Vishnu Construction Co. and Another vs The Secretary, Department of Public Health, Govt of Punjab and Others

Jawahar Lal Gupta, J.—The petitioners in this revision petition are not parties in the suit, yet they have approached this Court. A few facts relevant for the decision of this petition may be briefly noticed.

Mr. Amarjit Singh Monga, the Contractor, filed a suit for permanent injunction "restraining the defendant No. 7 from taking up the work of fixing of white glazed tiles at Girls Hostel of Women Polytechnic, Patiala and Administrative Block...... " He also made prayer for the grant of temporary injunction. This application was dismissed by the learned trial Court vide its order dated September 24, 1992. Aggrieved by this order, Mr. Amarjit Singh Monga filed an appeal before the Additional District Judge, Patiala. Learned lower Appellate Court set aside the order passed by the learned trial Court and directed the respondents "to get the work done in accordance with the latest letter of the Government dated 1.8.91 issued by the Government of Punjab, Department of Public Works Branch II."

It appears that while the aforesaid appeal was pending, the petitioners moved an application under Order 1 Rule 10 C.P. C. read with section 151 C.P.C. for being impleaded as respondents. Notice of the application was given to Mr. Monga, who filed a reply. Thereafter, an application under Order 6 Rule 17 of the CPC was filed for amendment of the application, which had been filed earlier under Order 1 Rule 10 of the Code of Civil Procedure. The learned Additional District Judge, Patiala before whom the appeal filed by Mr. Monga was pending, has dismissed two applications by two separate orders passed on December 15, 1992.

The present revision petition has been filed by the two petitioners, whose applications under Order 1 Rule 10 and Order 6 Rule 17 of the CPC have been dismissed. They have also challenged the order al lowing the appeal of Mr. Monga.

I have heard Mr. R.L. Gupta, learned counsel for the petitioners and Mr. R.K. Battas, learned counsel for Mr. Amarjit Singh Monga, who has been impleaded as respondent No. 8. Mrs. Charu Tuli has appeared for respondent Nos. 1 to 7.

Mr. R.L. Gupta, contends that the learned Additional District Judge, Patiala has erred in dismissing the application filed by the petitioners under Order 1 Rule 10 inter-alia on the ground that "it has not been drafted in a proper manner. Learned counsel further contends that having dismissed the application, the learned Judge has observed that the application under Order 1 Rule 10 of the CPC having been dismissed "there is no necessity to allow the application under Order 6 Rule 17 C.P.C...." According to the learned counsel, the approach of the learned Additional District Judge, Patiala was wholly erroneous. Consequently, he prays that all the three orders which have been impugned in the present petition deserve to be set aside. On the other hand, Mrs. Charu Tuli, learned counsel for the Government has submitted that in pursuance to the observations made by the learned Additional District Judge in his order dated December 16, 1992, whereby he had directed the Chief Engineers to "decide the matter within 10 days in concurrence with the Secretary ", the Government has passed orders and, therefore, effect should be given to those orders. Mr. R.K. Battas, learned counsel for Mr. Monga, however, submits that the petitioners have no locus standi in the matter and that their applications were rightly dismissed. He further contends that the learned lower Appellate Court had validly allowed the appeal of Mr. Monga and the order having not been challenged by any of the parties to the suit, the present petition is wholly incompetent and deserves to be dismissed.

After hearing the learned counsel for the parties, it appears that the learned Additional Distt Judge was not right in dismissing the application of the petitioners under Order 1 Rule 10 of the CPC before deciding their application for the amendment of the earlier application which had been filed under Order 6 Rule 17. He should have first considered the prayer for amendment. If he had found that the amendment prayed for by the petitioners deserved to be allowed, then he should have proceeded to consider and decide the amended application under Order 1 Rule 10. He did not do so. This was not correct. However, this error does not appear to have made any vital difference to the final decision of the case. The plaintiff had sought an injunction against the Executive Engineer, PWD B & R, Provincial Division No. 1, Patiala, whom he had impleaded as defendant No. 7, besides various other parties. The plaintiff has a right to choose the parties. While it is true that all persons whose presence is necessary for the decision of the case should be impleaded as parties, it is equally settled that the choice is that of the plaintiff and if the Court finds that a necessary party has not been impleaded, it can proceed to pass appropriate orders. The Court can even dismiss the suit. It has not been shown that the petitioners were necessary parties. If their interest was involved, they could have moved an application before the trial Court to be impleaded as defendants. They did not do so. They could have even filed a separate suit. They have not done so. Instead they made an application before the learned Additional District Judge. Since the suit was pending before the trial Court, the petitioners should have approached the trial Court only. If they had failed, they could have challenged the order in appropriate proceedings. The application for being impleaded as a party before the learned lower Appellate Court was in the circumstances of the case misconceived. In spite of the fact that the learned Additional District Judge made a procedural error in dismissing the application before deciding their prayer for amendment, I find no ground to interfere in the matter in so far as the final outcome of the application is concerned. As a rule, the Court does not add defendants to a suit against the wishes of the plaintiff. This is all the more so in a case where no relief has apparently been sought against the persons, who seek to be impleaded. A perusal of the plaint which was produced by Mr. R.K. Battas indicates that the only prayer is for restraining defendant No. 7 from taking up the work of fixing of white glazed tiles and to allow him to carry out the work allotted to him by the Superintending Engineer, Public Health. No relief having been sought against the petitioner, they were not necessary parties to the case and as such their claim in this be half cannot be sustained.

Mr. R.L. Gupta vehemently contended that the work relating to the fixation of white glazed tiles at the girls Hostel had been initially allotted to the petitioners. He submits that the order of the learned Additional District Judge vitally affects the interests of the petitioners. If this be so, the petitioners can seek appropriate remedy in such proceedings as they may be entitled to initiate. They may even file a fresh suit. They may even be entitled to make an application to the learned Trial court for becoming a party in the suit filed by Mr. Monga. However, as at present, there appears to be nothing on record on the basis of which I may be able to hold that the petitioners were necessary parties and that the Court has erred in not impleading them at the appellate stage.

Equally futile is the challenge of the petitioners to the order passed by the learned Additional District Judge accepting the appeal of Mr. Monga. The petitioners are not parties to the suit. The order has not been challenged by any of the parties to the suit. No apparent infirmity has been pointed out in the order. Consequently there appears to be no error of jurisdiction in the discretionary order which may call for interference in this revision petition.

The learned Court had directed the two Chief Engineers to decide the matter with the concurrence of the Government. A time of ten days was allowed for the purpose. The appropriate authority failed to take any action within the prescribed time. In any event, on a consideration of the matter, I find no ground to interfere with the order of the learned Court.

Accordingly, there is no merit in this petition. It is dismissed. In the circumstances of the case, there will be no order as to costs.