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2022 Supreme(Ker) 73
IN THE HIGH COURT OF KERALA AT ERNAKULAM
ANIL K. NARENDRAN, P.G. AJITHKUMAR, JJ.
Kerala State Electricity Board – Petitioner
Versus
M/s. C.K. Thomas and Co. – Respondent
I.A. No. 4 of 2021 in R.F.A. No. 105 of 2019
Decided On : 10-02-2022
Advocate Appeared:
For the Petitioners: T. Krishnanunni, Vinod Ravindranath, M.R. Mini, Ashwin Sathyanath, Rohit Nandakumar, Meena A.
For the Respondents: V. Ajakumar, Sidharth A. Menon.
Point of Law : Substitution of party - 'Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure.
Headnote:
Code of Civil Procedure, 1908 – Order I, Rule 10(1) - Re-vesting of functions – Decree – Substitution of party – When can be allowed - Functions, properties, interests, rights, obligations and liabilities of the erstwhile Kerala State Electricity Board, which stood vested with the Government of Kerala have been re-vested with the Kerala State Electricity Board Ltd - Rights and obligations of third parties restricted.
Finding of the Court:
Section 21 of the Limitation Act contemplates that if a plaintiff or defendant is added or substituted, the suit as regards him shall be deemed to have been instituted when he was so made a party. The said provision applies only when a new party is added or substituted - Court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide, or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs. However negligent or careless may have been the first omission, and, however late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side.
Result: Allowed
ORDER :
1. This is an application filed by the applicants-appellants under Order I, Rule 10(1) of the Code of Civil Procedure, 1908 for substitution of appellant No. 1, the Kerala State Electricity Board, Vydyuthi Bhavanam, Pattom, PIN-695004, Thiruvananthapuram, represented by its Secretary by the Kerala State Electricity Board Ltd. Vyddyuthi Bhavanam, Pattom, PIN-695004, Thiruvananthapuram, represented by Secretary (Administration).
2. The applicants-appellants would contend that by virtue of G.O. (Ms) No. 37/2008/PD dated 25.09.2008, the functions, properties, interests, rights, obligations and liabilities of the Kerala State Electricity Board were vested with the State Government and subsequently by a re-vesting Scheme promulgated by G.O. (P) No. 46/2013/PD dated 31.10.2013, the functions, properties, interests, rights, obligations and liabilities of the erstwhile Kerala State Electricity Board, which stood vested with the Government of Kerala have been re-vested with the Kerala State Electricity Board Ltd.
3. The respondent filed the suit, O.S. No. 102 of 2015 before the I Additional Sub Judge, Thiruvananthapuram, against the Kerala State Electricity Board and others and, the decree in the suit is under challenge in this appeal. The Electricity Board along with the 2nd appellant, preferred this appeal. In view of the re-vesting of functions properties, interests, rights, obligations and liabilities of the Kerala State Electricity Board, with the Kerala State Electricity Board Ltd. the appellants contends, it is peremptory that the substitution as prayed for is allowed.
4. The respondent-company filed a counter affidavit, through its Managing Partner. He contended that the application is not maintainable. The respondent points out that in view of paragraph 8 in G.O. (P) No. 46/2013/PD dated 31.10.2013, the suits and proceedings pending as on the said G.O. alone could be continued. Since Kerala State Electricity Board was not in existence on the date of filing of this appeal, the substitution as sought cannot be allowed. If allowed, it will have the effect of bringing a new party in the place of a nonexistent establishment on the date of filing of the appeal, which is a process not known to law. Accordingly, the respondent seeks to dismiss the application.
5. Heard the learned counsel appearing for the applicants-appellants and the learned counsel appearing for the respondent.
6. On a perusal of Annexure I, which is a copy of G.O. (P) No. 46/2013/PD dated 31.10.2013, it can be seen that the functions, properties, interests, rights, obligations and liabilities of the Kerala State Electricity Board were first vested with the Government of Kerala in escrow and later re-vested with the Kerala State Electricity Board Ltd. on its creation. The process was enabled under the provisions of the Electricity Act, 2013. Paragraph Nos. 7 and 8 of Annexure I read thus:
“7. Rights and obligations of third parties restricted - Upon the transfer being effected in accordance with the provisions of the Act and this Scheme, the rights and obligations of all persons shall be restricted to the Transferee. In case anything contrary to the above is found contained in any deed, documents, instruments, agreements or arrangements which such person has with the Government or Kerala State Electricity Board/Board, the same will continue as such, and the third party shall not claim any rights or interest against the State Government or erstwhile Kerala State Electricity Board/Board, except those contained in such deed, documents, instruments, agreements, arrangements, etc.
8. Pending suits, proceedings, etc.
(1) All proceedings of whatever nature by or against the erstwhile Board or the Kerala State Electricity Board pending on the date of the transfer shall not abate or discontinue or otherwise in any way prejudicially affected by reason of the transfer under this Scheme and the proceedings shall be continued, prosecuted and enforced by or against the Transferee.
