Blair and Aikman, JJ.
1. This is an appeal from an order striking off the name of the defendant. The suit was instituted on the 1st of December 1894, proceeded with up to the framing of the issues on the 27th of the same month, and on the 11th of February 1895 came on for hearing and was heard. On the 15th of February an application was made to add certain, persons as defendants, one of whom was one Muhammadi Begam. The names were added, and it became necessary that notices be served upon all the defendants so added. An effort appears to have been made to serve Muhammadi Begam at the address supplied to the Court, we suppose, by the party who got the name put upon the record. She was not found at that place, and, on further information pointing to her being at the time elsewhere, fresh notices were issued and sent for service at the place where she was supposed to be. Again there was a failure to discover her. Thereupon, on the 8th of May, an application was made on behalf of the plaintiff to strike out her name from the list of defendants. It was based on the delay caused by the inability of the serving officer to serve notices upon her. That application was not supported by any affidavit. On the 10th of May the order was made striking out her name. On the same day, after the order, an application was made by the defendant for a substituted service upon the lady. We assume that that application was not granted. The order striking the name off is the one appealed against.
2. Mr. Ghulam Majtaba, who appears for the appellant, called our attention to Section 32 of the Code of Civil Procedure which specifies the circumstances under which the Court has power to add, or to remove, parties. The first paragraph relates solely to its powers of striking out. 'The Court may, on or before the first hearing, upon the application of either party, and on such terms as the Court thinks just, order that the name of any party, whether as plaintiff or defendant, improperly joined, be struck out.' There appear to be three conditions precedent to the striking out. There must be an application by one party or the other. The Court must not have progressed beyond the first hearing, and the Court must find the party improperly joined. When we come to the second clause, which relates to the addition and, so to speak, transmutation of parties, the language is different. 'The Court may, at any time, either upon or without such application, and on such terms as the Court thinks just, order that any plaintiff be made a defendant or that any defendant be made a plaintiff, 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.' That is a discretion unlimited in point of time and not requiring that the Court should be moved by any party.
3. Mr. Ghulam Mujtaba contends that, the striking out of the name of the defendant not having taken place on or before the first hearing, such name could not be properly struck out afterwards. On the other hand it was suggested to us that this lady was a fictitious person and her name might be struck out as a clerical error. The facts hardly suggest that state of things. It was not alleged that she had no interest in the property and that therefore she was improperly joined as a party. It was also suggested that Mr. Raoof's application might be taken to be an application for a review of judgment. We have asked for the production of the document in order to see whether it discloses circumstances and sets forth any of the reasons for which, under Section 623 of the Code of Civil Procedure, a review might properly be granted. It was not produced, and we feel the only reason is that the application was not one under Section 623. We accede therefore to Mr. Mujtaba's contention that the Court had no right to strike off the name of the defendant after the first hearing of the case. It appears to us that the defendant applied to the Court for a proper remedy for the difficulty in which the parties found themselves. If the lady could not be found, the substituted service, even if such service never came to her knowledge, would be a good notice to her and binding her interest, if any, as if she had appeared. We set aside the order of the Court below, and allow the appeal with costs.