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2013 DIGILAW 2266 (BOM)

Shaila Subrao Shetye v. Kunda Madhukar Shetye

2013-10-25

R.P.SONDURBALDOTA

body2013
JUDGMENT This petition arises out of the order dated 18th April, 2012 passed by the trial Court on the application preferred by the petitioners for deletion of respondents No.3, 4 and 5 from the suit on the ground of misjoinder of parties as also misjoinder of causes of action. 2. The petitioners are defendants no. 1 to 4 to Special Civil Suit No. 2 of 2012 filed by respondent no. 1 (the plaintiff). Respondent no. 2 is original defendant no. 5 and respondents no. 3 to 5 are original defendants no. 6 to 8. For convenience, the parties shall, hereinafter, be referred to by their original nomenclature. 3. The partnership Firm of M/s R.S. Shetye & Brothers (the "Firm" for short) was constituted in the year 1970 with members of Shetye family as it's partners. With passage of time, there have been changes in the constitution of the Firm. Until some time prior to filing of the suit, the partners of the Firm, by virtue of the partnership agreement dated 22nd January, 2004, were the plaintiff and defendants no. 1 to 4. Their respective shares in the Firm, were: the plaintiff - 34%, defendant no. 1-33% and defendants no. 2 to 4 together 33%. The business of the Firm is of mining. It holds mining lease in the name of "Deulem Mines". Defendant no. 7 has been appointed by the Firm as Raising Contractor for the purpose of extraction of ore. Defendant no.8 is the subcontractor of defendant no.7 and defendant no.6 is the exclusive purchaser of the ore from the said Mine under an agreement executed for the purpose. 4. By the letter of authority dated 2nd November, 2011, all the partners had authorised defendant no.5 to represent the Firm in all respects and communicate and correspond on behalf of the Firm. Pursuant to the authority, defendant no.5 by his letter dated 21st January, 2011, had called upon defendant no. 7 to suspend all the mining activities in the Firm's Mine with immediate effect in view of expiry of environmental clearances accorded to the Firm's mining lease. This step was taken by the Firm because of a letter received by it from Directorate of Mines and Geology and a notice received from the Goa State Pollution Control Board. 7 to suspend all the mining activities in the Firm's Mine with immediate effect in view of expiry of environmental clearances accorded to the Firm's mining lease. This step was taken by the Firm because of a letter received by it from Directorate of Mines and Geology and a notice received from the Goa State Pollution Control Board. The letter made reference to the judgment of this Court (Goa Bench) in Public Interest Litigation No. 6 of 2011 and appointment of Commission of enquiry headed by Justice M.B. Shah, retired Supreme Court Judge, to caution defendant no. 7 that apart from the notices received, there was continued investigation in progress, into violation of conditions of mining lease and environmental laws. Three days thereafter i.e. on 24th November, 2011, defendant no. 5 addressed another letter to defendant no. 7 alleging that continued grave illegalities in the operation of Mine by defendant no. 7 was very likely to affect the Firm's leasehold rights in respect of the Mine. In addition to the illegalities in operating the Mine, defendant no. 7 was in breach of contractual compliances. The lapses had been pointed out in the past and discussed in vain. Consequently, the Firm had lost confidence, faith and trust in the functioning of defendant no. 7. Therefore, the appointment as Raising Contractor of defendant no. 7 was withdrawn and the agreement dated 19th July, 2019 terminated forthwith. 5. On the very next day, the plaintiff issued a declaration purportedly on behalf of the Firm that the letter of authority dated 2nd November, 2011 in favour of defendant no. 5 was withdrawn in view of the notice of termination of agreement sent by him to defendant no. 7 She further declared that the agreement with defendants no. 6 to 8 is subsisting and that both the contractors are entitled to raise the iron ore in terms of the agreement. It appears that the plaintiff had thereafter by her letter dated 15th December, 2011 informed the Regional Controller of Mines and Deputy Superintendent of Police that the acts done by defendant no. 5, pursuant to the authority given to him by the partners of the Firm was unauthorised and contrary to the decision of the Firm. 6. Defendants no. It appears that the plaintiff had thereafter by her letter dated 15th December, 2011 informed the Regional Controller of Mines and Deputy Superintendent of Police that the acts done by defendant no. 5, pursuant to the authority given to him by the partners of the Firm was unauthorised and contrary to the decision of the Firm. 6. Defendants no. 1 to 4 in turn sent notice dated 21st December, 2011 expelling the plaintiff from the partnership Firm with immediate effect on the ground that her acts were against the interest of the Firm, prejudicial to the Firm and destructive of mutual confidence. They supported the action of defendant no. 5 stating that the decision of terminating the contract with respondents no. 6 and 7 was taken by the Firm on account of gross illegality committed by them which, according to the letter dated 19th August, 2011 of Deputy Controller of Mines, Goa, not only constituted an offence but also attracted action of suspension of mining operations. On the very next day i.e. on 22nd December, 2011, defendants no. 1 to 4 executed reconstituted deed of partnership. This led the plaintiff to issue public notice dated 23rd December, 2011 claiming that she continues to be a partner of the Firm and file Special Civil Suit No. 2 of 2012 in the month of February, 2011, against not only defendants no. 1 to 5 but also against defendants no. 6 to 8. 7. In the process of contesting the suit, defendants no. 1 to 4 filed two applications. One was under Section 8 of the Arbitration and Conciliation Act, 1996 for reference of the dispute for arbitration. This application was filed pursuant to clause 22 in the partnership agreement dated 22nd January, 2004. The said clause reads as under: "22. In the event of any dispute or disputes concerning the partnership or this deed and/or interpretation and/or enforcement of any of the terms and condition contained herein, the same shall be referred to arbitration and the provisions of the Indian Arbitration Act shall apply to such proceedings, each party having a right to nominate his/her own arbitrator and in the case of disagreement between the arbitrators so appointed and umpire to be appointed by the parties or by their arbitrators whose decision shall be final. Such proceedings shall take place at Panaji, Goa." The other was for deletion of defendants no. Such proceedings shall take place at Panaji, Goa." The other was for deletion of defendants no. 6 to 8 on the ground of misjoinder of necessary parties and misjoinder of causes of action. The order on the application for deletion of defendants no. 6 to 8 is impugned herein. 8. It will be convenient to notice at this stage the nature of the reliefs sought by the plaintiff in the suit and the cause of action pleaded in the plaint in support of the reliefs. In all, there are ten permanent reliefs sought in the suit. Four of which are for declarations and the remaining six are for permanent injunctions. Prayer clause (a) is for declaration that the plaintiff continues to be a partner of the Firm and the communication dated 21st December, 2011 and the reconstituted deed of partnership dated 22nd December, 2011 are null and void and of no legal consequence. Prayer cause (b) is for a declaration that defendant no. 5 has no authority to represent himself either as a partner of the Firm or as an authorised signatory of the Firm in pursuance of the letter of authority dated 2nd November, 2011. Prayer clause (c) is for declaration that all the acts done by defendant no. 5 on the basis of letter of authority dated 2nd November, 2011 are illegal and do not bind the partnership Firm or its partners. Prayer Clause (d) is for declaration that the notices of suspension and termination dated 21st November, 2011 and 24th November, 2011 respectively served upon defendant no.7 are illegal and not binding upon the plaintiff, defendants no. 1 to 4 and 7. Prayers (e) to (j) are for permanent injunctions. Prayer clause (e) is to restrain defendant no. 5 from posing as a partner of the Firm and interfering with the affairs of the Firm. Prayer clause (f) is for permanent injunction to restrain defendants no. 6 to 8 from taking any advantage of letters of suspension/termination to avoid discharge of their obligations under the agreement dated 19th July, 1999. Prayer clause (g) is to restrain defendants no. 1 to 5 from creating any third party rights in respect of the Mine without consultation with the plaintiff. Prayer clause (h) is for permanent injunction inter-alia to restrain defendants no. Prayer clause (g) is to restrain defendants no. 1 to 5 from creating any third party rights in respect of the Mine without consultation with the plaintiff. Prayer clause (h) is for permanent injunction inter-alia to restrain defendants no. 1 to 5 from acting in any manner prejudicial to the interest of the Firm and/or obstructing the plaintiff from carrying out the day-to-day business transactions and operations. Prayer clause (i) is to restrain defendants no. 1 to 4 from pursuing with intimation dated 26th December, 2011 to the Registrar of Firms, Panaji of the changes in the constitution of the Firm and prayer clause (j) is for permanent injunction to restrain defendants no. 1 to 4 from doing any act on behalf of the Firm without prior written consent and permission of the plaintiff. 9. The pleadings in the plaint in support of the above prayers are as follows: Since inception, the Firm was constituted in such a way as to afford representation to all the three branches of Shetye family. Initially the three branches were represented by the three brothers, Madhukar, Subrao and Gajanan. Even when the composition of the Firm underwent changes with passage of time, the representation between the three branches continued to be same. The plaintiff represents the branch of Madhukar. Defendant no. 1 represents the branch of Subrao. Defendants no. 2 to 4 jointly represent the branch of Gajanan. Defendant no.5 though belongs to the branch of Subrao is not a partner in the Firm. The business of the Firm is essentially based upon the mining lease for Deulem Mines. Since the year 1952, extraction of the ore from the Mine has been carried out by M/s Damodar Mangalji Group Concerns. The Firm has by the agreement dated 19th July, 1999 appointed defendant no. 7 as Raising Contractor. Defendant no. 8 works as a Sub-Contractor for defendant no. 7. By the agreement dated 19th July, 1999, the Firm has agreed and undertaken to sell ore from the Mine exclusively to defendant no. 6. The agreement is valid until 31st December, 2020. Thus from the year 1952, the ore from the Mine has been exclusively raised by Damodar Mangalji Concerns. Madhukar, the husband of the plaintiff, as the Managing partner was in effective management of the Firm. After his death, the plaintiff, his widow, has been in the management of the Firm. 6. The agreement is valid until 31st December, 2020. Thus from the year 1952, the ore from the Mine has been exclusively raised by Damodar Mangalji Concerns. Madhukar, the husband of the plaintiff, as the Managing partner was in effective management of the Firm. After his death, the plaintiff, his widow, has been in the management of the Firm. Under the management of Madhukar and the plaintiff, the Firm had been doing substantially well, earning good profits in crores of Rupees. Until November, 2011, there were no serious disputes or problems inter-se the partners. 10. Based upon the ruling of this court, in P.I.L. Writ Petition no. 6 of 2011, practically all the mining lessees including the Firm who had Environmental Clearances issued by Ministry of Environment and Forests (M.O.E.F.) had been issued notices by the authorities. The issues raised by the mining authorities concerned fresh Environmental Clearance from M.O.E.F and production of ore in excess of threshold limits prescribed in the Environmental Clearance issued by M.O.E.F. Thus, the notices received by the Firm were not by way of any exceptional case. The response submitted by the Firm to the notices was that the environmental clearance granted in respect of the Mine was still subsisting and valid and the ruling in P.I.L. Writ Petition was not attracted to the Firm. A challenge to the ruling of this court on the P.I.L. is pending in the Apex Court. In the circumstances, there was no reason for the Finn either to be alarmed or to apportion any blame upon defendants no 6 to 8 and thereby rock the relationship with them. The plaintiff therefore alleges that the act of terminating the contract with defendants no. 6 to 8 was a malafide act. She apprehends that defendants no. 6 to 8 may misuse the notices to avoid their obligations under the contract with the Firm. 11. The plaintiff alleges that the letter of authority dated 2nd November, 2011 given to defendant no. 5 who is son of defendant no. 1 and also her constituted attorney was for a very limited purpose of interacting with the mining authorities in the context of the notices issued by them. Defendant no. 5 was never authorised to taken any decisions on behalf of the Firm without consulting the partners. The letters addressed by defendant no. 5 to defendant no. 1 and also her constituted attorney was for a very limited purpose of interacting with the mining authorities in the context of the notices issued by them. Defendant no. 5 was never authorised to taken any decisions on behalf of the Firm without consulting the partners. The letters addressed by defendant no. 5 to defendant no. 7 had been without the knowledge of the plaintiff. There was no decision arrived at between the partners of the Firm for termination of the contract with defendants no. 6 to 8. Therefore, the notices do not bind the Firm and its partners. Defendant no. 5 had acted in total ignorance of the investments made by defendants no. 6 to 8 pursuant to the raising contract with them. 12. At para 32 of the plaint, the plaintiff alleges that on 24th November, 2011, defendant no. 5 parked his vehicle at the entrance gate of the Mine, thereby blocking access of defendants no. 6 to 8 into the Mine. He was accompanied by 300 gundas/hoodlums, many of whom had adorned uniforms of security personnel. With the help of those persons, he attempted to physically prevent defendants no. 6 to 8, their employees, workers from entering into the Mine. This was done by defendant no. 5 with the help of and at the behest of rival neighbouring mine owner. Therefore, the plaintiff by her declaration dated 25th November, 2011 withdrew the authority to defendant no. 5 and declared that the letters issued by him to defendants no. 6 to 8 were of no avail and parties are entitled to act on the basis of the agreements executed between them. Defendants no. 6 to 8 had made a complaint to the plaintiff about the acts of defendant no. 5, in particular of his attempt to interrupt the operations of the mine. The acts of defendant no. 5 has affected the extraction of the ore and mining operations. 13. The plaintiff alleges that the attempt on the part of defendants no. 1 to 4 to expel her from the Firm is mischievous, illegal and not binding upon her. Similarly, reconstitution of the Firm vide reconstituted deed of partnership dated 24th December, 2011 is also illegal. She has addressed detailed communication to defendants no. 1 to 4 protesting against her expulsion. There was also an attempt made by defendant no. 1 to 4 to expel her from the Firm is mischievous, illegal and not binding upon her. Similarly, reconstitution of the Firm vide reconstituted deed of partnership dated 24th December, 2011 is also illegal. She has addressed detailed communication to defendants no. 1 to 4 protesting against her expulsion. There was also an attempt made by defendant no. 5 to siphon off substantial amount of Rs.43,50,000/- from the bank account of the Firm by depositing it in the personal account of defendant no. 5. The plaintiff has initiated separate proceedings in connection with the same. She alleges that her expulsion is illegal, null and void. The plaintiff apprehends that breach of agreements with defendants no. 6 to 8 will lead to virtually ruin the business of the Firm. According to her, the location of mine is such that it cannot be operated without co-operation of defendants no. 6 to 8. The mines located on the East side and on the North side of Deulem Mines are in control of defendants no. 6 to 8. The ground for dumping of rejects is under the control of defendants no. 6 to 8. They have over the past six decades purchased rights of large number of surface owners and as such are in a position to make optimum use of ore extraction from the Mine and its consequent sale. The water pumped from the Mine is discharged through the properties belonging to Damodar Mangalji Group. The pumping of water is required to be done on daily basis. The Deulem Mine shares common boundaries with the mining leases controlled by defendants no. 6 to 8 to the extent of 1810 mtrs. In these circumstances, it is in the interest of the Firm to continue with the contractual relationship with defendants no. 6 to 8. Any breach of the relationship may saddle the Firm with litigation and lead to stoppage of mining operations. Eventually, the plaintiff as a partner of the Firm is likely to be exposed to the risks of personal liabilities to face civil and criminal proceedings. 14. On the background of above pleadings, defendants no. 1 to 4 in their application for deletion of defendants no. 6 to 8 from the suit contended that there was a clear misjonder of causes of action made in the plaint. 14. On the background of above pleadings, defendants no. 1 to 4 in their application for deletion of defendants no. 6 to 8 from the suit contended that there was a clear misjonder of causes of action made in the plaint. The cause of action related to suspension and termination of the plaintiff as a partner was distinct from the cause of action stated in the plaint against defendants no. 6 to 8. The two cannot be joined in one suit. Defendants no. 1 to 4 allege that, in fact, there is collusion between the plaintiff and defendants no. 6 to 8 in filing the suit and in indirectly challenging, through the plaintiff, the termination of the agreements by the Firm with defendants no. 6 to 8. Further, the status of a Raising Contractor is only that of a licensee and he can never be said to be in possession of a Mine. 15. The application was opposed by not just the plaintiff but also by defendants no. 6 to 8. All have filed separate affidavits in reply to the application. The plaintiff in her reply contended that she being "dominus Litus" cannot be dictated as to who should be made parties to her suit. Also according to her, the causes of action against the two sets of defendants being inextricably interlinked cannot be separated. In their identical replies, defendants no. 6 to 8 deny that there is misjoinder of parties or causes of action in the suit. They deny that there is collusion between them and the plaintiff. They also deny the averments as regards the status of the Raising Contractor. 16. Mr. Kantak, the learned Senior Counsel appearing for defendants no. 1 to 4 submits that these defendants on 18th February, 2012 filed two applications being Exhibit "N" and Exhibit "O", for reference of the dispute between the partners of the Firm to arbitration and for deletion of the defendants alien to the Firm from the suit respectively. Both the applications are interconnected since the application at Exhibit "N" is dependent upon the application at Exhbit "O". They had been filed in view of the decisions of the Hon'ble Supreme Court in Sukanya Holdings Pvt. Ltd. vs. Jayesh H. Pandya and another, reported in A.I.R. 2003 Supreme Court, page 2252: (2003(3) ALL MR 325 (S.C.)) and of Division Bench of this Court in Severn Trent Water Purification Inc. They had been filed in view of the decisions of the Hon'ble Supreme Court in Sukanya Holdings Pvt. Ltd. vs. Jayesh H. Pandya and another, reported in A.I.R. 2003 Supreme Court, page 2252: (2003(3) ALL MR 325 (S.C.)) and of Division Bench of this Court in Severn Trent Water Purification Inc. vs. Chloro Controls India Pvt. Ltd. & Ors., reported in 2010(3) ALL MR 33. By it's decision in Sukanya Holdings, the Apex Court has held that for referring the matter to arbitrator under Section 8 of Arbitration and Conciliation Act ("The Act" for short), neither bifurcation of cause of action in the suit i.e. it's subject matter nor bifurcation of the suit between parties i.e. parties to the arbitration agreement and others is permissible. Therefore with defendants no. 6 to 8 as parties to the suit, defendants no. 1 to 4 cannot exercise their right under Section 8 of The Act for resolution of the dispute between partners by arbitration. But Division Bench of our High Court has indicated by it's decision in Severn Trent case (supra) that the strangers to the arbitration agreement, if unnecessary parties to the suit, can be sought to be deleted for giving effect to Section 8 of The Act. Therefore, the application at Exhibit "O" was filed. 17. Mr. Kantak submits that on meaningful reading of the plaint, it becomes clear that defendants no. 6 to 8 are not necessary parties to the suit and that they have been joined solely in order to defeat the arbitration clause between the plaintiff and defendants no. 1 to 4. He submits that the right conferred by Section 8 of The Act is a valuable right which cannot be allowed to be frustrated, in such fashion. In order to emphasize the value and importance of the right under Section 8 of The Act, Mr. Kantak relies upon decisions of the Apex Court in : Hindustan Petroleum Corporation Limited vs. Pinkcity Midway Petroleums, reported in (2003) 6 Supreme Court Cases Page 503 and Branch Manager, M/s Magma Leasing Finance Limited & Anr. vs. Potluri Madhavilata & Anr., reported in A.I.R. 2010, Supreme Court, page 488: (2009 ALL SCR 2368). Referring to Hindustan Petroleum case (supra), Mr. vs. Potluri Madhavilata & Anr., reported in A.I.R. 2010, Supreme Court, page 488: (2009 ALL SCR 2368). Referring to Hindustan Petroleum case (supra), Mr. Kantak argues that Section 8 of the Act in clear terms mandates that a judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement to refer such parties to arbitration. The language of Section 8 is peremptory in nature and it is obligatory for the court to refer the parties to arbitration in terms of their arbitration agreement. In the case of M/s Magma Leasing, [2009 ALL SCR 2368] (supra), the Apex Court has observed that Section 8 is in the form of legislative command to the court and once the prerequisite conditions are satisfied, the court must refer the parties to arbitration. As a matter of fact, on fulfillment of the conditions of Section 8, no option is left to the court and the court has to refer the parties to arbitration. Mr. Kantak also refers to Section 89 of C.P.C. which focuses on settlement of disputes outside the court either by arbitration, conciliation, judicial settlement or mediation He has next taken me through the plaint in order to demonstrate how defendants no. 6 to 8 are unnecessary parties the suit. 18. Before touching upon the rival submissions on merits, it is necessary to deal with the submissions advanced by the Advocate General, Mr. A.N.S. Nadkarni appearing for defendant no. 6, on the maintainability of the present writ petition. The learned A.G. submits that though the petition is styled as under Articles 226 and 227 of the Constitution of India, in substance, it is only under Article 227. Every ground in the writ petition refers to only the errors of the trial court and there is no ground falling under Article 226. He argues that a writ of certiorari prayed for by the petitioner cannot be granted in the petition under Article 227. He also submits that the powers of superintendence vested in the High Courts are to be sparingly exercised only to keep tribunals and courts within the bounds of their authority and examination of such orders can be made only in exceptional cases where there is manifest miscarriage of justice. He also submits that the powers of superintendence vested in the High Courts are to be sparingly exercised only to keep tribunals and courts within the bounds of their authority and examination of such orders can be made only in exceptional cases where there is manifest miscarriage of justice. It is not to be exercised to correct an error committed by the courts below or in order to afford another view of the matter. The learned A.G. relied upon decision of the Apex Court in (i) Radhye Shyam and Another vs. Chhabi Nath and others, reported in (2009) 5 Supreme Court Cases, page 616 : [2009 ALL SCR 1765), (ii) Jai Singh and Others vs. Municipal Corporation of Delhi and Another, reported in (2010) 9 Supreme Court Cases page 385 : [2010(6) ALL MR 410 (S.C.)] and (iii) Shalini Shyam Shetty and Another vs. Rajendra Shankar Patil, reported in (2010) 8 Supreme Court Cases, page 329: [2010 ALL SCR 1681]. 19. In Radheshyam's case, [2009 ALL SCR 1765] (supra), the Apex Court has held at para. 37 that under Article 227 of the Constitution, the High Court does not issue a writ of certiorari. Further Article 227 of the Constitution vests the High Courts with a power of superintendence which is to be sparingly exercised to keep tribunals and the courts within the bounds of their authority. In the Jay Singh's case, [2010 (6) ALL MR 410 (S.C.)] (supra), the Apex Court considered the parameters of jurisdiction under Article 227 of the Constitution to observe: "15. ............. Undoubtedly the High Court, under this article, has the jurisdiction to ensure that all subordinate courts as well as statutory or quasi-judicial tribunals, exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with the well established principles of law. The High Court is vested with the powers of superintendence and/or judicial revision, even in matters where no revision or appeal lies to the High Court. The jurisdiction under this article is, in some ways, wider than the power and jurisdiction under Article 226 of the Constitution of India. It is, however, well to remember the well-known adage that greater the power, greater the care and caution in exercise thereof. The jurisdiction under this article is, in some ways, wider than the power and jurisdiction under Article 226 of the Constitution of India. It is, however, well to remember the well-known adage that greater the power, greater the care and caution in exercise thereof. The High Court is, therefore, expected to exercise such wide powers with great care, caution and circumspection. The exercise of jurisdiction must be within the well-recognised constraints. It can not be exercised like a "bull in a china shop", to correct all errors of judgment of a court, or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. 16. The High Court cannot lightly or liberally act as an appellate court and re-appreciate the evidence. Generally, it can not substitute its own conclusions for the conclusions reached by the courts below or the statutory/quasi-judicial tribunals. The power to re-appreciate evidence would only be justified in rare and exceptional situations where grave injustice would be done unless the High Court interferes. The exercise of such discretionary power would depend on the peculiar facts of each case, with the sole objective of ensuring that there is no miscarriage of justice." In Shalini Shetty's case, [2010 ALL SCR 1681] (supra), the Apex Court draws distinction between jurisdiction under Articles 226 and 227 in following manner and formulated principles on the exercise of High Court's jurisdiction under Article 227. As regards the distinction between the two jurisdictions, the Apex Court states as follows: "47. The jurisdiction under Article 227 on the other hand is not original nor is it appellate. This jurisdiction of superintendence under Article 227 is for both administrative and judicial superintendence. Therefore, the powers conferred under Articles 226 and 227 are separate and distinct and operate in different fields. Another distinction between these two jurisdictions is that under Article 226, the High Court normally annuls or quashes an order or proceeding but in exercise of its jurisdiction under Article 227, the High Court, apart from annulling the proceeding, can also substitute the impugned order by the order which is inferior tribunal should have made. 48. Another distinction between these two jurisdictions is that under Article 226, the High Court normally annuls or quashes an order or proceeding but in exercise of its jurisdiction under Article 227, the High Court, apart from annulling the proceeding, can also substitute the impugned order by the order which is inferior tribunal should have made. 48. The jurisdiction under Article 226 normally is exercised where a party is affected but power under Article 227 can be exercised by the High Court suo motu as a custodian of justice. In fact, the power under Article 226 is exercised in favour of persons or citizens for vindication of their fundamental rights or other statutory rights. The jurisdiction under Article 227 is exercised by the High Court for vindication of its position as the highest judicial authority in the State. In certain cases where there is infringement of fundamental right, the relief under Article 226 of the Constitution can be claimed ex debito justitiae or as a matter of right. But in cases where the High Court exercises its jurisdiction under Article 227, such exercise is entirely discretionary and no person can claim it as a matter of right. From an order of a Single Judge passed under Article 226, a letters patent appeal or an intra-court appeal is maintainable. But no such appeal is maintainable from an order passed by a Single Judge of a High Court in exercise of power under Article 227." On the parameters of interference under Articles 227, the observations of the Apex Court at para. 49(d)(e)(f)(g)(h) are as follows: "49. ....... (d) The parameters of interference by High Courts in exercise of their power of superintendence have been repeatedly laid down by this Court. In this regard, the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh and the principles in Waryam Singh have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court. (e) According to the ratio in Waryam Singh, followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and courts subordinate to it, "within the bounds of their authority". (e) According to the ratio in Waryam Singh, followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and courts subordinate to it, "within the bounds of their authority". (f) In order to ensure that law is followed by such tribunals and courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them. (g) Apart from the situations pointed in (e) and (f), the High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. (h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. In other words, the jurisdiction has to be very sparingly exercised." 20. Mr. V.B. Nadkarni, the learned Senior Advocate appearing for respondent no. 7 endorses the submissions made by the learned A.G on the parameters of jurisdiction of the High Court under Article 227. In addition, he relies upon yet another decision of Apex Court in Waryam Singh vs. Amar Nath, reported in A.I.R. 1954 Supreme Court, page 215 for the following observations: "This power of superintendence conferred by Article 227 as pointed out by Harris C.J. in Dalmia Jain Airways Ltd. Vs. Sukumar Mukherjee, A.I.R. 1951 CAL 193 (SB), is to be exercised most sparingly and only in appropriate cases in order to keep subordinate Courts within the bounds of their Authority and not for correcting mere errors". 21. Mr. Kantak, in reply to the submission refers to the decision of Full Bench of this Court in Ramchandra Dagoji Rangari through LRs. (Smt. Lilabai Ramchandra and Ors. Vs. Vishwanath Champat Naik, Additional Collector, reported in 2011(5) ALL MR 525, wherein the Full Bench had to consider, within the reference made to it, the parameters of interference by the High Court into the orders of the subordinate courts in writ petitions filed under Articles 226 and 227. (Smt. Lilabai Ramchandra and Ors. Vs. Vishwanath Champat Naik, Additional Collector, reported in 2011(5) ALL MR 525, wherein the Full Bench had to consider, within the reference made to it, the parameters of interference by the High Court into the orders of the subordinate courts in writ petitions filed under Articles 226 and 227. In its decision, the Full Bench has considered and appreciated all the decisions cited above and also several others. After considering all the decisions, at para. 7.4, it holds that the ratio in Shalini Shetty's case is only that writ petition under Article 226 cannot be entertained against the private individual in a private dispute where no government or like authority under Article 12 is respondent and no relief is claimed against it or unless there is infraction of any statutory provisions or private individual is acting in collusion with statutory authority. It nowhere declares that in no case writ of certiorari can be issued by the High Court to court or tribunal subordinate to it. These observations of the Full Bench take care of the submission as regards grant of writ of certiorari advanced by the learned A.G. 22. The essence of the submission advanced on behalf defendants no. 6 and 7 by relying upon the decisions cited above is that this Court, in its extra-ordinary jurisdiction under Article 227 can examine orders of the civil court only in exceptional cases when manifest miscarriage of justice has been occasioned or there is grave dereliction of duty or flagrant abuse of fundamental principles of law or justice, i.e. patent perversity reflected in the order. The High Court cannot lightly or liberally act as an appellate Court and re-appreciate the evidence. The rival submissions on merits are now required to be considered on the background of the above submission supported by the decisions cited. 23. This brings me to the submissions made on the merits of the case. Mr. Lotlikar, the learned Senior Advocate appearing for the plaintiff submits that it is the elementary principle under C.P.C. that every suit shall as far as practicable be framed so as to afford ground for final decision and to prevent further litigation concerning the same. Order II, Rule 2(1) stipulates that every suit shall include the whole of the claim that the plaintiff is entitle to make in respect of cause of action. Order II, Rule 2(1) stipulates that every suit shall include the whole of the claim that the plaintiff is entitle to make in respect of cause of action. Omission to sue in respect of any part of the claim invites consequence under Order II, Rule 2(2) and (3). Therefore, the plaintiff was bound to implead defendants no. 6 to 8 to the suit and seek relief's against them. He also submits that the cause of action against defendants no. 1 to 5 and that against defendants no. 6 to 8 are inextricably linked to one another and cannot be separated. This is because the cause of action against defendant no. 1 to 5 has arisen on account of expulsion of the plaintiff occasioned, by the plaintiff not endorsing the suspension and termination of the contract with defendant no. 7. The cancellation of agreement with defendants no. 6 to 8 is on the ground of alleged illegal acts committed by them jeopardizing the mining license of the Firm. Therefore, according to Mr. Lotlikar the application of defendants no. 1 to 4 is misconceived and liable to be dismissed. He submits that the plea of disclosure of causes of action is essentially one on a demurer and for deciding such a plea, the court must presume that the facts stated in the plaint are correct. In this connection, he relies upon decision of Single Judge of this court in Clarinda D'Souza Vs. McCann Erickson India Ltd. & Ors., reported in 2003(1) ALL MR 992 and Bhagwan Gokul Ji and Co. Vs. Balku Babaji, reported in (1931) 33 Bom. L.R., page 1291. 24. Mr. Lotlikar argues that the plaintiff has founded reliefs (a) to (c), (e), (f) (h) (i) (j) against defendants no. 1 to 5 and the reliefs (d) and (f) against defendant no. 6 to 8. The common basis for which are the following acts or transaction. (i) suspension and subsequent termination of contract with defendant no. 7. (ii) expulsion of plaintiff from the Firm, (iii) allegations made against defendants no. 6 to 8 by the Firm of violation of terms of the contract as well as of law and (iv) letter dtd. 1st December, 2012 addressed by defendant no. 7 to the Firm threatening to hold them personally liable for any actions against the contract with defendant no. 7. According to Mr. 6 to 8 by the Firm of violation of terms of the contract as well as of law and (iv) letter dtd. 1st December, 2012 addressed by defendant no. 7 to the Firm threatening to hold them personally liable for any actions against the contract with defendant no. 7. According to Mr. Lotlikar, the plaintiff has filed the suit to protect the interest of the Firm and as well as her own interest. The interest would be served best by continuation of the contract with defendant no. 7 and holding them liable to perform the same. If defendants no. 6 to 8 are to be made liable with the declaration sought by the plaintiff that the termination of the contract is illegal, they must be parties to the suit, otherwise any finding given in the suit in this regard is ineffective, therefore it is desirable that the dispute be resolved in a one proceeding. 25. The next argument of Mr. Lotlikar is that the application of defendants no. 1 to 4 cannot be said to be an application under Order I, Rule 10(2) C.P.C., because there is no foundation laid for the purpose of holding that defendant no. 6 to 8 have been improperly joined. Therefore, the trial court could not have exercised its power under Order I, Rule 10(2) C.P.C. Besides, the plea of frustration of statutory right under Section 8 of The Act on account of presence of defendants no. 6 to 8 has not been pleaded. The application at Exhibit "O" does not even mention this contention. The last submission of Mr. Lotlikar is that the plaintiff being Dominus Litus is entitled to maintain the suit against defendants no. 6 to 8. 26. All the submissions advanced by Mr. Lotlikar have been supported by learned Advocate General, Senior Advocate Mr. V.B. Nadkarni, for defendant no. 7 and Mr. Pangam, Advocate for defendant no. 8. Therefore their submission in these regards need not be separately stated for the purpose of their consideration. 27. Ordinarily, the plaintiff in any suit being "Dominus Litus" is entitled to have his say as regards the parties to the suit and also the cause of action pleaded therein. However, it is well established position in law that the right of being "Dominus Litus" of a plaintiff is not absolute. 27. Ordinarily, the plaintiff in any suit being "Dominus Litus" is entitled to have his say as regards the parties to the suit and also the cause of action pleaded therein. However, it is well established position in law that the right of being "Dominus Litus" of a plaintiff is not absolute. The right cannot be used to defeat the statutory rights of the other parties to the suit. Therefore that cannot be an impediment in the way of the court considering an application either for addition or for deletion of parties. 28. On careful consideration, I find no merit in the contention of the plaintiff and other defendants of lack of foundation for the argument that defendants no. 6 to 8 have been impleaded as party defendants to the suit with the sole intention of defeating the right of defendants no. 1 to 4 of getting the dispute amongst partners resolved through arbitration. Though the application at Exhibit "O" does not in terms set out this contention, the fact remains that at para. 1 of the application, defendants no. 1 to 4 have expressed their desire to have the matter referred to arbitration. The applications at Exhibit "N" and "O" were simultaneously filed on the same day. The contention has specifically referred to in the application at Exhibit "N". Therefore, it cannot be said that there is no foundation for the submission in the pleadings. In any case, the contention had been advanced before the trial court and has been considered by it. 29. The rival arguments as regards existence of the cause of action against defendants no. 6 to 8, the necessity of their presence in the suit and the claim of the plaintiff of the causes of action against the two sets of defendants being inextricably interlinked need to be considered together. A brief reference however to the decisions of the subject relied upon by both the sides would be in order. 30. Mr. V.B. Nadkarni, relying upon the decision of the Apex Court in Ishwar Bhai C. Patel alias Bachu Bhai Patel vs. Harihar Behera and another, reported in AIR 1999, Supreme Court, page 1341 submits that the provision of Order I, Rule 3 and Order II, Rule 3 if read together indicate that the question of, joinder of parties also involves the joinder of causes of action. The simple principle is that a person is made a party in a suit because there is cause of action against him and when causes of action are joined, the parties are also joined. For resorting the provision of Order I, Rule 10 C.P.C., Mr. V.B. Nandkami relies upon decision of the Apex Court in Amit Kumar Shaw and another vs. Farida Khatoon and another, reported in, AIR 2005 Supreme Court, page 2209: [2005(5) ALL MR 458 (S.C.)], wherein the Apex Court holds that the object of Order I, Rule 10 is to discourage, contests on technical pleas and to save honest and bonafide claimants from being non-suited. The power to add a party to the proceeding cannot depend solely on the question whether he has an interest on suit property. The question is whether the right of a person may be affected if he is not added as a party. Such right however will include necessarily an enforceable legal right. He next relies upon decision of Single Judge of this Court reported in Adam A. Sorathia and Another vs. Municipal Corporation of Greater Bombay and Another, reported in 2001 (3) M.L.J. page 288, wherein while considering an application by a third party of impleading itself in the suit, this Court has held as follows: "8. The law relating to the necessary and proper parties to the proceedings is no longer untouched. The law is settled by series of judgments of this Court and of the Apex Court that where the presence of respondent is necessary for complete and effectual adjudication of the dispute, though no relief is claimed, against him, he is a proper party. 9. The necessity to join the applicants as parties to the suit would definitely depend upon the relief that has been claimed. It shall have to be examined whether the reliefs claimed cannot be granted without the intervention and participation of the applicants. If it is so, then they would definitely be called as necessary parties. Reference to sub-rule (2) of Rule 10 of Order I of Civil Procedure Code at this juncture, would not be out of place. It shall have to be examined whether the reliefs claimed cannot be granted without the intervention and participation of the applicants. If it is so, then they would definitely be called as necessary parties. Reference to sub-rule (2) of Rule 10 of Order I of Civil Procedure Code at this juncture, would not be out of place. Under this provision a person, whose presence before the Court is necessary in order to enable the Court effectually and completely to adjudicate and settled all the questions involved in the suit, will be necessary party and will have to be added." There can be no dispute with the general propositions of law noted by the above decisions. In view of the very propositions, it now to be seen whether defendants no. 6 to 8 are either necessary or proper parties to the suit. Whether any legally enforceable right of their would be affected if they are deleted from the suit. Whether their joinder is with the purpose of avoiding reference to arbitration of the dispute in the suit. Whether their joinder causes serious prejudice to the statutory rights of defendants no. 1 to 4. 31. Perusal of the plaint shows that the suit filed by the plaintiff is essentially to challenge her expulsion from the partnership firm contending that the expulsion is illegal on account of (i) absence of provision therefore in the deed of partnership, (ii) non compliance of principle of natural justice and (iii) the action of expulsion is taken in bad faith and against the interest of the Firm. She also complains about the acts of defendant no. 5 as unauthorised acts and beyond the scope of authority given to him by the Firm. Prayers clauses (a), (b), (c), (d), (e), (g), (i) and (j) relate to the issues within the partnership Firm. Prayer clause (d) though is for a declaration that notices of suspension and termination of contract with defendant no. 7 are illegal and null and void the same must be treated as a relief relating to and consequential to the relief at prayer clause (c). This leaves only one prayer as against defendants no. 6 to 8 i.e. to injunct them from taking advantage of termination of the contract with them by avoiding discharge of their obligations. The challenge to the termination of the contract by the plaintiff is on the ground that defendant no. This leaves only one prayer as against defendants no. 6 to 8 i.e. to injunct them from taking advantage of termination of the contract with them by avoiding discharge of their obligations. The challenge to the termination of the contract by the plaintiff is on the ground that defendant no. 5 had no authority to terminate the agreement and that there was no decision arrived at between the partners of the Firm for the purpose and thirdly that such an act would be detrimental to the interest of the Firm. The challenge is not on the ground that there are no illegalities committed by defendants no. 6 to 8. Therefore, the declaration sought at prayer clause (d) must be connected to and must be treated as consequential to prayer clause (c). The plaintiff at para 39 of the plaint has expressed a vague apprehension without any basis that "there is possibility that defendants no. 6 to 8 take advantage of the situation and desist discharging from their obligation in terms of the agreements dated 19th July, 1999 which are to continue upto 31st December, 2020". In the entire plaint, there is nothing to suggest even remotely that defendants no. 6 to 8 have any such intention. In fact not just the pleadings in the proceedings, but the conduct of defendants no. 6 to 8 in actively participating in the suit to support the plaintiff as also their active participation in the present writ petition to oppose the same with all the force indicates otherwise. It shows that defendants no. 6 to 8 are more than keen to have the contract continued and discharge their obligations in terms of the agreements. This would mean that, in fact, for the relief of injunction sought by the plaintiff against defendants no. 6 to 8, there is no cause of action available to the plaintiff. For the same reason, the apprehension expressed in the plaint of any action at the hands of defendants no. 6 to 8 against the Firm or its partners on account of termination of the contract would also be baseless. 32. Mr. 6 to 8, there is no cause of action available to the plaintiff. For the same reason, the apprehension expressed in the plaint of any action at the hands of defendants no. 6 to 8 against the Firm or its partners on account of termination of the contract would also be baseless. 32. Mr. Kantak the learned Senior Counsel submits that now it is well established position in law that the status of a Raising Contractor is only that of a licensee and as such he can be said to be neither in possession of the Mine nor hold any right or interest therein. In any case, none of these defendants have pleaded that they have any right in the Mine in question. They have also not claimed that any of their right would be affected if they are deleted from the proceedings. In all probability, these defendants are aware that they do not have any enforceable legal right into the Mines or in continuation of the contract, considering their position, as Raising Contractor. 33. It has been contended by Mr. Lotlikar, the learned Senior Counsel that the presence of defendants no. 6 to 8 is necessary to decide the plaintiffs' right to other reliefs. According to him, one of the issues that may arise for decision in the suit is whether termination of the contract with defendants no. 6 to 8 was justified and whether these defendants had committed any illegalities in raising of the ore. According to him, defendants no. 6 to 8 would be the best persons to throw light on these two aspects of the matter. 34. The expulsion of the plaintiff from the partnership Firm has been on the ground of she acting contrary to the interest of the Firm. Defendants no. 1 to 4 in their letter of expulsion have referred to the acts of the plaintiff in issuing public declarations withdrawing the authority given to defendant no. 5 and actively supporting defendants no. 6 to 8. She had further in her letters addressed to Deputy Superintendent of Police and Regional Control of Mines asserted that the termination of the agreement by defendant no. 5 was unauthorised, contrary to the decision of the Firm. Defendants no. 1 to 4 felt that the conduct of the plaintiff was against the interest of the Finn. 6 to 8. She had further in her letters addressed to Deputy Superintendent of Police and Regional Control of Mines asserted that the termination of the agreement by defendant no. 5 was unauthorised, contrary to the decision of the Firm. Defendants no. 1 to 4 felt that the conduct of the plaintiff was against the interest of the Finn. Therefore, it was not practicable for them to carry on business with the plaintiff as a partner. Consequently, they decided to expel her. From the letter of expulsion, it becomes clear that the reasons given therein have nothing to do with any illegality alleged on the part of defendants no. 6 to 8. Thus the pleadings and the conduct of the parties make it more than clear that presence of defendants no. 6 to 8 is not at all required for deciding the suit. They can have no say or stand in the matter of expulsion of the plaintiff, even if the plaintiff wants to justify her unilateral action of continuing the contract with these defendants contending that there are no illegalities committed by them, for that purpose their presence in the suit is not required. If the plaintiff so desires, she can call the persons associated with defendants no. 6 to 8 as her witnesses to establish her case. Defendants no. 6 to 8 cannot be concerned with expulsion of the plaintiff from the partnership. Their concern only would be with continuation of the contract with the Firm, which is independent of the expulsion. 35. The trial court while dismissing the application at Exhibit "O" has found that the letter of expulsion of the plaintiff is interconnected with defendants no. 6 to 8 and the plaintiff, and for that, there necessarily has to be a common fact between plaintiff and defendants no.6 to 8 to prove those allegations or to disprove them. The presence of defendants nos. 6 to 8 is very much necessary to decide the issue of expulsion as it is correlated to the illegal acts of defendants no. 6 to 8 alleging that plaintiff is giving protection to it. In view of the discussion hereinabove, the findings are manifestly perverse and deserve interference at the hands of this court. 36. Mr. 6 to 8 is very much necessary to decide the issue of expulsion as it is correlated to the illegal acts of defendants no. 6 to 8 alleging that plaintiff is giving protection to it. In view of the discussion hereinabove, the findings are manifestly perverse and deserve interference at the hands of this court. 36. Mr. Kantak has expressed doubts as regards maintainability of the suit for challenging expulsion of the plaintiff and seeking declaration that she continues to be a partner of the Firm submitting that in view of Sections 32, 33 and 37 of Indian Partnership Act, 1932, her rights in the circumstances would be limited to accounts. According to him, defendants no. 1 to 4 have already taken steps for protection of share of the plaintiff in the Firm. It is not necessary for me to delve into the doubts expressed by Mr. Kantak, having regard to the nature of the application from which the present petition arises 37. Undoubtedly, the presence of defendants no. 6 to 8 causes serious prejudice to the right conferred upon defendants no. 1 to 4 under Section 8 of the Act of resolution of dispute between the partners via arbitration. It is a valuable right which permits the parties to arbitration agreement to choose their forum. The right is such that it cannot be taken care of or exercised at a later stage. In the circumstances, unless this court intervenes into the matter, manifest injustice would be caused to defendants no. 1 to 4. 38. The petition is therefore allowed. The order dated 18th April, 2012 passed by the learned Civil Judge, Senior Division, Bicholim passed on Exhibit "O" is set aside. The Application at Exhibit "O" is allowed. Respondent no. 1 shall amend the plaint within a period of two weeks. 39. At the request of the learned Counsel for the respondents, the order is stayed for a period often weeks from today. Petition allowed.