2025:HHC:21853 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.211 of 2025 Decided on: 08.07.2025 Nagesh Mahajan ...Petitioner Versus Mohinder Singh & another ...Respondents Coram Hon’ble Mr. Justice Satyen Vaidya, Judge Whether approved for reporting? For the petitioner: Mr. Rajiv Jiwan, Senior Advocate with Mr. Hitender Verma, Advocate. For the respondents: Ms. Radhika Gautam and Mr. Sahil Dixit, Advocates. Satyen Vaidya, Judge (oral) By way of instant petition, challenge has been laid to order dated 25.02.2025, passed by learned Civil Judge(Senior Division), Dalhousie, District Chamba in Civil Suit No.07 of 2023, whereby the application of the respondents herein/plaintiffs under Order 1 Rule 10(2) of the Code of Civil Procedure ( for short, “the Code”) has been allowed and M/s Ebike has been added as proforma defendant. 2. The parties hereafter shall be referred by the same status as they hold before the original Court for the sake of convenience. 2 3. The plaintiffs have filed a suit for recovery of Rs.22,50,000/- against defendant Nagesh Mahajan on the premise that the said defendant had borrowed a sum of Rs.15,00,000/- from the plaintiffs for setting up a Beer Bar and a lounge at the first floor of his property named as “Avondale Shopping Arcade”, Mall Road, Dalhousie. As per the averments made in the plaint, the plaintiffs and defendant Nagesh Mahajan had executed an agreement. The plaintiffs have alleged that since defendant Nagesh Mahajan had defaulted in performing the terms and conditions of the agreement, the plaintiffs had become entitled to recover the suit amount, which included the principal amount of Rs.15,00,000/- and Rs.7,50,000/- as default fee. 4. The defendant is contesting the suit and has filed his written statement. An objection has been raised as to the maintainability of the suit. As per the defendant, agreement dated 18.12.2018 was void. On merits, though the defendant has admitted the execution of agreement dated 18.12.2018, but according to him firstly, the said agreement was void and secondly, it was not acted upon. Thus, the defendant has categorically denied having received any amount of Rs.15,00,000/- from the plaintiffs. 3 5. The plaintiffs filed replication. In the replication, the plaintiffs introduced a new fact that the money was transferred by the plaintiffs to defendant from one of their business accounts maintained in the name and style of Ebike. 6. Issues were framed by learned trial Court and the parties have been afforded opportunity to lead evidence. The plaintiffs are stated to have concluded their evidence. 7. This Court has been informed that during the period when the plaintiffs were leading their evidence, they filed one application under Order 1 Rule 10(2) of the Code to implead M/s Ebike, a partnership firm, as proforma defendant. In the application, it was averred that since the money sought to be recovered by the plaintiffs by way of suit was remitted from the account of M/s Ebike and in order to get true version of facts the said entity i.e. M/s Ebike was necessary to be arrayed as proforma defendant. As per the plaintiffs, the addition of M/s Ebike as proforma defendant would enable the Court to effectually and completely adjudicate upon the suit. 8. The application was opposed by filing a reply. The contents therein were denied. The defendant specifically denied having received any amount from M/s Ebike. 4 9. Learned trial Court vide impugned order has allowed the application on the grounds that the plaintiffs have to decide against whom they want or intend to seek relief from the Court. It was also observed that no prejudice would be caused to the defendant if the application was allowed. According to learned trial Court, M/s Ebike was a necessary party to the suit. 10. Having considered the records and rival submissions made by learned counsel for the parties, I am of the considered view that while passing the impugned order, learned trial Court has wrongly exercised the jurisdiction vested in it by law. 11. Indisputably, the case of the plaintiffs is that they had advanced Rs.15,00,000/- to the defendant and the agreement dated 18.12.2018 was also executed by the plaintiffs with the defendant. They have sought recovery of suit amount from the defendant on the premise that the defendant has defaulted in performing the terms of agreement dated 18.12.2018. The defendant has denied the claim of the plaintiffs. Thus, what is required to be decided in the suit is whether the plaintiffs are entitled to recovery of suit amount from the defendant as alleged? 5 12. In order to prove their case, the plaintiffs have been afforded opportunity to lead evidence. The initial burden is on them to prove the money advanced to the defendant and also the default, if any, committed by defendant in performance of terms of agreement dated 18.12.2018. Though, the plaintiffs have taken a stand that the amount was transferred to the defendant from the account of M/s Ebike and the said entity had a close relations with plaintiffs, nonetheless, by impleading the said entity as defendant will not change the nature of suit in any manner. The burden to prove the facts, as noticed above, still remain unchanged. The plaintiffs can prove the fact that money was transferred to defendant from the account of M/s Ebike by leading evidence and such right of the plaintiff cannot be said to face any impediment without impleadment of M/s Ebike as defendant. 13. The addition or deletion of party during pendency of suit is at the discretion of the Court. The discretion has to be exercised judiciously. For impleading a party to the suit, it is necessary either the party is necessary or a proper party to the suit. In the instant case, because M/s Ebike has been impleaded as proforma defendant only, the fact itself is sufficient to infer that it is not a necessary party. Even 6 otherwise, in the facts on hand, there will be no impediment for the Court to pass an effective and executable decree in absence of M/s Ebike. 14. M/s Ebike can also not be a proper party in the suit. No purpose whatsoever is going to be served by adding it as a proforma defendant. Even if the newly added proforma defendant admits the claim of the plaintiffs, still the burden which lies on the plaintiffs to prove the case against defendant Nagesh Mahajan remains in place with same intensity. Thus, merely because the plaintiffs have to prove the facts alleged by them, the impleadment of M/s Ebike cannot be said to be proper and justified more particularly, when the relation disclosed by the plaintiff with M/s Ebike is such that in all probabilities, M/s Ebike will admit the claim of the plaintiffs. 15. Today, during the course of hearing, learned counsel for the plaintiffs placed on record a copy of written statement filed by M/s Ebike and from its reading it has been found that M/s Ebike by has but naturally admitted the claim of the plaintiff. 16. The plaintiffs can succeed in the suit only if they prove that they had transferred the money to the defendant may be through the account of M/s Ebike. That is a matter of 7 evidence and as already observed above, the plaintiffs can prove the fact by leading evidence. 17. In light of above discussion, I am of the considered view that the presence of M/s Ebike as a party in the suit is not going to help the Court in any manner in complete and effective adjudication of the issues involved. 18. In result, the petition is allowed. Order dared 25.02.2025, passed by learned Civil Judge(Senior Division), Dalhousie, District Chamba in Civil Suit No.07 of 2023 is set aside. The application of the plaintiffs under Order 1 Rule 10(2) of the Code is ordered to be dismissed with no other as to costs. 19. Petition is accordingly disposed of along with pending application(s), if any. (Satyen Vaidya ) Judge 8th July , 2025 (vt)