gross or even errors of law unless the errors have relation to the jurisdiction of the Court to try the dispute itself. Applying this principle the revision is liable to be dismissed. 5. The revision petition is accordingly dismissed with costs.