SISIR KUMAR TARAFDAR Vs. MANINDRA KUMAR BISWAS

JUDGEMENT

(1.) The petitioner instituted a suit for arrears of rent against two persons, Manindra Kumar Biswas and Rabindra Kumar Biswas who were described as being in possession of the estate of Nrisingha Kumari Dasi, deceased, as her heirs. These two persons appeared and filed a written statement stating that Nrisingha Kumari Dasi was alive and so they had no interest in the matter and were improper parties. Thereafter an application was filed by the present petitioner for amendment of the plaint. The amendment sought for in substance was that the names of Manindra Kumar Biswas and Rabindra Kumar Biswas should be struck out and Nrisingha Kumari Dassi, widow of late Mahitosh Biswas should be made the sole defendant. The learned Subordinate Judge refused this prayer for amendment in the view that such substitution of Nrisingha Kumari Dasi could not be made under the Civil Procedure Code.

(2.) It is contended before us by the learned Advocate for the petitioner that the learned Subordinate Judge wrongly thought that the amendment prayed for could not be allowed. He has argued that it was proper to consider the prayer in two stages, namely, that first Nrisingha Kumari Dasi should be added as defendant No. 3 and then the names of Manindra Kumar Biswas and Rabindra Kumar Biswas, defendants Nos. 1 and 2 should be struck out leaving Nrisingha Kumari Dasi as the sole defendant. Order 1, Rule 10 of the Code of Civil Procedure provides for addition or substitution of plaintiff in its first sub-rule and provides for the striking out or addition of plaintiffs or defendants, in its second sub-rule. The provision for substitution or addition of parties in the first sub-rule is limited to cases where the court is satisfied that the suit has been instituted in the name of a wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff and the court is satisfied that the suit has been instituted thus through a bona fide mistake. Sub-rule (2) is not limited to cases of bona fide mistake and runs in these words :

(3.) The position in the present case is that if the court strikes out the names of Manindra Kumar Biswas and Rabindra Kumar Biswas and bring on the record the name of Nrisingha Kumari Dassi this will not be a case of addition at all. If there had been some other person on the record as defendant even after the names of Manindra Kumar Biswas and Rabindra Kumar Biswas were struck out, that would be a case of addition and might be allowed by the court in proper circumstances.