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Smt. Kulsumum Nisan Vs. Mohammad Farooq and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 53 of 1966
Judge
Reported inAIR1969All479
ActsCode of Civil Procedure (CPC) , 1908 - Sections 10 - Order 6, Rule 17
AppellantSmt. Kulsumum Nisan
RespondentMohammad Farooq and ors.
Appellant AdvocateBashir Ahmad, Adv.
Respondent AdvocateMohd. Moonis, Adv.
DispositionRevision dismissed
Excerpt:
civil - amendment of plaint - section 10 and order 6 rule 17 of code of civil procedure, 1908 - trial of suit stayed under section 10 - application for amendment of party to suit by adding defendant - civil judge allowed amendment - held, amendment impleading a party to suit well within jurisdiction of court. - - strong reliance was placed on the words 'no court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially: on the date fixed the plaintiff failed to appear and the learned judge dismissed the suit. 2 as a party to the suit did not amount to a trial of the suit and was well within the jurisdiction of the court......2 in the suit.2. it appears that suit no. 12 of 1057 was stayed under section 10 c. p. c. by the civil judge during the pendency of f. a. no. 207 of 1957 in this court inasmuch as the matter in issue in the present suit was also directly and substantially in issue between the parties in the said first appeal. it was said that the civil judge had no jurisdiction to entertain an application for amendment by impleading defendant no. 2 as a party to the suit as the trial of the same had been stayed under section 10 c. p. c. the learned civil judge repelled the contention and allowed the amendment.3. in this court it was strenuously urged that section 10 was a complete ban, to the making of an interlocutory order in the suit which had been stayed under that section. strong reliance was.....
Judgment:
ORDER

D.P. Uniyal, J.

1. This application in revision Is from an order of the Additional Civil Judge, Pilibhit allowing the plaintiff's application for amendment of the plaint by, impleading one Akhtar-ul-Zama as defendant No. 2 in the suit.

2. It appears that suit No. 12 of 1057 was stayed under Section 10 C. P. C. by the Civil Judge during the pendency of F. A. No. 207 of 1957 in this Court inasmuch as the matter in issue in the present suit was also directly and substantially in issue between the parties in the said First Appeal. It was said that the Civil Judge had no jurisdiction to entertain an application for amendment by impleading defendant no. 2 as a party to the suit as the trial of the same had been stayed under Section 10 C. P. C. The learned Civil Judge repelled the contention and allowed the amendment.

3. In this Court it was strenuously urged that Section 10 was a complete ban, to the making of an interlocutory order In the suit which had been stayed under that Section. Strong reliance was placed on the words 'no court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially: at issue in a previous instituted suit between the same parties' and it was maintained that the trial of the suit commenced with the filing of the plaint and any order passed by the court after the staying of the suit was without jurisdiction, In my opinion the argument is without substance and cannot be accepted for a moment. The object underlying the provisions of Section 10 C. P. C. is to prevent simultaneous trial of two suits in which the matter In issue between the parties is directly and substantially the same. An interlocutory order in the nature of issue of injunction, or appointment of a receiver, or an order of attachment beforejudgment cannot be regarded as a matter affecting the trial of the suit. It seems to me that the question as to whether a party should or should not be impleaded does not encroach on the merits of the controversy between the parties. It is a matter of a formal nature and cannot in any way determine their respective rights. I am, therefore, of the opinion that an amendment of the plaint by adding a defendant to the suit is not a matter relating to the trial of the suit Such an order cannot, therefore, be taken to be a step in the trial of the suit.

4. Reference was made by the learned counsel to Fakir Singh v. Secretary of State AIR 1928 Lahore 751(2). In that case it was held that once a court has made an order under Section 10 staying the proceedings in a suit it has no jurisdiction to fix further dates for the hearing of the suit unless moved to do so by either party. In that case in spite of the fact that the suit had been stayed the Civil Judge fixed a date for the hearing of the suit. On the date fixed the plaintiff failed to appear and the learned judge dismissed the suit. It was held by the Lahore High Court that the order was without jurisdiction. I am in respectful agreement with the above view for the dismissal of the suit necessarily involved the trial of the suit and an adjudication on matters in controversy between the parties. This, the court was not empowered to do in view of the stay of the proceedings under Section 10 C. P. C.

5. Learned counsel also invited my attention to Harish Chandra Bajpai v. Triloki Singh : [1957]1SCR370 . That was a case under the Representation of the People Act. The question turned on the Interpretation of Section 83 as to whether the tribunal seized with the election petition was empowered to order amendment of the petition under Section 90(2) of the Act. Before the Supreme Court it was contended that Section 90(2) extends the provisions of the Civil Procedure Code to proceedings before tribunals only in respect of procedure and that power to order amendment under Order VI, Rule 17 is not within the extension. The Supreme Court overruled the objection, holding that the provisions of Chapter III read as a whole ally showed that 'trial' was used as meaning the entire proceedings before the tribunal from time when the petition was transferred to it under Section 86 until the pronouncement of the award. After discussing the various provisions of the Representation of the People Act the Supreme Court came to the conclusion that under Section 88(3) the tribunal had power to allow particulars in respect of illegal or corrupt practices to be amended, and further that the tribunal had power under Order VI, Rule 17 to order amendment of the petition, but that power could not be exercised so asto permit new grounds or charges to be raised or to so alter the character of the petition as to make it in substance a new petition.

6. The Supreme Court case in my opinion has no application to the facts of the present case. So far as the word 'trial' used in Section 88 (3) of the Representation of the People Act is concerned, it was construed by the Supreme Court in the context of the various provisions contained in Chapter III of the said Act and the analogy could not be extended to a suit which has been stayed under Section 10 of the Civil Procedure Code.

7. I am of the view that an amendment impleading a party to the suit does not in any way determine rights or liabilities of the parties to the suit, nor is it a matter relating to the trial of the suit. Consequently the order of the Civil Judge impleading defendant No. 2 as a party to the suit did not amount to a trial of the suit and was well within the jurisdiction of the Court.

8. This revision must, therefore, failand is dismissed with costs.


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