Research › Search › Judgment

Himachal Pradesh High Court · body

2014 DIGILAW 673 (HP)

Bharti Infratel Limited v. Raghbir Singh

2014-05-30

TARLOK SINGH CHAUHAN

body2014
Judgment Tarlok Singh Chauhan, J. It is stated by Mr. Jagdish Thakur, Advocate, that he has no instructions to appear on behalf of respondent No.1. 2. This petition is directed against the order dated 30.09.2013 passed by the learned Civil Judge(Junior Division), Court No.1, Una, whereby he dismissed the application filed by respondent No.2 for impleadment as a party after deleting its predecessor-in-interest. 3. The facts as necessary for the decision of the present case are that respondent No.2 herein filed an application for being impleaded as a party and to delete the name of its predecessor-in-interest on the following allegations:- “2. That the mobile communication tower regarding which the present civil suit has been filed is owned by the applicant company i.e. M/s Bharti Infratel Limited, having its registered Office at Bharti Crescent, 1-Nelson Mandela Marg, Vasant Kunj, Phase II, New Delhi -110 070, India and its circle office for the state of Himachal Pradesh circle at Airtel Towers, Mehli Mount, NH-22, Mehli, Shimla (H.P.). 3. That in Company Petition No:287/2004, vide order dated 21-05-2005, of the Hon’ble Delhi High Court, the Scheme of Amalgamation of Bharti Cellular Limited with Bharti Tele Ventures Limited was passed. STET International Netherlands NV or STET, a company promoted by Telecom Italia, Italy acquired a 20% equity interest in Bharti Tele-Ventures and launched cellular services in Himachal Pradesh in the name of Bharti Telenet (now a 100% subsidiary of Bharti Tele-Ventures Ltd). 4. That subsequently Bharti Televentures Ltd changed its name to Bharti Airtel Ltd & consequently upon change of name of the Company from BHARTI TELEVENTURES LIMITED to BHARTI AIRTEL LIMITED, a fresh Certificate of Incorporation was issued on 4th April, 2006.” 4. Thus, what would be clear from the perusal of aforesaid paragraphs of the application, was that the applicant was only the successor-in-interest of the original defendant No.2 Bharti Airtel Limited and as per scheme of arrangement entered into between M/s Bharti Airtel Limited and M/s Bharti Infratel Limited, all assets and liabilities relating to passive infrastructure of M/s Bharti Airtel Limited had been transferred to M/s Bharti Infratel Limited, the applicant in the case. This position was not even disputed by either of the parties and, therefore, what otherwise appeared to be a formal application for arraying the successor-in-interest as a party has given rise to the present petition because the learned trial Judge has rejected the application by recording the following reasons:- “It needs to emphasis that the plaintiff is dominus litis and can choose a person against whom he wants to pursue his case. If plaintiff takes a calculated risk and does not implead necessary party, he has to face the music as per law. Since the plaintiff is opposing the application and as discussed supra, the plaintiff is dominus litis, application is dismissed. Be tagged after needful. Put up for PWs on 9.12.2013.” 5. I am shocked in the manner in which the application has been dealt with and as to how the principles of “dominus litis” have been invoked and applied by the learned trial Judge. It appears that the learned trial Judge was totally oblivious of the fact what the applicant has sought by way of impleadment was only a formal substitution of itself on account of the assets and liabilities of the Bharti Airtel Limited having been succeeded by Bharti Infratel Limited. This in no manner could be said to have caused prejudice to any of the parties, much less to the plaintiff. Infact, this application only straightened the record whereby the “proper parties” were then before the court. Therefore, this was not a case where the plaintiff was being compelled to sue a person against whom he did not claim any relief so as to invoke the doctrine of “dominus litis”. Infact, the defendant No.2 had been wrongly sued and, therefore, there was total mis-description of the parties that too at the instance of the plaintiff. Thus, in such situation, the theory of “dominus litis” could not have been over-stretched in the matter, especially, when the applicant was admittedly the successor-in-interest of the original defendant No.2. 6. The general rule in regard to impleadment of parties is that the plaintiff in a suit, being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. Consequently, a person who is not a party has no right to be impleaded against the wishes of the plaintiff. Consequently, a person who is not a party has no right to be impleaded against the wishes of the plaintiff. But this general rule is subject to the provisions of Order 1 Rule 10(2) of Code of Civil Procedure (‘Code’ for short), which provides for impleadment of proper or necessary parties. The said sub-rule is extracted below: “Court may strike out or add parties. (2) 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 said provision makes it clear that a court may, at any stage of the proceedings (including suits for specific performance), either upon or even without any application, and on such terms as may appear to it to be just, direct that any of the following persons may be added as a party: (a) any person who ought to have been joined as plaintiff or defendant, but not added; or (b) any person whose presence before the court may be necessary in order to enable the court to effectively and completely adjudicate upon and settle the question involved in the suit. In short, the court is given the discretion to add as a party, any person who is found to be a necessary party or proper party. A ‘necessary party’ is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the Court. If a ‘necessary party’ is not impleaded, the suit itself is liable to be dismissed. A ‘proper party’ is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in disputes in the suit, though he need not be a person in favour of or against whom the decree is to be made. A ‘proper party’ is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in disputes in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes of the plaintiff. The fact that a person is likely to secure a right/interest in a suit proper ty, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance. 7. Insofar as the scope and ambit of Order 1 Rule 10(2) CPC regarding striking out and adding parties (supra) is concerned, the same came up for consideration before the Hon’ble Supreme Court in Mumbai International Airport Pvt. Ltd. v. Regency Convention Centre & Hotels Pvt. Ltd. & Ors. AIR 2010 SC 3109 , wherein it was held as under:- “12. Let us consider the scope and ambit of Order 1 of Rule 10(2), CPC regarding striking out or adding parties. The said sub-rule is not about the right of a non-party to be impleaded as a party, but about the judicial discretion of the court to strike out or add parties at any stage of a proceeding. The discretion under the sub-rule can be exercised either suo motu or on the application of the plaintiff or the defendant, or on an application of a person who is not a party to the suit. The court can strike out any party who is improperly joined. The court can add anyone as a plaintiff or as a defendant if it finds that he is a necessary party or proper party. Such deletion or addition can be without any conditions or subject to such terms as the court deems fit to impose. In exercising its judicial discretion under Order 1, Rule 10(2) of the Code, the court will of course act according to reason and fair play and not according to whims and caprice. Such deletion or addition can be without any conditions or subject to such terms as the court deems fit to impose. In exercising its judicial discretion under Order 1, Rule 10(2) of the Code, the court will of course act according to reason and fair play and not according to whims and caprice. This court in Ramji Dayawala & Sons (P) Ltd. vs. Invest Import, 1981 (1) SCC 80 :( AIR 1981 SC 2085 ), reiterated the classic definition of ‘discretion’ by Lord Mansfield in R. vs. Wilkes-1770(98) ER 327, that ‘discretion when applied to courts of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague and fanciful, ‘but legal and regular’. We may now give some illustrations regarding exercise of discretion under the said sub-rule. 12.1 If a plaintiff makes an application for impleading a person as a defendant on the ground that he is a necessary party, the court may implead him having regard to the provisions of Rules 9 and 10(2) of Order 1. If the claim against such a person is barred by limitation, it may refuse to add him as a party and even dismiss the suit for non-joinder of a necessary party. 12.2 If the owner of a tenanted property enters into an agreement for sale of such property without physical possession, in a suit for specific performance by the purchaser, the tenant would not be a necessary party. But if the suit for specific performance is filed with an additional prayer for delivery of physical possession from the tenant-in-possession, then the tenant will be a necessary party insofar as the prayer for actual possession. 12.3 If a person makes an application for being impleaded contending that he is a necessary party, and if the court finds that he is a necessary party, it can implead him. If the plaintiff opposes such impleadment, then instead of impleading such a party, who is found to be a necessary party, the court may proceed to dismiss the suit by holding that the applicant was a necessary party and in his absence the plaintiff was not entitled to any relief in the suit. If the plaintiff opposes such impleadment, then instead of impleading such a party, who is found to be a necessary party, the court may proceed to dismiss the suit by holding that the applicant was a necessary party and in his absence the plaintiff was not entitled to any relief in the suit. 12.4 If an application is made by a plaintiff for impleading someone as a proper party, subject to limitation, bona fides etc., the court will normally implead him, if he is found to be a proper party. On the other hand, if a non-party makes an application seeking impleadment as a proper party and court finds him to be a proper party, the court may direct his addition as a defendant; but if the court finds that his addition will alter the nature of the suit or introduce a new cause of action, it may dismiss the application even if he is found to be a proper party, if it does not want to widen the scope of the specific performance suit; or the court may direct such applicant to be impleaded as a proper party, either unconditionally or subject to terms. For example, if ‘D” claiming to be a co-owner of a suit property, enters into an agreement for sale of his share in favour of ‘P’ representing that he is the co-owner with half share, and ‘P’ files a suit for specific performance of the said agreement of sale in respect of the undivided half share, the court may permit the other co-owner who contends that ‘D’ has only one-fourth share, to be impleaded as an additional defendant as a proper party, and may examine the issue whether the plaintiff is entitled to specific performance of the agreement in respect of half a share or only one-fourth share; alternatively the court may refuse to implead the other co-owner and leave open the question in regard to the extent of share of the vendor-defendant to be decided in an independent proceeding by the other co-owner, or the plaintiff; alternatively the court may implead him but subject to the term that the dispute, if any, between the impleaded co-owner and the original defendant in regard to the extent of the share will not be the subject-matter of the suit for specific performance, and that it will decide in the suit, only the issues relating to specific performance, that is whether the defendant executed the agreement/contract and whether such contract should be specifically enforced. In other words, the court has the discretion either to allow or reject an application of a person claiming to be a proper party, depending upon the facts and circumstances and no person has a right to insist that he should be impleaded as a party, merely because he is a proper party.” 8. The learned trial Court has completely failed in its duty to ensure that for deciding the real controversy in dispute, the presence of the applicant was absolutely essential, rather it was the mistake on the part of the plaintiff, who had arrayed M/s Bharti Televenture Limited as a party-defendant instead of M/s Bharti Infratel Limited. Even in the reply filed to the application for impleadment, the plaintiff did not specifically deny any of the averments made in the application, save and except, to claim that he had arrayed M/s Bharti Televentures and not Bharti Infratel Limited as the defendant in the suit. Even in the reply filed to the application for impleadment, the plaintiff did not specifically deny any of the averments made in the application, save and except, to claim that he had arrayed M/s Bharti Televentures and not Bharti Infratel Limited as the defendant in the suit. There was no denial of the fact that as per the scheme of arrangement entered into between M/s Bharti Airtel Limited and M/s Bharti Infratel Limited, all assets and liabilities relating to passive infrastructure of Bharti Airtel Limited had been transferred to M/s Bharti Infratel Limited. Not only this, it was the specific case of the petitioner that as per the scheme of arrangement, all legal proceedings against Bharti Airtel Limited relating to the passive infrastructure pending and/or arisen before the effective date were to be continued and enforced by/or against the applicant M/s Bharti Infratel Limited. 9. It is a strange case where even the plaintiff has tried to oppose impleadment of the applicant little realizing that it would be suit filed by him which would have ultimately been dismissed for want of necessary parties that too despite having been put to caveat and guard. 10. The learned Court below failed to take into consideration the fact that by substituting the applicant as a defendant, the plaintiff was not put to any prejudice, neither did this introduce a new cause of action or alter the nature of the suit. 11. Accordingly, in view of the detailed reasons recorded above, the order passed by the learned trial Court dated 30.09.2013 is not at all sustainable in the eyes of law and the same is accordingly set aside. 12. Resultantly, the present petition is allowed and the parties are directed to appear before the learned trial Court on 09.06.2014. CMP No.1665 of 2014 has become infructuous in view of disposal of main petition.