NISHI KANTA PAUL Vs. PRITILATA DEB

JUDGEMENT

(1.) This appeal is directed against the dated 25.4.88 passed by the Assistant District Judge No. 2, Cachar in Title Suit No. 20/1983 on the ground that the plaintiff failed to amend the plaint as directed by the Court vide order dated 11.2.88, According to the Assistant District Judge there was non compliance of the provisions of Order 1 Rule 10 (4) of the Civil Procedure Code.

(2.) The facts'for the purpose of disposal of this appeal may be stated as follows : The appellant, as plaintiff filed a suit (Title Suit No. 20/1983) in the Court of Assistant District Judge No. 1, Cachar at Silchar for specific performance of contract against the defendant/respondents and prayed for a decree for various reliefs. The defendant Nos. 1 to 3 and 6 had already filed written statement. Issues were also framed. The plaintiff and defendant Nos. 1,2, and 3 had also filed a compromise petition on 11.11 .87. On 17.11.87 the preforms defendant No. 6 filed a formal objection. Thereafter on 13.1.88 one Kashi Ram Jain and 11 others filed a petition in the Court of Assistant District Judge No. 2, Silchar to which the suit was transferred - The said petition was filed in the Court under Order 1 Rule 10(2) and also under Order 22 Rule 10 (i), read with Section 151 of the CPC praying for an order to implead them as defendants inasmuch as they had acquired the suit property from defendant Nos. 9 to 13 by right of purchase by a registered deed of sale. They further stated that the interest of proforma defendant Nos. 7 and & and also of principal defendant No. 1 to 3 had developed upon them on the strength of Power of Attorney, on receipt of the consideration amount and delivery of possession. Defendant No. 6 filed objection against the compromise petition. On that day defendant No. 3 also filed a petition objecting against compromise even though he was a party to it, Hanuman Prasad Jain had also filed objection against that prayer for compromise in the Court of Assistant District Judge No. II, Cachar, Silchar. On the prayer of the said Hanuman Prasad Jain and others, the Court by order dated 11.2,88 allowed the prayer for amendment. While allowing the petition the Court observed thus :- "I, therefore, find and hold that this is a fit petition filed by Hanuman Prasad Jain and others to implead them as party defendants and it should be allowed. Accordingly, I allow the petition. Amend the plaint by inserting the petitioners Hanuman Prasad Jain and others as defendants.'' Though the order was passed for amendment directing to amend the plaint it was not very clear to whom the direction had been given. The plaintiff objected to the addition, of Hanuman Prasad Jain and others and accordingly filed objection. However, the Court felt that it was necessary to add them as party. Under Order 1 Rule 10 (1) CPC, if a Court is satisfied that the suit has been instituted through a bonafide mistake in the name of a wrong person as plaintiff and that it is necessary for determination of the real matter in dispute so to do, the Court may order any person to be substitute or added as plaintiff upon such terms as the Court thinks just. Under sub-rule (2) of the said Rule of Order 1, the Court, on an application of either party or on its own motion, may order that any party improperly joined, whether as plaintiff or defendant be struck out, and that the name of any person who ought to have been joined whether as plaintiff or defendant or whose presence before the Court may be necessary to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added,

(3.) The Court can also in an appropriate case pass order to implead any person and/or strike out some of the names of the defendants. In this case the Court had in all probability exercised its power under Order 1 Rule 10T CPC in spite of the objection of the plaintiff/ appellant. This order was challenged by the appellant/plaintiff before this Court in Civil Revision No. 325/88. The said revision was later pn dismissed. Therefore the order to implead said Hanuman Prasad Jain and others became final. The order passed by the Assistant District Judge to amend the plaint was not very specific inasmuch as whether it directed the office to make the necessary correction or to the plaintiff. The plaintiff in spite of the order did not amend the plaint. Thereafter, an application was filed by the plaintiff appellant not to make the newly added persons as party as there was no amendment. After hearing the said application the Court held that in the present case Order 6 Rule 18 was not applicable; but it was the duty of the plaintiff to make the amendment and on failure to make the amendment the whole suit was dismissed Hence the present appeal.