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Madhya Pradesh High Court · body

2019 DIGILAW 4 (MP)

Sehdev Dubey v. Pushpa Tiwari

2019-01-02

G.S.AHLUWALIA

body2019
ORDER 1. This petition under Article 227 of the Constitution of India has been filed against the order dated 5.2.2016 passed by First Civil Judge Class 2 Dabra, District Gwalior in C.S. No. 2A/2012 by which the application filed by the plaintiffs under Order 1 rule 10 CPC has been allowed and the respondent No.10 has been directed to be impleaded. 2. The necessary facts for the disposal of the present petition in short are that the plaintiffs have filed a civil suit for declaration of title and permanent injunction on the ground that the suit property was left by Late Ramnarayan, in which the plaintiffs have 3/7th share. The suit was filed on 23.12.2011. The petitioner filed his written statement on 13.2.2012 denying the plaint averments. It was further pleaded in the written statement that, by a registered sale deed 29.3.2007, the defendants No. 3 to 6 have sold 0.533 hectares of land out of survey No. 403, 405 to Saurabh and the plaintiffs have not prayed for setting aside the said sale deed and even Saurabh has not been made a party to the suit and he is a necessary party. 3. Inspite of the specific objection raised by the defendants in their written statement, the plaintiffs did not take any steps to either challenge the sale deed dated 29.3.2007, nor filed any application for impleading Saurabh as one of the defendants. Even an issue was framed with regard to non-impleadment of necessary parties. 4. The evidence of the parties were recorded, and when the case was fixed for final hearing, Saurabh filed an application for impleading him as a defendant. However, the said application was withdrawn by Saurabh by order dated 29.10.2015. Thereafter, the plaintiffs filed an application for impleading Saurabh as defendant. The said application was objected by the petitioner, however, the trial Court by order dated 5.2.2016, has allowed the application and directed to implead Saurabh as a defendant. 5. Challenging the order passed by the trial Court, it is submitted by the Counsel for the petitioner, that a specific objection was raised by the petitioner in his written statement, and an issue has also been framed, but still the plaintiffs did not take any steps to either file an application for amendment or to implead Saurabh, and went ahead with the suit and led their evidence also. Now, when the suit reached to the stage of final hearing, then Saurabh filed an application under Order 1 rule 10 CPC which was withdrawn and now in order to delay the proceedings, the plaintiffs have filed a similar application which has been erroneously allowed by the trial Court. 6. Per contra, it is submitted by the Counsel for the respondents No. 1 and 3 that the application can be filed at any stage of the suit and further Saurabh is a necessary party and thus in order to do complete justice, the trial Court has allowed the application. 7. Heard the learned Counsel for the parties. Order 1 rule 10 CPC 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. (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. (5) Subject to the provisions of the Indian Limitation Act, 1877 (15 of 1877), section 22, the proceedings asagainst any person added as defendant shall be deemed to have begun only on the service of the summons.” Thus, it is clear that where a defendant is added then the plaint has to be amended and the amended copies of the summons and of the plaint are required to be served on the new defendant, and if the Court thinks fit, on the original defendant also. 8. Thus, it is clear that when a new person is added as a defendant, then he is required to be served with amended copy of the plaint. The newly added defendant shall be entitled to file his own, separate written statement, and would also be entitled to cross examine the witnesses of plaintiffs and would also be entitled to lead his evidence. Thus, where a new defendant is added, a denovo trial would be conducted, so far as the newly added defendant is concerned. 9. In the present case, the civil suit was filed on 23.12. 2011 and the written statement was filed on 3.2.2012, in which a specific objection was raised to the effect that the plaintiffs have not challenged the sale deed executed in favor of Saurabh and even Saurabh has not been impleaded as defendant. Further, an issue with regard to non-joinder of necessary party was also framed. 2011 and the written statement was filed on 3.2.2012, in which a specific objection was raised to the effect that the plaintiffs have not challenged the sale deed executed in favor of Saurabh and even Saurabh has not been impleaded as defendant. Further, an issue with regard to non-joinder of necessary party was also framed. Inspite of that, the plaintiffs decided to proceed further with the suit and led their evidence and cross examined the witnesses of the defendants and when the suit reached to the stage of Final Hearing, then for the first time, Saurabh filed an application under Order 1 rule 10 CPC, however, the said application was withdrawn by Saurabh and only after the withdrawal of the said application, the plaintiffs filed an application under Order 1 rule 10 CPC for impleading Saurabh as a defendant. No explanation has been given by the plaintiffs as to why they did not move such an application, at the earliest, specifically when, an objection was raised by the defendants in their written statement and an issue in this regard was also framed by the trial Court. It is true, that an application under Order 1 rule 10 CPC can be filed at any stage of proceedings, but it does not mean, that inspite of the specific objection raised by the defendants in their written statement, the plaintiff after proceeding further with the suit, may file an application under Order 1 rule 10 CPC at the stage of final hearing of the suit. The plaintiffs cannot be allowed to reopen the proceedings under the garb of an application under Order 1 rule 10 CPC Once, the plaintiffs had decided to proceed further with the suit, inspite of the specific objection raised by the defendants, then it is for the plaintiffs to blame themselves, for any adverse consequence. Thus, this Court is of the considered opinion, that the plaintiffs deliberately did not file an application under Order 1 rule 10 CPC at the earliest and with an oblique motive of re-opening the entire suit, had filed an application under Order 1 rule 10 of CPC at an advanced stage. As the sale deed in favor of Saurabh was already executed prior to institution of the suit, thus, it would be clear that principle of lis pendens would not apply and thus, the decree would not be binding on Saurabh. As the sale deed in favor of Saurabh was already executed prior to institution of the suit, thus, it would be clear that principle of lis pendens would not apply and thus, the decree would not be binding on Saurabh. Thus, the observation made by the trial Court, that in order to avoid multiplicity of litigation, it is necessary to implead Saurabh is also misconceived. 10. Accordingly, the order dated 5.2.2016 passed by First Civil Judge Class 2 Dabra, District Gwalior in Civil Suit No. 2A/2012, is hereby set aside. 11. The trial Court is directed to proceed further with the suit from the stage of final hearing. 12. The petition succeeds and is hereby Allowed.