SUNIL MONDAL Vs. HARI MOYEE BACHAR

JUDGEMENT

(1.) Vakalatnama filed on behalf of the opposite party nos. 2 & 3 be kept with the record.

(2.) This revisional application has arisen out of an order passed on May 15, 2012 by the learned Civil Judge (Junior Division), Howrah.

(3.) The impugned order was passed in connection with an application filed under Order I Rule 10(2) of the Code of Civil Procedure. The plaintiff-petitioners filed a suit for declaration that the plaintiffs and the defendant no. 1 are theco-sharers and the Sale Deed executed by the defendant no.1 in favour of defendant nos. 2 & 3 is illegal, invalid, collusive and not binding upon the plaintiffs along with other reliefs. The said suit was filed in the year 2006 which has since been re-numbered as Title Suit 31 of 2007. The defendant no. 2 is the mother of the party who is sought to be added under Order I Rule 10(2) of the Code of Civil Procedure. The defendant no. 2 entered appearance and filed a written statement on May 7, 2007 in which in paragraph 4 she has categorically stated that the suit is bad for nonjoinder of necessary parties inasmuch as Bibhas Chandra Naskar, the son of the defendant no. 2 is the necessary party to the suit and in his absence the suit must fail. Thereafter the trial commenced. During the trial Bibhas deposed on behalf of his mother (defendant No. 2) on February 20, 2009. Thereafter the trial proceeded. It was only at the stage of argument that on March 16, 2012, the plaintiffs filed an application for addition of Bibhas under Order I Rule 10(2) read with Section 151 of the Code of Civil Procedure. In the said application, the plaintiffs tried to explain the delay in impleading Bibhas on the ground that during the course of argument the defendants had taken a plea of defect of parties since Bibhas jointly purchased the property along with his mother from the opposite party no. 1 by a Deed of Sale dated June 2, 1980 executed by the opposite party no. 2 and her son. The learned advocate for the plaintiffs on a bonafide mistake omitted to take proper steps for impleading the said Bibhas in the said suit as party defendant. It was submitted that Bibhas Chandra Naskar adduced evidence in the suit as D.W.2 on behalf of his mother and it is not in dispute that Bibhas was one of the executants of the said document which is the subject matter of challenge in the suit. It was also submitted that the impleadment of Bibhas at this stage would only cure the defect and would not cause any prejudice to the defendants. In support of such contention the learned counsel for the petitioners refers to (Munshi Ram VS Narsi Ram & Anr., 1983 AIR(SC) 271) and (R. R. Naidu VS State of M. P. & Ors., 2000 10 SCC 141).