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2010 DIGILAW 1495 (CAL)

Anmol Biscuits (P) Ltd. v. Amar Chand Nag

2010-12-24

MRINAL KANTI SINHA

body2010
JUDGMENT 1. HEARD the learned Advocates appearing for the parties. This revisional application has been directed against the Order No. 60 dated 13th February, 2007 passed by Sri R. Chakraborty, learned Civil Judge (Senior Division), 4th Court at Alipore in Title Suit No. 60 of 2001, whereby the learned Civil Judge concerned has rejected the petition of the defendant No. 5 under Order 1 Rule 10(2) read with Section 151 of the CODE OF CIVIL PROCEDURE, 1908 praying for expunging or striking out the name of the defendant No. 5 Company from the cause title of the plaint. 2. IT is the case of the applicant/defendant No. 5 that the opposite party No. 2 M/s. Golden Biscuits Co. Pvt. Ltd. was the defendant No.1 and opposite party No. 2 was the absolute owner of the factory premises at Panchghara. The West Bengal Financial Corporation (WBFC) had charge over said property and the said defendant-company in liquidation was wound up by an order dated March 10, 1999 passed by the Hon'ble High Court, Calcutta and the official liquidator was directed to take possession of the assets of the defendant No. 1 company/opposite party No. 2 including this said factory premises. During pendency of the said winding up proceeding the said Corporation took notional possession of the land and machinery of the said company in liquidation on October 16, 1998, and formal possession was taken on December 8,1988. Pursuant to an application filed by the said Corporation, Hon'ble High Court, Calcutta, by an order dated October 4, 1999, granted liberty to the said Corporation to sell the plant and machinery and other assets of the said company subject to confirmation of sale by the Hon'ble High Court. The said order of winding up was recalled by the Hon'ble High Court by an order dated 3rd March, 2000 on the basis of terms of settlement arrived by and between the management of the company in liquidation and the creditor, and thereafter the assets of the company were repossessed by the Company in liquidation on March 22, 2000, and the said order of winding up was again revived on 12th June, 2001, but in view of the default committed by the company or opposite party No. 2 the said Corporation again took possession of assets and properties on 16th August, 2001. The said Corporation in pursuance of order of the Hon'ble High Court dated 4th October, 1999, conducted the sale and the sale was completed in favour of M/s. Anmol Snacks Limited, and by an order dated 2nd September, 2003, the Hon'ble High Court confirmed the sale in favour of Anmol Snacks Limited at price of Rs. 37.5 lakhs and the said Corporation handed over possession to the said purchaser M/s. Anmol Snacks Limited on 1st October, 2003 and since then the said M/s. Anmol Snacks Limited being the successful purchaser has been in possession of the assets and premises of the said factory as an absolute owner thereof. In view of the said circumstances the petitioner being a separate independent company having no nexus either with the said M/s. Anmol Snacks Limited or with the defendant/ opposite party No.2 and not in possession of the said factory premises at Panchghara, having independent legal entity and neither a subsidiary nor a sister concern of said M/s. Anmol Snacks Limited, and having respective memorandum of association and article of association and registered offices and factory at different places, is an unnecessary party and the present petitioner has illegally, wrongfully and improperly been made a party in the said suit though he is a unnecessary party in the said suit. The present applicant/ petitioner filed an application under Order 1 Rule 10 (2) read with Section 151 of the CODE OF CIVIL PROCEDURE, 1908 before the learned Court below praying for expunging or striking out the name of the petitioner-company from the cause title of the plaint of the said suit, but hearing the said application the learned Court below was pleased to reject the said application of the petitioner. 3. BEING aggrieved by and dissatisfied with the aforesaid Order No.60 dated 13th February, 2007, passed by Sri R. Chakraborty, learned Civil Judge (Sr. Divn.), 4th Court at Alipore, in Title Suit No. 60 of 2001 the present applicant/petitioner filed the present application under Article 227 of the Constitution of India on the ground that the learned Court below acted illegally and with material irregularity in exercise of its jurisdiction by rejecting the said application of the petitioner. 4. IT is to be considered in this matter as to whether the learned Civil Judge (Sr. 4. IT is to be considered in this matter as to whether the learned Civil Judge (Sr. Divn.), 4th Court at Alipore, was legal, correct and justified in passing the impugned order of rejection of the petition of the present applicant or not. Mr. Probal Kr. Mukherjee, learned Advocate appearing for the applicant/petitioner, has submitted that the present applicant M/s. Anmol Biscuits (P) Limited is an unnecessary party in the said suit as an independent company having its independent legal entity and the petitioner is neither a holding nor subsidiary or sister concern of said M/s. Anmol Snacks Limited and the present applicant and the said M/s. Anmol Snacks Limited have their respective memorandum of association at different places, and the learned Court below acted illegally and with material irregularity in exercise of its jurisdiction by mixing up the petitioner with the said M/s. Anmol Snacks Limited, and the name of the present applicant has improperly been joined as defendant in the said suit and the provisions of Order 1 Rule 10(2) of the CODE OF CIVIL PROCEDURE, 1908 clearly states that the Court may at any stage of the proceedings order that the name of any party improperly joined be struck out. 5. MRS. Mitul Chakraborty, learned Advocate appearing for the opposite party No. 1/ plaintiff, has submitted that the provisions of Order 1 Rule 10(2) of the CODE OF CIVIL PROCEDURE, 1908 also provides for adding a party whose presence before the Court may be necessary in order to enable the Court to effectually and completely adjudicate upon and settle all the questions involved in the suit and in the instant case the addition of the applicant as a party has become necessary in view of the fact that the petitioner was found to be in possession of the factory premises at Panchghara, Begumpur, Durgapur Expressway, P.S. Chanditala, District Hooghly, when the process server of the Court went to serve the order of attachment dated 17th March, 2003, of the factory premises passed by learned Civil Judge, (Sr. Divn.), 4th Court, at Alipore, and the present applicant/defendant No. 5 was not only found to be in possession but they were also carrying on their business from the said factory premises of the defendant/opposite party No.2 and the some of the directors of the applicant company and the defendant/opposite party No.6, alleged to be the sister concern of the defendant/opposite party No.5, are same and having the same registered office at 229, AJC Bose Road, 'Crescent Tower', 6th Floor, Kolkata-700 029 and the factory premises at Panchghara and at Maity Para, Dankuni, District Hooghly, West Bengal. 6. IT has also been submitted by the learned Advocate for the opposite party No. 1/plaintiff that the applicant was aware of the proceeding when the notice of attachment of immovable property was served upon the petitioner at the factory premises at Panchghara by the process server of the Court in terms of direction by the learned Civil Judge, (Sr. Divn.), 4th Court, at Alipore, but the said order of attachment has not been challenged by the present applicant nor the present applicant/defendant No. 5 has challenged the order dated 17th March, 2003, by which the applicant/defendant No.5 was added as a party as defendant No. 5, rather the applicant/defendant No.5 appeared in the said suit by filing Vokalatnama and prayed for time to file written statement and thereafter as per the advise of the learned Advocate of the trial Court filed the present application seeking striking out its name from the plaint with the sole intention and motive of delaying the proceeding of the suit, and as such the present revisional application filed by the defendant No. 5 is liable to be dismissed with costs. It is not disputed or rather admitted that the opposite party No.1/plaintiff filed a suit for specific performance of contract as well as for damages/compensation, loss, and injunction before the learned Civil Judge, (Sr. Divn.), 4th Court, at Alipore, against the defendant/opposite party Nos. It is not disputed or rather admitted that the opposite party No.1/plaintiff filed a suit for specific performance of contract as well as for damages/compensation, loss, and injunction before the learned Civil Judge, (Sr. Divn.), 4th Court, at Alipore, against the defendant/opposite party Nos. 2,3,4 and 5 which was registered as Title Suit No. 60 of 2001 and in the said suit the opposite party No.1/plaintiff filed an application under Order 1 Rule 10(2) of the CODE OF CIVIL PROCEDURE, 1908 praying for adding the present applicant in the said suit as defendant No.5 and on the basis of said application learned Court below was pleased to allow the said application ex parte by an order dated 12th April, 2005, thereby adding the present applicant in the said suit as the defendant No.5 and thereafter defendant No. 6 was also added as a party or defendant No.6 in the said suit. 7. IT is not also disputed that the opposite party No. 1/defendant company was wound up in liquidation by an order dated 10th March, 1999 passed by the Hon'ble High Court, Calcutta and subsequently after several upheavals the assets and factory of the opposite party/defendant No.1 M/s. Golden Biscuits Company Private Limited was sold by West Bengal Financial Corporation, who had charge over the said property, to opposite party No.6 M/s. Anmol Snacks Limited as opposite party Nos. 2 to 5 failed to comply with the order of the Court to furnish bank guarantee to the extent of Rs. 20 lakhs in favour of the plaintiff in the order of attachment before judgment in respect of factory premises of the opposite party No.2/defendant No.1 situated at Panchghara, Begumpur Durgapur Expressway, P.S. Chanditala, District Hooghly. 2 to 5 failed to comply with the order of the Court to furnish bank guarantee to the extent of Rs. 20 lakhs in favour of the plaintiff in the order of attachment before judgment in respect of factory premises of the opposite party No.2/defendant No.1 situated at Panchghara, Begumpur Durgapur Expressway, P.S. Chanditala, District Hooghly. But while it is the case of the present applicant that the M/s. Anmol Biscuits (P) Limited has illegally, improperly been joined as defendant No. 5 in the said suit by an ex parte order of the learned Court below, though the present applicant M/s. Anmol Biscuits (P) Ltd. is neither a necessary nor a proper party in the said suit, then it is the case of the opposite party/plaintiff that the present applicant being a necessary and proper party has rightly been joined as a party or defendant No. 5 in the said suit and his presence is necessary for complete and effective adjudication of the said suit as well as for passing an effective decree in the said suit. 8. 8. FOR proper appreciation as to whether the present applicant is a necessary or proper party in the said suit and whether his presence is required for complete and effective adjudication of the said suit or for passing an effective decree in the said suit and whether the rejection of the prayer of the applicant to expunge or strike out his name from the cause title of the plaint was proper or not the provisions of Order 1 Rule 10(2) of the CODE OF CIVIL PROCEDURE, 1908 should be looked into, which reads thus:- "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." The primary meaning of a party is a litigant who has a power to play in the proceedings and a necessary party is one without whom no order can be made effectively, while a proper party is one whose presence is necessary for complete and final decision of the question involved in the proceedings, in other words, whose presence before the Court may be necessary in order to enable the Court effectively and completely to adjudicate upon and settle all the questions involved in the suit. 9. THE necessary consideration before the Court while determining the question of impleadment of a party to the proceeding is whether said party is necessary or proper party or presence of such party before the Court is necessary for complete and effective adjudication of the matter, even though no relief is claimed against such a party. 10. 9. THE necessary consideration before the Court while determining the question of impleadment of a party to the proceeding is whether said party is necessary or proper party or presence of such party before the Court is necessary for complete and effective adjudication of the matter, even though no relief is claimed against such a party. 10. IT has been submitted by the learned Advocate for the applicant that whether a "party is a necessary party or a proper party can be ascertained in view of two legal tests- (I) There must be right to relief against such party in respect of controversies involved in the proceedings and (II) No effective decree can be passed in absence of such party, and the present applicant was not a party to the agreement between the plaintiff and other defendants and there was no privity of contract between the applicant and the opposite party No. 1/plaintiff. But apparently fact remains as per the submission of the learned Advocate for the opposite party No. 1/plaintiff that present applicant has stepped into the shoes of their predecessor M/s. Golden Biscuits Company (P) Limited having its factory at Panchghara, Begumpur, Durgapur Expressway, P.S. Chanditala, District Hooghly. It is also the case of the present applicant that M/s. Anmol Snacks Limited is the absolute owner of the assets and properties of the said M/s. Golden Biscuits Company (P) Limited, which was wound up on liquidation, and said M/s. Anmol Snacks purchased the assets and properties of the said Golden Biscuit Company in a Court sale and said M/s. Anmol Snacks Limited-company has been added as a party in the said suit at the instance of the present applicant as per the averments of the present applicant. It is also apparent the applicant was not ignorant rather was very much aware about the developments of liquidation of the M/s. Golden Biscuits Company Limited and passing of the same into the hands of M/s. Anmol Snacks Limited. It is also apparent the applicant was not ignorant rather was very much aware about the developments of liquidation of the M/s. Golden Biscuits Company Limited and passing of the same into the hands of M/s. Anmol Snacks Limited. It is also apparent that the present applicant was added as a defendant in the said suit of the opposite party No. 1/ plaintiff, though by an ex parte order, which has not been challenged subsequently by the present applicant, and in which suit the applicant appeared as defendant No.5 and prayed for time for filing W.S. If it had no interest in the said suit, then surely it would not have appeared in the said suit and wanted to file W.S. nor he would have been reluctant to challenge the ex parte order adding him as a party in the said suit or prayed for time to file W.S. 11. A person may be added as defendant to the suit though no relief may be claimed against him provided his presence is necessary for a complete and final decision on the question involved in the suit. Such a person is only a proper party as distinguished from a necessary party. Whether the particular defendant is a proper party or not can only be decided after the defendant files his written statement and it has been so held by the decision reported in AIR 1989 Cal 398 , 399 in the case of Gunendra Kumar Das v. Dura Steamship Ltd. The basic principle is to be kept in view is that the plaintiff who is the dominus litis of the proceedings, is well within his right to proceed against any person whose presence he considers necessary for complete and effective adjudication of the subject-matter of his litigation. 12. 12. IN the instant case if it is found subsequently that plaintiff is entitled to get decree for damages and compensation also, which he has also claimed in his suit, then he will have to proceed against the present applicant also inasmuch as while going to serve writ of attachment as per order of the Court the process server found the present applicant to be in possession of the suit factory as per the case of the opposite party No. 1/plaintiff, and in that case even if the plaintiff is not a party to the agreement of the said suit for specific performance of contract, yet as because there is claim for damages and compensation also in the said suit, so the plaintiff has some claim of right to some relief against the present applicant also in respect of controversies involved in the proceedings and no effective decree also can be passed in the said suit in absence of the present applicant or defendant No. 5, inasmuch as the present applicant was found in possession of the suit premises, which as per the case of the present applicant devolved upon M/s. Anmol Snacks Limited only. Order 1 Rule 10 of the CODE OF CIVIL PROCEDURE, 1908 enables trial Court to add any person at any stage of the proceeding if the presence of such person is found to be necessary to effectively/completely adjudicate upon all the controversies involved in the case. 13. ANYBODY who has some interest in the subject-matter of the suit should be impleaded as a party as his presence will enable the Court to adjudicate upon the rival claims more effectively and completely. 14. IT also appears that though the applicant/defendant No. 5 has alleged that the applicant and M/s. Anmol Snacks Limited have their respective registered office and factory at different places and they have separate legal entities and the applicant is neither a holding nor subsidiary nor a sister concern of said M/s. Anmol Snacks Limited, yet it appears from the revisional application of the applicant that the applicant is well aware about the developments of M/s. Golden Biscuits Co. Pvt. Ltd. and sale of the same to M/s. Anmol Snacks Limited, and it is not also apparent that the present applicant has no concern with said M/s. Anmol Snacks Limited, rather it is apparent that some of the directors of the two companies are same and office and factory premises of the two companies are situated in the same premises, and whether the present applicant has any independent legal entity from said M/s. Anmol Snacks Limited and whether it is neither subsidiary nor sister concern nor holding of M/s. Anmol Snacks Limited, require to be proved by adducing evidence. It also appears that there would be no change in the character of the suit inasmuch as the plaintiff/opposite party No.1 has also claimed for damages and compensation by his suit and has not claimed any right, title and interest in the suit property by his suit. 15. THE expression in Order 1 Rule 10 of CODE OF CIVIL PROCEDURE, 1908 confers a Very wide discretion on the Court in the matter of addition or striking out parties even at a late stage, but the Court has no power to strike out the name of a defendant merely because the plaintiff has no cause of action against him. 16. IT has been decided by the decision reported in 2008 (13) Supreme Court Cases 658, in the case of Bharat Karsondas Thakkar v. Kiran Construction Company relied upon by the learned Advocate for the petitioner that a person who is not a party to sale agreement but who has acquired interest in the subject-matter of the sale agreement cannot be added as a party as addition of such party leads to change of the character of the suit, but in the instant case it appears that the defendant No. 5 has already been added as a defendant and he has prayed for expunging or striking out his name and the present applicant or the defendant No. 5 is also a party interested in this case inasmuch as he is concerned with the factory premises of defendant No.1 Golden Biscuits Co. Pvt. Ltd., which went on liquidation, and was sold and the present applicant or defendant No. 5 was found in possession of the premises of the said Golden Biscuit Co. Pvt. Ltd., which went on liquidation, and was sold and the present applicant or defendant No. 5 was found in possession of the premises of the said Golden Biscuit Co. Pvt. Ltd. when the process server of the Court allegedly went to the premises of the said company with regard an order of attachment before judgment and the facts and circumstances of the present matter and the aforesaid decision are not also similar. Learned Advocate for the applicant has relied upon the decision reported in 2006 (2) CHN 161 in the case of Kanta Devi Berlia v. Mohit Jhunjhunwalla and Ors. whereby it has been decided that what must be shown is the Court's need and not merely the applicant's interest and a third party or a stranger to the contract is neither necessary party nor proper party in a suit for specific performance of contract and he cannot be added as a party. But in the instant case though it appears that the matter relates to a suit for specific performance of contract, yet it also appears that there is claim for damages and compensation also, and in this case no third party himself has sought to be added in the suit of the plaintiff as a party, rather the plaintiff himself has prayed for adding the defendant No. 5 or the present applicant as a party in his suit on the ground that he is an interested party and his suit would be infructuous in case defendant No. 5 is not made a party, and he has already been made a party and even if the plaintiff obtains decree then that would be infructuous if the added defendant No. 5's name is struck out or expunged from the cause title of the plaint, and as dominus litis plaintiff is well within his right to pray for addition of a party, whose presence he considers necessary for effective and complete adjudication of his litigation. As such in this case even if the present applicant or defendant No. 5 is not treated as a necessary party, yet it cannot be denied that the present applicant or defendant No. 5 is a proper party in the said suit and its presence before the Court is necessary in order to enable the learned Court below to effectively and completely adjudicate and settle all the questions involved in the said suit as it has been stated to be in possession of the disputed premises and is aware about all the incidents of the disputed premise. The facts and circumstances of the case of the said decision and. the present case are not also similar. 17. IT has been decided by the decision reported in 2005 (6) Supreme Court Case 733 in the case of Kasturi v. lyyamperumal and Others that in a suit for specific performance of contract only the parties to contract or parties claiming under them or a person who has purchased the contracted property from the vendor with or without notice of the contract are only necessary parties and the persons who claim independent title and possession adversely to title of vendor is not a necessary party. But it has also been held thereby that necessary party is a party in whose absence no effective decree can be passed. In this case the present applicant has not claimed its addition in the suit as a party, nor it has claimed any adverse title or possession, to the title of the vendor, rather the plaintiff of the suit sought for his addition as a party and his prayer was allowed and the present applicant was added as a defendant in the said suit as defendant No. 5 and though ex parte order was passed in that regard, yet the defendant No. 5 did not challenge the said order of his addition as party in the said suit in time. IT also appears that the defendant No.5 has not also claimed any independent title and possession adversely to the title of the vendor in the said suit rather it appears that no effective decree can be passed in his absence in the said suit. 18. IT also appears that the defendant No.5 has not also claimed any independent title and possession adversely to the title of the vendor in the said suit rather it appears that no effective decree can be passed in his absence in the said suit. 18. LEARNED Advocate for the present applicant has relied upon the decision reported in 1995 (3) Supreme Court Cases 147 in the case of Anil Kumar Singh v. Shivnath Mishra @ Gadasa Guru and 2005 (11) SCC 403 in the case Amit Kumar Shaw and Another v. Farida Khatoon and Another and has submitted that the parties claiming through the parties of a suit are proper parties and a transferee can be joined as a proper party if his interest in subject-matter of the suit is substantial and not just peripheral, though plaintiff has no obligation to join such transferee. It has been decided by the decision in 2008 (12) SCC 316 in the case of Seenivasan v. Peter Jebaraj and Another, relied upon by the learned Advocate for the applicant that deemed date of commencement of the bar to transfer a property pendenti lite for a subsequently impleaded party would be governed by the principles of Order 1 Rule 10(4) and (5) of the CPC. And the sale was not hit by the principles of lis pendens. 19. IT has been decided by the decisions reported in AIR 1980 Punjab and Haryana 114 in the case of Sarup Chand v. Nagar Palika Sangrur and Others, relied upon by the learned Advocate for the opposite party/plaintiff that provisions of Order 1 Rule 10 of the Code of Civil Procedure confers wide discretion on the trial Court and if the trial Court exercises discretion in favour of the applicant, who wishes to be impleaded as a party, High Court in revision will not ordinarily interfere unless impleading of the party results in manifest failure of justice. But in this case it appears defendant No. 5 has already been added as a party as per prayer of the plaintiff/opposite party, who is the dominus litis of the litigation and as such free to choose whom he will make defendant in his suit or whom he will not, and no failure of justice has been caused thereby. 20. But in this case it appears defendant No. 5 has already been added as a party as per prayer of the plaintiff/opposite party, who is the dominus litis of the litigation and as such free to choose whom he will make defendant in his suit or whom he will not, and no failure of justice has been caused thereby. 20. IT has been decided by the decision reported in AIR 1989 Calcutta 398 in the case of Gunendra Kumar Das v. Dura Steamship Ltd. and Another relied upon by the learned Advocate for the opposite party/plaintiff that unless written statement is filed question whether defendant is necessary party cannot be decided and plaint cannot be rejected on the ground that such defendant has maliciously been added before written statement is filed. In the decision reported in 2006 (2) CHN in the case of Kanta Devi v. Mohit Jhunjhunwalla and Ors., relied upon by the petitioner for the opposite party/plaintiff. It has also been held that in case of addition of party what must be shown is Court's need and not merely applicant's interest, third party or stranger to the contract is not and necessary party or a proper party in whose absence no effective decree can be passed and there must have some right to relief of such party in respect of controversy involved in the proceeding, but it also appears that for effective adjudication of ail the controversies and questions of the said suit presence of the applicant was also necessary and no complete and effective decree can be passed in his absence. 21. 21. HAVING regard to the submissions of the learned Advocates for the parties and the above noted discussion it appears that the learned Court below was not wrong and has not done any illegality or irregularity in his finding that all the averments which have been raised by the defendant No. 5 that it has independent legal entity not being sister concern or subsidiary or holding of Anmol Snacks Ltd., require to be proved by adducing evidence and said order No. 46 dated 7.11.2005 has remained unchallenged and it can be assumed prima facie that at the time of attachment of the factory premises of the defendant No. 1, the present defendant No.5 was found to be in possession of the same and it also appears that some of the directors of two companies are same and defendant No. 5 has narrated details about the developments of the Golden Biscuits Co. and Anmol Snacks Limited and as such it appears that prima facie it is well aware about factual context and not that the defendant No. 5 company is totally ignorant and has been casually implicated and as such there is no reason to delete defendant No. 5's name at this stage and if the same is done then even if plaintiff initially succeeds in proving his case, it may be so that he would have infructuous decree in his hand. 22. IT also appears that the learned Court below was not also wrong and has not done any illegality or irregularity in his finding that the addition of the defendant No.5 in the said suit has not been done as an isolated fact vide order No. 46 dated 7.11.2005 and it has its route in the past and the factual background as reflected in the order No. 26 dated 17.1.2003 by which the defendants were directed to furnish bank guarantee of Rs. 20 lakhs within two months, failing which order of attachment would have been passed, and by order No. 31 dated 8.8.2003 the Court has noted the default of the defendant Nos. 20 lakhs within two months, failing which order of attachment would have been passed, and by order No. 31 dated 8.8.2003 the Court has noted the default of the defendant Nos. 1 to 4 for which the order of attachment was passed and when the attachment was executed the plaintiff came up with the petition under Order 1 Rule 10 of the C.P.C. stating that M/s. Anmol Biscuits Private Limited was found to be in possession of the factory premises of the defendant No.1 M/s. Golden Biscuits Co. and on the basis of that averments the order No. 46 dated .7.11.2005 was passed, and when the defendant No. 5 entered appearance initially he sought for leave on 20.3.2006 for filing written statement, and on the next date he came up with the instant petition under Order 1 Rule 10 (2) C.P.C, along with another prayer that it sought for time to file W.S. after disposal of the petition under Order 1 Rule 10(2) of the C.P.C. and said prayer of the defendant No. 5 was allowed, and it was ordered that order in respect of filing W.S. by defendant No. 5 will be passed after disposal of the petition under Order 1 Rule 10(2), C.P.C. When it appears that the present applicant was already added as a party as defendant No. 5 in the said suit on proper consideration of the materials-on-record and the defendant No. 5 appeared in the said suit without challenging the order of his addition as a party in time, though that order was an ex parte order, and the defendant No. 5 prayed for leave on 20.3.2006 for filing written statement, after addition of M/s. Anmol Snacks Ltd. as a party, and thereafter came up with the petition under Order 1 Rule 10(2) C.P.C. praying for expunging or striking out his name from the cause title from the plaint, then it appears that the learned Civil Judge, (Sr. Divn.), 4th Court, Alipore was legal, correct and justified in passing the impugned order. As such there is no reason to interfere with the impugned order of the learned Civil Judge (Sr. Divn.), 4th Court at Alipore, passed in Title Suit No. 60 of 2001 on the 13th February, 2007. 23. AS a result the revisional application fails and the impugned order stands. 24. ACCORDINGLY, the revisional application bearing CO. No. 1480 of 2007 is dismissed. Divn.), 4th Court at Alipore, passed in Title Suit No. 60 of 2001 on the 13th February, 2007. 23. AS a result the revisional application fails and the impugned order stands. 24. ACCORDINGLY, the revisional application bearing CO. No. 1480 of 2007 is dismissed. Interim order stands vacated. Considering the circumstances there will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the parties expeditiously.