Whether court can direct plaintiff to amend his pleading permitting defendant to file additional written statement?

The party which moves the forum is dominus litis and is entitled to decide whether or not to amend the pleading or to pursue the complaint, as it stands. 

11 To recapitulate, in the situation as it stands at present, the appellant could take recourse to either of three courses of action, namely:

(i) pursue the complaint as it stands; or

(ii) amend the complaint to challenge the letter of repudiation; or

(iii) withdraw the existing complaint with liberty to institute a fresh complaint to challenge the letter of repudiation.

12 The error in the order of the NCDRC was to compel the appellant to amend the complaint, as a consequence of which, it granted permission to the first respondent to file a written statement to the amended complaint. The effect of this would be to deprive the appellant of the benefit of urging that written statement cannot be filed at this stage in view of the judgment of the Constitution Bench in Hilli Multipurpose Cold Storage Private Limited (supra). The deprivation of the right to set up such a plea is a matter of prejudice to the appellant which is a result of the impugned order of the NCDRC. We clarify that we have not expressed any opinion on whether the respondent can file a written statement since this does not form the subject matter of the present appeal. We hold that the appellant could not have been directed to amend the complaint to challenge the repudiation of the contract of insurance.

The appellant has stated that it does not wish to do so. This is a decision which has to be taken by the appellant and it cannot be compelled to amend the complaint.

 Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal Nos 4476-4477 of 2021

M/s Acme Cleantech Solutions Private Limited  Vs M/s United India Insurance Company Limited 

Author: Dr Dhananjaya Y Chandrachud, J

Dated: December 09, 2021

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Whether court can allow party to be impleaded as co-plaintiff if there is conflict of interest between original plaintiff and that party?

There is a serious dispute as to whether the plaintiff Nos. 2, 7 to 10 and 12 have assigned their entire rights in the suit premises in favour of GITCPL as contended by Mr. Ankhad who represents plaintiff Nos. 4 to 6 in the suit or whether the plaintiff Nos. 2, 7 to 10 and 12 have only assigned 75% of their rights to the suit premises as contended by both Mr. Godbole and Mr. Dhakephalkar. GITCPL relying upon the deeds of assignment, has applied for impleadment and relied upon the provisions in Order XXII Rule 10 of CPC. At the stage of deciding whether leave is to be granted under Order XXII Rule 10 of CPC, a detailed enquiry is really not contemplated. Only a prima facie satisfaction would normally suffice. From this perspective, it will be only appropriate that both GITCPL as well as plaintiff Nos. 2, 7 to 10 and 12 continue as parties in the suit. The question really is about capacity in which they ought to continue in this suit.

16. There is also no warrant for the proposition that a party to the suit who may have assigned its interest in favour of a third party, is required to be necessarily struck out from the array of parties. The party to the suit who may have assigned its interest is entitled to continue as a party in the suit, because, in a given case, the covenant to supply a good title to the assignee and to assign property free from any encumbrances or litigations may continue upon such party. In the present case, there is a serious dispute as to whether the plaintiff Nos. 2, 7 to 10 and 12 have assigned their 100% rights or the assignment is restricted to only 75% of the rights which they claim to have in the suit premises. In these circumstances, there was no justification to order deletion of the plaintiff Nos. 2, 7 to 10 and 12 from the array of parties in the suit.

17. Although, GITCPL is entitled to become a party, the learned trial Judge, was not at all justified in impleading the GITCPL as 'co plaintiff' particularly when there is a serious conflict of interest between plaintiff Nos. 4 to 6 on one hand and GITCPL on the other. Although, the exercise of power under Order I Rule 10 of CPC is discretionary, the discretion in such matters, cannot be exercised in unreasonable manner. In fact, this is what is held in Mumbai International Airport Pvt. Ltd. (supra) upon which reliance was placed by Mr. Godbole. In Bayajabai Patil (supra) Chief Justice M.C. Chagla, in the context of exercise of power under Order I Rule 10 of CPC has held that a party may be added as a co-plaintiff, when the plaintiff does not dispute the right of the co-plaintiff to the decree which might be passed; but where his right to property in suit is disputed by the plaintiff, the proper procedure is to join him as a defendant and not as a co-plaintiff. The principle in such matters appears to be that the original plaintiff, who is even otherwise dominus litis, cannot be compelled to proceed with the suit with a co-plaintiff, with whom, such original plaintiff may have a conflict of interest.

IN THE HIGH COURT OF BOMBAY

Writ Petition Nos. 5917 of 2017 and 13794 of 2016

Decided On: 20.09.2017

Daksha Keshrichand Jhaveri  Vs.  Nikhilesh Keshrichand Jhaveri and Ors.

Hon'ble Judges/Coram:

M.S. Sonak, J.

Citation: Manu/MH/2165/2017:2017 SCC Online Bom 8448

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Whether court can permit third party to be added as party in the suit?

Much water has been flown under the bridge after the decision is rendered. After this judgment, in 1977, amendment was brought to the Code of Civil Procedure and added a provision Order 1, Rule 8-A which reads as under :

"8-A. Power of Court to permit a person or body of persons to present opinion or to take part in the proceedings.---While trying a suit, the Court may, if satisfied that a person or body of persons is interested in any question of law which is directly and substantially in issue in the suit and that it is necessary in the public interest to allow that person or body of persons to present his or its opinion on that question of law, permit that person or body of persons to present such opinion and to take such part in the proceedings of the suit as the Court may specify."

5. By the above amendment, the Parliament has widened the scope of locus in tune with changing times. Courts were also relaxing the rigid rule of locus in the interest of justice.

6. Impleadment of a third party in a suit is an attribute of principle of natural justice. 

 Without much difficulty one can see that concept of locus standi and principle of natural justice are closely intertwined that one cannot be separated from another as the opportunity of being heard is the main attribute of locus standi. When a third party approaches Court with contention that he is interested in the subject matter of the suit or in the dispute between the plaintiff and defendant, the Court shall ordinarily give an opportunity to such a party to put his case. It may be remembered that a third party is coming to the Court on his own risk, whereas a party sought to be impleaded at the instance of the defendant is dragged on to the litigation without his will. These two incidents are therefore entirely different and require different treatment at the hands of the Court. Therefore, observation made by the Single Judge that for all impleadment the plaintiff is dominus litus cannot be applied in all cases. Of course, it can be applied where the defendant insisted in the written statement or in his reply that the particular person is necessary party and the plaintiff can resist the impleadment because he is dominus litus and he can decide who is to be the necessary party. In such an event, he is taking the risk of suit being thrown out in the absence of the necessary party. But in the case of impleadment of third party who approaches the Court and says that he is vitally interested in the dispute that is going on between the plaintiff and defendant, and therefore, he may be given an opportunity of being heard, naturally consistent with the principle of natural justice and fair play, the Court will not refuse his impleadment, unless the Court feels that he is totally a stranger and unless the Court feels that it is employing a delaying tactics.

IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 1306 of 1999

Decided On: 09.08.2000

 Gulab Babusaheb Bargiri Vs.  Executive Engineer, Maharashtra State Electricity Board and Ors.

Hon'ble Judges/Coram:

T.K. Chandra Shekhara Das, J.

Citation: 2001(1) MHLJ 63

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Whether purchaser pendente lite can be added as party in suit?

The doctrine of lis pendens applies only where the lis is pending before a Court. Further pending the suit, the transferee is not entitled as of right to be made a party to the suit, though the Court has a discretion to make him a party. But the transferee pendente lite can be added as a proper party if his interest in the subject matter of the suit is substantial and not just peripheral. A transferee pendente lite to the extent he has acquired interest from the defendant is vitally interested in the litigation, whether/the transfer is of the entire interest of the defendant; the latter having no more interest in the property may not properly defend the suit. He may collude with the plaintiff. Hence, though the plaintiff is under no obligation to make a lis pendens transferee a party; under Order XXII Rule 10 an alienee pendente lite may be joined as party. As already noticed, the Court has discretion in the matter which must be judicially exercised and an alienee would ordinarily be joined as a party to enable him to protect his interests. The Court has held that a transferee pendente lite of an interest in immovable property is a representative-in-interest of the party from whom he has acquired that interest. He is entitled to be impleaded in the suit or other proceedings where the transferee pendente lite is made a party to the litigation; he is entitled to be heard in the matter on the merits of the case.

11. The law is thus settled that an alienee pendente lite would always be bound by the verdict of the Court in the suit and would always be subject to the final decree that would be passed. Such an alienee could be brought on record as a defendant under Order 1 Rule 10 of the CPC if it appears that his substantial interest in the suit property would depend upon the verdict in the said suit.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition No. 11925 of 2016

Decided On: 09.06.2017

Rama and Ors. Vs. Narayan Govinda Khakal and Ors.

Hon'ble Judges/Coram:

R.V. Ghuge, J.

Citation: 2017(5) BOM CR 272

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Whether owner of tenanted property can be added as party in eviction of tenant suit?

The dispute, at the instance of the present applicants, of the landlord-tenant and the right of eviction, cannot be converted here as a title dispute by virtue of the impleadment sought. Reference can be made to judgment passed in 'Ram Parkash v. Amar Nath and another' MANU/PH/1085/1984 : 1985 (1) RCR (Rent) 21 wherein it has been held that where the dispute of ownership was raised by the brother of the vendor, he could seek remedy in civil Court for his ownership and could file a separate application of ejectment and his application under Order 1 Rule 10 CPC was dismissed, while allowing the civil revision. Thus, apparently, the impugned order does not suffer from any infirmity or illegality.

8. In similar circumstances, in 'Subhash Chander and others v. Lata Baij Nath Aggarwal and others' MANU/PH/0544/1993 : 1993(2) R.C.R.(Rent) 471 : 1993 (2) PLR 460 and in Kamla Devi and others v. Surinder Kumar and others' MANU/PH/0745/2006 : 2006(2) R. C.R. (Rent) 484:2006 (3) PLR 371, it has also been held to that extent that normally the plaintiff is the master of his suit. It has been categorically held that the third party claiming ownership in the suit property is not a necessary party in the rent proceedings. 

IN THE HIGH COURT OF PUNJAB AND HARYANA

CR No. 153 of 2017 (O&M)

Decided On: 23.03.2017

Dhan Singh and Ors. Vs. Pushkar and Ors.

Hon'ble Judges/Coram:

Gurmeet Singh Sandhawalia, J.

Citation: 2017(2) RCR (Rent) 36

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Whether third party can be impleaded as tenant in eviction petition?

It is surprising as to how the petitioner could have made these averments when admittedly no independent proceedings were filed by her to seek a declaration of her rights as a tenant except for the fact that the petitioner has some other motives, as these averments reflect. Secondly it cannot be overlooked that if such a plea is accepted, an assertion which is completely alien to the requirement of law for the court to be satisfied to consider any application under Order 1 Rule 10 of the C.P.C. would be accepted. A plain look at the averments in paragraph 14 (supra) of the impleadment application, in my opinion, reveals the real intention of the petitioner.

25. Thus there is much substance in the contention as urged on behalf of respondent No. 1. The reliance of Mr. Gorwadkar on the recent decision of the Supreme Court in "Nandkishor Savalaram Malu (dead) through L.Rs. v. Hanumanmal G. Biyani (dead) through L.Rs." (supra) is apposite, in contending that the only necessary party to the suit in question was respondent No. 2 -the tenant, and the petitioner would not become a necessary or a proper party. This was a case in which the appellant had impleaded defendant No. 1 who was an employee of the tenant firm. The tenant firm had suffered a decree, however, the suit was dismissed against defendant No. 1. Aggrieved by the learned trial Judge not passing a decree against defendant No. 1, plaintiff No. 2 filed an appeal before the learned District Judge who allowed the appeal and decreed the suit against all the defendants and held that defendant No. 1 being an employee of the firm is bound by the decree passed against the firm and its partners (defendant Nos. 2 to 9). The High Court in revision upset the order passed by the learned District Judge and maintained the order passed by the learned trial Judge. This order of the High Court came to be challenged in the proceedings before the Supreme Court. It is in this context, their Lordships of the Supreme Court made following observations in paragraph 30 which read thus:-

"30. As a matter of fact, in our view, it was not necessary for the appellants to have impleaded defendant No. 1 in the present rent proceedings. The reason being that in rent proceedings the lessee/tenant is the only necessary or/and proper party and none else. A person, who claims through lessee/tenant, is not a necessary party".

26. Further Mr. Gorwadkar, learned Senior Counsel for respondent No. 1 would be correct in submitting that the Court in considering the impleadment application under the provisions of Order I Rule 10 of CPC for impleadment of a third party, the question of limitation becomes relevant considerating the provisions of Order I Rule 10 Sub-rule (5) of Code of Civil Procedure. This for the reason that by such impleadment, the basic cause which was asserted at the time of filing of suit and in the present case in the year 1982 when the suit came to be instituted by respondent No. 1 is sought to be altered by the impleadment application of the petitioner. The effect of amendment, therefore, relates back to the basic cause of action which accrued to respondent No. 1 in the year 1982 and for that matter in the year 1995 when the second suit came to be filed. Mr. Gorwadkar's reliance on the decision of the Supreme in Alkapuri Co-op. Housing Society Ltd. v. Jayantibhai Naginbhai (deceased) through LRs. (supra) in supporting this proposition, is apposite. The Supreme Court in a similar context has made the following observations:-

"15. It is neither in doubt nor in dispute that the court's jurisdiction to consider an application for amendment of pleading is wide in nature, but, when, by reason of an amendment, a third party is sought to be impleaded not only the provisions of O.VI R.17, Code of Civil Procedure (C.P.C.) but also the provisions of O. I R. 10, C.P.C. would come into play. When a new party is sought to be added, keeping in view the provisions of sub- rule (5) of Rule 10 of Order I, C.P.C., the question of invoking the period of limitation would come in."

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 2446 of 2017

Decided On: 19.09.2017

Minalini Lalit Modi Vs. Kishinchand Chellaram and Ors.

Hon'ble Judges/Coram:

G.S. Kulkarni, J.

Citation: 2017(2) RCR (Rent) 459

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Whether case can be transferred as per convenience of witness?

I have bestowed my attention to the facts and submissions. The facts are narrated, shorn of un-necessary details, as in this proceeding for transfer it is not necessary to deal with serious contentions which the parties traded in their pleadings in the suit. The plaintiff is a Driver working in APSRTC of Macherla Depot is not in dispute. He brought the suit against the defendants, including the petitioners herein, for partition stating inter alia that the plaint schedule properties are liable for partition being joint family properties. As rightly pointed out by the learned counsel for the plaintiff, the suit for partition can be instituted in a Court within the local limits of whose jurisdiction one of the immovable properties liable for partition is situate. In the case on hand, item No. 1 of the plaint schedule property is situated within the limits or territorial jurisdiction of the Court of the Senior Civil Judge at Gurazala of Guntur District. Even the property mentioned in item No. 2 of the plaint schedule is situated in Nalgonda District. Therefore, the Court at Gurazala is having jurisdiction to entertain and try the suit is not in dispute. Reference may also be had to Section 17 of the Code of Civil Procedure, 1908, which provides that where a suit is to obtain relief respecting immovable property situate within the jurisdiction of different Courts, the suit may be instituted in any Court within the local limits of whose jurisdiction any portion of the property is situated. In Dhannalal v. Kalawatibai and others (MANU/SC/0565/2002 : [2002] Supp. 1 SCR 19) the Supreme Court held as follows: 'Plaintiff is dominus litis, that is, master of, or having dominion over, the case. He is the person who has carriage and control of an action. In case of conflict of jurisdiction, the choice ought to lie with the plaintiff to choose the forum best suited to him unless there be a rule of law excluding access to a forum of plaintiffs choice or permitting recourse to a forum will be opposed to public policy or will be an abuse of the process of law.' It is only baldly alleged in the petition that transfer as sought for, if permitted, would be convenient to the witnesses to be examined in the suit, without giving names of the proposed witnesses and their places of residence. Further, the 2nd defendant is a businessman and the 5th defendant who is his daughter is a student. Whereas the plaintiff and the 1st defendant, who is supporting the plaintiff in the present proceeding, are both employed and working respectively as Driver in RTC, Macherla Depot and Teacher in a School at Rentachintala, which are within the local limits of the Courts at Guntur. In the facts and circumstances of the case the petitioners, defendants 2 and 5, cannot be permitted to pick and choose the Court at Ranga Reddy District on the ground that it suits their convenience and seek transfer of the plaintiffs suit, more particularly when they are unable to show any special circumstances to accept their plea. Further, on weighing the conveniences and inconveniences of the parties and the competing probabilities and on consideration of the legal principles applicable, this Court is of the considered view that the choice of the plaintiff deserves to be accepted and shall prevail as the choice lies with the plaintiff to choose the forum best suited to him.

IN THE HIGH COURT OF JUDICATURE AT HYDERABAD 

Transfer Civil Miscellaneous Petition No. 599 of 2016

Decided On: 29.12.2016

Pallerla Srinivasa Reddy and Ors. Vs. Pallerla Subba Reddy and Ors.

Hon'ble Judges/Coram:
M. Seetharama Murti, J.

Citation: AIR 2017(NOC)764 HYD

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Whether a person who is commercially interested in outcome of suit can be added as party to suit?

In the leading English case of Moser v. Marsden, Lindly L.J. has held that a party who is not directly interested in the issues between the plaintiff and the defendant but is only indirectly or commercially affected cannot be added as a defendant because the Court has no jurisdiction under the relevant rule to bring him on record even as a proper party. The position is no different under the Indian law. As laid down by this Court, "in a suit relating to property in order that a person may be added as a party, he should have a direct interest as distinguished from a commercial interest in the subject-matter of the litigation." (See Razia Begum v. Sahebzadi Anwar Begum). In Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay 1992 AIR SCW 846 this Court has held (SCC p. 531, para 14) (at page 851 (of AIR SCW):

"It can not be said that the main object of the rule is to prevent multiplicity of actions though it may incidentally have that effect .......... It is, therefore, necessary that the person must be directly or legally interested in the action in the answer, i.e. he can say that the litigation may lead to a result which will affect him legally that is by curtailing his legal rights. It is difficult to say that the rule contemplates joining as a defendant a person whose only object is to prosecute his own cause of action."
11 A. It will be seen that in paragraph 11 of the Judgment, the Supreme Court relied on its earlier Judgment inMANU/SC/0003/1958Razia Begum, v. Sahebzadi Anwar Begum, wherein the Supreme Court pointed but that an application for addition can be allowed only when a person will be directly or legally interested in the matter. A person who is commercially involved shall not be allowed to be added as a party. The Supreme Court pointed that a person who wants to prosecute his own cause of action must file a suit separately usually he cannot be added as party in the suit filed by another person, as the law is that the plaintiff is the dominus litis.

IN THE HIGH COURT OF GAUHATI

Civil Revision Nos. 371, 372, 373 and 374 of 1993

Decided On: 29.08.1997

 Laxmanlal Jee Mandir
Vs.
 Laxmiram Agarwalla and Anr.

Hon'ble Judges/Coram:
J.N. Sarma, J.
Citation: AIR 1998 Gauhati 89

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Whether doctrine of forum non conveniens is applicable for transfer of Case?

We have considered the above suggestions. In this respect, we
may also refer to the doctrine of forum non conveniens which can be
applied in matrimonial proceedings for advancing interest of justice.
Under the said doctrine, the court exercises its inherent jurisdiction to
stay proceedings at a forum which is considered not to be convenient
and there is any other forum which is considered to be more
convenient for the interest of all the parties at the ends of justice. In
Modi Entertainment Network and anr. v. W.S.G. Cricket Pte.
Ltd.(2003)4 SCC 341
 this Court observed:
“19. In  Spiliada Maritime Corpn. V. Cansulex Ltd. (1986)3 All ER 843 case the House of Lords laid down
the following principle:
“The fundamental principle
applicable to both the stay of English
proceedings on the ground that some
other forum was the appropriate
forum and also the grant of leave to
serve proceedings out of the
jurisdiction was that the court would
choose that forum in which the case
could be tried more suitably for the
interest of all the parties and for the
ends of justice.”
The criteria to determine which was a more appropriate forum,
for the purpose of ordering stay of the suit, the court would look
for that forum with which the action had the most real and
substantial connection in terms of convenience or expense,
availability of witnesses, the law governing the relevant
transaction and the places where the parties resided or carried
on business. If the court concluded that there was no other
available forum which was more appropriate than the English
court, it would normally refuse a stay. If, however, the court
concluded that there was another forum which was prima facie
more appropriate, the court would normally grant a stay unless
there were circumstances militating against a stay. It was
noted that as the dispute concerning the contract in which the
proper law was English law, it meant that England was the
appropriate forum in which the case could be more suitably
tried.”
Though these observations have been made in the context of
granting anti suit injunction, the principle can be followed in
regulating the exercise of jurisdiction of the court where proceedings
are instituted. In a civil proceeding, the plaintiff is the dominus litis
but if more than one court has jurisdiction, court can determine which
is the convenient forum and lay down conditions in the interest of
justice subject to which its jurisdiction may be availed.Kusum Ingots & Alloys Ltd. v. Union of India and anr. (2004) 6 SCC 254 para 30
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
 TRANSFER PETITION (CIVIL) NO. 1912 OF 2014
KRISHNA VENI NAGAM 
V
HARISH NAGAM 
Dated:MARCH 9, 2017.
Citation:(2017)4 SCC150,2017(4) MHLJ764

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Whether jurisdiction of court is to be decided on the basis of averments in plaint?

 It is a settled and an elementary rule of law that to see
whether a suit is between a landlord and tenant one must see the
Plaintiff's case from the plaint, whatever be the defence. The Plaintiff
is the dominus litis. It is for him to sue. It is for the Plaintiff to show
whether his suit is between him as the landlord and the Defendant as
the tenant for recovery of possession, for recovery of rent of any other
application under the Maharashtra Rent Control Act. 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
SUIT NO.2955 OF 2010

Shaikh Jaber Abdulah J AI Sabah Vs. Ravindra Mukund Chafe

CORAM : MRS. ROSHAN DALVI, J.

DATED : 19th December, 2013
Citation;2014(3) ALLMR 293 Bom

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