O Late Jhallu Shah v. Both R
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.15148 of 2011 ====================================================== 1. Bajranglal Sharma S/O Rukma Nand Sharma 2. Jagdish Prasad Agrawal S/O Ram Lal Agrawal 3. Smt. Ratni Devi W/O Shri Jagdish Prasad Agrawal All R/O Vill.- Bahadurganj, P..S- Bahadurganj, Distt.- Kishanganj. .... .... Petitioners 1. Shyam Kumar Sah S/O Late Jhallu Shah 2. Shrawan Kumar Sah S/O Late Jhallu Shah Versus Both R/O Vill.- Bahadurganj, P.S.- Bahadurganj, Distt.- Kishanganj .... .... Respondents ====================================================== Appearance : For the Petitioners : Mr. Satyadarshi Sanjay Mrs. Sarita Bajaj
Legal Reasoning
For the Respondents : Mr. Ashok Kumar ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL ORDER 5 27-06-2013 Heard Mr. S.D. Sanjay, learned counsel for the petitioner and Mr. Ashok Kumar, learned counsel appearing on behalf of the respondents. The petitioners are the defendants in Title Suit No. 5/2007 and are aggrieved by order dated 04.08.2011 passed in the said suit by learned Munsif 1st, Kishanganj, whereby he has allowed the amendment of the plaint sought for by the plaintiffs/respondents under order VI Rule 17 read with Order I Rule 10(2) of the Civil Procedure Code. Mr. Sanjay, learned counsel appearing on behalf of the petitioners has vehemently submitted that the amendment petition Patna High Court CWJC No.15148 of 2011 (5) dt.27-06-2013 2/5 was filed at much belated stage where not only evidence of the parties were closed but even arguments had concluded and judgment could not be delivered, only because of the transfer of the Presiding Officer. He submits, with reference to proviso to Order VI Rule 17 that in absence of any plea that in spite of due diligence, the plaintiffs could not take steps for amendment, such amendment should not have been allowed as a matter of course. He further submits that the plaintiffs were well aware of the facts which formed the basis for filing the amendment petition right from the date of institution of the suit. In such circumstance, learned Court below out not to have allowed the prayer for amendment he would submit. Learned counsel appearing on behalf of the respondents on the other hand submits that the said application for amendment and for impleadment of parties was filed by the plaintiffs / respondents under Order VI Rule 17 as well as under Order 1 Rule 10(2) of the Code of Civil Procedure. He submits that learned Court below in exercise of power under Order I Rule 10(2) allowed one Jagdish Sharma, to be impleaded as defendant. He submits that order I Rule 10 (2) confers power on the Court to order joining name of any party at any stage of proceeding, whose presence the Court feels necessary, in order to enable it effectually Patna High Court CWJC No.15148 of 2011 (5) dt.27-06-2013 3/5 and completely adjudicate upon and settle on the question involved in the suit. In the present case, the impleadment of Jagdish Sharma as a party defendant was sought on the ground that Jagdish Sharma and defendant No. 3 (petitioner in this case), were the co-purchasers of the suit property through sale deed No. 117 dated 07.01.1985 and his name was just inadvertently left out from the category of defendant out of mistake. Mr. Sanjay, learned counsel in his reply has placed strong reliance on judgment of Supreme Court reported in A.I.R. 2009 (2) SCC 409 Vidya Bai & Ors. V. Padmalatha & Anr. in order to contend that in view of the proviso to order VI Rule 17 of the Code of Civil Procedure, the amendment at the belated stage should have been allowed. He has referred to paragraph-11 and 12 of the said judgment which is being quoted hereinbelow:- “11. From the order passed by the learned trial Judge, it is evident that the respondents had not been able to fulfil the said precondition. The question, therefore, which arises for consideration is as to whether the trial had commenced or not. In our opinion, it did. The date on which the issues are framed is the date of first hearing. Provisions of the Code of Civil Procedure envisage taking of various steps at different stages of the proceeding. lieu of Filing of an affidavit examination-in-chief of the witness, in our opinion, would amount to “commencement of proceeding.” in 12. Although in a different context, a three- Judge Bench of this Court in Union of India v. Major- General Madan Lal Yadav took not of the dictionary meaning of the terms “trial” and “commence” to opine: (SCC p. 136, para 19) trial means act of proving or examination or determination of the 19. It would, therefore, be clear that judicial issues Patna High Court CWJC No.15148 of 2011 (5) dt.27-06-2013 4/5 including its own jurisdiction or authority in accordance with law or adjudging guilt or innocence of the accused including all steps necessary thereto. The trial commences with the performance of the first act or steps necessary or essential to proceed with the trial. (emphasis in original) The High Court, as noticed hereinbefore, opined that filing of an affidavit itself would not mean that the trial has commenced.” I have perused the impugned order and I find that on the basis of submissions made by the plaintiff as well as the defendants in the suit, learned Court below came to a finding that presence of Jagdish Sharma as defendant No. 2 was necessary for complete adjudication of the dispute and he, in exercise of power under Order I Rule 10(2) of the C.P.C. allowed said Jadish Sharma to be impleaded as defendant No. 4 in the suit. Such order of learned Court below cannot be said to be beyond jurisdiction and contrary to the provisions contained in the Civil Procedure Code. Further, the discretion of the Court, in the facts and circumstances of the case, to permit name of any person to be joined on the basis of his satisfaction that presence is necessary for just decision of the case should normally not interfered with by the High Court exercising jurisdiction under Article 227 of the Constitution of India. The judgment of Supreme Court in case of Vidya Bai and Ors V. Padmalatha and Anr. will have no application in the facts and circumstances of the Patna High Court CWJC No.15148 of 2011 (5) dt.27-06-2013 5/5 present case. The Supreme Court was considering power of the Court under Order VI Rule 17 and proviso thereto. In the present case, power has been exercised under Order I Rule 10(2) of the Code. In view of the above, I do not find any illegality or irregularity in the order impugned. This application is, accordingly, dismissed. Saif/- (Chakradhari Sharan Singh, J.)