ASHISH Vs. M/S. DASS HITACHI LTD.

JUDGEMENT

(1.) The present petition under Art. 227 of the Constitution of India has been filed challenging orders dated 28th November, 2016 and 27th Feb., 2017, passed in Original Suit No.901 of 2016 and Civil Revision no.84 of 2016, respectively.

(2.) A perusal of the record would reveal that the plaintiff respondent, on 7th Nov., 2016, instituted a suit for permanent injunction against one Ved Prakash. On 7.11.2016 ex parte injunction order directing parties to maintain status quo was granted fixing 15.11.2016 for further hearing on interim injunction application. It appears that when, on 9.11.2016, the court appointed amin served summons on the defendant, the same was received by Ashish (the petitioner), who described himself as son of late Ved Prakash. Immediately, on 09.11.2016, the plaintiff filed an application, purportedly, under Order 6, Rule 17 C.P.C. for amendment in the plaint so as to add "Ashish son of Late" in front of the name of defendant Ved Prakash as also to delete the words "major son of sh. Beer Singh" after the name of Ved Prakash. It was pleaded that the officials of the plaintiff throughout recognised the defendant as Ved Prakash and only when the amin had approached the defendant for service of summons that the actual identity of the defendant could be known therefore amendment be allowed. The amendment was opposed claiming that the suit was instituted against a dead person and as such was non est and further the story set up that the petitioner had held out as Ved Prakash is bogus and imaginary. The court below allowed the amendment vide impugned order dated 28.11.2016 by placing reliance on decision of the apex court in Karuppaswamy Vs. C. Ramamurthy, (1993) 4 SCC 41. Against the order of the trial court, revision was filed which was dismissed by impugned order dated 27.02.2017.

(3.) Assailing the impugned orders the learned counsel for the petitioner submitted that a suit against a dead person is non est therefore the suit has to die its natural death and no amendment can be allowed. The only option is to bring a fresh suit. It has also been submitted that Ved Prakash had died on 11.01.2014 therefore the case set up that the petitioner had been holding himself out as Ved Prakash is not bona fide. Hence, the court committed manifest error in allowing such amendment.