2015 (6) TMI 1253 - HC - Indian Laws

Suit for declaration and permanent injunction - legal provision to delete the name of dead defendant - Order 1 Rule 10(2) C.P.C. - Scope f the words name of any party improperly joined - HELD THAT - The word improperly is wide enough to include the name of a defendant who was no more when suit was filed. Learned counsel for the parties during the course of arguments fairly admitted that defendant No.2 died even before filing of the suit. If plaintiff was not aware about his death and impleaded him as defendant No.2 it can be said that he was improperly impleaded. Apart from this no prejudice is caused to petitioner by the impugned order. Thus it cannot be held that the Court below has committed any error in permitting the deletion of the name of said defendant under Order 1 Rule 10(2) CPC. It cannot be forgotten that the procedural law is made for smooth functioning. It is not made to strangulate the litigants on hyper technical grounds. There are no error in the impugned order which warrants interference by this Court - petition dismissed.

Summary

Issues:
Challenge to the order allowing deletion of a deceased defendant's name under Section 151 CPC.

Analysis:
The petitioner challenged the order allowing the deletion of the deceased defendant's name under Section 151 CPC. The plaintiff had filed a suit for declaration and permanent injunction, impleading Shri Basant Lal Jain as defendant No.2. However, the plaintiff later filed an application under Section 151 CPC, stating that Basant Lal Jain had passed away, and the plaintiff was unaware of his legal representatives' names. The respondent opposed this application, arguing that there was no legal provision to delete the name of a deceased defendant. The Court below, nevertheless, allowed the application, leading to the petitioner's challenge.

The petitioner contended that under Order 1 Rule 10(2) CPC, the deletion of the deceased defendant's name was impermissible. The petitioner argued that the only course available to the plaintiff was to withdraw the suit against the deceased defendant in accordance with the provisions of the CPC. On the other hand, the respondent supported the Court's decision to allow the deletion of the deceased defendant's name.

The Court analyzed Order 1 Rule 10(2) CPC, which allows the Court to strike out or add parties at any stage of the proceedings. The key phrase for determination in this case was "name of any party improperly joined." The Court held that the term "improperly" was broad enough to include a defendant who was deceased before the suit was filed. Both parties admitted during arguments that the defendant No.2 had passed away even before the suit was initiated, indicating that he was improperly impleaded. The Court emphasized that the impugned order did not cause any prejudice to the petitioner and was in line with the procedural law's purpose of facilitating justice.

The Court cited previous judgments to support its decision, emphasizing that procedural laws should serve justice and not act as obstacles. It highlighted that procedural laws should not overpower substantive rights and substantial justice. The Court concluded that the impugned order did not contain any errors warranting interference, as it was in line with the principles of justice and procedural law. Therefore, the petition was dismissed for lacking merit.