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Deletion of a party’s name from the array of parties under Order I Rule 10(2) of the CPC can be allowed if a direct involvement is not found: High Court of Delhi

The plaintiff in a suit, being dominus litis may choose the persons against whom he wishes to litigate to seek any relief but if an involvement of such a party is not found, then, the party’s name can be deleted from array of parties under Order I Rule 10(2) of the CPC. These were stated by High Court of Delhi, containing Justice Amit Bansal in the case of Sumer Singh Salkan vs. Vikram Singh Mann & Ors. [CM(M) 37/2019] on 10.01.2022.

The facts of the case are that the plaintiff and the defendant no. 1 got married on 24th March, 2002 but soon thereafter, the petitioner left for Canada. Differences arose between them, which resulted in filing of police complaints by the defendant no. 1 against the plaintiff. On 3rd March, 2004 a ‘Red Corner Notice’ (RCN) was issued against the plaintiff, who, at that point of time was in Canada, in which it was incorrectly recorded that the maximum possible penalty for the offences allegedly committed by the plaintiff was 10 years, whereas the maximum punishment prescribed for the said offences under Sections 498A, 406 and 34 of the Indian Penal Code, 1908 (IPC) was three years. The plaintiff filed a writ petition before this Court seeking quashing of the illegal RCN and the LOC issued against the plaintiff, being W.P.Crl. 1315/2008, and vide the order dated 11th August, 2010, this Court allowed the petition and quashed the RCN. The suit from which the present petition arises for seeking damages of Rs.50,00,000/- against, inter alia, the respondent no. 1. The suit was premised on damage to the plaintiff’s career, reputation and life caused by the misuse and abuse of the legal process in getting a ‘Look Out Circular’ (LOC) and RCN issued by the defendants against the plaintiff. The case set up in the plaint was that the defendant no. 1, who was married to the plaintiff, used her brother, defendant no. 7, who was a senior IPS officer, to have a false FIR lodged and illegal LOC and RCN issued against the plaintiff, which caused immense harm to his career and reputation.

The Counsel for the petitioner contended that averments have been made against the defendant no. 7 with regard to his involvement and collusion with the defendant no. 1 so as to initiate various unlawful proceedings against the plaintiff, resulting in issuance of the RCN and the LOC. A Co-ordinate Bench of this Court in the judgment quashed the RCN issued against the plaintiff and observed that the LOC against the plaintiff was issued in view of the fact that defendant no. 7 was the brother of defendant no. 1 and also an IPS officer; and, accordingly, keeping in mind the principles to be applied while deciding an application under Order I Rule 10 of the CPC, defendant no. 7 is a necessary and proper party to the suit and therefore, cannot be deleted from the array of parties.

The Counsel for the respondent submitted that there is no infirmity in the impugned order as only vague averments have been made in respect of the defendant no. 7 and that there is no finding in the judgment dated 11th August, 2010 against the defendant no. 7. The observations in paragraph 10 relied upon by the plaintiff are only allegations made by the plaintiff and not findings of the Court. Even otherwise, any observations made in the aforesaid judgment are not binding on the defendant no. 7 since the defendant no. 7 was not a party in aforesaid writ petition; and the defendant no.7 was not posted in Delhi at the relevant point of time and therefore, could not have played any role in the issuance of RCN and LOC against the plaintiff.

The High Court of Delhi held that the defendant no. 7 was not posted in Delhi, nor was he directly involved with the issuance of LOC and/or RCN in the course of his official duty. The involvement of the defendant no. 7 is only based on the fact that he is the brother of defendant no.1 and was trying to help the defendant no. 1 in her matrimonial disputes against the plaintiff. It was only after the judgment dated 01st February, 2016 of the Division Bench, when the defendants no. 5 and 6 were deleted from the array of parties, that the present application under Order I Rule 10 and Order VII Rule 11 of the CPC was filed by the defendants no. 1 and 7. Clearly, it was highly belated, five years after the institution of the suit, and appears to be in the nature of an afterthought. In view of the above, the present petition is allowed and the impugned order, to the extent it rejects the plaint qua defendant no. 7 and allowed deletion of the defendant no. 7 from the array of parties under Order I Rule 10(2) of the CPC, as it was manifestly erroneous and was accordingly set aside.

Judgment reviewed by Shristi Suman. Read Judgment

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