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IN THE HIGH COURT OF ALLAHABAD
J. C. Mishra
DEBASHISH CHATTERJEE - Appellant
Versus
SHRI BHARAT, ASSOCIATES - Respondents
Civil Revision 506 Of 1998
Decided On : 12/10/1998
CIVIL PROCEDURE CODE - ORDER 22 RULE 10 - AMENDMENT OF PLAINT - SUBSTITUTION OF PLAINTIFFS - LAND ACQUISITION - JURISDICTIONAL ERROR - MATERIAL IRREGULARITY - REVISION ALLOWED.
Fact of the Case:
Plaintiffs filed a suit for eviction and damages against the defendant, who was allegedly residing in a portion of their building as a licensee. During the pendency of the suit, the building was acquired under the Land Acquisition Act, and the plaintiffs' firm was dissolved. The plaintiffs then filed an application to amend the plaint to substitute the original plaintiffs with a newly constituted firm and to introduce facts about the land acquisition proceedings.
Finding of the Court:
The trial court allowed the amendment application, holding that the nature of the suit was not changed. The defendant challenged the order in revision.
Issues: 1. Whether the amendment application was maintainable without the permission of the court for impleadment of new plaintiff? 2. Whether the amendment regarding land acquisition was necessary?
Ratio Decidendi: 1. Order 22 Rule 10 CPC provides for the procedure in case of assignment, creation, or devolution of any interest during the pendency of a suit. The court has the discretion to allow the suit to be continued by or against the person to or upon whom such interest has come or devolved. 2. The plaintiffs should have filed an application under Order 22 Rule 10 CPC for impleadment of the new plaintiff, instead of moving the amendment application. 3. The amendment regarding land acquisition was unnecessary as the defendant had not yet raised this issue in the pleadings. The plaintiffs could have canvassed the infirmities in the land acquisition proceedings if the defendant had raised this plea in the written statement.
Final Decision: The revision was allowed, and the impugned order was set aside.
( 1 ) THIS revision is directed against the order dated 8. 9. 98 passed by V. Additional Civil Judge (Senior Division) Meerut allowing amendment application filed by the plaintiff. The opposite parties filed caveat and are represented by Sri R. B. Singhal, Advocate. Heard Shri Pramod Kumar Jain, learned counsel for the revisionist and Sri R. B. Singhal, learned counsel for the opposite parties. Both the learned counsel agree that this revision may be decided on merits.
( 2 ) IN order to appreciate the arguments raised by the learned counsel it would be relevant to refer to the plaint allegations. The suit was filed by Shri Bharat and Associates, a registered partnership firm, through its registered partner as plaintiff. No. 1 and the partners by name (plaintiffs 2?9) against Dr. A. N. Chatterjee father of the revisionist. It is not disputed that old plot No. 103, new No. 657, 658, 659 and present No. 57/58, 912/913 is situated at Begum Bridge Road, Meerut popularly known as ?apka Bazar Buildin. It is admitted between the parties that A D. Mukherjee was owner of the aforesaid building. As A. D. Mukherjee was government servant and was posted at various places he entrusted supervision of his properties to the original defendant who happened to be his near relation. A. D. Mukherjee used to pay Rs. 50 per month for supervision of the properties. It is further admitted that after the death of A. D. Mukherjee Smt. Uma Mukherjee and Anand mukherjee inherited his properties. It is further admitted that the plaintiffs had purchased the said properties from Smt. Uma Mukherjee and Anand Kumar Mukherjee. It is further admitted by the parties that the defendant had been in occupation of the rear part (first floor), portion towards the eastern, northern side of the "building popularly known as ?apka Bazar?. The only dispute between the parties is that according to the plaintiffs the defendant was a licensee and was living in the said portion with the permission of the original owner. The defendant?s case is that he was residing in the house as tenant and was regularly paying rent to A. D. Mukherjee and, thereafter to his successor in interest. The token rent was only rs. 1/? per month.
( 3 ) THE plaintiffs also sent notice and asked the defendant to vacate the premises in suit. The defendant refused to vacate the premises and on this cause of action the plaintiffs filed suit for eviction and for damages at the rate of rs. 3000/? per month on regular side.
( 4 ) IT appears that during the pendency of the. suit the aforesaid building was acquired under the provisions of Land Acquisition Act.
( 5 ) FROM the averments in the amendment application it appears, according to the plaintiff?s, the plaintiffs? firm was dissolved vide dissolution deed dated 20. 8. 96 and by virtue of the said dissolution Vakil Chand Jain has become absolute proprietor of the firm.
( 6 ) VAKIL Chand Jain challenged the notification under section 4 of the Land Acquisition Act in the High Court which was dismissed in view of the admitted fact that in pursuance of the said notification the property was taken into possession. The factum of the possession was admitted by Vakil Chand Jain and others in Writ Petition No. 29268 of 1992. The possession of Co?operative, Lucknow on property in question was admitted. The said writ petition was dismissed on 20. 12. 95.
( 7 ) IN view of the land acquisition and also alleged dissolution of the plaintiffs? firm the ? plaintiffs filed the application for amendment cf the plaint which was instituted in the year 1987. By the proposed amendment the plaintiffs desired to substitute the original plaintiffs by newly constituted firm ?shri Bharat Associates? and, therefore, the first amendment is for deleting the names of the plaintiffs (2?6)and to remove ?and? in the title of plaintiff No. 1 so as to correctly describe the description of the new firm. The amendments prayed for in ii, III, IV, V and VI are consequential. In or
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