Shyam Sunder v. Vinit @ Rajan Arora & ORS

$~A-16 *

IN THE HIGH COURT OF DELHI AT NEW DELHI

+ CM(M) 712/2016 and CM Nos. 26406/2016 & 197/2017 SHYAM SUNDER ..... Petitioner Through Mr.Raj Kumar Mittal, Advocate.

versus VINIT @ RAJAN ARORA & ORS ..... Respondents Through Mr.Lokesh Kumar Aggarwal, Advocate.

CORAM:

HON'BLE MR. JUSTICE JAYANT NATH

O R D E R

% 22.02.2017 1.

By the present petition filed under Article 227 of the Constitution of India, the petitioner seeks to challenge the order dated 08.03.2016 by which order the trial court allowed an application filed by the respondents under Order 1 Rule 10 CPC and deleted defendants No. 2 to 5 and 7from the array of parties.

2.

The petitioner has filed a suit for mandatory and permanent injunction and recovery of damages of Rs.3,7,570/-. It is the contention of the petitioner that he is running a publishing house in the name and style of Ms/ Prabhat Prakashan. It is stated that defendant No.1/respondent No.1 had approached the petitioner in January 2012 and informed that the defendants No. 1 to 6 have a reputed family business of printing and binding in the name and style of De Unique. It is further averred that the petitioner started

giving the defendants printing and binding jobs and for that purpose, supplied the defendants negatives of the books to be printed and other required material like printing paper, end paper, pasters, jackets, etc. 3.

The respondents entered appearance but did not file the written statement. Ultimately, the right of the respondents to file the written statement was closed.

4.

By the impugned order the trial court noted that the admitted case of the petitioner is that it was respondent No.1 who approached the petitioner and obtained the order in the name of M/s. De Unique. It also concluded that the petitioner has in the entire plaint failed to disclose what is the status of defendants No. 2 to 5 and 7 in M/s De Unique. Accordingly, it allowed the application of the respondents and deleted defendants No. 2 to 5 and 7 from the array of parties.

5.

I have learned counsel for the parties.

6.

A perusal of the plaint would show that there are clear allegations made against all the respondents. The plaint specifically states that respondent No.1 represented that respondents would provide prompt and quality services, that the petitioner gave various printing and binding jobs to the respondents and also handed over negatives of the books, printing papers and papers, etc. It also states that the petitioner requested for respondents No. 1 to 6 to return the negatives and unutilised paper, etc. The petitioner is dominus litis. The trial court could not have concluded about the liability of respondents No. 2 to 5 and 7 in the absence of their pleadings and necessary documents/evidence. It is manifest that defendants No. 2 to 5 and 7 have been deleted relying upon the defence raised by the respondents which defence had already been struck off as they had not filed the written

statement.

7.

In the light of the clear averments made in the plaint about the liability of respondents No. 2 to 5 and 7, the actual adjudication of the liability would be a disputed question of fact which cannot be done while deciding an application under Order 1 Rule 10 CPC in a cursory manner. The impugned order suffers from manifest irregularity and is liable to be quashed. The said order is set aside. However, no observations made here will prejudice respondents No.2 to 5 and 7 on their submission that they are not liable for the alleged dues of the petitioner or that they have no concern with De-Unique.

8.

At this stage, learned counsel for the petitioner very fairly concedes that in the interest of justice, the respondents may be allowed to file the written statement subject to payment of costs. 9.

In my opinion, it is fair and it would cut short the needless further delay in disposal of the matter. The respondents may file the written statement on or before the next date of hearing before the trial court subject to payment of costs of Rs.7,500/-. It may be noted that in case the written statement is not filed within the stipulated period, no further opportunity shall be granted.

10.

The parties to appear before the trial court on 20.03.2017. 11.

In view of above, the present petition stands disposed of. All pending applications also stand disposed of.

JAYANT NATH, J FEBRUARY 22, 2017 rb