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Kamleshwar Shahi v. Smt. Shashi Prabha Singh & Others - WRIT - C No. 59507 of 2005  RD-AH 17368 (9 October 2006)
Civil Misc. Writ Petition No. 59507 of 2005
Smt. Shashi Prabha and others......................................Respondents
Civil Misc. Writ Petition No. 48700 of 2005
Smt. Shashi Prabha Singh and another..........................Petitioners
Sri Kamleshwar Shahi and others..................................Respondents
Hon. Tarun Agarwala, J.
Heard Sri G.N.Verma, the learned senior counsel assisted by Dr. Madhu Tandon for the plaintiff and Sri R.N.Singh, the learned senior counsel assisted by Sri A.K.Rai, Advocate for the defendants.
Original Suit No.89 of 1968 was instituted for a declaration that a compromise petition filed in the Supreme Court of India and recorded in its order dated 19.5.1958 and incorporated in the decree as well, in so far as it purports to convey the property of the plaintiff as described in the schedule to the plaint to Sri Bhagwati Prasad was illegal and void and not binding on the plaintiff.
Various issues were framed and Issue No.25 was decided by the trial court by an order dated 3.8.1985 holding that the suit was bad for non-joinder of those persons or heirs of those persons who were part of the disputed compromise. The trial court, in its order, however, granted time to the plaintiff to file an amendment application to implead such persons who were left out in the plaint. The plaintiff, being aggrieved by this order, filed Civil Revision No.490 of 1985 before this Court, which was disposed of by a judgment dated 2.4.2004, holding that the trial court should not insist upon the plaintiff to file an amendment application and further directed the trial court to proceed with the hearing of the suit without insisting upon the plaintiff to file an amendment application for the impleadment of the left out persons in the plaint.
On the basis of the aforesaid direction of this Court, it transpires that the defendant filed an application 686-Ga praying that the suit should be dismissed for want of non-joinder of necessary parties. The trial court by an order dated 29.4.2004 held that the said application would be decided at the time of the final hearing of the suit. The defendant, being aggrieved by the said order, filed a Civil Revision which was allowed by an order dated 30.8.2005. The revisional court directed the trial court to decide the application 686-Ga filed by the defendant. The plaintiff being aggrieved by this order has filed the present writ petition no.59567 of 2005.
The learned counsel for the plaintiff made a submission that against the order of the trial court, no revision was maintainable under section 115 of the C.P.C. since no issue was decided finally by the trial court and that the order does not come within the parameter of the words "case decided".
Upon instructions received by the learned counsel, it has been brought to the notice of the court that the hearing of the suit is proceeding before the trial court on a day today basis. In view of the aforesaid, in the opinion of the court, the impact of the order of the High Court dated 2.4.2004 is required to be understood by the trial court. The High Court in its order held that in the event the plaintiff does not file an impleadment application to implead the left out persons of the compromise, in that event, the trial court should not insist upon the plaintiff to file an impleadment application and should proceed with the hearing of the suit. What would be the impact of non-joinder of necessary parties as decided in Issue No.25 will have to be considered by the trial court. Since the trial court is proceeding with the hearing of the suit on a day to day basis, it is not necessary for the trial court to hear the application of the defendant 686-Ga separately. The said application would be decided along with the other issues and if, at any stage of the hearing, the trial court finds that the suit was liable to be dismissed for non-joinder of necessary parties, the trial court would be free to pass such an order but the trial court cannot be permitted to decide the application 686-Ga in isolation. In view of the aforesaid, the impugned order passed by the revisional court cannot be sustained and is quashed. The writ petition No.59507 of 2005 is allowed. The trial court will proceed in accordance with the observations made above.
It further transpires that another application 684-Ga was moved by the plaintiff seeking an amendment of the pliant. This application was opposed by the defendant. The trial court by an order dated 25.9.2004 allowed the application. The revision filed by the defendant was dismissed by an order dated 8.10.2004. Consequently, the defendant has filed writ petition No.48700 of 2004. A submission was made by the learned counsel for the defendant that the amendment application was filed under Order 6 Rule 17 of the C.P.C. whereas, in fact, it was an impleadment application and therefore, such an application cannot be allowed to implead some persons in an application under Order 6 Rule 17 by way of amending the plaint. The learned counsel further submitted that the order of the trial court allowing the amendment virtually amounts to the circumvention of the order of the High Court dated 2.4.2004 passed in Civil Revision No.490 of 1985, inasmuch as, the court had directed that the trial court should not insist upon the plaintiff in moving an amendment application to implead the left out persons. It was further urged that the suit itself should be dismissed in view of Order 23 Rule 3-A of the C.P.C. which states that no suit would lie to set aside a decree on the ground that the compromise was unlawful. In support of his submission, the learned counsel for the petitioner placed reliance upon a decision of the Supreme Court in the case of Pushpa Devi Bhagat (D) Ph.. LR. Smt. Sadhana Rai Vs. Rajinder Singh and others, JT 2006(6)SC 235.
This Court is only concerned, at this stage, with the validity and the legality of the order passed by the trial court while allowing the amendment application. From a perusal of the amendment application, it is clear that a composite application was filed by the plaintiff for amending the plaint by adding paragraph 8-B and further by adding some of the defendants in the array of the parties.
In the opinion of the Court, a composite application could be filed by the plaintiff under Order 6 Rule 17 C.P.C. and it was not necessary that a separate application should have been filed under Order 1 Rule 10 C.P.C. The trial court therefore, did not commit any error in allowing the application. Consequently, in the opinion of the Court, no error has been committed by the trial court in allowing the amendment application. In so far as the plea of the ssdismissal of the suit under Order 23, Rule 3A of the C.P.C. is concerned, it is open to the defendant to raise this plea before the trial court.
In view of the aforesaid, the writ petition No.48700 of 2004 filed by the defendant is misconceived and is dismissed. It is further directed that the trial court will proceed and decide the suit on a day to day basis.
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