Nachhattar Kaur vs Madho Dass

D.V. Sehgal, J.

This revision petition is directed against the order dated 7.3.1986 passed by learned Sub Judge Ist Class Chandigarh, dismissing an application of the petitioner under Order 1 rule 10, Code of Civil Procedure ( hereinafter called ''the code'') for being brought on the record of the suit as plaintiff No. 2.

The facts in brief are that Ram Singh, husband of the petitioner, filed the instant suit for permanent injunction restraining the defendant respondents Nos. 1 to 3 from making any addition/alteration in the structural plan or raising any type of construction on the plot described as ABCD in the plan attached with the plaint. He alleged that he had purchased the property in dispute from its previous owner Mst. Charan Kaur for a consideration of Rs. 21,000/ vide registered sale deed dated 2.11.1982. The said repondents denied the allegation madae in the plaint and questioned the locus standi or Ram Singh to maintain the suit. Thereupon, the petitioner filed an application stating that she had purchased the proporty in dispute vide registered sale deed dated 2.11.1982 through her husband Ram Singh plaintiff from the previous owner Asst. Charan Kaur, and that it was because of inadvertence that the suit had been brought on behalf of Ram Singh. She thus prayed that she may be brought on the record as plaintiff.

The learned trial Court has not doubted the ascertain of the petitioner that it was because of in advertence that the original suit had been brought in the name of Ram Singh, husband of the petitioner, nor has it reached at a conclusion that the substitution of the petitioner as a plaintiff or her addition as plaintiff No.2 is not necessary for the determination of the real matter in dispute. All that has been said in the order under revision is that for the decision of the controversy in suit between Ram Singh plaintiff and respondents Nos.1 to 3, the addition of the petitioner as a party is not necessary. In my view, the learned trial Court has exercised its jurisdiction illegally and with material irregularity and its order cannot be sustained.

Order 1, rule 10 of the Code, contemplates cases in which a suit is brought by a plaintiff who subsequently discovers that he cannot get the full relief he seeks without the joinder of some other person as coplaintiff and cases where it is found that some other person and not the original plaintiff is entitled to the relief claimed. In the former contigency, a new party has to be added and in the latter a new party has to be substituted as plaintiff. All that is essential to be established for bringing a case within this provision is that the suit must have been instituted in the name of a wrong person, or that it must be doubtful whether it has been instituted in the name of the right plaintiff.

All the above ingredients are present in the application filed by the petitioner in the trial Court. A bare perusal of the facts shows that the action was initiated by Ram Singh, husband of the petitioner, as the original plaintiff by a bona fide mistake. In fact, without bringing the petitioner on the record as a plaintiff, the relief sought for in the suit cannot be obtained.

Consequently, I allow this revision petition, set aside the order dated 7.3.1986 of the learned Sub Judge Ist Class, Chandigarh, allow the application of the petitioner under Order 1 rule 10 of the Code and direct that she should be added as plaintiff No. 2 to the suit. Since there is no representation on behalf of the contesting respondent, there shall be no order as to costs.