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2017 DIGILAW 1015 (GAU)

R. R. Mazumdar v. Zenith Pharmaceuticals

2017-08-01

KALYAN RAI SURANA

body2017
JUDGMENT AND ORDER : Heard Mr. T. Roy, the learned counsel for the appellants and also heard Mr. RL Yadav, the learned counsel for the respondents No.1 & 2. None appears on call for the proforma respondents. The name of respondent No.3 was already struck off by the order dated 04.12.2015. 2. This regular first appeal is directed against the judgment and decree dated 25.08.2000 passed by the learned Civil Judge, No.2, Kamrup, Guwahati in Money Suit No.325/2018 thereby dismissing the suit of the appellants/plaintiffs. 3. As per the original plaint, the plaintiff No.1 was M/s R.R. Mazumdar and the plaintiff No.2 was Sri Ranjit Ranjan Mazumdar, the proprietor of plaintiff No.1 concern. The defendant No.1, namely, M/s Zenith Pharmaceuticals, which was a partnership concern of the original defendants No.2 & 3 had availed a loan from the plaintiff No.1, which was not repaid. Therefore, by the notice dated 07.10.1998, plaintiffs demanded a sum of Rs.5,50,100/- with interest @ 20.75% from the original defendants No. 1,2 and 3. Thereafter, the suit was filed for recovery of the said amount. The suit was numbered as Money Suit No.325/1998. 4. The plaintiff No.2 died on 29.06.2001 during the pendency of the suit and thereafter, the appellant herein, who are the legal representatives of the deceased-plaintiff No.2 filed a substitution petition being Petition No.2118 dated 20.12.2001. As the defendants did not file any objection, the learned trial court vide order dated 20.01.2002 allowed the substitution and directed that amended plaint to be filed on 26.02.2012. The amended plaint was filed on 30.04.2002 and the learned trial court directed the defendants to file their additional written statement. However, without any specific order from the learned trial court, the name of the Firm (M/s R.R. Mazumdar) was deleted/dropped by the substituted plaintiffs No. 1(a) to 1(d). In the amended plaint, which was filed on 30.04.2002, the name of the plaintiff No.1 was struck off and the present appellants’ names were shown at Serial Nos. 1(a) to 1(d) and the suit was proceeded accordingly without the firm (M/s R.R. Mazumdar), as a plaintiff in the suit. 5. In the trial, PW.1 tendered his affidavit on 20.07.2006, in which it was mentioned that the plaintiff No.1 (M/s R.R. Mazumdar) was the proprietorship concern of plaintiffs No. 1(a) to 1(d) as the legal heirs of plaintiff No.2 after the death of plaintiff No.2. 5. In the trial, PW.1 tendered his affidavit on 20.07.2006, in which it was mentioned that the plaintiff No.1 (M/s R.R. Mazumdar) was the proprietorship concern of plaintiffs No. 1(a) to 1(d) as the legal heirs of plaintiff No.2 after the death of plaintiff No.2. Further, it has been stated therein that the plaintiff No.1 is proprietorship concern of plaintiff No.2. 6. As stated earlier, in the amended plaint, the firm (M/s R.R. Mazumdar) was not a party. It would be pertinent to record herein that as per the trial court record, the suit was dismissed on 23.11.2004. It appears that the suit was restored by the order dated 23.06.2005, but before the suit was restored, no notice before restoration was issued on the defendants No.1, 2 and 3. Therefore, when the evidence on affidavit by PW.1 was filed, he was not cross-examined by the contesting defendants No.1, 2 and 3 and the suit was heard ex-parte against them. 7. In course of trial, on the basis of pleadings of both sides, issues were framed on 16.11.2005– (i) whether the plaintiff is entitled to a decree as prayed for? and (ii) whether the defendant No.5 has been impleaded unnecessarily in the suit?. 8. In respect of issue No.1, the learned trial court arrived at a finding that in the original plaint, the plaintiff No.1 was arrayed as M/s R.R. Mazumdar, but in the amended plaint, there was no mention of the proprietorship concern i.e., M/s R.R. Mazumdar. Therefore, the amended plaint filed by the substituted plaintiffs on 30.04.2002, was found to be defective and by holding that the court cannot grant relief to the plaintiff on such defective pleadings, the suit filed through amended plaint on 30.04.2002 was not found maintainable in its form and issue No.1 was decided against the plaintiffs. 9. The proforma defendant No.5 (the State Bank of India), who had filed their written statement in the case was found to be not a necessary party to the suit and accordingly, the second issue was also decided in negative against the plaintiffs. Resultantly, the suit was dismissed on contest. 10. The learned counsel for the appellants has submitted that the deletion of the name of the original plaintiff No.1 (M/s R.R. Mazumdar) was a mistake committed by their learned counsel, for which the present appellants should not be made to suffer. Resultantly, the suit was dismissed on contest. 10. The learned counsel for the appellants has submitted that the deletion of the name of the original plaintiff No.1 (M/s R.R. Mazumdar) was a mistake committed by their learned counsel, for which the present appellants should not be made to suffer. It is further submitted that in view of the provisions of Order I Rule 10(2) CPC, this Court still has the power to add or strike out the parties and thereby the formal defect in the plaint can be removed. The learned counsel for the appellants has relied on the case of Pratibha Singh and another vs. Shanti Devi Prasad, (2003) 2 SCC 330 . The relevant pargarph-15 on which the appellants’ counsel heavily relied on is extracted below: “It appears that the defendant judgment-debtors did not execute the sale deed as decreed, and therefore, the plaintiff-decree holders had to file an execution application. At one stage of the execution proceedings the plaintiff-decree holders filed a draft of sale deed accompanied by a map of the suit property to be executed and registered by the defendant judgment- debtors. Admittedly this map was drawn by the plaintiff-decree holders and filed for the first time during the execution proceedings and as accompanying the draft sale deed. As we have already stated neither the plaint nor the decree was accompanied by any map and so also the revenue survey map did not indicate sub-plot no. 595/1 and 595/II. These sub-plots find mention either in the two registered deeds of sale whereby the suit property was acquired by the defendant judgment-debtors or in the map annexed with the court sale deed. The Executing Court directed the draft sale deed submitted by the plaintiff-decree holders, along with the map forming part of the draft sale deed, to be executed and registered. That was done. Thereafter, it appears that the plaintiff-decree holders also got possession over some property purportedly the decretal property, but there was some dispute raised and the judgment-debtors succeeded in possession over the property being restored to them. As on the date, it is an admitted position, that the sale deed as per the draft filed by the plaintiff-decree holders stands executed and registered under the directions of the Court but the possession over the suit property is with the defendant judgment- debtors. As on the date, it is an admitted position, that the sale deed as per the draft filed by the plaintiff-decree holders stands executed and registered under the directions of the Court but the possession over the suit property is with the defendant judgment- debtors. There is also a dispute raised by the judgment-debtors that full balance consideration has not yet been deposited by the plaintiff-decree holders and realised by the defendant judgment-debtors; it is stated to be short by Rs. 5000.” 11. The learned counsel for the appellants has further relied on in the case of Smt. Lachi Tewari and others vs. Director of Land Records and others, AIR 1984 SC 41 , to project that for the mistake committed by the counsel, the client should not be made to suffer. 12. Per contra, the learned counsel for the respondents has argued that it would be incorrect to shift all the blame on the learned counsels who had carried out the substitution. It is submitted that the counsels, who had made the substitution by making unauthorised amendment of deleting the name of respondent No.1 was having full knowledge of the consequences. It is projected that as per the plaint, the loan was given by the firm (M/s R.R. Mazumdar) and therefore, with the death of plaintiff No.2, the proprietorship firm has to be held to be dissolved by the death of plaintiff No.2 and that unless it is satisfactory shown that the substituted legal representatives of the deceased plaintiff No.2 had become entitled to the debts and liabilities, which is accrued to the firm or to its proprietor, the suit itself is not maintainable in the present form because the plaintiff No.1/firm had ceased to legally exist when the plaintiff No.2 had died. Therefore, by way of unauthorised amendment, the substituted legal heirs of plaintiff No.2 had tried to mask the defect by way of unauthorized amendment. It is further submitted that the omission in the plaint was a designed omission and was not a mistake because in the evidence on affidavit, the appellant had projected that the plaintiff No.1 had been in existence and that the appellants are the substituted legal representatives of plaintiff No.2. Hence, it is submitted that the defect of non-joinder of original plaintiff No.1/firm as necessary party was tried to be suppressed and therefore, the appeal is liable to be dismissed. Hence, it is submitted that the defect of non-joinder of original plaintiff No.1/firm as necessary party was tried to be suppressed and therefore, the appeal is liable to be dismissed. It is further submitted by way of alternative submission that the suit was dismissed against the defendants No.1 to 4 by the order dated 23.11.2004 and when the suit was restored, it was restored without notice to them. Therefore, present defendants No.1 & 2 did not get an opportunity to cross-examine the PWs, as such, if this Court is inclined to allow the appeal, then it should be only by way of remand, as the respondents were not heard by the trial court and the trial was held behind their back without notice of restoration of the suit. 13. Owing to the submissions made by the learned counsels for both sides and on perusal of the materials on record, the only point of determination before this Court is as to whether unauthorised striking out of the name of respondent No.1 (M/s R.R. Mazumdar) is fatal in the present case or not. 14. In this connection, it is seen that the learned trial court while deciding the issue No.1, which was, whether the plaintiff is entitled to get a decree as prayed for, had examined the effect of allowing the substitution of the present appellants as the legal representatives of the deceased/plaintiff No.2 (Ranjit Ranjan Mazumdar). It is observed that there was no mention about the plaintiff No.1 in the amended plaint. Hence, the learned trial court found the plaint defective, further it was held that court cannot grant any relief to the plaintiff on such defective plaint. 15. On perusal of the record of the trial court, in Petition No. 2118/01 dated 26.07.2001, it is seen that in cause-title, the parties names were shown as – R.R. Mazumdar vs. Zenith Pharmaceuticals and others. The statements made in paragraphs, 1, 2 and 4 and the prayer are quoted below: “1. That the predecessors in interest of the petitioners Late Ranjit Ranjan Mazumdar filed a suit before this Hon’ble Court being Money Suit No.-325 of 1998 against the opposite party and the same is pending disposal before this Hon’ble Court. 2. That during the pendency of the suit before this Hon’ble Court the plaintiff Ranjit Ranjan Mazumdar expired on 29-6-2001 at International Hospital, Guwahati. ..... 4. 2. That during the pendency of the suit before this Hon’ble Court the plaintiff Ranjit Ranjan Mazumdar expired on 29-6-2001 at International Hospital, Guwahati. ..... 4. That the names of the legal heirs of the Late Ranjit Ranjan Mazumdar needs to be substituted in the suit. ...... In the premises aforesaid it is most humbly prayed that Your Honour may be pleased to pass necessary order for substitution of the legal heirs of Late Ranjit Ranjan Mazumdar as mentioned in paragraph 3 of the application under provisions of Order 22 Rule 4 C.P.C. and be further pleased to pass necessary order for amendment of the plaint accordingly or may be pleased to pass such other order or orders as to Your Honour may deem fit and proper.” 16. Accordingly, the substitution was allowed and the amended plaint was required to be filed. The present appellants had not projected in their substitution petition that there was a plaintiff No.1 and also they had unauthorizedly striked out the name of the firm (M/s R.R. Mazumdar) and impleaded themselves as plaintiffs No.1(a) to 1(d). There is nothing on record to show that the plaintiff No.1/firm which is a proprietorship concern had survived even if on the death of the original plaintiff No.2. Therefore, the substituted legal heirs of plaintiff No.2 has to take responsibility of the unauthorized deletion of the name of the firm and the blame cannot be shifted on the learned counsels of the plaintiffs for such mistake. There is nothing on record to show by which the appellants had questioned to the steps taken by their counsels. Therefore, on the basis of oral argument advanced by the learned counsel for the appellants, it would be difficult to accept that there was a mistake committed by the learned counsel of the plaintiffs. Even assuming that the counsels for the appellants/plaintiffs had made the mistake, the said situation could have been salvaged at the trial stage by adding the said firm as party even on a later stage by filing application under Order I Rule 10(2) CPC. In this connection, it is seen that the appellants had filed their notes of argument before the learned trial court and they proceeded as if the firm existed in the array of parties. 17. In this connection, it is seen that the appellants had filed their notes of argument before the learned trial court and they proceeded as if the firm existed in the array of parties. 17. Under such circumstances, this Court is inclined to accept the argument advanced by the learned counsel for the respondents that the striking out the name of the firm was not a mistake but it was a calculated move on the part of the counsel of the appellants to salvage the situation by an unauthorized deletion of the plaintiff No.1 from the array of parties because the proprietorship firm has not been in existence on the death of its proprietor. Therefore, this point of determination is decided against the appellants and in favour of the respondents by holding that the non-arraying of the firm (M/s. R.R. Mazumdar) as plaintiff, was fatal because there is nothing on record to show that debts and liabilities of the said firm had devolved on the present appellants. In that view of the matter, this Court is inclined to hold the issue No.1 was correctly decided by the learned trial court. 18. As regards the issue No.2, framed by the learned trial court, it appears that there was no relief sought for against the State Bank of India and therefore, they are unnecessarily made parties in the suit, therefore, this issue was also correctly decided by the learned trial court. 19. With regard to the referred case of Pratibha Singh (supra), this Court is of the view that in the said case the issue was the non-filing of the map of the suit property and the Hon’ble Apex Court deemed it fit to direct that the provisions of Order VII Rule 3 CPC would be applied to insist on a map of the suit property to be filed in the plaint. However, while an amended plaint is filed, the civil court is not required to scrutinize the plaint to find out if any unauthorized deletion is made, and therefore, the plaintiff who had done the mischief has to suffer the consequences. Hence, the facts of this case is different from the facts of Pratibha Singh’s case (supra). For the reasons as stated above, this Court is of the view that the proprietorship firm has no legal existence on the death of the proprietor. Hence, the facts of this case is different from the facts of Pratibha Singh’s case (supra). For the reasons as stated above, this Court is of the view that the proprietorship firm has no legal existence on the death of the proprietor. Therefore, the suo-motu striking of plaintiff No.1 is not permissible when the trial court could not have allowed the deficiency to be rectified because there was no deficiency at all and the firm had lost its existence on the death of plaintiff No.2. 20. The other case of Smt. Lachi Tewari (supra) relates to non-appearance of the counsel at the time of hearing and therefore, the Hon’ble Apex Court had allowed the appeal on the ground that client should not be made to suffer on the default of the lawyer, which is not a case in hand. 21. As indicated above, there is no material on record to sustain the allegation that the counsel for the plaintiffs/appellants had committed a mistake before the learned trial court. Therefore, both the cases do not appear to help the case of the appellants in any manner. 22. In view of above, the appeal is found to be devoid of merit. Consequently, the same is dismissed. 23. There shall be no order as to costs. 24. Return back the LCR.