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1999 DIGILAW 160 (PAT)

Mazlish-E-Shoora (Edara-Khair-e-Immal) v. Quass Siddikki

1999-03-08

P.K.DEB

body1999
Order This revision petition has been preferred by the above-named plaintiff-petitioner against the order dated 27.6.1998 passed by the Ex-Munsif-II, Patna, in Title Suit no. 12 of 1984 whereby the prayer made by the petitioner to amend the plaint by inserting State of Bihar through I.G. (Society), Registration Department, Bihar a party to the suit. On hearing the parties the learned court below passed the impugned order holding that the amendment has been made at a belated stage and is beyond the period of limitation. 2. The suit was filed in the year 1984 and defendant no.2 was impleaded as Assistant Registrar (Society) Registration Department, Bihar and permission was also taken under Section 80(2) of the Code of Civil Procedure on 28.6.1984 itself as there was also urgency regarding injunction matter. On filing written statement by the defendant no.2 opposite party took the plea that the suit is not maintainable as State of Bihar has not been made a party. Although the written statement was filed long back i.e. in the year 1986 but no amendment was sought for inclusion of State of Bihar as a party for long nine to ten years. Now this petition has been filed for inclusion of the name of State of Bihar. Learned court below held that the amendment petition is barred by limitation. 3. It is the contention of the petitioner that although State of Bihar was a necessary party to the suit but its officer Assistant Registrar i.e. defendant no.2 was already made a party as the notification/letter on which the cause of action arose was signed by him. The plaintiff due to misconception did not make the State of Bihar a party to the suit. It is contended on his behalf by referring to 1978 NOC Patna 301 and 1978 NOC Patna 135 that when there is only question of misrepresentation then the same may be corrected and the question of limitation or other matters would not come in as the matter only suggests formality. The plaintiffs lawyer, according to the petitioner, had committed the mistake of a wrong conception that when defendant no.2 was already on record the State of Bihar would not be a necessary party but afterwards it could be realised that the suit had become defective and as such the amendment petition was filed. 4. The plaintiffs lawyer, according to the petitioner, had committed the mistake of a wrong conception that when defendant no.2 was already on record the State of Bihar would not be a necessary party but afterwards it could be realised that the suit had become defective and as such the amendment petition was filed. 4. On the other hand, learned counsel for the opposite parties has submitted that originally Assistant Registrar was made a party by name but afterwards by amendment in the year 1989 the name of the officer concerned was deleted. So at least in the year 1989 also the petitioner had the information that the State of Bihar was not a party to the suit when specific plea was taken in the written statement. By referring to the judgment of the Apex Court as reported in 1996(SC) 2356 (Radhika Devi vs. Bajrangi Singh and ors.) it has been contended that when specific plea was there in the written statement but still then the amendment was not prayed for within the period of limitation such belated amendment should be rejected forthwith. 5. On the other hand, learned counsel for the petitioner has referred to another judgment of the Apex Court as reported in 1983(2) S.C.C.8 (Munshi Ram vs. Narsi Ram and another) wherein it was held that failure to implead one of the necesary parties within the time limit due to the mistake in good faith then Section 21 (1) should be construed in the light of Order I Rule X of the Code of Civil Procedure. 6. In the present case it appears that there was mistake from the side of the plaintiff in not making the State of Bihar a party and such mistake must be on good faith as long back they had taken leave of the court under Section 80(2) of the Code of Civil Procedure. Already the suit has been delayed not for the plaintiff's cause alone but in such circumstances, the amendment for ends of justice ought to have been allowed and harassment due to delay may be compensated by money value. 7. Thus the impugned order is hereby set side on allowance of the revision petition and it is directed that the amendment sought for by the plaintiff-petitioner be allowed on a pre-condition of deposit of Rs. 7. Thus the impugned order is hereby set side on allowance of the revision petition and it is directed that the amendment sought for by the plaintiff-petitioner be allowed on a pre-condition of deposit of Rs. 500/- within a month next from this date and if such deposit is made the same should be disbursed in favour of the contesting defendants.