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TMI Blog2019 (9) TMI 1615X X X X Extracts X X X X X X X X Extracts X X X X ..... does not deny the fact that it has manufactured the car, but disputes liability on the ground that the warranty had expired. There is a categorical assertion in the plaint that the car was inspected by defendant no. 5, and a report was provided to the plaintiff. In its reply to the application filed by the defendant no. 5, the plaintiff has also averred that the defendant no. 5 had raised an invoice on him for this purpose. In this context, the analysis of the plaint in the impugned order is unsatisfactory. The Trial Court appears to have proceeded primarily on the basis that the plaintiff had failed to adduce any documentary evidence that the vehicle suffered from a manufacturing defect, and that there was no document in support of the plaintiff's case of an inspection by defendant no. 5. The petitioner has made out a case for interference with the impugned order, which is set aside. The defendants no. 4 and 5 are restored to their original positions in the suit. However, it is made clear that in the event the said defendants are ultimately not found liable to the plaintiff, they will be entitled to seek an appropriate order of costs in their favour - Petition allowed. - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urnt down on starting the ignition. The plaintiff registered an FIR and claimed indemnity from defendant no. 4, the failure of which led to the institution of the suit. 5. The defendants no. 4 and 5 filed their written statements to the suit on 14.05.2015 and 16.04.2015 respectively, and also made applications for deletion of their names from the array of parties under Order I Rule 10 of the Code of Civil Procedure, 1908 ( CPC ). The defendant no. 4 has sought deletion of its name on the ground that the suit was one for a claim arising out of an insurance policy. Although the defendant no. 4 did not dispute its status as the manufacturer of the car in question, it contended that the warranty having expired even prior to the purchase of the car by the plaintiff, the plaintiff had failed to disclose a cause of action against it. The application of defendant no. 5 is predicated on the submission that the inspection alleged to have been carried out by it was not supported by evidence. 6. The plaintiff reiterated the relevant contents of the plaint in opposition to the applications filed by the defendants no. 4 and 5. As against defendant no. 4, the reply to the application reiter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtunity of filing written submissions granted by the order dated 16.07.2019, while reserving judgment in the petition. 10. Order I Rule 10 of the CPC deals with addition and deletion of parties to suit. It provides as follows:- 10. Suit in name of wrong plaintiff (1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just. (2) Court may strike out or add parties-The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joinded, whether as plaintiff or defendant, or whose presence before the Court may be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the vehicle which the defendant No. 4 represents in respect of BMW vehicles as five years/200000 kilometers. xxxx xxxx xxxx 3. That the plaintiff was looking for a second hand car and approached defendant No. 1 for the said purpose. The defendant No. 1 projected a rosy picture about its dealings and induced the plaintiff to purchase the car of BMW make i.e. the car in question. The defendant No. 1 represented that it has duly inspected the car and the same is defect free and genuine vehicle. In order to prove its point, the defendant No. 1 sent his driver along with the plaintiff to the workshop of defendant No. 5 where the inspection of vehicle was carried out in presence of the plaintiff and a scanned report was provided to the plaintiff. It was represented by defendant No. 5 that the said car has no technical/manufacturing defect and the same was as good as new car and the plaintiff can purchase the same. xxxx xxxx xxxx 5. That based on the inducements and representations given by defendant No. 1, 2, 4 5, the plaintiff purchased the car in question. xxxx xxxx xxxx 10. That thereafter the intimation of the aforesaid incident was given to the def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chnical defect which could have been fatal. The defendant No. l is liable as the car was purchased on his representation and the defendant No. 1 gave oral guaranty of one year that the car will remain defect free. The defendant No. 2 is also liable being the previous owner and having represented that the car was defect free. The defendant No. 3 is the insurer and is liable to indemnify the plaintiff. It is submitted that the defendant No. 3 has rejected the claim of the plaintiff on the flimsy grounds. The defendant. No. 4 is the manufacturer and was duty bound to indemnify the plaintiff for the loss to the vehicle on account of manufacturing defect. It is stated that the vehicle in normal running condition cannot catch fire unless there is inherent serious manufacturing defects. The defendant No. 5 is liable being the authorized dealer and also having given a certificate that the vehicle is defect free. The defendant No. 6 is liable as it conducted necessary inspection and fraudulently avoided to give report regarding manufacturing defect in the vehicle. The car in question is still in possession of defendant No. 6. The defendants are jointly and severally liable to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he plaint makes out a case of a manufacturing defect which led to the fire in the car. The defendant no. 4 does not deny the fact that it has manufactured the car, but disputes liability on the ground that the warranty had expired. There is a categorical assertion in the plaint that the car was inspected by defendant no. 5, and a report was provided to the plaintiff. In its reply to the application filed by the defendant no. 5, the plaintiff has also averred that the defendant no. 5 had raised an invoice on him for this purpose. In this context, the analysis of the plaint in the impugned order is unsatisfactory. The Trial Court appears to have proceeded primarily on the basis that the plaintiff had failed to adduce any documentary evidence that the vehicle suffered from a manufacturing defect, and that there was no document in support of the plaintiff's case of an inspection by defendant no. 5. The analysis of the evidence by the Trial Court was unwarranted at this stage of the suit, and is a matter which ought to have been reserved for trial. In the light of the aforesaid allegations in the plaint, the present case was not one in which the plaintiff had failed to plead a cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... affect the intervener in the enjoyment of his legal rights'. It is clear from the facts of the said case that the plaintiff had not sought any relief against the party seeking deletion. In contrast, in the present case, the plaintiff had sought a decree against defendants no. 4 and 5 by virtue of which they are necessary parties to the suit, subject only to the disclosure of a cause of action against them. In Mitsubishi Electric India Pvt. Ltd. vs. Anup Mittal Ors. 2015 (220) DLT 436, this Court reiterated the principles laid down by the Court of the Judicial Commissioner, Goa, Daman and Diu in Gonsalo De Filomena Luis vs. Inacio Piedade Hildeberte Fernandes Ors. AIR 1977 GDD 4. The said judgment deals with a case where parties were sought to be added to the suit without any relief being claimed against them. Therefore, it is also not applicable to the present case when the plaintiff has sought relief against the defendants seeking deletion, in addition to the other defendants. 17. In the aforesaid circumstances, the petitioner has made out a case for interference with the impugned order, which is set aside. The defendants no. 4 and 5 are restored to their original ..... X X X X Extracts X X X X X X X X Extracts X X X X
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