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2013 DIGILAW 406 (RAJ)

Nand Lal Jat v. Sobhagyawati Malakar

2013-02-15

BELA M.TRIVEDI

body2013
ORDER : Bela M. Trivedi, J. With the consent of the learned counsels for the parties, the revision petition is heard finally at the admission stage. 2. The present revision has been filed by the petitioner-defendant No.13 challenging the order dated 08.08.2012 passed by the Additional District Judge, Kishangarh, District Ajmer (hereinafter referred to as "the trial court") in Civil Suit No.25/2011, whereby the trial court has dismissed the application of the petitioner seeking rejection of the plaint under Order 7 Rule 11 of Civil Procedure Code. 3. Heard the learned counsel Mr. Nemi Chand Choudhary for the petitioner and learned counsel Mr. Vimal Choudhary for the contesting respondents No.1 & 2-plaintiffs, who has put his appearance on caveat, and perused the documents on record. During the course of arguments, the certified copies of the order sheets drawn by the trial court have been produced by the learned counsel for the petitioner and copy of the amended plaint has been produced by the learned counsel for the respondents No.1 & 2. 4. In the instant case, the respondents No.1 & 2- plaintiffs had initially filed the suit against the present respondents Nos. 3 to 13 (original defendants No.1 to 11) seeking specific performance of the agreement dated 19.09.2007 allegedly executed by the defendants No.1 to 4. Thereafter it appears that the respondents-plaintiffs submitted an application under Order 1 Rule 10 for impleading the defendant Nos.12 to 16 i.e. the present petitioner and respondents No.14 to 17. The trial court vide the order dated 08.03.2011 allowed the said application without issuing any notice to the proposed defendants and directed the respondents-plaintiffs to amend the cause title of the suit on or before 16.03.2011. It appears that the respondents-plaintiffs again filed an application seeking permission to join the present respondents Nos.18 & 19-defendants No.17 & 18, under Order 1 Rule 10, and the trial court vide the order dated 22.02.2012 allowed the said application, and then issued notice to the said newly added defendants. The present petitioner and the respondents Nos.14 to 17 original defendants Nos.12 to 16 thereafter submitted an application seeking rejection of the plaint qua the said defendants on the ground inter alia that the suit was not maintainable, being barred by law of Limitation and that no cause of action qua the said defendants was disclosed in the plaint. The present petitioner and the respondents Nos.14 to 17 original defendants Nos.12 to 16 thereafter submitted an application seeking rejection of the plaint qua the said defendants on the ground inter alia that the suit was not maintainable, being barred by law of Limitation and that no cause of action qua the said defendants was disclosed in the plaint. The said application has been dismissed by the trial court vide the impugned order dated 08.08.2012. 5. It has been submitted by Mr. Nemi Chand Choudhary for the petitioner that on the application filed by the respondents-plaintiffs the trial court while allowing the same, had directed the plaintiffs to amend the cause title of the suit only. According to the learned counsel for the petitioner there was no application nor any order was passed by the trial court permitting amendment in the body of the plaint under Order 6 Rule 17. He also submitted that the amended copy of plaint with the amendments in the body of the plaint could not have been taken on record by the trial court, and that as per the original plaint, no cause of action was disclosed qua the newly added defendants Nos.12 to 16. He has also submitted that trial court had thoroughly misdirected itself by not deciding the application of the petitioner in accordance with law. 6. However, learned counsel Mr. Vimal Choudhary for the respondents No.1 & 2-plaintiffs submitted that the petitioner had not challenged the order of the trial court permitting the plaintiffs to join the defendants Nos.12 to 16 and also the order permitting to join defendants Nos.17 & 18 under Order 1 Rule 10 of Civil Procedure Code. According to him, the plaintiffs was not required to file any application for amendment of the plaint under Order 6 Rule 17 when application under Order 1 Rule 10 was granted by the court, and that the amended copy of the plaint clearly shows the cause of action against the newly added defendants Nos.12 to 16. Relying upon the judgments of the Supreme Court and of this High Court, the learned counsel Mr. Vimal Choudhary submitted that the plaint could be rejected under Order 7 Rule 11 only on the averments made in the plaint and not on the basis of contentions raised in the written statement. Relying upon the judgments of the Supreme Court and of this High Court, the learned counsel Mr. Vimal Choudhary submitted that the plaint could be rejected under Order 7 Rule 11 only on the averments made in the plaint and not on the basis of contentions raised in the written statement. He has also relied upon the provisions contained in Rule 34 of General Rules (Civil 1986) to show as to how the amendments should be made in the pleadings. 7. At the outset, it is required to be noted that as transpiring from the certified copies of the order sheets drawn by the trial court, the plaintiff had filed the application under Order 1 Rule 10 for impleading the proposed defendants Nos.12 to 16 and that the said application was allowed by the trial court on the same day i.e. 08.03.2011 without issuing any notice to the proposed defendants, and directed the plaintiffs to furnish the amended cause title of the suit on or before 16.03.2011. From the bare reading of the said order it clearly transpires that the trial court had permitted the plaintiffs only to amend the cause title and not the body of the plaint. There was no amendment as such sought for by the plaintiffs to amend the body of the plaint as required under Order 6 Rule 17 of Civil Procedure Code. It is needless to say that Order 1, Rule 10 deals with the addition, deletion and substitution of parties, and does not deal with the amendment of pleadings. The party seeking amendment in the pleadings has to file necessary application under Order 6, Rule 17, and could not seek, nor court could grant any amendment in the pleadings under Order 1, Rule 10. 8. Thereafter, again one more application under Order 1, Rule 10 seeking impleadment of defendants Nos.17 & 18 was moved by the plaintiffs, which was also allowed by the court without issuing notice to the proposed defendants. Again there was no application filed by the plaintiffs to amend the pleading i.e. the plaint. Still, it appears that the plaintiffs furnished the amended copy of plaint before the trial court incorporating certain paragraphs in the original plaint, without there being any order of the trial court permitting such amendments. Again there was no application filed by the plaintiffs to amend the pleading i.e. the plaint. Still, it appears that the plaintiffs furnished the amended copy of plaint before the trial court incorporating certain paragraphs in the original plaint, without there being any order of the trial court permitting such amendments. This Court fails to understand as to how such an amended copy of plaint could be permitted to be taken on record, when the trial court had permitted the plaintiffs to add the proposed defendants and to furnish the amended cause title of the plaint only. It further transpires that when the petitioner and other respondents (defendants Nos.12 to 16) moved an application bringing to the notice of the Court the order dated 08.08.2011 passed by the Court, and prayed that the plaint may not be taken on record, the said application was rejected by the trial court, alongwith the application filed by the original defendants No.1 to 6 seeking rejection of plaint under Order 7 Rule 11, vide the order dated 05.09.2011. 9. Having regard to the impugned order dated 08.08.2012 and the order dated 05.09.2011, it clearly transpires that the trial court had thoroughly misdirected itself by not following the due process of law. When the trial court had permitted the plaintiffs to implead the defendants Nos.12 to 16 and thereafter the defendants No.17 & 18 in the suit and directed the plaintiffs to amend the cause title of the plaint only, the plaintiffs could not have amended the body of the plaint as sought to be done by them. It appears that the trial court without going through the amended body of the plaint appears to have proceeded with the applications filed by the defendants Nos.12 to 16 and Nos.1 to 6 and rejected the same vide the order dated 05.09.2011. There is nothing on record as to when the trial court had permitted the plaintiffs to amend the body of the plaint. In absence of any application under Order 6, Rule 17 and in absence of order passed by the Court on such application, the amended copy of the plaint, incorporating the amendments in the body of the plaint could not have been taken on record by the trial court. In absence of any application under Order 6, Rule 17 and in absence of order passed by the Court on such application, the amended copy of the plaint, incorporating the amendments in the body of the plaint could not have been taken on record by the trial court. Though the said order dated 05.09.2011 is not under challenge in the present petition, this Court finds that the trial court had illegally exercised its jurisdiction by taking into consideration the amended copy of plaint with the incorporation of the paragraphs which were never sought to be amended by the plaintiffs, and therefore the said order dated 05.09.2011 suffers from gross illegality and perversity. The impugned order dated 08.08.2012 has also been passed by the trial court considering the amended plaint, which was not permitted by the court and hence the said order also suffers from illegality and perversity. If the original plaint with the amended cause title is seen, no cause of action has been disclosed against the newly added defendant Nos.12 to 18. Thus, the trial court had totally misdirected itself while deciding the application under Order 7, Rule 11 filed by the said defendants. In that view of the matter, the impugned order suffers from gross illegality and perversity, and therefore deserves to be set-aside. 10. Since the trial court has proceeded with the suit proceedings in utter disregard of the provisions contained in Civil Procedure Code, the matter is required to be remanded for deciding the application filed by the defendants Nos.12 to 16 under Order 7 Rule 11 afresh and in accordance with law. It is clarified that while deciding the said application, the original plaint with amended cause title as permitted vide orders dated 08.03.2011 and 22.02.2012 only shall be taken into consideration. However, it will be open for the plaintiffs to make necessary application seeking amendment in the pleadings as may be permissible under the Law and such application if made shall be decided by the trial court in accordance with law. 11. In view of the above, the impugned order dated 08.08.2012 passed by the trial court is set-aside. The matter is remanded to the trial court for deciding the application of the petitioner and other respondents filed under Order 7 Rule 11, afresh and in accordance with law. The revision petition stands allowed accordingly.