The Delhi High Court has observed that a defendant in a plaint cannot insist that the plaintiff should sue a third party, adding that he can only defend the plaint qua the allegations against him.
Justice C Hari Shankar added that the defendant cannot insist that the plaintiff should sue a party whom the plaintiff has not chosen to sue. The Court added that if the plaintiff fails to sue a necessary party, it would be at the risk and cost of the plaintiff.
"A defendant in a plaint cannot insist that the plaintiff should sue a third party. He can only defend the plaint qua the allegations against him. It is open to a defendant to contest his liability, qua the plaintiff, and, in an appropriate case, the defendant may also be entitled to move an application for rejection of the suit outright, if it fails to make out any sustainable cause of action against the plaintiff invoking, for the purpose, Order VII Rule 11 of the CPC," the Court observed.
The Court dismissed a plea challenging a Trial Court order wherein the petitioner's application under Order I Rule 10 of CPC in a civil suit seeking impleadment of the persons to whom a Maruti car, which was sold to him by the respondent, was transferred after it left the hands of the petitioner.
Vide the impugned order dated 17th August, 2019, the said application was rejected.
The suit was instituted by the respondent against the petitioner after the respondent sold his Maruti Car to the appellant. The delivery receipt issued by the petitioner to the respondent required petitioner to get the vehicle transferred in his name and to take full responsibility for maintenance, accidents, road tax, police challans etc., in respect of the car.
The respondent alleged that the petitioner reneged on the said assurance, and did not have the car transferred in his name. The respondent claimed to have come to know of this fact when the car was involved in a fatal accident, and summons, from the Motor Accidents Claim Tribunal (MACT) were received.
The plaint also acknowledged the fact that the car was successively sold, thereafter, by the petitioner to Gulshan and further, to Shamshad and to Amit. Despite this succession of transactions, the respondent alleged that the petitioner, in violation of the undertaking contained in the delivery receipt issued to the respondent, failed to have the car transferred in his name and that the car therefore continued to remain registered in the name of the respondent.
The Trial Court while rejecting petitioner's application, noted that the choice of the persons to be sued was the prerogative of the plaintiff and that in the present case, the respondent-plaintiff chose to sue the petitioner.
"In my view, the impugned decision of the learned ADJ is unexceptionable, both on facts as well as in law. It is, truly, the prerogative of the plaintiff to choose whom to sue. In case the plaintiff sues a party who is not liable, and fails to sue the parties who are liable, she/he does so at her/his own risk and costs," the Court observed.
The Court reiterated that only such parties against whom such reliefs are sought, who would be affected by the reliefs granted in the plaint or whose presence is required for the court to meaningfully adjudicate the controversy in the plaint, would be necessary and proper parties.
Accordingly, the Court upheld the impugned order and dismissed the plea.
Case Title: AAA VEHICLEADES PVT LTD v. BALKISHAN GUPTA
Citation: 2022 LiveLaw (Del) 493