Case Note & Summary
The petitioners, Gurmit Singh Bagga, Gurdeep Kaur Bagga, and Iqbal Singh Bagga, challenged an order dated 5/3/2012 passed by the 32nd Joint Civil Judge, Junior Division, Pune in R.C.S. No. 211/2008, and the appellate order dated 30/1/2014 of the Additional Sessions Judge, Pune in Criminal Appeal No. 109 of 2011. The original suit was filed by petitioner No. 1 (Gurmit Singh Bagga) against respondent No. 1 (Indrajit Kaur Bagga) seeking a prohibitory injunction to prevent her from causing injury to his dog and lodging false police complaints. The respondent No. 1, who is the wife of petitioner No. 3, had filed various proceedings including a criminal case under Section 498-A IPC. During the suit, the respondent filed applications under the Protection of Women from Domestic Violence Act, 2005 (Exh. 55 and 56), which were treated as a counterclaim. In 2010, petitioner No. 1 withdrew the suit, and the trial court disposed of the suit as withdrawn but directed that the applications under the Domestic Violence Act be heard on merits. Subsequently, respondent No. 1 filed an application under Order I Rule 10(2) CPC to implead petitioners No. 2 and 3 as defendants to the counterclaim. The trial court allowed the impleadment, and the appellate court upheld it. The High Court held that once the suit is withdrawn, there is no pending proceeding in which impleadment can be ordered. The counterclaim cannot survive independently without the original plaintiff. Therefore, the impugned orders were quashed and set aside. The petition was allowed.
Headnote
A) Civil Procedure - Impleadment of Parties - Order I Rule 10(2) CPC - Suit Withdrawal - The trial court allowed impleadment of petitioners No. 2 and 3 as defendants in a counterclaim after the original plaintiff had withdrawn the suit. The High Court held that once the suit is withdrawn, there is no proceeding pending in which impleadment can be ordered. The counterclaim, if any, would survive only if the suit continues; upon withdrawal, the counterclaim cannot be prosecuted independently without the original plaintiff. (Paras 2-5)
B) Domestic Violence - Counterclaim - Protection of Women from Domestic Violence Act, 2005 - The respondent had filed applications under the Domestic Violence Act which were treated as a counterclaim. The High Court noted that the suit was withdrawn and the trial court erred in continuing the proceedings solely at the instance of the defendant. The impleadment order was set aside. (Paras 3-5)
Issue of Consideration
Whether the trial court could allow impleadment of additional defendants under Order I Rule 10(2) CPC after the original plaintiff had withdrawn the suit, and whether the counterclaim could continue without the original plaintiff.
Final Decision
The High Court allowed the petition, quashing and setting aside the order dated 5/3/2012 passed by the 32nd Joint Civil Judge, J.D., Pune in R.C.S. No. 211/2008 and the order dated 30/1/2014 passed by the Additional Sessions Judge, Pune in Criminal Appeal No. 109 of 2011.
Law Points
- Order I Rule 10(2) CPC
- impleadment after withdrawal of suit
- counterclaim survives withdrawal
- Protection of Women from Domestic Violence Act 2005
- Section 498-A IPC
Case Details
2015 LawText (BOM) (08) 86
Criminal Writ Petition No. 1467 of 2014
Ms Aneeta Katariya for petitioners, Mrs A. A. Mane for State, Mr. Jasmeetsingh for respondent No. 1
Mr. Gurmit Singh Bagga, Mrs. Gurdeep Kaur Bagga, Mr. Iqbal Singh Bagga
Mrs. Indrajit Kaur Bagga, State of Maharashtra
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Nature of Litigation
Criminal writ petition challenging orders allowing impleadment of additional defendants in a counterclaim after withdrawal of the original suit.
Remedy Sought
Petitioners sought quashing of the trial court order dated 5/3/2012 allowing impleadment under Order I Rule 10(2) CPC and the appellate order dated 30/1/2014 confirming it.
Filing Reason
The petitioners challenged the impleadment order on the ground that after the original plaintiff withdrew the suit, there was no pending proceeding in which impleadment could be ordered.
Previous Decisions
The trial court allowed the impleadment application; the appellate court dismissed the appeal against that order.
Issues
Whether the trial court could allow impleadment of additional defendants under Order I Rule 10(2) CPC after the original plaintiff had withdrawn the suit.
Whether the counterclaim could continue without the original plaintiff being a party.
Submissions/Arguments
Petitioners argued that once the suit was withdrawn, there was no proceeding pending, and the trial court erred in allowing impleadment.
Respondent No. 1 argued that the counterclaim survived the withdrawal and impleadment was necessary for effective adjudication.
Ratio Decidendi
Once the original plaintiff withdraws the suit, there is no pending proceeding in which an application for impleadment under Order I Rule 10(2) CPC can be entertained. The counterclaim cannot survive independently without the original plaintiff.
Judgment Excerpts
By this petition, the petitioners have challenged order dt. 5/3/2012 passed in R.C.S. No. 211/2008 by 32nd Jt. Civil Judge, J.D., Pune and order dt. 30/1/2014 passed against the said order by Additional Sessions Judge, Pune in Criminal Appeal no. 109 of 2011.
It appears from the record that petitioner No.1 i.e. Mr Gurmit Singh Bagga had filed suit for injunction as against respondent No. 1, which was registered as Civil Suit No. 211/2008.
In the year 2010, petitioner No. 1 (the plaintiff in said suit) withdrawn that suit by filing pursis to that effect.
However, the learned Judge passed an order that the application Exh. 55 & 56 filed by the defendant i.e. respondent No. 1 under the Protection of Women from Domestic Violence Act, 2005 be heard on merits.
Subsequently, respondent No. 1 filed an application as contemplated under Order I Rule 10(2) of Civil Procedure Code, to join the present petitioners No. 2 and 3 as party defendants to the suit.
Procedural History
Petitioner No. 1 filed Civil Suit No. 211/2008 for injunction. In 2010, the suit was withdrawn. The trial court directed that applications under the Domestic Violence Act be heard on merits. Respondent No. 1 then filed an application under Order I Rule 10(2) CPC to implead petitioners No. 2 and 3. The trial court allowed the application on 5/3/2012. Petitioners appealed to the Additional Sessions Judge, who dismissed the appeal on 30/1/2014. Petitioners then filed the present criminal writ petition in the High Court.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order I Rule 10(2)
- Protection of Women from Domestic Violence Act, 2005:
- Indian Penal Code, 1860 (IPC): Section 498-A
