ANURADHA MALIK Vs. ALKA GUPTA

JUDGEMENT

(1.) By this application the petitioner seeks addition of parties. The case of the petitioners is that one Brij Gopal Gupta died on 21-04- 2004. During his lifetime Brij Gopal Gupta alongwith the respondent no.1, his daughter-in-law, held shares jointly in a Demat account with the respondent no.2. The said shares were purchased by Brij Gopal Gupta out of his own funds. On the death of Brij Gopal Gupta respondent no.1 is holding the said shares and monies received from sale of shares thereof in trust for the legal heirs and representatives of Brij Gopal Gupta. For such declaration and enquiry into the accounts for dealing with the shares by the respondent no.1 C. S 251 of 2006 was filed. Subsequently, it came to the knowledge of the petitioners that the sale receipts received from the shares were diverted by the respondent no.1 into the accounts of Eklavya Gupta and Naveli Gupta. Hence, the instant application has been filed and orders sought, as without adding the said persons the petitioner will not be able to recover any sums from the accounts of the said two persons. Counsel for the respondent no.1 while opposing the said application submits that the petitioner has no cause of action against the proposed added respondents. For the said proposition reliance is placed on AIR 1963 Calcutta 337. Although Section 63 of the Indian Trust Act, 1882 permits tracing of property into the hands of third persons by seeking declaration. No such declaration has been sought against the proposed added respondents. Clause 12 of the Letters Patent postulates that the place of business, residence or working for gain of the defendant at the commencement of the suit will determine pleading of leave under Clause 12. It is an admitted fact that Naveli Gupta, one of the proposed respondents, resides in Mumbai. Therefore, at the time of commencement of the suit leave under Clause 12 of the Letters Patent would be necessary. For the said proposition reliance is placed on AIR 1935 Madras 181. Neither of the aforesaid two persons proposed to be added are necessary or proper parties. Section 41(h) bars passing of an order of injunction. The prayer for injunction is an incidental relief as held in AIR 1974 Calcutta 358. For addition of parties, such party must be necessary to settle the issue in the suit. Such is not the case here. It cannot be said that the reliefs claimed in the suit against the respondent no.1 are insufficient in any manner. The case of the petitioner against the respondent no.1 is one of constructive trustee and declaration and enquiry into the accounts has also been sought. Therefore, without the addition of Naveli Gupta and Eklavya Gupta it cannot be said that the reliefs cannot be granted.

(2.) Counsel for the petitioner in reply submits that no leave under Clause 12 of the Letters Patent will be necessary as Naveli Gupta resides both in Mumbai and at 12, Loudon Street, Kolkata-700017 within the jurisdiction of this Court. Section 63 of the Indian Trust Act is not exhaustive as held in AIR 1963 SC 633. Therefore, the petitioner will be entitled to seek further reliefs. Reliance is placed on (1999) 2 SCC 577 and (2007) 10 SCC 82 for the proposition that parties can be added at any stage of the proceedings to avoid multiplicity of proceedings and for complete adjudication of disputes. Amendment of pleadings can be allowed in view of the subsequent events as held in (2001) 2 SCC 472 and (1974) 1 SCC 675 and the cases relied on by the respondents is not applicable to the facts of the present case.

(3.) Dealing with the contentions of the petitioner in reply counsel for the respondent no.1 submits that the reliefs will not in any way affect the added respondent, therefore, no addition be made. In (2007) 10 SCC 82 and (1999) 2 SCC 577 the parties whose rights were to be affected filed the application for addition. Such is not the case here. (2001) 2 SCC 472 and (1974) 1 SCC 675 were simpliciter amendment applications with no prayer for addition of party. Therefore, both the said decisions are not applicable to the facts of this case. Having considered the submission of the parties, Order 1 Rule 10 permits parties to be joined for effective adjudication of disputes. In the present case except for the order of injunction no declaration has been claimed against the parties whose addition is sought.