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1984 Supreme(Gau) 44
GAUHATI HIGH COURT
K.Lahiri, K.N.Saikia, JJ.
State of Assam -Appellant
Versus
Basanta Burman -Respondent
Misc.Case No. 45 of 1984 in F.A.Na 5 of 1984
Decided On : 05-04-1984
P.Prasad, B.C.Sharma
The court has the power to rectify the mistake in arraying the parties and the parties should not suffer for the mistake committed by the lawyer.
Headnote:
CIVIL PROCEDURE CODE - O. 1 R. 10 - ADDITION OF PARTIES - MISTAKE IN ARRAYING PARTIES - RECTIFICATION - POWER OF COURT - LIMITATION ACT, 1963 - S. 21 - MISTAKE IN ADDING PARTIES - POWER OF COURT TO DIRECT EARLIER DATE OF INSTITUTION OF SUIT - SCOPE.
Fact of the Case:
The State of Assam filed an application under O. 1, R. 10 of the C. P. C. to treat pro forma respondents 4, 5, and 6 as co-appellants. The suit was instituted against the State of Assam as well as three police officers for malicious prosecution. The trial Court decreed the suit for Rs. 2,04,100.00 with proportionate costs. The State of Assam preferred an appeal, making the police officers aforesaid as pro forma-respondents 4, 5, and 6.
Finding of the Court:
The court held that the mistake in arraying the parties was a bona fide mistake committed by the learned Govt. Advocate. The court further held that the police officers genuinely believed that in the appeal which was filed by the State Government they were added as co-appellants. The court also held that the State Government instructed learned Govt. Advocate to file the appeal on their behalf is well but there was mistake in arraying the parties, committed by the learned Govt. Advocate, which he has very frankly acknowledged in the petition.
Issues: Whether the court can rectify the mistake in arraying the parties?
Ratio Decidendi: The court relied on O. 1 R. 10 of the C. P. C. which provides for adding parties or transposing plaintiff as defendant or defendant as plaintiff for effectually and completely adjudicating the disputes. The court also relied on the Supreme Court judgments in Rafiq v, Munshilal AIR 1981 SC 1400, Goswami Krishna Murarilal Sarma v. Dhan Prakash, (1981) 4 SCC 574, and Lachi Tewari v. Director of Land Records, AIR 1984 SC41, which held that if there was mistake committed by the lawyer, the parties should not suffer.
Final Decision: The court allowed the petition and transposed the pro forma-respondents 4, 5, and 6 as appellants 2, 3, and 4, respectively.
2. The State of Assam has filed this application under O. 1, R. 10 of the C. P. C. for treating pro forma respondents 4, 5 and 6 as co-appellants. The State has prayed that the aforesaid pro forma-respondents may be added as co-appellants instead of pro forma-respondents. Respondents 4, 5 and 6 are Inspector of Police; Superintendent of Police and Deputy Superintendent of Police, respectively. The suit . was instituted against the State of Assam as well as the three police officers for malicious prosecution. Mr. P. Prasad, the learned Govt. Advocate, submits that the suit was instituted against the State as well as the public servants and the cases of 'these defendants were conducted by the Govt Advocate at Tezpur. However, the learned Government Advocate, Tezpur could not file written statement as the prayer for adjournment was rejected. Mr. P. Prasad submits that the decree was rendered on the basis of pleadings and not a single witness was examined. It appears that the trial Court proceeded under O. 8 R. 10, C. P. C. While delivering the impugned judgment the learned Judge held :
"This is a suit for compensation for malicious prosecution against the State of Assam represented by Defendants 2, 3 and 4 the police officer who was posted at Tezpur at the relevant time". The learned Assistant District Judge, it appears, held that on 14-8-1979 the defendant 5 lodged an ejahar, police registered a case under S. 147/447, 506/323/427/379, I. P. C. arrested plaintiffs 2 and 3, seized some articles belonging to the plaintiffs. However, plaintiffs 2 and 3 being women they were granted bail by the criminal Court, while the plaintiff 1 obtained anticipatory bail. It appears that defendant No. 2 was authorised to investigate the case. It was averred by the plaintiff that Defendant 2 investigated the case notwithstanding his knowledge that the allegations in the ejahar were false and baseless. A charge-sheet was submitted and learned Magistrate held that the allegations against the accused were baseless and discharged them. It may be stated that defendant 2, Wajid Ali was the Inspector of Police serving as Officer-in-charge of Tezpur Police Station. As such it appears that the learned Assistant District Judge found that Wajid Ali, O. C. of Tezpur Police Station, had investigated the case knowing it (o be false and baseless. There is no findings regarding the complicity of defendants 3 and 4 and/or their liabilities. In all probability they were superior officers to defendant 2, Wajid Ali, at the relevant time. The Court below decreed the suit for Rs. 2,04,100.00 with proportionate costs. We extract below the relevant part of the decree :
"It is ordered that the suit is decreed for two lacks and defendants do pay to the plaintiff the sum of Rs. 2,00.000.00 Rupees two lacks) and Rs. 660-40 paise he paid by the defendants to the plaintiffs for the cost of the suit."
The State of Assam preferred an appeal on 20-9-1983, against the judgment and decree, making the police officers aforesaid as pro forma-respondents 4, 5 and 6. By the present application the State prays that the said police officer be arrayed or transposed as appellants in place of pro forma-respondents. It has been stated in para 7 of the petition that due to inadvertence, at the time of filing the appeal the said defendants were shown as pro forma-respondents, instead of appellants. Mr. Prasad has shown us that he has the power to represent the police officers. It appears that the State Government took upon themselves the entire responsibility of defending the case of the police officer by engaging Government Advocate as counsel to defend them in the trial Court Thereafter, the suit was decreed, the State Government got the information and filed the present appeal.
3. In S. 21 of the Limitation Act we find that where a new party is substituted or added, either as plaintiff or defendant, if the Court is satisf
