In suit for damages, plaintiff reviewed earlier order directing replacement of dissolved partnership firm with successor company, citing prior consent not to amend plaint.
Order dated August 12, 2008 is recalled; suit placed for further directions; time to Commissioner extended by eight weeks.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
CHAMBER SUMMONS NO. 1286 OF 2008
IN
SUIT NO. 576 OF 1981
The Cotton Corporation of India Ltd. ...Plaintiff
vs
G. Ramaswamy & Co. (Ganga Textiles) & Anr..Defendants
Mr.U.M. Mahajan i/b. M/s.Divekar & Co. for the
Plaintiff.
Mr.Behram Shroff alongwith Mr.Ashok Verma i/b.
M/s.Tejpal & Co. for the Defendants.
CORAM : V.M. KANADE, J.
DATED : SEPTEMBER 15, 2008
P.C. :-
1. Heard Counsel for the plaintiff and Counsel for
the defendants.
2. By this chamber summons, the plaintiff seeks
review of the order dated 12th August, 2008 passed by
this Court in the suit when it was placed for
directions. The grievance is that though the matter was
placed for directions, the said order has been passed.
Brief facts are as under :-
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3. The plaintiff has filed a suit against a firm G.
Ramaswamy and Co. (Ganga Textiles) and other defendant.
The matter was referred to the Commissioner for
recording the evidence. When the evidence was recorded
by the Commissioner, it transpired that the firm G.
Ramaswamy (Ganga Textiles) was not in existence any
longer and it was taken over by a company known as Ganga
Textiles. The Commissioner, therefore, expressed his
inability to record the evidence and informed the
parties to seek appropriate orders from the court.
4. On 28th September, 2007, the learned Single
Judge of this Court (Mrs.Justice Ranjana Desai, J.)
passed an order recording the fact that the plaintiff
did not desire to amend the plaint and therefore,
directed the Commissioner to proceed with his work. A
new Commissioner was appointed on 22nd July,2008. In a
meeting held before the Commissioner on 29th July, 2008,
Counsel for defendant no.1 expressed his inability to
proceed with the case since he had received no
instructions from his client. Thereafter, the matter
again was placed for directions on 12th August, 2008.
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This Court directed that the plaintiff should delete
defendant no.1 partnership firm and bring on record
Ganga Textiles Limited and for that, four weeks time was
granted to the plaintiff.
5. Thereafter, the present chamber summons is taken
out by the plaintiff for recalling the said order. He
submitted that an order already had been passed by this
Court on 28th September, 2007 and therefore, there was
no occasion for this Court to again pass a different
order directing the plaintiff to add the company as
defendant and delete the firm as defendant no.1 from the
array of parties.
6. It is true that by order dated 28th September,
2007, the learned Single judge has made the following
observations :-
" The learned counsel for the plaintiffs
states that the suit is for damages for breach
of contract and it has rightly been instituted
against G. Ramaswamy & Co. (Ganga Textiles)
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and the plaintiffs do not desire to amend the
plaint. If the plaintiffs are not willing to
amend the plaint, the court cannot force them to
amend the plaint. The plaintiffs will obviously
take whatever consequence that flow from their
not amending the plaint. The Commissioner may,
therefore, proceed with his work. All
contentions raised by both sides in respect of
the change in the nature of 1st defendant
company are kept alive."
In view of this, there was no occasion for this Court,
therefore, to give a direction to the plaintiff to
delete defendant no.1.
7. Moreover, in view of the provisions of Order 22
Rule 10, it is upto the party to whom an interest has
devolved to seek leave of the court for the purpose of
being transposed as defendant. No such leave has been
asked for by the company Ganga Textiles. In view of
this, order passed by this Court dated 12th August, 2008
is recalled.
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8. It is clarified that since the plaintiff has
chosen to continue with the suit against a non-existing
party, which admittedly does not exist, the plaintiff
may do so on his own risk. Mr.Mahajan, Counsel for the
plaintiff submits that the plaintiff shall do so at his
own risk.
9. In view of this, Chamber Summons is allowed.
Order dated 12th August, 2008 is recalled. Place the
suit for further directions.
10. Time granted to the Commissioner to submit a
report is extended by eight weeks.
11. S.O. eight weeks.
(V.M. KANADE, J.)
3 issues framed by the court
Whether the court review order dated August 12, 2008 directing plaintiff to replace former defendant firm with successor company.
Whether party of an interest should seek leave of court under Order 22 Rule 10 CPC before being transposed as defendant.
Whether court relief can be recalled given plaintiff elected to proceed against non-existing party at own risk.
Colour shows how this judgement treated each authority
Order 22 Rule 10 CPCApplied¶26
V.M. Kanade
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court