CR No.4809 of 2011 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.4809 of 2011 Date of Decision: 10 - 8 - 2011 M/s Indian Oil Corporation Limited ....Petitioner v. Punjab State Electricity Board ....Respondent CORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA *** Present: Mr.Ashish Kapoor, Advocate for the petitioner. *** KANWALJIT SINGH AHLUWALIA, J. The present revision petition has been preferred by M/s Indian Oil Corporation Limited – defendant to the suit instituted by the Punjab State Electricity Board, respondent to the present revision petition impugning the order dated 25.4.2011. In the present revision petition a grievance has been made that Additional Civil Judge (Sr.Division), Bathinda had committed a grave error in rejecting the application filed by the defendant to the suit under Order 1, Rule 10 CPC to implead the Union of India through Ministry of Railways, New Delhi as a defendant. To appreciate the argument raised, it will be necessary to recapitulate the brief facts: The Punjab State Electricity Board-plaintiff-respondent had CR No.4809 of 2011 [2] filed a suit for recovery and mandatory injunction praying that the petitioner-defendant be directed to issue a revised invoice for 1310.84MT HPS oil, instead of 1448.529 MT HPS oil and further to charge the freight in accordance with the actual oil received by it and to refund the difference amounting to Rs.44,29,137/- i.e. the difference between the amount of advance paid and the value of the consignment received. Plaintiff- respondent stated that it had issued a purchase order calling upon the defendant-petitioner to supply and deliver 1650 MT (plus/minus) 10% quantity variation of HPS (LSHS) as per terms and conditions of the agreement. It was stated that as per the terms and conditions of the contract, an advance payment of Rs.2,14,08,552/- was made by the plaintiff- respondent in favour of the defendant-petitioner. In nutshell, case of the plaintiff-respondent is that actual delivery was less than the payment made, therefore, the refund be made and charges of the freight be also reduced. Upon notice, the defendant-petitioner filed the written statement Annexure P2 before the trial Court, in which a stand was taken that the billing was done on the basis of quantity of H.P.S. withdrawn from the refinery tank and all dispatches were made through tank wagons through Mathura Refinery. In nutshell, the grievance of the defendant-petitioner was that in case the goods received were less than the dispatched, the remedy with the plaintiff-respondent was to approach the Railway Claims Tribunal. A separate application under Order 1, Rule 10 CPC, Annexure P3, was also filed by the defendant-petitioner. It was stated that the plaintiff-respondent instead of filing the suit against Indian Oil Corporation Limited, should have filed the suit against Union of India through Ministry CR No.4809 of 2011 [3] of Railways for alleged short delivery of the oil. The application filed by the defendant-petitioner was dismissed by the trial Court vide impugned order dated 25.4.2011 holding that it is for the plaintiff-respondent to decide as to whether the Northern Railway is a necessary party or not. The Court held that plaintiff-respondent cannot be compelled to raise a claim against those persons against whom he does not intend to do so. Mr.Ashish Kapoor, learned counsel appearing for the defendant-petitioner has placed reliance upon Mumbai International Airport Pvt. Ltd. v. Regency Convention Centre & Hotels Pvt. Ltd. & Ors., 2010(4) R.C.R. (Civil) 551 to contend that even though the Court has recognized the general rule in regard to impleadment of the parties that it is the plaintiff to the suit who is dominus litis and it is for him to choose the person against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. A perusal of Order 1, Rule 10(2) of the CPC makes it apparent that if a necessary party is not impleaded, it is the plaintiff who will suffer to his peril and his suit is liable to be dismissed. There is no dispute that defendant can file an application that another person be impleaded as a co- defendant and the Court in a given circumstance can allow the same also but the general principle is that plaintiff is master of his case and he cannot be compelled to implead any person against his wishes. In the present case, the plaintiff has sought relief of refund of advance paid from the defendant- petitioner only. Simply because he had sought adjustment of the freight also, it cannot be said that it is must for the plaintiff-respondent that the Indian Railways, who had transported the oil, should be impleaded as a party. Failure on the part of the plaintiff-respondent to implead the Indian CR No.4809 of 2011 [4] Railways, according to the counsel for the defendant-petitioner will work against the interest of the plaintiff-respondent and, therefore, for effective adjudication, Indian Railways is a necessary party. This argument advanced can simply be discarded by saying that it is for the plaintiff-respondent to safeguard its interest and once it has opposed impleadment of Indian Railways as a necessary party, knowing fully well its consequences, wish of the plaintiff-respondent from whom to seek relief cannot be ignored. Hence, no interference is warranted. The present revision petition is dismissed in limine. ( KANWALJIT SINGH AHLUWALIA ) August 10, 2011. JUDGE RC