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Sisir Kumar Tarafdar v. Manindra Kumar Biswas
Factual and Procedural Background
The petitioner sued for arrears of rent against Manindra Kumar Biswas and Rabindra Kumar Biswas, described as being in possession of the estate of Nrisingha Kumari Dasi, deceased, as her heirs. The two defendants filed a written statement asserting that Nrisingha Kumari Dasi was alive, that they had no interest in the matter, and were improper parties. The petitioner applied to amend the plaint to strike out Manindra Kumar Biswas and Rabindra Kumar Biswas and to make Nrisingha Kumari Dasi the sole defendant. The learned Subordinate Judge refused the amendment on the view that such substitution could not be made under the Code of Civil Procedure. The present opinion addresses that refusal.
Legal Issues Presented
- Whether Order I, Rule 10(2) of the Code of Civil Procedure permits striking out existing defendants and bringing on record another person in their place (i.e., whether that rule authorises substitution as distinct from addition).
- Whether the court should, in the exercise of its inherent jurisdiction under Section 151 CPC, allow the proposed amendment (substitution) where the suit had been brought against persons who claim the alleged principal is alive.
Arguments of the Parties
Petitioner
- Submitted that amendment should be considered in two stages: first add Nrisingha Kumari Dasi as defendant No. 3, then strike out Manindra Kumar Biswas and Rabindra Kumar Biswas so that Nrisingha Kumari Dasi becomes sole defendant.
- Argued that Order I, Rule 10(2) permits striking out improperly joined parties and adding those who ought to have been joined, and that the amendment could be allowed.
- Alternatively, sought relief under the court's inherent jurisdiction (Section 151 CPC) to allow the amendment rather than forcing a fresh suit; noted potential difficulty in obtaining refund of court-fees as a consequence of the present pleading.
Defendants
- In their written statement, Manindra Kumar Biswas and Rabindra Kumar Biswas stated that Nrisingha Kumari Dasi was alive, that they had no interest in the matter, and that they were improper parties.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Brojendra Kumar Das v. Gobinda Mohan Das, 20 Cal WN 752 | Held that the Court had ample powers to make transposition of parties under O. 1, R. 10(2) of the CPC. | The court held that this decision had no application to the facts of the present case. |
Court's Reasoning and Analysis
The court analysed Order I, Rule 10 of the CPC by contrasting sub-rule (1) and sub-rule (2). Sub-rule (1) expressly uses the word "substituted" and is limited to cases where a suit has been instituted in the name of a wrong plaintiff or where there is doubt and a bona fide mistake. Sub-rule (2) permits the court, at any stage, to strike out the name of any party improperly joined and to add the name of any person who "ought to have been joined" or whose presence is necessary to adjudicate the suit.
The court reasoned that the omission of the word "substituted" from sub-rule (2) is deliberate; sub-rule (2) contemplates two distinct powers: (a) striking out improperly joined parties, and (b) adding parties where someone else ought to have been joined. The power to "add" presupposes that another person will be on the record in addition to existing parties. Where striking out existing parties and bringing another person on record would, in effect, be a substitution rather than an addition, sub-rule (2) does not apply. Applying that analysis, striking out Manindra Kumar Biswas and Rabindra Kumar Biswas and bringing Nrisingha Kumari Dasi on record would be substitution, not addition, and thus O.1 R.10(2) is inapplicable.
On the submission to invoke the court's inherent jurisdiction under Section 151 CPC, the court held that the petitioner was not thereby entitled to the amendment. The court noted that the petitioner could bring a fresh suit against Nrisingha Kumari Dasi and that this remedy was not less convenient than allowing the amendment. The possibility of difficulty in recovering court-fees due to the petitioner's negligence was not a sufficient ground for interference under Section 151 CPC. The cited decision in Brojendra Kumar Das was considered inapplicable to the present facts.
Holding and Implications
Rule discharged; the amendment was refused.
Direct consequences: the petitioner's application to strike out Manindra Kumar Biswas and Rabindra Kumar Biswas and to make Nrisingha Kumari Dasi the sole defendant was not allowed; the court discharged the rule and made no order as to costs. The opinion does not articulate broader precedential changes beyond its application to the present facts.
Debabrata Mookerjee, J. agreed with the judgment.
K.C Das Gupta, J.:— The petitioner instituted a suit for arrears of rent against two persons, Manindra Kumar Biswas and Rabindra Kumar Biswas who were described as being in possession of the estate of Nrisingha Kumari Dasi, deceased, as her heirs. These two persons appeared and filed a written statement stating that Nrisingha Kumari Dasi was alive and so they had no interest in the matter and were improper parties. Thereafter an application was filed by the present petitioner for amendment of the plaint. The amendment sought for in substance was that the names of Manindra Kumar Biswas and Rabindra Kumar Biswas should be struck out and Nrisingha Kumari Dassi, widow of late Mahitosh Biswas should be made the sole defendant. The learned Subordinate Judge refused this prayer for amendment in the view that such substitution of Nrisingha Kumari Dasi could not be made under the Code of Civil Procedure.
2. It is contended before us by the learned Advocate for the petitioner that the learned Subordinate Judge wrongly thought that the amendment prayed for could not be allowed. He has argued that it was proper to consider the prayer in two stages, namely, that first Nrisingha Kumari Dasi should be added as defendant No. 3 and then the names of Manindra Kumar Biswas and Rabindra Kumar Biswas, defendants Nos. 1 and 2 should be struck out leaving Nrisingha Kumari Dasi as the sole defendant. Order 1, R. 10 of the CPC provides for addition or substitution of plaintiff in its first sub-rule and provides for the striking out or addition of plaintiffs or defendants, in its second sub-rule. The provision for substitution or addition of parties in the first sub-rule is limited to cases where the court is satisfied that the suit has been instituted in the name of a wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff and the court is satisfied that the suit has been instituted thus through a bona fide mistake. Sub-rule (2) is not limited to cases of bona fide mistake and runs in these words:
“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.”
The two parts of this sub-rules provide for two different powers of the Court. The first gives the Court the power to strike out the name of any party improperly joined as plaintiff or defendant. The second part which requires special consideration in this case provides for the addition of a party as the plaintiff of defendant where it appears to the Court that such person “ought to have been joined”. The use of the words “joined” and “ridded” is, in my opinion, significant. It is important to notice also that the word “substituted” which has been used in sub-rule (1) giving power to the court to substitute a person for the person wrongly joined as plaintiff has not been used in Sub-rule (2). This omission to use the word “substituted” cannot but be considered deliberate. It must therefore be held that the power given to the Court under sub-r. (2) of R. 10 of O. 1 of the CPC to add a party contemplates only those cases where there is somebody else as plaintiff or defendant and the effect of bringing on record another person as plaintiff or defendant would be really a case of “addition” of plaintiff or defendant. A case of mere substitution as distinct from addition is not contemplated in Sub-rule (2).
3. The position in the present case is that if the court strikes out the names of Manindra Kumar Biswas and Rabindra Kumar Biswas and bring on the record the name of Nrisingha Kumari Dassi this will not be a case of addition at all. If there had been some other person on the record as defendant even after the names of Manindra Kumar Biswas and Rabindra Kumar Biswas were struck out, that would be a case of addition and might be allowed by the court in proper circumstances.
4. I have, therefore, come to the conclusion that the learned Judge is right in his view that O. 1, R. 10(2) of the CPC does not apply to the circumstances of the present case.
5. It was next contended that at least the prayer should have been allowed in the exercise of the court's inherent jurisdiction. The fact that the suit was brought in the name of Rabindra Kumar Biswas and Manindra Kumar Biswas in the lifetime of Nrisingha Kumari Dassi would not disentitle the plaintiff from bringing a fresh suit against Nrisingha Kumari. There is no reason to think that this remedy by suit would be less convenient than the remedy that might be afforded if the amendment is allowed. The mere fact that there might be difficulty in the plaintiff getting refund of the court-fees affixed on the plaint in this case due to his negligence in proceeding as if Nrisingha Kumari Dasi was dead is not, in my judgment, a ground for which the Court should interfere under Section 151 of the CPC.
6. The decision in Brojendra Kumar Das v. Gobinda Mohan Das, 20 Cal WN 752: that the Court had ample powers to make transposition of parties under O. 1, R. 10(2) of the CPC has, in my judgment, no application to the facts of this case.
7. The Rule is accordingly discharged.
8. There will be no order as to costs.
9. Debabrata Mookerjee, J.:— I agree.
R.G.D
10. Rule discharged.
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