Order 1 Rule 10 of the Civil Procedure Code does not allow for the substitution of a defendant with another person. It only allows for the addition or substitution of a party where there is already another person on record as plaintiff or defendant.

( 1 ) 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 Civil Procedure Code.

( 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, Rule 10 of the Code of Civil Procedure 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 "added" 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-rule (2) of Rule 10 of Order 1 of the Code of Civil Procedure 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 Bi