The main legal point established in the judgment is the necessity of amending the plaint when a new defendant is added to ensure that the plaintiff is not non-suited for lack of pleadings or resultant prayers, and the rights of newly impleaded defendants to file objections by way of amended written statements.

JUDGMENT :

TUSHAR RAO GEDELA, J.

[The proceeding has been conducted through Hybrid mode]

1. Petitioner challenges the impugned order dated 30.11.2018 in CS SCJ No. 97558/16 titled as “Zile Singh vs. Ram Kishan”, whereby the learned Trial Court has dismissed the application filed by the petitioner and others under Section 151 of the Civil Procedure Code, 1908 (hereinafter referred to as “CPC”) for striking off the paragraphs in the amended plaint filed on behalf of respondent/plaintiff consequent to the impleadment of the petitioner herein.

2. Mr. Ajit Nair, learned counsel appearing for the petitioner/defendant No.4 submits that the language of Order 1 Rule 10 CPC is very clear, in that, only the necessary and formal amendments qua the newly added defendant alone is to be permitted to be added by way of an amendment without the necessity of filing an application under Order VI Rule 17 CPC.

3. Having regard to the fact that almost ten paragraphs dedicated to the Will as propounded by one of the defendants, who is the father of the petitioner were sought to be added, does not give the reason to the respondent/plaintiff to add those paragraphs which are not relevant to the issue in dispute.

4. Learned counsel submits that a reading of the amended paragraphs i.e., para 4 through till para 14 of the amended plaint, in his submission, makes it clear that the contents of those ought to have been brought in by way of an application under Order VI Rule 17 CPC and not by virtue of the provisions of Order 1 Rule 10 (4) of CPC.

5. On that basis, learned counsel submits that the Trial Court has acted with material irregularity and judicial impropriety by permitting such amendment and by dismissing the applications challenging the same.

6. Mr. Nair further submits that it is settled law of the land that any amendment sought, cannot pertain to a stale claim or a claim barred by law, and, therefore, the learned Trial Court ought to have examined those issues before passing the impugned order.

7. Per contra, Mr. Shekhar Prit Jha, learned counsel appearing for the respondent/plaintiff submits that the learned Trial Court while passing the impugned order has considered all the objections raised by the learned counsel for the petitioner and has passed the impugned order which is in accordance with law and is not challengeable, not only insofar as the merits are concerned, but also on law.

8. Mr. Jha, learned counsel draws attention of this Court to the provisions of Rule 10 (4) of Order 1 of the CPC to submit that it is incumbent upon the Court permitting a person to be added as defendant, an opportunity to the plaintiff to amend its plaint accordingly and as deemed necessary.

9. Learned counsel submits that the purpose of impleading a new party as defendant would become futile in case the necessary pleadings for the purposes of adjudication of the trial and the determination of the issues arising therein is not permitted to be carried out. Mr. Jha also submits that no separate application under Order VI Rule 17 CPC in that regard is required.

10. He further submits that it is only when the plaintiff seeks to independently seek amendments other than those arising out of the assertions made by the defendant, would probably require such applications to be filed.

11. Learned counsel, on that, submits that the paragraphs from 4 to 14 of the amended plaint are required and necessary to decide the issue which has been disputed by the defendants therein, whereby, the father of the petitioner has categorically asserted that, part of the suit property has devolved upon the petitioner by virtue of a Will executed by the late grandfather. He further submits that in the absence of specific averments and assertions in that regard, as also an amended prayer, the respondent/plaintiff may be non suited and his suit may become redundant insofar as such prayers are concerned.

12. This Court has considered the submissions made by learned counsel on behalf of the parties as well