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1979 DIGILAW 58 (MP)

Gurdevsingh v. Chhatumal

1979-01-31

S.R.VYAS

body1979
Short Note : 1. The plaintiff-non-applicant Chattumal brought a suit for ejectment, arrears of rent and mesne profits against one person who was described as Sardar Gurudayalsingh, resident of house No. 9-10, Sindhi Colony, Neemuch cantonment. The plaintiff submitted two applications (I.A No. 2 and 3). These applications purported to be under section 151 of the Code of Civil Procedure and Order 6, rule 17 of the Code of Civil Procedure. In the first application it was alleged that in the cantonment of Neemuch there were two persons by name Gurdayalsingh born of the same father; that Gurdayalsingh proprietor of the Firm 'Minhas Traders' had been paying rent to the plaintiff and that this Gurdayalsingh was also known as Gurudevsingh son of Dilipsingh. By the second application, the plaintiff prayed for amendment in the cause title of the suit. The learned trial Judge accepted the application of the plaintiff and the plaint was allowed to be amended. The defendant's application for review of the said order was rejected. Against this order the present revision petition has been filed. Held: Under sub-rule (2) of rule 10 of Order I CPC if a prayer is made for substitution of one person as defendant for another person as a defendant the prayer cannot be allowed. But where the prayer is for a correct description of a wrongly described defendant the Court has ample power under the provisions of Order 6, rule 17 and section 153 CPC to permit the plaintiff to make a correct description of the defendant. In the instant case, the plaintiff's prayer never was to substitute Gurudeosingh for Gurudayalsingh on the contrary his prayer is that the person sued as Gurudayalsingh be permitted to describe as Gurudayalsingh alias Gurudeosingh. proprietor of Minhas Traders. In these circumstances when there was neither an order for substitution for one defendant for another nor there was any order for such substitution the contention of the applicant cannot succeed Sirir Kumar v. Munindra Kumar, AIR 1958 Cal 681 , V.N. Bandekar v. M/s Janardan G. Thaly and Co., AIR 1979 Goa 8 , Manilal and Sons v. Purshottam Umedbhai and Co., AIR 1960 Cal. 15 , Amolakchand v. Babulal, AIR 1923 Bombay 304, East Indian Railway Co. Vs. Ram Lakhan Ram, AIR 1928 Pat. 37, Raghunathsingh v. Mandir Shri Deo Radhaballabhi, AIR 1937 Nag. 173, Australian Steam Navigation Co. 15 , Amolakchand v. Babulal, AIR 1923 Bombay 304, East Indian Railway Co. Vs. Ram Lakhan Ram, AIR 1928 Pat. 37, Raghunathsingh v. Mandir Shri Deo Radhaballabhi, AIR 1937 Nag. 173, Australian Steam Navigation Co. v. Smith, 1869 (14) AC 318, referred to. Revision dismissed.