(BY SRI. MANU P KULAKARNI, SRI ABHILASH V., AND
SRI MAJOJ J.RAIKAR, ADVOCATES FOR
MISS SANJANTHI SAJAN POOVAYYA, ADVOCATE
FOR R1 & R2: NOTICE TO R3 TO R25 IS DISPENSED
WITH V/O DATED: 08.01.2025 )
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
IMPUGNED ORDER DATED: 20.07.2024 AT ANNEXURE-A
PASSED BY THE LEARNED XLI ADDITIONAL DISTRICT AND
SESSIONS JUDGE, BENGALURU URBAN DIRSTRICT
BENGALURU ( CCH-42) DIRECTING THAT I.A. NO.1/2024
FILED BY THE RESONDENT NO.2 UNDER ORDER 1 RULE 10
(2) OF THE CODE OF CIVIL PROCEDURE, 1908 IS TO BE
HEARD BEFORE I.A. NO.3/2023 FILED BY THE PETITIONER
HEREIN UNDER ORDER VII RULE 11 OF THE CPC AND ETC.
THIS WP HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 03.02.2025, COMING ON FOR
PRONOUNCEMENT, THIS DAY, THE COURT, MADE THE
FOLLOWING:
2. The plaintiff filed a suit for grant of a decree of
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
granted. After service of summons, petitioner/
rejection of the plaint. Pending consideration of IA
himself as plaintiff No.2. The trial court, after hearing
proposed plaintiff, by order dated 13.09.2024. Being
3. Learned counsel for the petitioner/defendant
(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 case
of GANENDRA NATH RAY CHOUDHURY vs. SURTA
KANT RAY CHOUDHURY 1912 SCC Online Cal
101.
(iv) Fourthly, the wife cannot file a defamation
suit on behalf of her husband. The action for
defamation is maintainable only by the person who is
defamed and not by his friends, relatives or family
members. Therefore, the trial court erred in allowing
the application filed by the proposed respondent. In
support of his contentions, he relied on the following
judgments:
(i) Harsh Mendiratta vs. Maharaj Singh & Ors.
(2002 (61) DRJ 123
(ii) Brahmanna vs. Ramakrishnama & Ors.
(iii) Leena Doley vs. State of Assam & Ors. (2014) 4
GAU LR 665
(iv) RBEF (Ritnand Balved Education Foundation)
vs. Alok Kumar, 2006 SCC Online Del. 703.
Hence, he sought to allow the petition.
4. Learned counsel appearing for the respondent
Nos. 1 and 2/plaintiffs raised the following
contentions:
(i) Firstly, the averment in the plaint is that the
defendants have defamed the first plaintiff's husband.
Since the proposed plaintiff was in jail at the time of
filing the suit, the plaintiff, who is the wife of the
proposed plaintiff, has filed the suit. Since defamatory
articles published by the defendants have affected
every member of the plaintiff's family, in view of the
non-availability of the proposed plaintiff at that time,
the plaintiff filed the suit.
(ii) Secondly, the plaintiff who is the wife of the
proposed plaintiff, was under the impression that the
defamatory articles published by the defendants
against the proposed plaintiff affects each and every
members of the family individually. With that bonafide
intention, she filed the suit. Therefore, non-inclusion
of the proposed plaintiff at the time of filing the suit is
a bonafide mistake. Under Order 1 Rule 10 of CPC
court can permit to implead proposed plaintiff as a
party to the suit. By impleading the proposed plaintiff
as a party, it will not cause any prejudice to the
defendants.
(iii) Thirdly, even if the suit has been instituted in
the name of the person who had no competence to file
a suit, the court can set right the matter by ordering
addition or substitution of the proper plaintiff for
ensuring due dispensation of justice. By impleading
the proposed plaintiff, it will not change the cause of
action or will not take away the jurisdiction of the
court. Considering all these aspects, the court has
rightly allowed the application. In support of his
contentions, he relied on the judgment of the Apex
Court in the case of BAL NIKETAN NURSERY
SCHOOL vs. KESARI PRASAD reported in (1987)
3 SCC 587.
(iv) Fourthly, the court can permit the parties to
implead or substitute the plaintiff and also permitted
to amend the parties to avoid rejection of the plaint
on that ground, by which, the time of the court can
be saved. In support of his contention, he relied on
the judgments of this Court in W.P.No.8843/2023
disposed of on 22.08.2023 and RFA No.610/2019
disposed of on 28.05.2019. Hence, he sought for
dismissal of the writ petition.
5. Heard the learned counsel for the parties and
perused the writ papers.
6. The plaintiff filed a suit for permanent
injunction. In the plaint, the specific contention of the
plaintiff is that the defendants are publishing
defamatory articles against the proposed plaintiff.
Since the petitioner is the wife of the proposed
plaintiff, the defamatory articles will affect each and
every member of the family, she filed the suit. Even
though the proposed plaintiff is a necessary party in
the suit, since immediately he was not available, the
plaintiff alone has filed the suit. Since the proposed
plaintiff is a necessary party to the suit, therefore, he
filed an application under Order 1 Rule 10(2) of CPC
for impleading himself as the second plaintiff. Under
Order 1 Rule 10 of CPC, where the suit has been
instituted in the name of a wrong person as a plaintiff,
at any stage of the suit, if it is satisfied that the suit
has been instituted through a bonafide mistake and it
is necessary for determination of the real matter in
the dispute, the court can permit to implead the
necessary parties in order to enable the court to
effectively and completely adjudicate upon all the
questions involved in the suit.
7. In this case, even though defamatory article is
published by the defendants against the proposed
plaintiff, at the time of filing the suit the proposed
plaintiff was in judicial custody. Since the plaintiff is
the wife of the proposed plaintiff, it will affect her and
her family members, she filed the suit with bonafide
intention that she can maintain the suit. After
realizing that the proposed plaintiff was a necessary
party to the suit, he filed an application for
impleading. Therefore, it is very clear that the
mistake made by the plaintiff by not impleading the
proposed plaintiff at the time of filing the suit was not
deliberate or intentional. It is a bonafide mistake.
"Where a mistake is not made deliberately and where
it is honestly made, the mistake is bonafide."
8. Learned counsel for the petitioner argued that
Order 1 Rule 10 is not intended to hold a person who
has no cause of action to institute a suit. The above
submissions of the learned counsel for the petitioner
appears to be very attractive. But the same cannot
be accepted in view of the principles enumerated by
the Apex Court in the case of BAL NIKETAN
NURSERY SCHOOL (supra). The relevant
paragraphs are extracted below:
"13. The last and final ground which needs
setting out in some detail is that even if a rigid
view is taken and it is to be held that the suits
have not been instituted in the name of the
proper person viz. the Society, the High Court
should have seen that Order 1 Rule 10 has
been expressly provided in the Civil Procedure
Code to meet with such situations so that the
rendering of justice is not hampered. The rule
provides that if a suit has been instituted in the
name of a wrong person as plaintiff or if there
is a doubt as to whether the suit has been
instituted in the name of the right plaintiff the
court may, at any stage of the suit, if it is
satisfied that the suit has been instituted due
to a bona fide mistake and that is necessary
for the determination of the real matter in
dispute so to do, order any other person to be
substituted or added as plaintiff upon such
terms as the court thinks just. The scope and
effect of Order 1 Rule 10 has been considered
in numerous cases and there is a plethora of
decisions laying down the ratio that if the court
is satisfied that a bona fide mistake has
occurred in the filing of the suit in the name of
the wrong person then the court should set
right matters in exercise of its powers under
Order 1 Rule 10 and promote the cause of
justice. The courts have gone so far as to hold
that even if the suit had been instituted in the
name of a person who had no competence to
file the suit, the courts should set right
matters by ordering the addition or
substitution of the proper plaintiff for ensuring
the due dispensation of justice. We may only
refer to a few decisions in this behalf.
14. In Hughes v. Pump House Hotel Co. Ltd.
(No. 2) (1902) 2 KB 485, a dispute was raised
regarding the competence of the plaintiff to file
a suit because doubts were cast as to whether
the plaintiff had made an absolute assignment
of his claim against the defendants, or only an
assignment by way of charge. Thereupon an
application was made under Order 16 Rule 2
(corresponding to Order 1 Rule 10 CPC) for
substitution of another person as plaintiff. The
application was allowed and that was upheld
by the Court of Appeal and it was pointed out
that the fact that the original plaintiff had no
cause of action would not take away the
jurisdiction of the court to order the
substitution of another person as plaintiff.
15. In Krishna Boi v. Collector and Government
Agent, Tanjore ILR 30 Mad 419, when it was
found that a suit for ejectment of a defendant
had been brought by the Collector and
Government Agent due to a bona fide mistake
instead of the beneficiaries of the estate, the
court allowed an application for substitution of
the correct plaintiff and it was further held that
the fact that the Collector had no right to
institute the suit would not stand in the way of
the court ordering the substitution of the
correct plaintiff.
16. In Sitla Bux Singh v. Mahabir Parsad AIR
1936 Oudh 275: 1963 OWN 414: 1936 OLR
237: 62 IC 229, it was held that where a
person prohibited from dealing in actionable
claim under Section 136, Transfer of Property
Act obtained an assignment of a bond through
a bona fide mistake and instituted a suit on the
basis of the same, the provisions of Order 1
Rule 10 would apply and the assignor can be
substituted in place of the assignee as plaintiff
and allowed to continue the suit.
17. In Dinanath Kumar v. Nishi Kanta Kumar
AIR 1952 Cal 102, the court allowed an
application under Order 1 Rule 10 CPC and
permitted a person who claimed that he was
the real owner of the property and the original
plaintiff was only a benamidar to be added as
plaintiff in order to avoid multiplicity of
proceedings and that he was a necessary party
to the proceedings.
18. In Laxmikumar Srinivas Das v. Krishnaram
Baldev Bank, Lashkar AIR 1954 MB 156, it
was held that the words "where a suit has
been instituted in the name of the wrong
person as plaintiff" must be construed to
include those suits which are instituted by
persons who had no right to do so and that the
fact that the person instituting the suit had no
cause of action would not take away the
court's jurisdiction to order substitution of
another as plaintiff.
19. In Karri Somalu v. Thimmalapalli
Venkataswamy (1963) 2 AWR 138, it was held
that the expression "wrong person" in Order 1
Rule 10 cannot be confined merely to a person
wrongly described but would also extend to
include a person whose name ought not to
have figured as plaintiff for want of right to file
the suit and that the object of the rule is to
save suits instituted honestly although in the
name of the wrong person as plaintiff and to
ensure that honest plaintiffs do not suffer.
20. In Udit Narain Singh Malpaharia v.
Additional Member, Board of Revenue, Bihar
AIR 1963 SC 786: 1963 BLJR 512, it was held
that in proceedings for a writ of certiorari it is
not only the Tribunal or Authority whose order
is sought to be quashed but also the parties in
whose favour the said order is issued who are
necessary parties and that it is in the discretion
of the court to add or impaled proper parties
for completely settling all the questions that
may be involved in the controversy either suo
motu or on the application of a party to the
writ or on application filed at the instance of
such proper party.
21. In Murari Mohan Deb v. Secretary to
Government of India (1985) 3 SCC 120: 1985
SCC (L&S) 588 the dismissal of a petition
under Article 226 of the Constitution by the
Judicial Commissioner was challenged by the
appellant therein. The Judicial Commissioner
found that the appellant who was a forester in
the employment of Tripura Government had
been wrongly removed from service by an
order of compulsory retirement but
nevertheless refused to grant relief to the
appellant because he had failed to implead the
Government of India which was a necessary
party to the proceedings. This Court
disapproved the dismissal of the writ petition
on the technical ground and observed as
follows: [SCC p. 124, SCC (L&S) pp. 891-92,
para 10]
'Respondent 1 is shown to be the
Secretary to the Government of India,
Ministry of Home Affairs. If there was
technical error in the draftsmanship of
the petition by a lawyer, a Forester a
Class IV low grade servant should not
have been made to suffer. An oral
request to correct the description of the
first respondent would have satisfied
the procedural requirement. By raising
and accepting such a contention, after a
lapse of six years, the law is brought
into ridicule. The court could have
conveniently read the cause title as
Government of India which means
Union of India through the Secretary,
Ministry of Home Affairs instead of the
description set out in the writ petition
and this very petition would be
competent by any standard. The
contention is all the more objectionable
for the additional reason that the
appointing authority of the appellant,
the Chief Commissioner of the
Government of Tripura as well as the
Chief Forest Officer who passed the
impugned order were impleaded and
they represented the administration of
Tripura Government as well as the
concerned officers. Therefore, not only
the petition as drawn up was competent
but no bone of contention could be
taken about its incompetence.' "
9. From the above judgment, it is very clear that,
even the suit instituted by a person who has no
manner or right to do so, in that he has no cause of
action, could not take away court's jurisdiction to
order substitution of the right person as the plaintiff,
provided, the court, after considering the evidence or
mistake on the records, was satisfied that the suit was
instituted in the name of a wrong person as the
plaintiff through a bonafide mistake and that the
impleadment was necessary for the determination of
real issue in the dispute.
10. The trial court, after considering the
materials available on record has exercised the
discretionary power under Order 1 Rule 10 of CPC and
allowed the application. The judgments referred to by
the learned counsel for the petitioner are related to
the High Courts. Even though the suit filed by the
plaintiff without cause of action is a defect, which
cannot be cured by allowing the right person as a co-
plaintiff, but the Apex Court in the aforesaid judgment
has held that even though person who had no
competence to file a suit, if it is proved that there is a
bonafide mistake, proper person can be substituted or
impleaded.
11. In view of the discussions made above and
considering the Apex Court judgment in the case of
BAL NIKETAN NURSERY SCHOOL (supra), I am of
the opinion that, there is no error or illegality in the
order passed by the trial court.
12. Accordingly, writ petition is dismissed.
Sd/-
(H. T. NARENDRA PRASAD)
JUDGE
Cm/-
