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2016 DIGILAW 391 (GAU)

Gonendra Das Laskar v. Monoranjan Das

2016-05-09

N.CHAUDHURY

body2016
JUDGMENT : In this application under Article 227 of the Constitution of India, petitioner has challenged the order dated 19.12.2011 passed by the learned Munsiff No. 1, Cachar at Silchar in Misc.(J) Case No.115 of 2010 arising out of Title Suit No. 58 of 2010 thereby rejecting the application filed by the plaintiff for impleading legal heirs of deceased defendant No. 4 in the suit. 2. The petitioner herein as plaintiff instituted Title Suit No. 58 of 2010 in the court of learned Munsiff No.1, Cachar at Silchar against one Monoranjan Das as principal defendant and as many as 14 defendants therein praying for declaration of his right, title and interest and for prohibitory injunction restraining the defendants. After service of summons in the suit, plaintiff as petitioner filed application under Order VI Rule 17 of the Code of Civil Procedure for deleting the name of proforma defendant No. 4 and for impleading his legal heirs in his place on the ground that at the time of institution of the suit, the said defendant No.4 had already expired and so wrongly his name was incorporated in the body of the plaint as proforma defendant No. 4. According to plaintiff, he came to know about death of defendant No. 4 only after service report by the process server disclosed the same. The defendant No. 1 submitted objection and contested the application under Order VI Rule 17 of the CPC along with the written statement. The learned trial court after hearing both the sides rejected the application by the impugned order dated 19.12.2011 holding that provision of order XXII Rule 4 CPC would apply only if a defendant dies during continuance of the civil suit. In the present case, the defendant No. 4 had died prior to institution of the suit and so Order XXII Rule-4 would not apply. But even after holding so, learned trial court held that a decree passed against a dead man would be nullity and so suit instituted against a dead person could not be corrected by amending of the plaint. The learned trial court also noticed that under Order 1 Rule 10, necessary parties can be joined to a suit but without arriving at any finding that legal heirs of defendant No.4 are not necessary parties in the suit, rejected the application. The learned trial court also noticed that under Order 1 Rule 10, necessary parties can be joined to a suit but without arriving at any finding that legal heirs of defendant No.4 are not necessary parties in the suit, rejected the application. After rejecting this application, suit of the plaintiff was also dismissed without holding as to whether because of death of proforma defendant No. 4, the suit was not maintainable. The order passed in misc. case has been brought under challenge in the present revision petition. Dismissal of the suit by a separate order passed in the suit on the same date ought to have been challenged before the learned first appellate court. But the petitioner may be because of wrong advice given by the learned counsel. 3. I have heard Mr. B Malakar, learned counsel for the petitioner and Mr. S Das, learned counsel for the respondent/opposite party No.1. 4. The learned trial court has rightly held that provisions of the order XXII will apply only if a party dies during pendency of the suit. Provisions of this order, therefore, cannot be applied to a case where party had died before institution of the suit. In this case, plaintiff being under the bonafide impression that defendant No. 4 was living instituted the suit. Defendant No.2 to Defendant No. 14 are proforma defendants and defendant No.1 is the only principal defendant. Plaintiff has prayed for relief against the defendant No.1 and not against other defendants. Though Code of Civil Procedure does not recognize any party as proforma defendant and it recognizes only plaintiff and defendant yet there is practice in the civil courts for impleading some parties as proforma defendants against whom no relief is claimed. Proforma defendants are impleaded as proper parties and not as necessary parties . Their presence is required for adjudication of the matter in dispute and in case they seek to contest the suit of the plaintiff, in that event they are considered to be principal defendant or contesting defendant. It is a long pending practice in civil court for making mention of some defendants as principal defendants and some parties as proforma defendants. In the instant case, defendant No.4 is a proforma defendant which means that plaintiff did not claim any relief against him but solicited his presence only for the purpose of passing a decree. 5. It is a long pending practice in civil court for making mention of some defendants as principal defendants and some parties as proforma defendants. In the instant case, defendant No.4 is a proforma defendant which means that plaintiff did not claim any relief against him but solicited his presence only for the purpose of passing a decree. 5. The day when application under Order VI Rule 17 was filed by the plaintiff, trial had not commenced. It was at the stage of service of notices and no issues were framed. Under such circumstances, even under the amended provision of Order VI Rule 17, such amendment was permissible as long as the proposed amendment did not change the nature and character of the suit. At a given case, court could add or delete names of the parties under the provision of Order 1 Rule 10 CPC. This can be done only if the court arrives at the finding that addition or deletion of the names of such party is necessary for proper adjudication of the matter in dispute. In the case in hand, the learned Munsiff has not entered into any such discussion or deliberation. It has not been held that the legal heirs of defendant No. 4 are not necessary parties in the suit. It has also not been held that right of the defendant No.4 to sue did not survive to his legal heirs. Under such circumstances, in the absence of a finding that proposed defendants are not necessary parties, the learned Munsiff could not have dismissed the application filed by the plaintiff for impleadment of legal heirs of defendant No.4. The judgment relied on by the learned Munsiff relates to a concluded suit where decree was passed against a dead man without impleading his legal heirs and so it was held that decree was nullity. In the case in hand, no decree was passed and a plaint was merely presented. In that view of the matter, there was scope for amending the plaint either by Order VI Rule 17 CPC or upon exercise of power under Order 1 Rule 10 CPC. If the learned court was of the view that such parties are necessary, in that event, the same could have been done under any of the provisions of law mentioned above. If the learned court was of the view that such parties are necessary, in that event, the same could have been done under any of the provisions of law mentioned above. The learned court did not proceed to do so and so the Order dated 9.12.2011 cannot be sustained. It is accordingly set aside. The impugned order dated 9.12.2011 passed in Misc. (J) Case No. 115 of 2010 having been set aside, the very basis of the order passed on the same date in the main suit also cannot be maintained. The order dated 9.12.2011 passed in Misc.(J) Case No. 115 of 2010 being the consequential order is accordingly set aside.