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2019 DIGILAW 195 (CAL)

Bani Chakra v. Samar Kumar Dalal

2019-02-07

BIBEK CHAUDHURI

body2019
JUDGMENT : Bibek Chaudhuri, J. An order being no. 38 dated 27th April, 2016 passed by the Ld. Judge, 10th Bench, City Civil Court, Calcutta in Title Suit No. 2761 of 2010 is under challenge in the instant revision under Article 227 of the Constitution of India at the instance of the plaintiff/petitioner. 2. Salient facts necessary for the disposal of the instant revision are summarized below :- 3. The petitioner as plaintiff filed Title Suit No. 2761 of 2010 for declaration and permanent injunction against the defendants/opposite parties. A decree for declaration was prayed for by the petitioner in the above mentioned suit to the effect that the contract executed between the plaintiff/petitioner and the defendants/opposite parties no. 1 to 6 is a concluding contract and purported transfer of the premises in suit in favour of defendant no. 7 and 8 is in violation of the aforesaid contract between the petitioner and opposite parties 1 to 6. In the said suit, on the prayer of the petitioner an ad interim order of injunction was passed on 4th August, 2010 directing the parties to maintain status quo in respect of possession, nature and character of the suit premises. Subsequently, the said order of ad interim injunction was made absolute by the Ld. Trial Judge till the disposal of the suit. In pursuance to summons, the opposite parties no. 3, 5, 7 and 8 entered appearance in the said suit and duly filed their written statement. Summons sent to opposite parties no. 2, 4, 6 and 9 were returned with postal remark 'left'. Ultimately by an order dated 20th December, 2013, the Ld. Trial Judge expunged the names of the defendants/opposite parties no. 2, 4, 6 and 9 and fixed the suit for peremptory hearing. This prompted the petitioner to file an application under Section 151 read with order 1 rule 10 (2) the Code of Civil Procedure (hereinafter described as CPC) immediately on the date of passing the order expunging the names of the opposite parties no. 2, 4, 6 and 9 from the cause title. The said application was rejected by the Ld. Trial Judge by an order dated 27th April, 2016 which is impugned in the instant revision. 4. Relevant portions of the impugned order dated 27th April, 2016 is set out here-in-under:- "On perusal of entire record I find that this Court vide order no. 29 dt. The said application was rejected by the Ld. Trial Judge by an order dated 27th April, 2016 which is impugned in the instant revision. 4. Relevant portions of the impugned order dated 27th April, 2016 is set out here-in-under:- "On perusal of entire record I find that this Court vide order no. 29 dt. 20.12.13 expunged the name of defendant nos. 2, 4, 6 and 9 and conduct of this plaintiff was not good. I also find from orders of previous date i.e. order dt. 15.07.13, 29.08.13 that case was fixed for taking step by plaintiff upon these defendants but they did not take step against these defendant and ultimately my predecessor had no option but to expunge the name of defendant nos. 2, 4, 6 and 9 from this Case. I also find from the record that after passing the said order on 20.12.13, eight dates were fixed for framing of issues but plaintiff did not bother to file petition which he filed today, before my predecessor to set aside the order dt. 20.12.13 and he simply submitted before this Court that it was not reflected in cause list. Except oral submission of Ld. Lawyer of plaintiff nothing has been given before this Court to show that it was not reflected on cause list that on those eight dates the case was not fixed for framing on issues, moreover, it is totally unbelievable that all these eight dates were not reflected on the cause list. It clearly shows that plaintiff is with the intention to drag this suit and not to proceed with the suit and as well as this Court framed issue on the last occasion, he came to know that issue has been framed and now order dt. 20.12.13 should be set aside. It also shows that how interested this plaintiff is relating to this Case. When I perused order 17 of C.P.C I find that during hearing either side will get three chances i.e. three adjournment for completion of their proceeding before the Court but entire conduct from the record it is very much clear that plaintiff filed this Suit, he is not interested to proceed this Case. Accordingly, petition filed by the plaintiff today is liable to rejected. Hence, it is Ordered That the instant petition U/S 151 read with under Order 1 Rule 10 (2) of C.P.C is hereby rejected. Accordingly, petition filed by the plaintiff today is liable to rejected. Hence, it is Ordered That the instant petition U/S 151 read with under Order 1 Rule 10 (2) of C.P.C is hereby rejected. Plaintiff is directed to get ready positively with his witness before this Court on the next date otherwise this Court will have no option but to pass adverse order against him. To 20.05.13 for P.Hearing.." 5. Mr. Mukherjee, Ld. Senior Advocate appearing on behalf of the petitioner submits that the petitioner duly sent summons to defendants/opposite parties no. 2, 4, 6 and 9 by registered post with acknowledgment due. The said summons were returned with postal endorsement "left". The order dated 20th December, 2013 passed in the said suit suggests that the petitioner was directed to take fresh steps for service of summons upon opposite parties no. 2, 4, 6 and 9. However, on that date the petitioner filed a petition for adjournment. The Ld. Trial Judge while rejecting the prayer for adjournment, expunged the names of the opposite parties no. 2, 4, 6 and 9. 6. It is submitted by Mr. Mukherjee that there is no provision under the CPC to expunge the names of the defendants for noncompliance of the Court's order by the plaintiff. The provision of striking out or expunging the names of the parties to the suit is contained in order 1 rule 10 of the CPC. If it is found that a party is inappropriately joined, whether as plaintiff or defendant, the Court can upon an application or even suo motu strike out the name of such party who, according to the Court is impleaded improperly. It is further submitted by Mr. Mukherjee that defendants/opposite party nos. 2 to 6 are the vendors who illegally sold out the suit property in favour of opposite parties no. 7 and 8 in collusion with opposite party no. 9. Such illegal transfer in violation of a contract for sale of the suit property between the petitioner and the defendants constitutes cause of action to file the suit. Therefore, the opposite parties no. 2, 4, 6 and 9 are necessary parties to the suit and their names cannot be struck out for the reason that the petitioner failed to take proper step for service of summons upon them. Therefore, the opposite parties no. 2, 4, 6 and 9 are necessary parties to the suit and their names cannot be struck out for the reason that the petitioner failed to take proper step for service of summons upon them. Therefore, the petitioner filed an application order 1 rule 10 (2) of the CPC for adding opposite parties no. 2, 4, 6 and 9 whose names were improperly expunged from the cause title of the suit. The Ld. Trial Judge rejected the said application on the ground that the conduct of the plaintiff was not good. According to Ld. Counsel for the petitioner the ground which was subscribed by the Ld. Trial Judge while rejecting the application under order 1 rule 10 (2) CPC cannot be sustained and the said order is required to be set aside. 7. Mr. Bhaskar Ghose, Ld. Senior Advocate on behalf of the opposite party no. 1 at the outset submits that in the instant proceeding arising out of an application under Article 227 of the Constitution, this Court cannot decide as to whether the Ld. Trial Court has failed to exercise its jurisdiction or not. Because in a proceeding under 227 of the Constitution, jurisdictional error of the Courts subordinate to the High Court cannot be questioned. 8. It is also submitted by Mr. Ghose that defendants/opposite parties no. 2 to 9 have no subsisting interest over the suit property. They are not necessary parties to the suit. The suit was filed in the year 2010. The plaintiff did not take proper step for service of summons upon the defendants and in the mean time more than 8 years have elapsed. Finding no other alternative Ld. Trial Court expunged the names of the opposite parties no. 2, 4, 6 and 9 from the cause title of the plaint. There is no illegality in such order. 9. On due consideration of the submissions made by the Ld. Senior Counsels for the parties and on perusal of the materials on record specially the impugned order dated 27th April, 2016, I like to record at the outset that plaintiff is the dominus litus. It is for the plaintiff to decide against whom he would file a suit for appropriate relief. Senior Counsels for the parties and on perusal of the materials on record specially the impugned order dated 27th April, 2016, I like to record at the outset that plaintiff is the dominus litus. It is for the plaintiff to decide against whom he would file a suit for appropriate relief. Title Suit No. 2761 of 2010 is a suit for declaration to the effect that a contract for sale executed by and between the plaintiff and some of the defendants is a concluding contract, still subsisting and defendant nos. 1 to 6 had no right to transfer the suit premises in favour of defendant 7 to 8 in collusion with defendant no. 9. 10. The framing of suit clearly suggests that defendants/opposite parties no. 2, 4, 6 and 9 are absolutely necessary parties to the suit and their names cannot be expunged from the record. 11. The Ld. Trial Court has committed gross illegality in rejecting plaintiff's application under order 1 rule 10 (2) of the CPC by an order dated 27th April, 2016. The said order cannot sustain. 12. In view of the above discussion, the instant revision is allowed on contest, however, without any cost. Order dated 27th April, 2016 passed by the Ld. Judge, 10th Bench, City Civil Court is set aside. 13. The defendants/opposite parties no. 2, 4, 6 and 9 be brought on record of Title Suit No. 2761 of 2010. 14. Since summons sent to the defendants/opposite parties no. 2, 4, 6 and 9 were returned with postal endorsement "left", the Ld. Trial Judge is directed to give an opportunity to the plaintiff/petitioner to take step for substituted service of summons upon them. 15. The plaintiff/petitioner is also directed to take proper step for substitute service of summons upon the defendants/opposite parties no. 2, 4, 6 and 9 as directed by the Ld. Trial Court without taking any unnecessary adjournment. Urgent Photostat certified copy of this order, if applied for, to be furnished to the parties expeditiously.