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2012 DIGILAW 752 (CAL)

ANIIDCO Limited v. DYC Self Help Group

2012-08-08

SOUMITRA PAL

body2012
JUDGMENT In this revisional application under Article 227 of the Constitution of India, the petitioner, who is the plaintiff in the suit, has challenged the order dated 19.3.2012 passed in Money Suit No.17of 2011 (ANIIDCO Limited Vs. M/s DYC Self Help Group and another), whereby the learned Civil Judge(Senior Division) at Port Blair had allowed the application under Order 1 Rule 10(2) of the Code of Civil Procedure, 1908 striking out the name of the opposite party, that is the defendant no.2, from the suit filed by the plaintiff. 2. It is submitted by Ms. Nag, the learned advocate for the petitioner, that the order under challenge should not have been passed as in view of the statements made in the plaint, particularly in paragraph 9 thereof, it is clear that the defendant no.2 is responsible. Referring to Order 1 Rule 10(2) of the Code, submission is that it has to be established by the said defendant no.2 that she has been improperly joined. Therefore, the order directing deletion of defendant no.2 can adversely affect the adjudication of the suit. In this context, reference has been made to section 6 and its proviso of the Societies Registration Act, 1860. In support of her submission, reliance has been placed on the judgment in R.L. Jain V. M/s K. Guha, 1998(2) Civil L.J. 631. 3. Mr. Rao, the learned advocate appearing on behalf of the opposite party submits that the order under challenge passed by the learned Civil Judge (Senior Division), Port Blair, allowing an application under Order 1 Rule 10(2) of the Code, directing striking out the name of the defendant no.2 is just and proper since his client did not enter into the agreement dated 31.8.2006 in her personal capacity. Moreover, it is evident from the cause title of the plaint that the defendant No.1 is represented by the Secretary Smt. Reena Balaiya, who has also been added in the plaint as defendant no.2 in her personal capacity. 4. Heard Ms. Nag for the petitioner and Mr. Rao for the opposite party. The question whether the defendant no.2 has been improperly joined or not should be considered in the background of the plaint in Money Suit No.17 of 2011. 4. Heard Ms. Nag for the petitioner and Mr. Rao for the opposite party. The question whether the defendant no.2 has been improperly joined or not should be considered in the background of the plaint in Money Suit No.17 of 2011. While dealing with the issue, it should be considered whether there is cause of action against the said defendant and whether it has been specifically pleaded in the plaint and consequently whether specific relief has been claimed against the said defendant. Moreover, it should be seen whether the said defendant has a direct link in the litigation and what role the defendant no.2 has to play for effective adjudication. 5. Perusing the plaint, I find neither there is any specific pleading as to the cause of action against the said defendant no.2 nor there is any specific prayer against the said defendant. Therefore, the learned Judge while passing the order dated 19.3.2012 was justified in holding that there was no personal liability of the defendant no.2 who was also representing as the Secretary of the defendant no.1. The judgment in R.L. Jain (supra) is not applicable as perusing the paragraph 4 I find therein not only specific pleadings were against the applicant/defendant no.5 but specific prayer was also made. So far as the applicability of section 6 and its proviso of the Societies Registration Act, 1860 is concerned, it is clear that under the statute a society may be sued in the name of its President, Chairman or through Secretary. In the instant case, as the defendant no.1 is represented by the Secretary and, as noted, the defendant no.2 has no role to play, it shows that the order passed was just and proper. 6. Therefore, in my view, no interference of the order dated 19th March, 2012 is called for and, therefore, the revisional application is dismissed. Urgent certified copy of this order, if applied for, be given to the parties forthwith.