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Sisir Kumar Tarafdar Vs. Manindra Kumar Biswas and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 1778 of 1953
Judge
Reported inAIR1958Cal681
ActsCode of Civil Procedure (CPC) , 1908 - Section 151 - Order 1, Rule 10(2)
AppellantSisir Kumar Tarafdar
RespondentManindra Kumar Biswas and anr.
Appellant AdvocateBiraj Mohan Roy, Adv.
Respondent AdvocateS.C. Janah and ;Arun Kumar Janah, Advs.
Cases ReferredBrojendra Kumar Das v. Gobinda Mohan Das
Excerpt:
- .....gupta, j. 1. the petitioner instituted a suit for arrears of rent against two persons, manindra kumar biswas and rabindra kumar biswas who were described as being in possession of the estate of nrisingha kumari dasi, deceased, as her heirs. these two persons appeared and filed a written statement stating that nrisingha kumari dasi was alive and so they had no interest in the matter and were improper parties. thereafter an application was filed by the present petitioner for amendment of the plaint. the amendment sought for in substance was that the names of manindra kumar biswas and rabindra kumar biswas should be struck out and nrisingha kumari dassi, widow of late mahitosh biswas should be made the sole defendant. the learned subordinate judge refused this prayer for amendment in the.....
Judgment:

K.C. Das Gupta, J.

1. The petitioner instituted a suit for arrears of rent against two persons, Manindra Kumar Biswas and Rabindra Kumar Biswas who were described as being in possession of the estate of Nrisingha Kumari Dasi, deceased, as her heirs. These two persons appeared and filed a written statement stating that Nrisingha Kumari Dasi was alive and so they had no interest in the matter and were improper parties. Thereafter an application was filed by the present petitioner for amendment of the plaint. The amendment sought for in substance was that the names of Manindra Kumar Biswas and Rabindra Kumar Biswas should be struck out and Nrisingha Kumari Dassi, widow of late Mahitosh Biswas should be made the sole defendant. The learned Subordinate Judge refused this prayer for amendment in the view that such substitution of Nrisingha Kumari Dasi could not be made under the Civil Procedure Code.

2. It is contended before us by the learned Advocate for the petitioner that the learned Subordinate Judge wrongly thought that the amendment prayed for could not be allowed. He has argued that it was proper to consider the prayer in two stages, namely, that first Nrisingha Kumari Dasi should be added as defendant No. 3 and then the names of Manindra Kumar Biswas and Rabindra Kumar Biswas, defendants Nos. 1 and 2 should be struck out leaving Nrisingha Kumari Dasi as the sole defendant. Order 1, Rule 10 of the Code of Civil Procedure provides for addition or substitution of plaintiff in its first sub-rule and provides for the striking out or addition of plaintiffs or defendants, in its second sub-rule. The provision for substitution or addition of parties in the first sub-rule is limited to cases where the court is satisfied that the suit has been instituted in the name of a wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff and the court is satisfied that the suit has been instituted thus through a bona fide mistake. Sub-rule (2) is not limited to cases of bona fide mistake and runs in these words :

'The Court may at any 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 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 in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.'

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 of 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-rule (2) of Rule 10 of Order 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).

3. The position in the present case is that if the court strikes out the names of Manindra Kumar Biswas and Rabindra Kumar Biswas and bring on the record the name of Nrisingha Kumari Dassi this will not be a case of addition at all. If there had been some other person on the record as defendant even after the names of Manindra Kumar Biswas and Rabindra Kumar Biswas were struck out, that would be a case of addition and might be allowed by the court in proper circumstances.

4. I have, therefore, come to the conclusion that the learned Judge is right in his view that Order 1, Rule 10(2) of the Civil Procedure Code does not apply to the circumstances of the present case,

5. It was next contended that at least the prayer should have been allowed in the exercise of the court's inherent jurisdiction. The fact that the suit was brought in the name of Rabindra Kumar Biswas and Manindra Kumar Biswas in the lifetime of Nrisingha Kumari Dassi would not disentitle the plaintiff from bringing a fresh suit against Nrisingha Kumari. There is no reason to think that this remedy by suit would be less convenient than the remedy that might be afforded if the amendment is allowed. The mere fact that there might be difficulty in the plaintiff getting refund of the court-fees affixed on the plaint in this case due to his negligence in proceeding as if Nrisingha Kumari Dasi was dead is not, in my judgment, a ground for which the Court should interfere under Section 151 of the Code of Civil Procedure. The decision in Brojendra Kumar Das v. Gobinda Mohan Das, 20 Cal WN 752 : (AIR 1916 Cal 80 (2) ) (A), that the Court had ample powers to make transposition of parties under Order I, Rule 10(2), of the Code of Civil Procedure has, in my judgment, no application to the facts of this case.

6. The Rule is accordingly discharged.

7. There will be no order as to costs.

Debabrata Mookerjee, J.

8. I agree.


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