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2019 DIGILAW 1375 (JHR)

Md. Abid Hussain v. Quamar Jamal

2019-08-01

SUJIT NARAYAN PRASAD

body2019
ORDER : 1. This writ petition is under Article 227 of the Constitution of India, whereby and whereunder the order dated 19.12.2018, passed on petition dated 01.08.2018 filed under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure, is under challenge. 2. The brief facts of the case as per the pleading made in the writ petition that one Quamar Jamal, the sole respondent in whose favour the landlord Md. Aslam has created an instrument by way of power of attorney in the year 2012, upon which, eviction suit has been filed by the sole respondent Quamar Jamal being registered as Title (Eviction) Suit No. 16 of 2013 against the petitioner for eviction from the said premises on the ground of default in payment of rent. The title eviction suit has been proceeded and when it reaches to the stage of evidence, a petition has been filed by one Md. Aslam, the creator of the power of attorney in favour of the sole respondent, invoking the jurisdiction conferred under Order VI Rule 17 of the CPC by seeking leave allowing him to be impleaded as plaintiff through amendment. Rejoinder to that petition was filed on 28.09.2018 by the petitioner/defendant, inter alia, stating therein that Md. Aslam is stranger to the suit and as such he has no locus-standi to file amendment under Order VI Rule 17 of the CPC. Further, on the ground that the plaintiff- Quamar Jamal, the power of attorney holder being examined as PW-1 and as such since the petition filed under Order VI Rule 17 of the CPC itself is not maintainable, therefore, no order can be passed by allowing the prayer made therein. The trial court after appreciating the rival submissions of the parties has passed an order on the petition dated 01.08.2018 filed under Order VI Rule 17, taking into consideration the time taken by the said Md. Aslam resorting to the provision under Order I Rule 10(2) of the CPC and allowed him to be added as a party after deleting the name of plaintiff-Quamar Jamal. 3. Mr. A.K. Sahani, learned counsel for the petitioner has agitated the following grounds, for assailing the aforesaid order: (i) Md. Aslam resorting to the provision under Order I Rule 10(2) of the CPC and allowed him to be added as a party after deleting the name of plaintiff-Quamar Jamal. 3. Mr. A.K. Sahani, learned counsel for the petitioner has agitated the following grounds, for assailing the aforesaid order: (i) Md. Aslam is the creator of power of attorney, whereby and whereunder the power to sue has also been delegated upon the sole respondent-Quamar Jamal and in pursuance to the said power of attorney when instructed by the said Md. Aslam-landlord since the rent had not been paid regularly, therefore, taking the ground of default in payment of rent a suit has been filed for eviction by the said Quamar Jamal, who has also been examined as PW-1, therefore the petition filed by Md. Aslam will be treated to be by a stranger and the said petition since has been filed by stranger to the suit, cannot be considered for its acceptance allowing the said Md. Aslam to be impleaded as plaintiff to the suit. (ii) The trial court has resorted to the provision of Order I Rule 10(2) of the Code of Civil Procedure. Although the said provision confers power upon the competent court of civil jurisdiction to substitute or add a person as plaintiff but for that a separate petition ought to have been filed but the trial court has committed gross illegality in passing the said order while dealing with the petition filed under Order VI Rule 17 of the Code of Civil Procedure, therefore, the order impugned is not sustainable in the eye of law. (iii) The condition as stipulated under Order I Rule 10 provides the condition of substitution or addition as plaintiff only in a case where there is bona-fide mistake in impleadment or wrong person has been impleaded as plaintiff but no such condition is available herein since it is an admitted case of the said Md. Aslam that he has given power of attorney in favour of Quamar Jamal, meaning thereby, he has been delegated with the power to contest the case on his behalf and as such it cannot be said bona-fide mistake and wrong has been committed by him hence order passed under Order I Rule 10(2) will not be applicable. 4. Aslam that he has given power of attorney in favour of Quamar Jamal, meaning thereby, he has been delegated with the power to contest the case on his behalf and as such it cannot be said bona-fide mistake and wrong has been committed by him hence order passed under Order I Rule 10(2) will not be applicable. 4. This Court after having heard learned counsel for the petitioner and on appreciating the rival submissions as also the finding recorded in the impugned order, deem it fit and proper to first deal with the provision of Order VI Rule 17 of the Code of Civil Procedure, which reads as under: “17. Amendment of pleadings - The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.” It is evident from the aforesaid provision that the power to seek amendment has been conferred upon the party to the suit, either plaintiff or the defendant. It is evident from the very intent of the provision, wherein it reflects that the Court may at any stage of the proceeding allow “either party” to alter or amend his pleading in such manner, meaning thereby, the power conferred under Order VI Rule 17 is to be exercised by either party to the suit. The provision under Order I Rule 10(2) is also needs to be referred herein, which reads as under: “10. The provision under Order I Rule 10(2) is also needs to be referred herein, which reads as under: “10. Suit in name of wrong plaintiff - (1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona-fide mistake and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just. (2) Court may strike out or add parties - The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added. (3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent. (4) Where defendant added, plaint to be amended - Where a defendant is added, the plaint shall, unless the Court, otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant. (4) Where defendant added, plaint to be amended - Where a defendant is added, the plaint shall, unless the Court, otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant. (5) Subject to the provisions of the Indian Limitation Act, 1877, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons.” It is evident from the provision of Order I Rule 10(1) as also (2) which confers power upon the court to apply its discretion, subject to its satisfaction for proper adjudication of the dispute, to substitute or add a person as plaintiff in case the suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful, whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona-fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the court thinks fit. Sub-Rule 2 of Rule 10 Order I further stipulates that the Court may at any stage of proceedings, either upon or without application of either party and on such terms as may appear to the Court to just, order that the name of any party improperly joined whether as plaintiff or defendant, be struck out, that the name of any person who ought to have been joined, as plaintiff or defendant or whose presence before the Court may be necessary in order to enable the Court completely to adjudicate upon and settle all the question involved in the suit, be added. Sub-Rule 3 of Rule 10 Order I, further stipulates that no person shall be added as a plaintiff, suing without a next friend or as the next friend of the plaintiff. For the present provision Sub-Rule 1 of Rule 10 Order I is relevant. 5. Sub-Rule 3 of Rule 10 Order I, further stipulates that no person shall be added as a plaintiff, suing without a next friend or as the next friend of the plaintiff. For the present provision Sub-Rule 1 of Rule 10 Order I is relevant. 5. This Court in the light of the aforesaid legal position, has examined the factual aspect vis a vis argument on behalf of the petitioner wherein the ground has been taken in assailing the impugned order. It is admitted fact herein that a power of attorney has been created in favour of Quamar Jamal by one Md. Aslam as would be apparent from paragraph 11 to the plaint as has been annexed as Annexure-1 to the writ petition. It is also admitted fact as would appear from the plaint that the property in question has been subletted on monthly tenancy in favour of the petitioner. Further admitted fact is that the rent was being paid directly to the landlord namely Md. Aslam and there being default in making payment of rent which led the Md. Aslam to instruct his power of attorney holder namely Quamar Jamal to institute an eviction suit for evicting the petitioner from the premises on the ground of default in making payment of the rent and in pursuance thereof, suit being Title (Eviction) Suit No. 16 of 2013 has been filed wherein Quamar Jamal, power of attorney holder has been examined as P.W-1 in the suit but the said landlord Md. Aslam wanted to enter into the picture in the capacity of the plaintiff since as per the reason recorded by him in the petition filed under Order VI Rule 17, the power of attorney holder-the sole respondent has been gained over by the petitioner/defendant, therefore, the impleadment as plaintiff is prayed to be allowed by passing an appropriate order under Order VI Rule 17 of the Code of Civil Procedure as has been recorded hereinabove that the question of amendment is sought to be either by the plaintiff or defendant which suggests that the stranger cannot be allowed if filed a petition for jurisdiction of the trial court filed under Order VI Rule 17 seeking any addition or alteration in the plaint under the said provision. 6. 6. The trial court, however, has allowed the petition dated 01.08.2018 which has been filed under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure but no effective order has been passed by the trial court in exercise of power conferred under Order VI Rule 17 since no order is being reflected from the impugned order, when an order in the nature of alteration or addition has been passed. However, the trial court on its own motion has exercised the power conferred under Order I Rule 10(2) of the Code of Civil Procedure and allowed the presence of Md. Aslam as plaintiff by holding Quamar Jamal as plaintiff. 7. The question which has been raised by Mr. Sahani, learned counsel for the petitioner that Order I Rule 10(2) of the Code of Civil Procedure, however, confers power upon the trial court but the trial court has committed gross illegality in exercising the power conferred under Order I Rule 10(2) in a petition filed by Md. Aslam under Order VI Rule 17 of the C.P.C. therefore, he has questioned the impugned order merely on the basis of wrong reference of the provision of law in the petition filed by said Md. Aslam. Now the question would be, even if the trial court has allowed the petition filed under Order VI Rule 17 of the Code of Civil Procedure dated 01.08.2018 by exercising the power conferred under Order I Rule 10(2) of the C.P.C. can it be said that the trial court has exceeded its jurisdiction or passed a wrong order requiring interference of this Court under Article 226 of the Constitution of India. 8. It is the settled position of law that by merely making wrong reference of law a petition can be thrown out rather the question of substantial justice is to be seen by the Court. 8. It is the settled position of law that by merely making wrong reference of law a petition can be thrown out rather the question of substantial justice is to be seen by the Court. Further, as would be evident from Order I Rule 10(2) which confers power upon the trial court to exercise the said power on an application filed by the party or on its own motion, meaning thereby, the party can also file an application but if the party is not filing an application and if the Court is of the view that the impleadment of the party or their deletion or substitution is necessary for proper adjudication of the dispute, the legislation confers power before the trial court to exercise power under Order I Rule 10(2) of the Code of Civil Procedure, therefore, if the petition dated 01.08.2018 even though filed under Order VI Rule 17 has been allowed by exercising the power conferred under Order I Rule 10(2) of the C.P.C. it cannot be said that the trial court has committed illegality in excess of its jurisdiction. 9. The question which is to be seen by the trial court which would be of paramount consideration, the substantial justice and there should not have miscarriage of justice. Learned counsel for the petitioner has pointed out the condition stipulated Order I Rule 10(1) that the wrong person has been impleaded as plaintiff or the bona-fide mistake since these two conditions are not available, therefore, the trial court invoking the aforesaid provision cannot be said to be acted properly but this argument is not acceptable to this Court for the reason that although Md. Aslam has delegated his power through the power of attorney upon Quamar Jamal and when he has reason to believe with he has been gained over, therefore, since he is the landlord, therefore, his interest is first prior to that of power of attorney holder and as such although he has delegated the power of attorney in favour of Quamar Jamal but subsequent to that again if he has reason to believe, he has committed mistake then it would be said to be within the fall of bona-fide mistake and therefore, what has been contended by Mr. Sahani that the power conferred under the provision of Order I Rule 10(2) cannot be said to be correct in view of the provision stipulated with respect to “bona-fide mistake” is not acceptable for the reason that the word “bona-fide” has great significance, in bona-fide approach the power of attorney has been given in favour of Quamar Jamal but the said Md. Aslam after realizing that it was mistake, therefore, it will be said to be “bona-fide mistake” and hence the condition as provided under Order I Rule 10(2) will be said to be available. The last question would be, if the plaintiff would give Md. Aslam power to contest the suit, what prejudice would be caused to the petitioner as has been submitted by Mr. Sahani, even accepting that PW-1 plaintiff namely Quamar Jamal has been examined, the question is of the prejudice and according to the considered view of this Court that the question which is to be adjudicated by the trial court pertains to default in making payment of rent which depends upon pleading supported by oral and documentary evidence and therefore, when the capacity of Md. Aslam as landlord is not in dispute, no prejudice would be caused since the petitioner is not disputing the relationship of landlord and tenant in between him and the said Md. Aslam. 10. In that view of the matter, taking into consideration the fact in the entirety, this Court is of the view that if the trial court has exercised its jurisdiction as per the provision under Order I Rule 10(2) it cannot be said that an illegality has been committed for the reason that the trial court has considered the interest of said Md. Aslam the landlord. Before parting it, this Court also need to refer that the said Md. Aslam not added as a party in the present writ petition is an additional ground for rejecting this writ petition. 11. In view thereof, the writ petition fails and is dismissed.