Point of Law: 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 copes of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant.

JUDGMENT :

1. Rule. Learned advocate Mr. Akshay Vakil waives service of Rule on behalf of the respondent Nos. 1 & 2, and learned advocate Mr. Vibhuti Nanavaty waives service of Rule on behalf of the respondent No. 4.

Nobody appears for the respondent no. 3.

2. The petitioner, who is the original plaintiff in the Special Civil Suit No. 1 of 2018 pending before the Court of learned Principal Senior Civil Judge, Palitana, has challenged the order dated 15.03.2019 passed by the learned Principal Senior Civil Judge, Palitana below Exh. 15.

3. The short facts of the case are summarized as under :

3.1 In Special Civil Suit No. 1 of 2018 preferred by the petitioner, it was averred that he was residing in the joint family with his brother and other family members. On 18.05.2010, one LPG gas connection was availed by the family member of the petitioner in the name of respondent No. 3 from the respondent no. 2. Since then, the brother of the petitioner is the consumer of the respondent Nos. 1 and 2 and taking services of gas connection. The present petitioner, being an elder member of the family, was paying all the bills of his family including the gas bills. On 04.11.2016, gas cylinder was replaced by the respondent no. 2 and new gas cylinder was given which was using by the petitioner. However, as there was some leakage in the cylinder, a complaint was made to the respondent no. 2, which was resolved.

3.2 On 14.12.2016, the wife of the petitioner namely Gauriben went to the kitchen and when she switched on the light, cylinder came to be blast, whereby wife and nephew of the petitioner namely Tushar came to be blazed seriously. Both of them were taken to the Government Hospital at Gariyadhar as well as Bhavnagar and thereafter they were taken to the private hospital at Surat, wherein on 25.12.2016, the wife of the petitioner died, whereas nephew Tushar could be saved.

3.3 The petitioner, on account of gross negligence on the part of the respondent nos. 1 and 2, had filed a Civil Suit for compensation on 03.01.2018 before the learned Principal Senior Civil Judge, Palitana in his name as he was residing in the joint family and his wife was died due to negligence on the part of respondent no. 2. The respondent nos. 1 and 2 filed their reply, wherein contention was raised that the suit suffers from non-joinder of necessary and proper parties and as brother of the petitioner in whose name the gas connection was given and the Insurance Company of respondent no. 2 were not made party in the suit. The petitioner to avoid any technicalities in future, moved an application below Exh. 15 before the Court below seeking impleadment of the respondent no. 3 as plaintiff and respondent no. 4 as defendant. The respondent nos. 1 and 2 had endorsed that they have no objection if the respondent no. 4 herein be joined as party defendant no. 3 in the suit. However, by order dated 15.03.2019, the learned Judge had rejected the application of the petitioner below Exh. 15. Hence, this petition under Article 227 of the Constitution of India.

4. Heard learned advocate Mr. S.M. Kikani for the petitioner, learned advocate Mr. Akshay Vakil for the respondent Nos. 1 & 2, and learned advocate Mr. Vibhuti Nanavaty for the respondent No. 4. Nobody appears on behalf of the respondent no. 3.

5. Learned advocate for the petitioner has submitted that the apparent error is committed by the learned trial court in dismissing the application at Exh. 15 as not maintainable. He further submitted that the petitioner was unaware about the agreement with the respondent no. 2 - Distributor and respondent No. 4 – Insurance Company. It is further submitted that the written statement was filed by the respondent no. 2 in the suit by disclosing the said fact of agreement with the Insurance Company, the petitioner came to learn about the respondent no. 4, and therefore, he immediately filed an application at Exh. 15 to join the respondent no. 4 herein as a party defendant in the suit. He submitted