A suit can be amended to include necessary parties if the omission was due to a bona fide mistake, ensuring justice is served.

CAV ORDER

This writ petition is filed by the defendant No.2 under Article 227 of the Constitution of India , seeking the following reliefs:

(i) Set aside the impugned order dated 20^th July 2024 at Annexure ‘A’ passed by the learned XLI Additional District and Sessions Judge, Bengaluru Urban District, Bengaluru (CCH- 42) directing that IA No.1/2024 filed by the respondent No.2 under Order 1 Rule 10(2) of the Code of Civil Procedure, 1908 is to be heard before IA No.3/2023 filed by the petitioner herein under Order VII Rule 11 of the CPC;

(ii) Set aside the impugned order dated 13^th September 2024 at Annexure ‘B’ passed by the learned XLI Additional District and Sessions Judge, Bengaluru Urban District, Bengaluru (CCH-42), on IA No.1/2024 in O.S.No.3686/29023 and consequently reject IA No.1/2024 filed by the respondents in O.S. No.3686/2023.”

2. The plaintiff filed a suit for grant of a decree of permanent injunction against the defendants, restraining their servants, agents, attorneys, successors, executors, assignees or any other person acting under or through the defendants from communicating, exhibiting, publishing, distributing, circulating, providing access to or sharing in any manner whatsoever any information, communication, material in relation to ongoing investigation in FIR No.141/2023 registered by Marathahalli police station. Along with the plaint, plaintiff filed IA Nos. 1/2023 and 2/2023 under Order 39 Rules 1 and 2. By order dated 17.06.2023, ex-parte injunction order has been granted. After service of summons, petitioner/ defendant No.2 appeared through counsel and filed the written statement and also filed IA No.3/2023 under Order 7 Rule 11(a) and 11(d) of CPC seeking rejection of the plaint. Pending consideration of IA No.3/2023, the proposed plaintiff filed IA No.1/2024 under Order 1 Rule 10(2) of CPC seeking to implead himself as plaintiff No.2. The trial court, after hearing the parties, allowed IA No.1/2024 filed by the proposed plaintiff, by order dated 13.09.2024. Being aggrieved by the same, the defendant No.2 is before this Court.

3. Learned counsel for the petitioner/defendant No.2 raised the following contentions:

(i) Firstly, the plaintiff has filed a suit with no cause of action. Therefore, the suit itself is not maintainable. Hence, the petitioner/defendant No.2 filed an application under Order 7 Rule 11 for rejection of the plaint on the ground that the plaint does not disclose a cause of action. Thereafter, the proposed plaintiff filed IA No.1/2024 for impleadment to cure the defects in the plaint.

(ii) Secondly, a plaintiff on record who does not have a cause of action cannot be given a good cause of action by the subsequent addition of a plaintiff who has a good cause of action. In support of his contentions, he relied on the following judgments:

(i) Subbaiyar vs. Kristnaiyar in Second Appeal No.195 of 1878 (08 April 1878), High Court of Madras.

(ii) Jamnadas Gordhandas vs. Damodardas Chunilal, 1926 SCC Online Bom 172.

(iii) Sayad Abdul Hak Sardar Diler Jung Bahadur vs. Gulam Jilani and others (12.08.1895 – BOMHC): Manu/MH/0237/1895.

(iv) Bhanu Tukaram Shet and Ors. Vs. Kashinath Pandshet and others (12.06.1895 – BOMHC): Manu/MH/0077/1895.

(v) Ram Das Sahu & others vs. Chhota Lal Mander & others (1927) SCC Online Pat 162.

(iii) Thirdly, to allow the application under Order 1 Rule 10(1), there should have been a bonafide mistake in the existing plaintiff filing the suit in the first place. In fact, in the plaint, they have pleaded that of defamatory against the husband of the plaintiff. In the application for impleading they have not made out any grounds that the suit has been filed by the plaintiff with a bonafide mistake. Unless the plaintiff proves that there is a bonafide mistake in not including the proposed plaintiff as plaintiff at the time of filing the suit, the IA filed under Order 1 Rule 10 cannot be allowed. In support of his contention, he relied on the judgment of the Apex Court in the cas