Jayashree Chemicals Ltd. vs K. Venkataratnam and Others

S.K. Ray, Ag. C.J.

This appeal is by the Plaintiff. The suit was for recovery of Rs. 7,884.11 from the defendant towards the price of goods supplied plus interest of

Rs. 845.00 from 24-10-1966 till 24-11-1967. The story may be briefly stated as follows:--

The Plaintiff is manufacturing Firm located at Chhatrapur and the defendant was a Contractor under the Government for construction of 132 M. V.

Line under the Orissa Electricity Board. The Plaintiff was interested in early completion of the K. V. Line, presumably because it was in need of

the electricity and therefore agreed to supply to the defendant necessary goods for construction of the M. V. Line with the sole object of speeding

up the construction work. It made supplies of various types of goods between 19-10-1966 and 31-3-1967, the total price of which came to Rs.

7,039.11. The Plaintiff also issued bills in respect of the goods supplied which are said to have been received by the defendant. Since no payment

was made, the Plaintiff issued the suit notice to the defendant on 18-7-1967. Since the defendant defaulted to pay despite this notice, the present

suit was filed for recovery of the aforesaid amount with interest.

The defence is one of denial of the entire transaction. The defendant also denies to have received any goods from the Plaintiff-firm.

The Plaintiff has sought to prove his case through P.W. 1 and some documents. P.W. 1 is an employee of the Plaintiff-firm in the Account

Section. He has proved certain letters and certain bills in proof of delivery of articles to the defendant through one G.V. Ratnam who is said to

have signed in token of taking delivery. But P.W. 1 has not properly proved the signature of the said Ratnam because he admits that the

documents were signed by Ratnam in presence of the Store Clerk and not before him. Therefore as held by the trial Court, he is not a witness of

actual delivery of the articles to the defendant, nor has he witnessed G.V. Ratnam signing the documents like Exts. 38 to 40. Though he has

deposed that G.V. Ratnam is an agent of the defendant, he has been compelled to admit that there is no document with the Plaintiff to show that

the said G.V. Ratnam is the agent of the defendant or that he produced any letter of authorisation from the defendant entitling him to receive the

articles of which he took delivery from the Plaintiff. He has been further compelled to admit that he has no personal knowledge as to what passed

between the General Manager of the Plaintiff-firm and the defendant. His evidence is therefore hearsay. The defendant has examined himself and

has denied the factum of G.V. Ratnam being his agent or he having authorised him to receive any article from the Plaintiff. He has further stated that

the said G.V. Ratnam is an engineer of Subbarao and Co. of Vijayawada who was in charge of Rusikulya Railway Bridge at Ganjam. There is,

therefore, possibility of G.V. Ratnam having received some articles from the Plaintiff-firm for his Principal Subba Rao and Co. That is, however, a

mere conjecture. As the evidence stands the Plaintiff has failed to establish that G.V. Ratnam has received articles in question from the Plaintiff and

that he received them in the capacity of the agent of the defendant, and. accordingly no liability can be fixed on the defendant on account of such

supplies. The finding of the trial Court is that the Plaintiff has failed to prove his case regarding supply of the articles to the defendant and as such

the suit is bound to fail. This finding appears to be correct.

After the appeal had been filed in this Court, the Plaintiff files an application under Order 1, Rule 10 (2) read with Section 151, CPC praying to

implead G.V. Ratnam and M/s. Subba Rao and Co. as party respondents to this appeal and also allow amendment of the plaint by impleading

them as defendants and to modulate the relief portion so as to claim recovery of the suit amount against them personally. Notice of this application

was issued to the respondents and as none appeared to object to this application G.V. Ratnam and M/s. Subbarao and Co. were allowed to be

impleaded in this appeal by order dated 15-11-1973. At the time of hearing Mr. Roy frankly conceded that as the evidence stands on record he

cannot impeach the finding of the trial Court that the Plaintiff has failed to prove its claim against the defendant. But as the evidence indicates that

G.V. Ratnam had received the articles from the Plaintiff, either he personally or M/s. Subbarao and Co. as his Principal or both may be made

liable for the suit claim. He, therefore, prays that the petition for amendment of the plaint may be allowed and the suit be remitted to the trial Court

to be retried against the aforesaid impleaded parties. Since the suit has failed against the sole defendant, it does not appear to me to be proper to

allow new parties to be impleaded as defendants in the suit and to allow the suit to be tried against them as if it had been instituted against them

from the very beginning. Mr. Roy says that the suit against the newly added parties is still in time. If so, it is open to him to present another plaint

against them on payment of court-fees, but he cannot be allowed to sue them on the original plaint. His claim against the sole original defendant

having failed, to grant the relief sought for now would amount to substituting a new suit in place of the old one and to direct the trial of the new suit

on the basis of the court-fees paid on the original plaint. I do not think such a procedure is envisaged within the four corners of the Code of Civil

Procedure. The object of Order 1, Rule 10, CPC is to implead parties for the sole purpose of completely and effectually adjudicating disputes

arising between the original parties to the suit in presence of such of the newly impleaded parties without which there might be multiplicity of

proceedings. That provision is invoked where the original defendant has still a stake in the litigation and not where the suit is dismissed against the

original defendant altogether. This provision, cannot be utilised for the purpose of substituting a new suit in place of the old one. In these

circumstances the Plaintiff cannot be permitted to amend its plaint and thereby to convert the suit as the suit against G.V. Ratnam and M/s.

Subbarao and Co. for which the cause of action would be different and would not be identical with the cause of action against the original

defendant. I must confess that this application under Order 1, Rule 10. CPC should not have been allowed at all in the first instance.

In the result, therefore, the appeal is bound to fail and is dismissed. But as there is no appearance on behalf of the respondents, there would be

no order for costs of this court.