Nabi Sk vs Krishna Chandra Pal & Ors

Manojit Mandal, J

This application is at the instance of the plaintiff and is directed challenging the Order No.12 dated 30.11.2017 passed by the learned Civil Judge (Junior Division), 2nd Court, Jangipur, Murshidabad, in Title Suit No.119 of 2017 whereby the learned Civil Judge (Junior Division) rejected three separate applications, one for amendment of plaint and another for amendment of injunction petition and last one for addition of parties under Order 1 Rule 10 of the Code of Civil Procedure.

The plaintiff/petitioner filed the suit for declaration and for permanent injunction under Section 9 of the Code of Civil Procedure. During the pendency of the said suit, he sought for amendment of the plaint, amendment of injunction application and for addition of the parties. The said applications were rejected by the order impugned. So, the plaintiff filed this application.

Having considered the submission of the learned advocate for the opposite parties and on perusal of the materials available on record, I find that the first thing that requires to be answered is whether the legal heirs of the defendant, who was dead at the time of institution of the suit, can be impleaded as a party to a suit by exercising power under Order 1 Rule 10 of the Code of Civil Procedure.

Now the Order 1 Rule 10(1) and (2) of the Code of Civil Procedure runs as follows:-

"10.Suit in name of wrong plaintiff: - (1) Where a suit has been instituted in the name of the wrong person as plaintiff or whether it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may, at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary any for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.

(2) Court may strike out or add parties.- 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."

So, it appears that the Court can order to add any person as party to a suit, if presence of such person in the suit is necessary in order to adjudicate effectively and completely and to settle the issues involved in such suit and also to avoid multiplicity of proceedings. In view of the same, I find no bar for the Court to add the legal heirs of a defendant, who was dead at the time of institution of the suit, if such legal heirs are necessary parties for proper and effective adjudication and to avoid multiplicity of proceedings.

This question was dealt with and was answered by the Hon'ble Apex Court in Pankojbhai, Rameshbhai, Zalavadiya V. Jethabhai, Kalabhai Zalavadiya reported in (2017) 9 SCC 700, wherein it was observed that to do substantial justice between the parties, legal heirs of the deceased defendant, who died prior to filing of a case, can be added in array of parties under Order 1 Rule 10 of the Code of Civil Procedure.

Now the plaintiff has claimed that the legal heirs of defendant No.1 who was dead at the time of the institution of the suit, are necessary parties but the defendants countered such claim by submitting that the deceased defendant No.1 transferred his property to the defendant No.3 and as such legal heirs of defendant No.1 has no interest in the suit property and as such they are not necessary parties in the present suit.

The case is at a nascent stage and evidence are yet to be recorded. In such stage to hold that defendant No.1 has transferred the suit land to defendant No.3 will be prejudging of the case and such conclusion should not be drawn at such early stage without appreciating the evidence. As such it will be proper and in the interest of justice to implead the legal heirs of the deceased defendant No.1 as parties to the suit for effective adjudication and the Court can decide if the defendant No.1 transferred the suit land to the defendant No.3 upon considering the evidence in presence of the legal heirs of the defendant No.1, since deceased.

Moreover, I do not find any reason as to how the defendants will be prejudiced if the legal heirs of the defendant No.1 are added as parties in this suit. Such addition will also not change the nature and character of the suit.

Since, it has been submitted in the petition under Order 1 Rule 10 of the Code of Civil Procedure that due to bona fide mistake, the suit has been filed against dead persons, viz. the defendant No.1 and the defendant No.10 and since I find nothing to hold in contrary, I find that it will be proper in the interest of justice to add the legal heirs of defendant No.1 as defendants in this case for effective and complete adjudication.

In view of the above discussion, I am of the opinion that it can be held that defendant No.10 has been improperly joined in this suit and as such it will be proper to strike him out from this case as his legal heirs are already parties to this suit. It does not require to be reiterated that death of the defendant prior to institution of the suit does not make the case void and ab initio and the case can continue in presence of legal heirs of such sub deceased party (Vide Karuppaswami V. Ramamurthy reported in (1993) 4 SCC 41). As such Court can exercise power under Order 1 Rule 10(2) of the Code of Civil Procedure in such case to strike out and delete the name of the deceased defendant joined in the suit improperly.

On consideration of the facts and circumstances of the case and the materials on record, I am of the view that the impugned order suffers from manifest error and illegality as the learned Trial Court has not considered the provision of Order I Rule 10 of the Code of Civil Procedure in its proper prospective and has misdirected itself by prejudging some questions involving the suit.

Consequently, the revisional application is allowed and the order being No.12 dated 30.11.2017 passed by the learned Civil Judge (Junior Division), 2nd Court Jangipur, Murshidabad is set aside.

For what I have discussed above, I must hold that the legal heirs of the deceased defendant No.1 as mentioned in the schedule appartenant to the petition under Order 1 Rule 10 of the Code of Civil Procedure should be added as parties to the suit as their presence is necessary for effective and complete adjudication of the suit and to settle all the questions involved therein and I must also hold that the defendant No.10 be struck off from the suit in the interest of justice as he has been improperly joined. As such petition under Order 1 Rule 10 of the Code of Civil Procedure is allowed.

In view of the above discussion and observation, the learned trial Court is directed to rehear and re-consider the petition under Section 151 of the Code of Civil Procedure praying for amendment of temporary junction petition and the application for amendment of the plaint under Order 6 Rule 17 of the Code of Civil Procedure following the relevant laws within two months from the date of communication of this order.

In the facts and circumstances of the case there will be, however, no order as to costs.

Urgent Photostat Certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.