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L. Jagdish Saran and anr. Vs. Bhagwat Saran and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1940All448
AppellantL. Jagdish Saran and anr.
RespondentBhagwat Saran and ors.
Excerpt:
- - 2. it is however clear that much confusion was caused by the similarity between the names of the five sons of bhagwat saran, but there can be no doubt that the plaintiffs as well as bhagwat saran and his sons must have been cognizant of the fact that the suit was directed against bhagwat saran and his surviving four sons......1 is the step-brother of the two plaintiffs named above. on the date of the institution of the suit bhagwat saran had four sons. it is not disputed that the plaintiffs did intend to implead those four sons also as defendants to the suit. there was however much controversy between the parties as to the correct names of the sons. two of the sons of bhagwat saran are admittedly named dharam prakash and sat prakash and their names were correctly given in the array of the defendants. the controversy between the parties centred round the question as to what were the correct names of the remaining two sons of bhagwat saran. in the plaint these two sons were described as 'prem prakash alias ved prakash' and om prakash. it however appears that in a previous litigation between the father of.....
Judgment:

Iqbal Ahmad, J.

1. This application in revision is directed against an order of Mr. V. Prakash, Civil Judge, dismissing an application filed by the plaintiff-applicants for certain additions to be made in the description of some of the persons arrayed as defendants to the suit. The plaintiffs in the suit were Jagdish Saran and Shiam Saran who are real brothers. Bhagwat Saran defendant 1 is the step-brother of the two plaintiffs named above. On the date of the institution of the suit Bhagwat Saran had four sons. It is not disputed that the plaintiffs did intend to implead those four sons also as defendants to the suit. There was however much controversy between the parties as to the correct names of the sons. Two of the sons of Bhagwat Saran are admittedly named Dharam Prakash and Sat Prakash and their names were correctly given in the array of the defendants. The controversy between the parties centred round the question as to what were the correct names of the remaining two sons of Bhagwat Saran. In the plaint these two sons were described as 'Prem Prakash alias Ved Prakash' and Om Prakash. It however appears that in a previous litigation between the father of the plaintiffs and Bhagwat Saran it was decided that one of the sons of Bhagwat Saran who was named Om Prakash was dead. There is therefore reason to believe that Om Prakash was not alive on the date of the institution of the present suit and that the name of one of the living sons of Bhagwat Saran as given in the plaint was incorrect.

2. It is however clear that much confusion was caused by the similarity between the names of the five sons of Bhagwat Saran, but there can be no doubt that the plaintiffs as well as Bhagwat Saran and his sons must have been cognizant of the fact that the suit was directed against Bhagwat Saran and his surviving four sons. In order to remove the misapprehension that might exist, and with a view to set at rest future controversy on the question, the plaintiffs filed an application praying that as against the name of 'Prem Prakash alias Ved Prakash' it be noted that he is the eldest son of Bhagwat Saran and his name is entered in the school register as Ved Prakash. Further the plaintiffs prayed that against the name of Om Prakash, who was im-pleaded as defendant 3 in the suit, it be noted that he is the son of Bhagwat Saran

who is reading in the Hindu school and has been wrongly described as Prem Prakash at the instance of Bhagwat Saran.

3. This application of the plaintiffs was successfully opposed by the defendants. Mr. V. Prakash rejected the application of the plaintiffs on two grounds. Firstly he held that the application was belated and secondly he held that if the 'amendment' prayed for by the plaintiffs was allowed,

it would adversely affect the rights of Ved Prakash against whom twelve years limitation had already run out as this new description of defendant 2 might cover Ved Prakash and the new description of defendant 3 may become applicable to Prem Prakash,

4. The plaintiffs have come in revision to this Court and it is contended that the Court below misunderstood the real nature of their application and wrongly disallowed the same. A preliminary objection has been taken on behalf of the defendants opposite party to the maintainability of the present application. It is argued that the order passed by the Court below was an order rejecting an application for the amendment of a pleading and that no case was decided within the meaning of Section 115, Civil P. C, and accordingly no revision lies to this Court. In support of this contention reliance has been placed on the Full Bench decision of this Court in Suraj Pali v. Ariya Pretinidhl Sabha, U.P. : AIR1936All686 . That case no doubt is an authority for the proposition that no revision lies from an order passed under Order 6, Rule 17, Civil P.C., refusing to allow an amendment of a pleading. But it was also held in that case that where the amendment comes under some other order of the Code, for example, 'the addition or substitution of parties, or the striking off a pleading' the order may amount to a case decided, and in such a case an application in revision is entertainable by this Court.

5. In the case before us the application was not for the amendment of the facts stated in the plaint or of the grounds of claim formulated in that document. All that was prayed was that certain additions by way of explanatory notes be made after the description of defendants 2 and 3 in the plaint. The application was in fact and in substance an application to elucidate the array of the parties as described in the plaint. It was therefore not an application for amendment of a pleading and the rejection of that application constituted the decision of a case within the meaning of Section 115, Civil P.C. The preliminary objection has therefore no force and is overruled. On the merits the order of the Court below is unsustainable. It is true that the application was made at a somewhat belated stage of the cage, but the delay in the presentation of the application was due to the frivolous pleas raised by the defendants as regards the array of the parties. It must have been clear to Bhagwat Saran and to his sons that the plaintiffs did intend to implead them all as defendants to the suit. It may be that the names of the sons were not correctly described in the plaint, but that mistake could in no manner lead the defendants to entertain any doubt as to the persons against whom the plaintiffs had brought the suit. Bhagwat Saran must therefore have been fully cognizant of the fact that by impleading Prem Prakash and Om Prakash the plaintiffs did intend to implead his two eldest sons among the array of the defendants. When the plaintiffs discovered that because of the supposed mistake in the description of the parties pleas as to nonjoinder of necessary parties were raised by the defendants they filed the application noted above. The plaintiffs cannot therefore be blamed for not having filed the application earlier.

6. The second reason assigned by the learned Judge for rejecting the application does not commend itself to us. If the plaintiffs did intend to implead all the four sons of Bhagwat Saran, as we hold that they did, there can be no question of limitation as all the four sons must be deemed to have been impleaded as defendants from the very outset. The addition by way of explanatory note prayed for by the plaintiffs would set at rest future controversy as regards the correct names of the sons of Bhagwat Saran. It would not however adversely affect either party so far as the merits of the case are concerned. For the reasons given above, we consider that the Court below was wrong in rejecting the application filed by the plaintiffs. Accordingly we allow this application, set aside the order of the Court below and direct that the additions prayed for by the plaintiffs be made as against the names of defendants 2 and 3 in the plaint. After the additions have been made the defendants will be given an opportunity to file a fresh written statement. We make no order as to the costs of this application.


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