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2018 DIGILAW 858 (HP)

Kishori Lal v. Ravi Singh

2018-05-09

TARLOK SINGH CHAUHAN

body2018
JUDGMENT Tarlok Singh Chauhan, J —This petition under Article 227 of the Constitution of India takes exception to the order dated 22.9.2017 (impugned herein) passed by learned Civil Judge (Junior Division) , Court No.4, Mandi, in CMA No. 265/2017 in Civil Suit No. 242/16/13, whereby it rejected the application filed by the petitioner for amendment of the plaint. 2. Brief facts of the case are that the petitioner filed a suit for declaration and injunction against respondent No.1 challenging therein the Will dated 19.4.1990. During the pendency of the suit, he filed an application under Order 1 Rule 10 CPC for arraying Smt. Padma Devi as proforma respondent. This application came to be allowed by the learned trial Court vide its order dated 22.12.2014 and accordingly Smt. Padma Devi was ordered to be arrayed/impleaded as proforma defendant subject to costs of Rs.400/-. It was further ordered that the amended plaint be filed as per the provisions contained in Order 1 Rule 10 (4) CPC. 2. Thereafter, the case was listed on 8.1.2015 on which date, the steps were ordered to be taken for the service of newly added proforma respondent. It is averred that the said respondent could not be served despite repeated attempts and finally came to be served on 7.9.2016 and was proceeded exparte as she failed to put in appearance. However, till this stage, the petitioner did not file the amended plaint and later on filed an application under Order 6 Rule 17 CPC read with Section 151 CPC for amendment of the plaint whereby the description of the suit land was sought to be amended and amendment to the effect that the proforma respondent No.2 was at liberty to join as plaintiff was sought to be filed. However, this application was dismissed by learned trial Court vide its order dated 22.9.2017 and aggrieved thereby the petitioner has filed the instant petition. 3. It is vehemently contended by learned counsel for the petitioner that as per the provisions contained in Order 1 Rule 10 CPC, the petitioner, as a matter of right, was entitled to the amendment in the plaint even in absence of an order to this effect has been passed by the learned Court below. 3. It is vehemently contended by learned counsel for the petitioner that as per the provisions contained in Order 1 Rule 10 CPC, the petitioner, as a matter of right, was entitled to the amendment in the plaint even in absence of an order to this effect has been passed by the learned Court below. But here was a case where the learned Court below had itself directed the amendment of the plaint and in such circumstances, the delay in filing of the amended plaint could not have been a ground to dismiss the application. 4. On the other hand, Mr. Lalit K. Sharma, learned counsel for respondent No.1 would contend that no fault can be found with the order passed by the learned Court below especially when admittedly the application for amendment of the plaint was filed only on 21.6.2017 i.e. nearly 2 years after passing of the order dated 22.12.2014 whereby the application for addition of Smt. Padma Devi was allowed or else which clearly reflects the lethargic and indifference exhibited by the petitioner. I have heard learned counsel for the parties and have gone through the material placed on record. 5. Under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned advocate to do the rest of the things. In a majority of the cases, the party normally has no knowledge of the Court''s procedure and after engaging a lawyer remains supremely confident that the lawyer will look after his interest. Therefore, after having done everything in his power can the party still be made to suffer for the negligence of his counsel, particularly, when there is nothing on record to show that there was any inaction, deliberate omission or misdemeanour on his part. Complete answer to this proposition is found in the judgment of the Hon''ble Supreme Court in Rafiq and another vs. Munshilal and another , (1981) AIR(Supreme Court) 1400 wherein it was observed as under: "3. Complete answer to this proposition is found in the judgment of the Hon''ble Supreme Court in Rafiq and another vs. Munshilal and another , (1981) AIR(Supreme Court) 1400 wherein it was observed as under: "3. The disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the court''s procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. It is no part of his job .." 6. Similar reiteration of law can be found in Special Tehsildar, Land Acquisition, Kerala vs. K.V. Ayisumma , (1996) AIR(Supreme Court) 2750 and State of M.P. and another vs. Pradeep Kumar and another , (2000) 7 SCC 372 . 7. Indubitably, the application earlier filed by the petitioner under Order 1 Rule 10 CPC was allowed by the learned trial Court vide its order dated 22.12.2014, the operative portion whereof reads thus: " .List this case for filing amended plaint. In view of order 1 Rule 10 (4) CPC for 8.1.2015. On this date the newly added proforma defendants be summoned for." 8. Once the petitioner was directed to file the amended plaint by the Court, then obviously the same was to be filed by his counsel and in case there has been any inaction, deliberate omission or misdemeanor on the part of his advocate, obviously then he cannot be made to suffer. Once the petitioner was directed to file the amended plaint by the Court, then obviously the same was to be filed by his counsel and in case there has been any inaction, deliberate omission or misdemeanor on the part of his advocate, obviously then he cannot be made to suffer. This is all the more so when the petitioner in fact did not seek to alter the nature of the suit while praying for amendment of plaint. 9. Therefore, in the given facts and circumstances, some indulgence was required to be shown to the petitioner and a highly technical approach should have been eschewed. 10. Having said so, the impugned order dated 22.9.2017 passed by learned trial Court cannot withstand judicial scrutiny and is accordingly set-aside. The petition is allowed in the aforesaid terms, leaving the parties to bear their own costs. Pending application(s) if any, also stands disposed of. 11. The parties through their counsel are directed to appear before the trial Court on 30.5.2018.