SYNDICATE BANK Vs. RAJESHWAR PRASAD

JUDGEMENT

(1.) This revision under Sec. 115 of the Code of Civil Procedure, has been filed challenging the order dated 23.11.1987 of the lower court rejecting application for amendment of the plaint moved by the plaintiff-revisionist. The learned counsel for the parties have been heard. Original record has been summoned which has been perused so also the impugned order.

(2.) The lower court has rejected the amendment application mainly on three grounds. The first ground is that it was moved after considerable delay specially when the defendants pointed out the defect in the array of parties. The second ground is that the amendment was the result of jealousy and the third ground is that under Order VI, Rule 17 C.P.C. change in the array of parties is not permissible. After perusal of the material on record it is evident that all these grounds are untenable. Learned counsel for the opposite parties, however, argued that there is no jurisdictional error in the impugned order, hence, interference in revision is not called for. The impugned order is certainly a specimen of failure as well as improper exercise of jurisdiction in as much as it did not take into consideration that there was no defect with the description of the defendant No. 1 either in the plaint or in the amendment application. It was arrayed as M/s Rajeshwar Prasad and Sons Mohalla Katra Bazar, Town Dhanaura, District Moradabad. It was a proprietorship concern and there was omission that the concern was not sued through the sole proprietor. Thus, the defendant No. 1 is not going to be deleted or substituted by any new defendant. Of course, defendant No. 2 is proposed to be deleted. He is none else than the son of Rajeshwar Prasad, the sole proprietor of defendant No. 1. It appears from the amendment application that Sri R.K. Anand, Branch Manager of the plaintiff-bank had taken over charge only about 8 or 9 months before the institution of the suit. There were two customers with the plaintiff-bank, namely, Rajeshwar Prasad, though their parentage differed. One Rajeshwar Prasad is son of Sukh Lal, who is also another customer of the bank. The other Rajeshwar Prasad son of Badri Prasad is the sole proprietor of defendant No. 1. It is in this confusion in the names of two customers that the branch manager authorised filing the suit against defendant No. 2, Subhash Chand Singhal, on the information received that Rajeshwar Prasad son of Badri Prasad expired and Subhash Chand Singhal was the son of aforesaid Rajeshwar Prasad. The action of the branch manager cannot be termed as mala-fide. Inquiries were made by him before filing the suit and since wrong information was received in respect of other Rajeshwar Prasad that this confusion arose in the array of the parties. The defendant maintains that Rajeshwar Prasad is alive and thereafter amendment application was moved, though it was a belated action. However, only on the ground of delay the amendment application could not be refused. If the delay has conferred any vested right upon the defendants, specially in the matters of limitation, the same should be raised by filing additional written statement. But if on this mistaken notion the array of the parties was proposed to be corrected it does not amount either to change in the nature of the suit or to filing the suit against altogether different defendants than initially arrayed as defendants in the plaint. The defendant No. 3, Vinod Kumar Agarawal was co-obligator as disclosed in the plaint. He is not proposed to be deleted. Thus, in fact, it is not substantial deletion of the defendants or substitution of new defendant, which can be said to be barred by Order 6 Rule 17 of the Code of Civil Procedure. The proposed amendment became essential on account of the mistake on the part of the branch manager of the bank and this mistake was bona-fide based on wrong advice received by him after inquiry. Even after the defendant's objection the branch manager acted bona fide and made further inquiry whether Rajeshwar Prasad son of Badri Prasad is alive or dead and he came to know that the said Rajeshwar Prasad was alive, hence this amendment application was moved. Consequently, the amendment application could not be refused. It is, therefore a case of improper exercise of jurisdiction and failure to exercise the jurisdiction vested in the court below. The impugned order, under these circumstances cannot be maintained.

(3.) The learned counsel for the opposite parties, however, contended that if the suit against newly impleaded defendant has become time barred, the defendants may be permitted to raise this plea in the additional written statement and this question may be left open to be decided by the trial court. The request being reasonable is accepted, though it is not necessary to express any opinion on this contention yet the suit against defendants 1 and 3 cannot be said to be barred by time at this stage. However, the defendants can take up this plea in the written statement which will be decided by the trial court.