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1996 DIGILAW 193 (CAL)

Partha Bose Roy v. Calcutta Tramways Company

1996-05-02

RAM PROKASH GUPTA, SUDHENDU NATH MALLICK

body1996
JUDGMENT Mallick, J. : In this Letters Patent appeal the plaintiff/appellant has challenged the order dated 21.3.94 passed in Suit No. 10 of 1994 by the learned Trial Judge thereby dismissing his application under Order 12 Rule 6 of the Code of Civil Procedure for judgment-on-admission for a part claim on the ground that the plaintiff ought to have filed the suit making the State Bank of India a party. The learned Trial Judge by the same order has, however, granted leave to the petitioner i.e. the present appellant to file a fresh application under Order 12 Rule 6 of the Code of Civil Procedure after making the State Bank of India a party to the suit. While passing the impugned order the learned Trial Judge was of opinion that the plaintiff having filed the suit without implaeding the State Bank of India as a party the suit would prima facie be bad for non- joinder of necessary party. 2. It has been asserted before us by Mr. Mallick, the learned Counsel appearing for the appellant that the Impugned order is wholly erroneous as the State Bank of India is not at all a necessary party to the suit brought by the appellant against the defendant/respondent the Calcutta Tramways Company Limited for realisation of dues for the works done for them under a contract of work in which the State Bank of India was neither a party nor was interested in the work done for the respondent. It is. however, admitted by Shri Mallick that the appellant has a cash credit facility account with the State Bank of India, Prince Anwar Shah Road branch in whose favour a general Power-of-Attorney was executed on 16.1.90 authorising the Bank to demand and receive all debts. sums of money etc. which may be due or payable or belong to the appellant and to sign and endorse all cheques promissory notes etc. or other orders for payment of money or delivery of property of every description to which the signature or endorsement of the appellant was necessary. It is further submitted by Shri Mallick that the State Bank of India did not take any step to collect the bills preferred by the appellant before the Calcutta Tramways Company and that at all material times the appellant raised the bills directly. It is further submitted by Shri Mallick that the State Bank of India did not take any step to collect the bills preferred by the appellant before the Calcutta Tramways Company and that at all material times the appellant raised the bills directly. It has been submitted by Shri Mallick that the learned Trial Judge without appreciating the legal and factual position that the State Bank of India was not at all interested in the subject matter of the suit or in the contract between the appellant and the respondent company has erroneously dismissed the application under Order 12 Rule 6 on the ground of non-joinder of necessary party and as such caused serious injustice to the appellant. 3. It appears that the defendant/respondent took a plea before the learned Trial Judge that during the pendency of the suit they received a letter from the State Bank of India, Prince Anwar Shah Road branch stating that the company should not make any payment to the appellant in respect of the work carried out by him for the defendant company. It further appears that the learned Trial Judge issued notice upon the Branch Manager of the State Bank of India, Prince Anwar Shah Road branch, Calcutta to clarify such a stand and that the Bank appeared before the Court and stated that the Bank had an irrecoverable Power-of-Attorney in its favour issued by the appellant to collect all his dues payable by the defendant company. On the basis of such submission and on bearing the parties the learned Trial Judge passed the Impugned order. 4. Before considering the merits of the Instant appeal we would like to deal with the preliminary objection taken by the learned Counsel appearing for the respondent that the present appeal is not maintainable under Clause 15 of the Letters Patent because -the impugned order is not a ‘Judgment’ as contemplated therein. 4. Before considering the merits of the Instant appeal we would like to deal with the preliminary objection taken by the learned Counsel appearing for the respondent that the present appeal is not maintainable under Clause 15 of the Letters Patent because -the impugned order is not a ‘Judgment’ as contemplated therein. In support of his contention that the impugned order under appeal is not a ‘Judgment’ Shri Bhattacharjee the learned Counsel for the respondent has referred to the following decisions of this High Court and-a decision of the Allababad High Court :- (1) AIR 1959 Calcutta page 62, Narendra Nath Dutt v. Jitendra Nath Dutt and Others; (2) AIR 1960 Calcutta page 190, Union of India v. Khetra Mohan Banerjee; (3) AIR 1987 Calcutta page 134, Dena Bank v. Betram Scott (India) Ltd. (In Liqn.); (4) AIR 1953 Allahabad page 647; Vishnu Pratap v. Revati Devi. 5. Shri Bhattacharjee has also referred to a decision of the Supreme Court reported in (5) AIR 1981 SC page 1786, Shah Babulal Khimji v. Javaben D. Kania and Another. It has been contended by Shri Bhattacharjee that by the impugned order no rights between the parties have been decided and that there has been no final adjudication of the rights of the parties and that as such the impugned order is not an appealable order under Clause 15 of the Letters Patent. But none of the decisions relied upon by Shri Bhattacharjee tend to support his contention before us. In the Allahabad High Court case referred to above it has been held that a ‘Judgment’ means an adjudication which conclusively determines the rights of the parties and not a mere interlocutory order during the pendency of a case. In that case the Allahabad High Court held that the order passed by the learned Single Judge was mere interlocutory order and as such an appeal was not maintainable under the. Letters Patent. In the aforesaid Allahabad High Court case the Supreme Court's decision in the case of (6) Ashrumati Devi v. Kumar Rupendra Deb Ratkot reported in AIR 1953 SC page 198 was considered. In Ashrumati's case it has been held by the Supreme Court that a decision on any and every point in dispute between the parties to a suit is not necessarily a ‘Judgment’. In Ashrumati's case it has been held by the Supreme Court that a decision on any and every point in dispute between the parties to a suit is not necessarily a ‘Judgment’. In Ashrumati's case an order of transfer of a case was challenged and the Supreme Court was of the view that such an order passed by a Single Judge of the High Court is not a ‘Judgment’ so as to be appealed against under Clause 15 of the Letters Patent. But the Supreme Court has also clarified that an order for transfer cannot be placed in the same category as all order rejecting a plaint or one dismissing a suit on a preliminary ground because in the latter case the suit is completely at an end and it is immaterial that another suit could be filed in the same or another Court after removing the defects which led to the order of rejection. In the case reported in AIR 1959 Calcutta page 62 it has been held that an order allowing the amendment of the written statement is not a ‘Judgment’ under Clause 15 of the Letters Patent and as such is not appealable. In the case reported in AIR 1960 Calcutta page 190 it has been considered what amounts to a ‘Judgment’ for the purpose of an appeal under Clause 15 of the Letters Patent. It has been observed that the Principal test would be whether in the impugned decision the cardinal or major issues have been decided finally affecting the rights of the parties. In the case reported in AIR 1987 Calcutta page 134 it has been held that an order dismissing an application for amendment of decree on the ground that there was mistake in plaint about description of property is not a ‘Judgment’ within Clause 15 of the Letters Patent because it does not determine any right. So the main test to determine whether an impugned order is a ‘Judgment’ or not under Clause 15 of the Letters Patent is to ascertain whether such order amounts to a final adjudication of the rights to the parties asserted before the Court. The Supreme Court in its judgment reported in AIR 1981 SC page 1786 has elaborately discussed the issue with reference to the Clause 15 of the Letters Patent and in our opinion the above decision of the Supreme Court has finally settled the issue. The Supreme Court in its judgment reported in AIR 1981 SC page 1786 has elaborately discussed the issue with reference to the Clause 15 of the Letters Patent and in our opinion the above decision of the Supreme Court has finally settled the issue. It has been held by the Supreme Court that whenever a Trial Judge decided a controversy which affects valuable rights of one of the parties, it must be treated to be a judgment within the meaning of the Letters Patent. According to the Supreme Court every interlocutory order cannot be regarded as judgment but only those orders would be judgment which decides matters or moment or affect vital and valuable rights of the parties and which work serious injustice to the party concerned. In para 120 of the judgment the Supreme Court has given a list illustrations of interlocutory orders which may be 'treated as judgment for the purpose of Clause 15 of the Letters Patent. It has been held there that an order rejecting an application for judgment-on-admission under Order 12 Rule 6 of the Code of Civil Procedure is a ‘Judgment’ against which an appeal lies under Clause 15 of the Letters Patent. By the impugned order the learned Trial Judge has dismissed the appellant's application under Order 12 Rule 6 without going into the merits on the ground that the State Bank of India, Prince Anwar Shah Road branch. Calcutta should have been made a party to the suit which would fall for being bad for non-joinder of necessary party. Shri Bhattacharjee appearing for the respondent has contended that by the impugned order the learned Trial Judge has given liberty to the appellant to file a fresh application under Order 12 Rule 6 after making the State Bank of India a party to the proceeding and as such the instant appeal should not be held to be maintainable. We fail to appreciate such contention in view of the Supreme Court's judgment in Khimji’s case that an order of rejection of an application for a judgment-on-admission under Order 12 Rule 6 of the Code of Civil Procedure is appealable. It makes no difference if the learned Trial Judge has dismissed the application under Order 12 Rule 6 without going into the merits, although at the same time giving liberty to file a fresh application on removing the defect of parties (vide Ashrumati's case, supra). It makes no difference if the learned Trial Judge has dismissed the application under Order 12 Rule 6 without going into the merits, although at the same time giving liberty to file a fresh application on removing the defect of parties (vide Ashrumati's case, supra). 6. The Impugned order, as has been rightly pointed out by Shri Mallick has affected the vital and valuable right of the appellant in the suit causing serious injustice to him. There is no point in saying that the appellant can file a fresh application by making the State Bank of India a party thereto as desired by the learned Trial Judge, Accordingly, we find that the instant appeal is quite maintainable in law under Clause 15 of the Letters Patent. 7. Now the question is whether the learned Trial Judge is correct in his finding that the State Bank of India, Prince Anwar Shah Road, Calcutta is a necessary party to the suit. In the impugned order the learned Trial Judge has nowhere given any reason why the State Bank of India, Prince Anwar Shah Road branch should be treated as a necessary party to the suit. The Power-of-Attorney (vide page 223 of the paper book) does not disclose or incorporate the contract between the appellant and the respondent company (vide page 17 of the paper book). Nor any payment arising out of the said contract has been assigned to the State Bank of India under the said Power-of Attorney. There is no privity of contract between the appellant, and defendant on the one hand and the State Bank of India on the other regarding the subject matter or the suit pending in the Court below. The Bank has nowhere claimed any in dependent interest in the payment to be made by the respondent company to the appellant on the basis of their contractual agreement regarding the works done by the appellant for them. Under the Power-of-Attorney the Bank is only a collecting agent. This cannot prevent the plaintiff/appellant to bring a suit against the defendant company for payment of outstanding dues or for filing an application Order 12 Rule 6 of the Code of Civil Procedure for a post claim to which he may be entitled subject to the determination of the Trial Court. This cannot prevent the plaintiff/appellant to bring a suit against the defendant company for payment of outstanding dues or for filing an application Order 12 Rule 6 of the Code of Civil Procedure for a post claim to which he may be entitled subject to the determination of the Trial Court. Order 1 Rule 1 and Order 1 Rule 3 of the Civil Procedure Code clearly provide who may be joined as plaintiffs or as defendants in one suit. By applying the test as per provisions of Order 1 Rule 1 and Order 1 Rule 3 of the Code of Civil Procedure It cannot be said that State Bank of India should either be impleaded or as a plaintiff or as a defendant in the suit pending in the Court below brought by the appellant against the respondent company. Shri Bhattacharjee has admitted that the State Bank of India is not entitled to bring a suit for realisation of its dues against the respondent company and that the Bank has no independent right to get itself impleaded in the suit pending in the Court below. We also find that the Bank has never prayed before the Trial Court to add it as a co-defendant or as a co-plaintiff. Under the circumstances and in view of the above propositions of law we are of the opinion the learned Trial Judge ill wrong in his view that the State Bank of India is a necessary party to the suit, that the suit would be bad for non-joinder of necessary party the impugned order of rejection of the appellant's application under Order 12 Rule 6 of the Code of Civil Procedure on the ground of defect a party is Improper and bad in law. To hold that because the State Bank of India, Prince Anwar Shah Road branch has asked the respondent company, to stop all payments to the appellant on the basis of a Power-of-Attorney appointing the former as the collecting agent of the latter, it (i.e. the Bank) should be treated as a necessary party to the suit or the suit would be bad for non- joinder of necessary parties and in that in view of the matter the application under Order 12 Rule 6 should be dismissed outright is neither ligic nor law. We are of opinion that the State Bank of India, Prince Anwar Shah Road branch is not at all a necessary party or proper party to the suit pending in the Trial Court and that on the ground of defect of party the learned Trial Judge should not have dismissed the appellant's application under Order 12 Rule 6 of the Civil Procedure Code. Mr. Mallick while referring to Section 99 and Section 141 of the Code of Civil Procedure insisted that the application under Order 12 Rule 6 of the Code of Civil Procedure should be disposed of by this bench on merits. But in our view Section 99 of for that matter Section 141 of the Code of Civil Procedure can have no application to sustain the contention of Shri Mallick. As the learned Trial Judge has dismissed the application under Order 12 Rule 6 of the Code of Civil Procedure on technical ground without going into the merits of the case contained therein, it would be proper to direct the learned Trial Judge to dispose of the said application on merits. Under the circumstances we allow the appeal on contest without cost. The impugned Judgment/Order of the learned Trial Judge dismissing the appellant's application under Order 12 Rule 6 of the Code of Civil Procedure is set aside. The said application be restored to file and we direct that the said application be disposed of on merits after giving both the parties an opportunity of bearing according to law as early as possible, preferably within four weeks from the date of reopening of this High Court after the summer holidays this year. All the parties are to act on a signed copy of the operative part of this Judgment to be issued by the Assistant Registrar (Court) on usual -undertaking. Gupta, J.: I agree.