Dr. S. Kameswaran Vs. A. Jayaraman and Another - Court Judgment

Excerpt:
- - it is the defendant who is compelling the plaintiff to make the government a party and unless the court is satisfied that government is a necessary party, ordinarily an order making government a party should not be made.orderjudgement pronounced by c. shivappa, j.1. this appeal is directed against the rejection of an application for impleading the proposed party as the additional party defendant in the suit. the learned counsel for the appellant contended that the proposed party is both necessary and proper party to the suit, as he contributed for the cause of action.2. in duraiswami goundan v. subramanian madaliar, 1950 (1) m.l.j. 521, it was held thus:-'in this case, however, it must be noted that the government has not asked that it should be added as a party. it is the defendant who is compelling the plaintiff to make the government a party and unless the court is satisfied that government is a necessary party, ordinarily an order making government a party should not be made. in sri mahant prayaga das jee varu v. the board of commissioners, hindu religious endowments, madras, : (1926)51mlj148 , which was a suit filed by the head of the hindu religious institution against the board of commissioners for a declaration that the said act was invalid and ultra vires and for an injunction restraining the defendant from doing certain acts, the secretary of state for india in council applied to be added as a party defendant. the application having been opposed by the plaintiff, it was held that- 'as there was no cause of action alleged in the plaint against the secretary of state and no relief claimed against him, he was neither a necessary nor a proper party to the suit and hence could not be added as party defendant.'3. a party can be impleaded only when there is a cause of action against him and where his presence is necessary and proper for effective adjudication of the dispute involved in the suit. the cause of action alleged in the plaint is that defendant no.l was negligent in his duties, consequently, the plaintiff suffered. order 8-a of the code of civil procedure, comes into play only when there is a contribution where two parties are liable. so far as they did not do any act together and when no claim is made for the contribution or indemnity by the third parties, allowing impleadment amounts to setting up the defence. it is the case of the plaintiff that the proposed, party is giving treatment to him even now and has minimised the hurt or agony caused by defendant no.l. if he has contributed to minimising the hurt or agony, according to the plaintiff, there will be no basis for the cause of action as alleged. if so advised, the appellant may examine the proposed party as a witness. but so long as the action is pointed against the defendant no.l, the party against whom no cause of action is alleged cannot be allowed to be impleaded as an additional party defendant to the suit.4. therefore, the appeal is liable to be dismissed and accordingly the same is dismissed. parties to bear their own costs. consequently, the connected miscellaneous petition is also dismissed.

Judgment:
ORDER

Judgement pronounced by C. Shivappa, J.

1. This appeal is directed against the rejection of an application for impleading the proposed party as the additional party defendant in the suit. The learned counsel for the appellant contended that the proposed party is both necessary and proper party to the suit, as he contributed for the cause of action.

2. In Duraiswami Goundan v. Subramanian Madaliar, 1950 (1) M.L.J. 521, it was held thus:-

'In this case, however, it must be noted that the Government has not asked that it should be added as a party. It is the defendant who is compelling the plaintiff to make the Government a party and unless the court is satisfied that Government is a necessary party, ordinarily an order making Government a party should not be made. In Sri Mahant Prayaga Das Jee Varu v. The Board of Commissioners, Hindu Religious Endowments, Madras, : (1926)51MLJ148 , which was a suit filed by the head of the Hindu Religious institution against the Board of Commissioners for a declaration that the said Act was invalid and ultra vires and for an injunction restraining the defendant from doing certain acts, the Secretary of State for India in Council applied to be added as a party defendant. The application having been opposed by the plaintiff, it was held that- 'As there was no cause of action alleged in the plaint against the Secretary of State and no relief claimed against him, he was neither a necessary nor a proper party to the suit and hence could not be added as party defendant.'

3. A party can be impleaded only when there is a cause of action against him and where his presence is necessary and proper for effective adjudication of the dispute involved in the suit. The cause of action alleged in the plaint is that defendant No.l was negligent in his duties, consequently, the plaintiff suffered. Order 8-A of the Code of Civil Procedure, comes into play only when there is a contribution where two parties are liable. So far as they did not do any act together and when no claim is made for the contribution or indemnity by the third parties, allowing impleadment amounts to setting up the defence. It is the case of the plaintiff that the proposed, party is giving treatment to him even now and has minimised the hurt or agony caused by defendant No.l. If he has contributed to minimising the hurt or agony, according to the plaintiff, there will be no basis for the cause of action as alleged. If so advised, the appellant may examine the proposed party as a witness. But so long as the action is pointed against the defendant No.l, the party against whom no cause of action is alleged cannot be allowed to be impleaded as an additional party defendant to the suit.

4. Therefore, the appeal is liable to be dismissed and accordingly the same is dismissed. Parties to bear their own costs. Consequently, the connected miscellaneous petition is also dismissed.