ANDIKUTTY Vs. PEEKAY TRADERS

JUDGEMENT

(1.) THIS civil revision petition arises out of an order rejecting the defendant's application for impleading an additional party in the suit, O. S. No. 240 of 1976 of the Subordinate Judge's Court, Irinjalakuda. The said suit is one filed by the respondents herein seeking a decree for amounts alleged to be due to them from the petitioner as per their accounts. The case of the plaintiffs is that the revision petitioner and the 1st respondent herein had dealings in copra and the amounts as per the accounts are alleged to be due to them on that account. The defendant petitioner herein averred in the written statement that the suit was brought about in collusion with his son namely, ravindran who is alleged to have looked after the business on behalf of the petitioner for a few days but who was relieved of his responsibilities because of his wanton acts. Sometime afterwards the defendant petitioner filed I. A. No. 852 of 1980 for bringing on record the said Ravindran, according to the petitioner, for a proper adjudication of the pleas raised in the case and also for proceeding against the said Ravindran under O. 8a of the Code of Civil procedure. That application was opposed by the respondents. The court below has dismissed the application which has given rise to this civil revision petition.

(2.) THE scope and ambit of O. 1, R. 10 (2) come up for consideration in this civil revision petition. It will be useful to quote the provisions of that rule in this case. "10 (2) Court may strike out or add parties.- 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".

(3.) LORD Coleridge, C. J. said there as follows: "it seems to me to be correctly argued that those words plainly imply that the defendant to be added must be a defendant against whom the plaintiff has some cause of complaint, which ought to be determined in the action, and that it was never intended to apply where the person to be added as defendant is a person against whom the plaintiff has no claim, and does not desire to prosecute any. It seems to me that this application is answered, and that it was not intended that persons in the position of the company should be added as defendants, merely for the convenience of another defendant between whom and the company there may be questions which will afterwards have to be settled. It seems to me that it is the more important to construe this rule strictly, because it is obvious that, in many cases, if the defendant's contention is right, its provisions might be made use of in a manner exceedingly harassing to plaintiffs, by forcing them to include in their actions persons against whom they do not seek to proceed, and to mix up their rights, as against one person, with questions of a highly complicated nature arising between themselves and others". Justice Denman observed thus: "i am quite clear, however, that the court ought not to bring in any person as defendant against whom the plaintiff does not desire to proceed unless a very strong case is made out, showing that in the particular case justice cannot be done without his being brought in". The same principle was referred to by Justice Buckley in mccheane v. Cyles (1902 (1) Ch. 911) in these words: "looking at the rule you must, in order to say that a person who is not a party ought to be added, find either that he 'ought to have been joined,' or that his 'presence before the court maybe necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter'. I cannot hold that the plaintiff ought to have joined Mrs. Cromyn as a defendant, and her presence is not necessary to enable the court to decide whether Cyles is liable for a breach of trust. Moreover, if Mrs. Cromyn were joined as a defendant and the plaintiff did not make any allegation against her, she might ask to be dismissed from the action".