TMI Blog2005 (10) TMI 612X X X X Extracts X X X X X X X X Extracts X X X X ..... ported in her capacity as an employee of British Airways and the plaint does not contain any reference to said defendants except their capacity as executives/employees of British Airways Plc. The applicant seeks deletion of defendant Nos. 3 and 4 on the ground that from the allegations made in the plaint, no relief can be claimed against them. It is asserted that plaintiff with illegal and with malafide intentions has filed the suit against defendant Nos. 3 and 4 and these defendants have only been impleaded with a view to pressurize the British Airways Plc, to settle her claim though there is no personal involvement of defendant Nos. 3 and 4 who are neither liable under any contact of employment nor are they personally liable for the plaintiff's employer nor the plaintiff had at any time contracted with them or had been engaged by them as employers of the plaintiff in their personal capacity. On these grounds the applicant/British Airways Plc has claimed rejection of the plaint against defendant Nos. 2, 3 and 4 and has sought striking out defendant Nos. 2, 3 and 4 from the array of defendants in the memo of parties and claims that suit be continued only against British Airways ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parties and this can be assessed and inferred from the allegations made in the plaint and they are liable to be deleted. 6. Rejection of plaint is a serious matter as it non suits the plaintiff and kills the cause of action and consequently it cannot be ordered cursorily without satisfying the requirement of the said provision. It is no more rest integra that to decide under Order VII Rule 11, averments in the plaint have to be read without looking at the defense and thereupon it has to be seen whether on the averments made in the plaint, Order VII Rule 11 get attracted or not and thereafter it has to be seen whether a party is to be deleted on the ground that no cause of action has been alleged against him and he has been joined improperly. Legal proposition that to decide under order 7 rule 11, averments in plaint only have to be read without looking at the defense and hereupon it has to be seen whether on the averments made in the plaint, order 7 rule 11 gets attracted or not can not be disputed nor has been disputed by the applicant. Reliance for this proposition can be placed on 2005 (4) AD (Del) 541, Kanwal Kishore Manchanda v. S.D. Technical Services Pvt. Ltd.; 2005 (2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of the Senior Designated official of British Airways in India, which in this case was the General Manager South Asia, Mr. Andy Stern. However, no further communication was received from the defendant No. 3. 8. Similarly, specific averments have been made in the plaint regarding defendant No. 4 in paragraphs 14, 15 which are extracted for reference:- 14. Thereafter, the plaintiff was compelled to sent a detailed appeal to defendant No. 4 in U.K on 8.10.2002 wherein he was apprised of all the developments and the plaintiff appealed for justice. The defendant No. 4 sought time to look into the matter vide his e-mail of 9.10.2002. 15. The Defendant No. 4 finally responded on 28.10.2002 wherein he did not specifically deny that the plaintiff had been unfairly treated and not in line with the best traditions and ideals of how British Airways would normally deal with these situations however he sought to justify all the arbitrary and illegal actions by relying on what Ms. Amanda Ball had told him. The said defendant tried to give wholly untenable justification for denying plaintiff her dues. In other words, the defendant No. 4 also did not redress the grievances of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not relevant to the issue or matter in controversy in suit and no relief was sought on the ground of alleged dishonest conduct of the Dy. General Manager (Legal) and in the circumstances, the application under Order VI Rule 16 as allowed. However, in the case of plaintiff, specific averments have been made regarding the conduct of defendant Nos. 3 and 4 and in the prayer, a decree for declaration and recovery has categorically been sought against them jointly and severally. Similarly, the case of TBWA Anthem Pvt. Ltd. (supra) is also distinguishable as defendant No. 2 in that matter was another advertising agency which alleged to have colluded with defendant No. 1 and had tried to entice him to join defendant No. 2, however, the defendant No. 1 had not joined the other advertising agency and in those circumstance, it was held that another advertising company which had tried to entice the defendant No. 1 to join him could not be a necessary party in a suit for damages as there was no agreement between the plaintiff and another advertising company, defendant No. 2 and consequently, the name of the other advertising agency was deleted. In the matter of Steel Authority of India Ltd. (s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . From the averments made in the plaint, in my opinion in the facts and circumstances, it can not be held that the plaintiff shall not be entitled for any amounts from the said defendants. It can not, Therefore, be said that the defendant Nos. 3 and 4 have been joined improperly. In the circumstance, it cannot be inferred that the plaint does not disclose any cause of action against defendants No. 3 and 4 or that no liability can be imputed to the defendant Nos. 3 and 4 on the basis of averments made in the plaint. The pleas of the plaintiff, in my opinion, require adjudication after evidence by the parties. In the circumstances, I am reluctant to hold that the defendant Nos. 3 and 4 have been joined improperly or heir presence will not be necessary to effectively and completely adjudicate upon and settle all questions involved in the suit. The plea of the applicant that the plaint does not disclose anything against the said defendants except their capacity as executive employees of the British Airways Plc is also contrary to record. 13. Another factor which dissuades me from holding that the defendant Nos. 3 and 4 have been joined improperly, is because the defendant Nos. 3 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be described as different and distinct entities on the basis of its different offices and addresses where cause of action allegedly arose against it and could not be impleaded as defendant Nos. 1 and 2. Consequently, plaintiff ought to have sued British Airways Plc as a single entity but she could give its different locations and offices where alleged cause of action has arisen against it. 16. In the facts and circumstances, the plaintiff is liable for a direction to sue British Airways Plc as a single entity, a single defendant. However, the plaintiff shall be entitled to sue the said defendant giving its different offices and addresses where the alleged cause of action had arisen against it. The defendant No. 2 is also defendant No. 1, Therefore, both should be shown and impleaded as same defendant. To that extent, the application is allowed and the plaintiff is directed to amend its memo of parties showing British Airways Plc with its different addresses as defendant No. 1. Consequently the plaintiff is liable to amend the memo of parties and show defendant No. 1 and 2 as defendant No. 1 with different addresses and defendant Nos. 3 and 4 be also re-numbered as defenda ..... X X X X Extracts X X X X X X X X Extracts X X X X
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