MOHD SULTAN PAMPORI Vs. KAMLA MIRZA

JUDGEMENT

(1.) THIS is an application to revise an order dated 7 -11 -1977 passed by the Sub Judge (C. J. M.) Srinagar allowing a petition for amendment of the plaint. The plaintiffs have brought a suit against the defendant for the recovery of possession of a plot of land situated at Karan Nagar, Srinagar under section 9 of the Specific Relief Act. The Plaintiffs case is that on 29 -12 -1971, the defendant forcibly occupied the land which was previously in their peaceful possession as owners. The suit was instituted on 31 -12 -197). The defendant filed his written statement on 4 -4 -1972. He denied the allegations made against him and asserted that the land was in the -peaceful possession of Muslim Community who were using it as a burial ground. On 6 -6 -1972, the court framed the necessary issues and proceeded with the investigation of the rival -claims. On 27 -6 -1977, the plaintiffs moved an application with the prayer that the plaintiffs be permitted to file a suit against the Muslim Community under O. 1 R. 8 C.P.C. and the plaintiffs be permitted to make the necessary amendment in the plaint so as to bring it within the purview of O. 1 R. 8 C.P.C.  On 7 -11 -1977, the trail court allowed the application observing that the proposed /amendment was intended to achieve nothing more than to cover the defect in the plaint pointed out by the defendant. Hence this revision.

(2.) FOR the petitioner, it was contended that the amendment was in the nature of substitution of the defendant which was not contemplated by the Code of Civil Procedure and that in any case, it could not be allowed after the expiry of the period of limitation prescribed for the suit. On the other hand, it was contended on behalf of the respondentâ„¢? that the defendant was already on record, in his personal capacity and that by means of the proposed amendment, he was sought to be impleaded in a representative capacity, and, as such, the amendment was merely of a formal nature and the court was fully competent to allow the same even though the period of limitation prescribed for filling the suit had expired.

(3.) THERE can be hardly any doubt that Muslim Community is in the nature of an unincorporated association of individuals professing Islam as their religion but no one of their member enjoys the status of a permanent representative competent to sue or be sued against on behalf of such association. Merely because by the procedure laid down for representative suits, one of them sues or is sued against as representative of the community, he does not acquire the status of a permanent representative of the community. So viewed, the present case is not a case in which, by means of an amendment, a person already on record is being impleaded in another capacity. This is essentially a case in which, by means of an amendment a very large number of individuals constituting an unincorporated association are sought to be impleaded, though by a special procedure the person who is already on record in his personal capacity is treated as a representative of the whole association. Thus the present case is really a case of substitution of the sole defendant rather than a case in which a person on record in his personal capacity is being impleaded in a representative capacity. The question arises whether such an amendment is contemplated by the Code of Civil Procedure. For answer to this, question, one must necessarily refer to O.1 R. 10(2) which deals with the addition and striking out of the parties. Sub rule 2 reads thus: - The court may at my stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just order that the name of any party improperly joined whether is 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 in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.  This sub -rule fell for consideration before a Division Bench of the Calcutta High Court in Sisir Kumar Tarafdar V. Manidra Kumar Biswas and another (AIR 1958: Cal: 681 In that case the plaintiff instituted a suit for arrears of rent against two persons Manidra Kumar Biswas and Rabindera. Kumar Biswas who were described as being in possession of the estate of Nrisingha Kumari Dasi deceased as her heirs. Both of them appeared and filed the written statement stating therein that Nrisingha Kumari Dasi was alive and so they had no interest in the matter and were improper parties. Thereafter the plaintiff moved an application for amendment of the plaint. The amendment sought for in substance was that the names of Manidra and Rabindera Kumar should be struck out and Nrisingha Kumari Dasi widow of late Mahitosh Biswas should be made the sole defendant. The trial court refused the prayer for amendment in the view that such substitution of Nrisingha Kumari Dasi could not be made under the C.P.C. In revision it was contended before a Division Bench of the Calcutta High Court that the amendment squarely fell under O. 1. R. 10 (2). The Bench repelled the contention observing as under: - The two parts of this sub -rules provide for two different powers of the court. The first gives the court the power to strike out the name of any party improperly joined as plaintiff or defendant. The second part which requires special consideration in this case provides for the addition of a party as the plaintiff or defendant where it appears to the court that such person ought to have been joined . The use of the words joined  and added  is, in my opinion, significant. It is important to notice also that the word substituted  which has been used in sub -rule (1) giving power to the court to substitute a person for the person wrongly joined as plaintiff has not been used in sub -rule (2). This omission to use the word substituted , cannot but be considered deliberate. It must therefore be held - that the power given to the court under sub. r. (2) of R. 10 of O.1 of the Code of Civil Procedure to add a party contemplates only those cases where there is somebody else as plaintiff or defendant and the effect of bringing on record another person as plaintiff or defendant would be really a case of addition  of plaintiff or defendant. A case of mere substitution as distinct -from addition is not contemplated in sub -rule (2). 