Case Note & Summary
The appellant, Kamlesh Gupta, mortgaged a shop to Mangat Rai (first respondent) for Rs. 7 lakhs in 2009. She later filed a suit for possession by redemption. The first defendant admitted the mortgage but stated that he had permitted Rakesh Kumar (second defendant) to use the shop, who agreed to vacate upon redemption but failed. The second defendant denied the mortgage and claimed that the plaintiff's father had inducted Pawan Kumar as a tenant. After issues were framed and affidavits of four plaintiff witnesses were filed, the plaintiff applied under Order I Rule 10 and Order VI Rule 17 CPC to implead Pawan Kumar and add a paragraph alleging collusion. The trial court dismissed the application, and the High Court upheld the dismissal, holding that the amendment was barred by the proviso to Order VI Rule 17 as the facts were within the plaintiff's knowledge. The Supreme Court noted that Pawan Kumar was in actual possession of the shop, was the father of the second defendant, and the defendants were close relatives. The Court held that Pawan Kumar was a necessary party as his presence would avoid multiplicity of litigation. The Court found that the plaintiff may have been kept in the dark about the possession due to the close relations, and thus the application should be allowed in the interest of justice, albeit with costs of Rs. 10,000. The orders of the trial court and High Court were set aside, and the application was allowed. The trial court was directed to decide the case on merits uninfluenced by the observations.
Headnote
A) Civil Procedure - Impleadment of Party - Order I Rule 10 CPC - Necessary and Proper Party - A person in actual possession of suit property is a necessary party to a suit for possession by redemption of mortgage, as his presence is required for effective and complete adjudication and to avoid multiplicity of litigation. (Paras 8-10) B) Civil Procedure - Amendment of Pleadings - Order VI Rule 17 CPC - Proviso - Due Diligence - The proviso to Order VI Rule 17 CPC bars amendment after commencement of trial unless the party could not have raised the matter earlier despite due diligence. However, where the plaintiff was kept in the dark about the possession of the suit property due to close relations between defendants and the proposed party, the amendment may be allowed in the interest of justice, even belatedly. (Paras 7, 11) C) Civil Procedure - Impleadment and Amendment - Costs - Where an application for impleadment and amendment is allowed after commencement of trial, the court may impose costs on the applicant to compensate for the delay. (Para 11)
Issue of Consideration
Whether the application for impleadment of a person in possession and amendment of plaint should be allowed despite being filed after commencement of trial, when the plaintiff had no knowledge of the possession due to suppression by defendants.
Final Decision
The Supreme Court allowed the appeal, set aside the orders of the trial court and High Court, and allowed the application for impleadment and amendment of the plaint, subject to payment of Rs. 10,000 costs by the appellant within 8 weeks. The trial court was directed to decide the case on merits uninfluenced by the observations.
Law Points
- Order I Rule 10 CPC
- Order VI Rule 17 CPC
- Necessary party
- Proper party
- Due diligence
- Amendment after commencement of trial
