1983 PLP 2209 (CLC)

(c) Civil Procedure Code (V of 1908)

‑‑ O. VI, r. 17‑Amendment of plaint‑Amendments sought formal and consequential resulting from fact that suit returned icy District. Court for want of pecuniary jurisdiction‑Amendments allowed. Afzal Nabi for Plaintiffs. J. H. Rehmatullah for Defendants. Date of hearing: 29th August, 1982. This is an application under Order XXII, rule 4, C. P. C. Briefi~ the facts are that the suit was filed on 19th May, 1976 in the District Court where preliminary issues relating to court‑fee and jurisdiction of the Court were framed. On 2nd May, 1978 the Court held that the suit was under valued as the dispute between the parties involved in the suit was beyond the pecuniary jurisdiction of the Court and the plaint was returned. The plaintiff alleges that after the order was passed the file was not traceable. He, therefore, filed an application on 7th February. 1979 and it was only on 5th June, 1980 that the plaint was returned and was presented in the High Court the same day. During this intervening period the defendant . No. 1 died leaving the legal heirs mentioned in the application, which has been filed to bring them on record as defendants. From these facts it is clear that when the plaint was presented in the High Court the defendant No. 1 was not alive. During the arguments Mr. Afzal Nabi has taken up the position that the suit should be deemed to have been filed against the dead person or against a wrong person and therefore the plaintiff should be allowed to substitute the name of the correct persons who according to him are the legal representatives of the defendant No. 1 Mr. Rehmatullah the learned counsel for the defendant No. 2 has objected that in the facts and circumstances of the case application under Order XXII, rule 4, C. P. C. is not maintainable. The objection seems to be correct but Mr. Afzal Nabi who also seems to be aware of this situation has changed his position by taking the plea that this application should be treated as an application under Order 1, rule 10, C. P. C. It may be mentioned here that merely because a wrong provision of law has been mentioned in the title of the application it will not entail its dismissal. There is no other objection so far the substitution‑ of legal heirs of defendant No. 1 as defendants in the suit is concerned. This application shall be treated as an application under Order I, rule 10, C. P. C. In this regard Mr. Afzal Nabi has relied on A I R 1938 Nag.' 458 and A I R 1925 Mad, 1210 where suit was filed against dead person and the Court had allowed the legal representatives to be joined as a party treating the suit to have been filed against wrong persons. Under Order I, rule 10, C. P. C. the Court has power to add or subtract the parties to the suit particularly in the circumstances when the suit has been filed against a wrong person. In the present case the defendant No. I was originally impleaded as a party who died during the period when the plaint was ordered to be returned and it was presented in this Court. In such circumstances the plaint can be treated to have been filed against a wrong person and, therefore, treating the application under Order I, rule 10, C. P. C. the legal heirs of the deceased defendant No. I are allowed to be impleaded as defendants. This order is subject to all just exception and the defendant No. 2 will be entitled ,to raise objection to the joinder of the legal representative of the defendant No. I as defendants.

2. The second application is under Order VI, rule 17, C. P. C. praying that the legal representatives of defendant No. 2 be brought on record. This is a clear mistake as admitted by Mr. Afzal Nabi because it is defendant No. 1 who has died and not defendant No.

2. This is also clear from the fact that in the first application it has been stated that the defendant No. 1 has died. In view of order passed on the first application the prayer in this regard has become redundant. The other amendment sought by the plaintiff is that he may be permitted to change the valuation clause in paragraphs 6 and 10 of the plaint. These amendments are formal and consequential resulting from the fact that the suit has been returned by the District Court for want of pecuniary jurisdiction. These two amendments are allowed. Amended plaint to be filed within two weeks. M.Y.H.