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2019 (9) TMI 1615 - DELHI HIGH COURTSeeking recovery of damage with interest - Claim of indemnity not fulfilled - Defects in a second-hand car - allegation of the plaintiff is that within three months of purchase of the car by him, the car started emitting smoke and burnt down on starting the ignition - HELD THAT:- In general, it is for the plaintiff in a suit to decide against whom it wishes to proceed. The impleadment of a party can be on the basis that it is a necessary or a proper party to the proceedings. A necessary party is one against whom the plaintiff seeks relief or in whose absence an effective decree cannot be passed. A proper party is one against whom relief may not be sought but whose presence is essential for the determination of the questions involved in the suit. The deletion of a party as a defendant in a suit is therefore possible only upon arriving at a determination that the party is neither a necessary nor a proper party to the suit. As far as the defendant no. 4 is concerned, the 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 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.
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