Suit in name of wrong plaintiff || Order 1 Rule 10 || CPC||
In this article, we will discuss the topic
relating to suit in the name of the wrong plaintiff under Order 1 Rule 10 of the
CPC.
Introduction:-
Where
a suit has been instituted in the name of the wrong plaintiff, the court may at
any stage of the suit, if satisfied that the suit has been instituted through a
bona fide mistake, order any other person to be substituted or added as
plaintiff upon such terms as the court thinks just. Rule 10 of the Order 1 of
the CPC deals with the provision relating the suit in the name of the wrong
plaintiff.
Striking out, adding or substituting parties: Rule 10 of Order 1:-
Object of this provision:-
The object of this provision is to save the honest plaintiffs, believing bonafide
in the maintainability of their claims being non-suited on a mere technical
ground, it was held in the case of the Anil Kumar V. Shivnath, (1995) 3 SCC 147.
In
case of Razia Begum v. Sahebzadi
Anwar Begum, AIR 1958 AP 195, it was held that the policy is to decide
the real matter in controversy between the parties bypassing the mere
technical objection for defeating a just and honest claim by discouraging
puerile contest on technicalities.
The provision, therefore, must be liberally
construed so as to advance the cause of justice.
Adding or substituting plaintiffs:-
After
the filing of the suit an application for addition and substation of the plaintiff
can be made, if the plaintiff discovers the following;
1. That he cannot get the relief he seeks
without joining some other person also as a plaintiff; or
2. Where it is found that some other
person and not the original plaintiff to entitle to the relief as prayed for.
Conditions:-
It was held, in the
case of the Razia Begum v. Sahebzadi Anwar Begum, AIR 1958 AP 195,
that the following condition must be satisfied to bring a case within this
sub-rule:-
I.
The suit has
been filed in the name of a wrong person as plaintiff;
II.
Such mistake
must be bona fide; and
III.
The
substitution or addition of the plaintiff is necessary for the determination of
the real matter in dispute.
Illustration:-
C, the agent of A,
under a bona fide mistake files a suit against B in his own name. The court can
substitute the name of principal A for that of the original plaintiff C.
Such an amendment may be allowed by the court at any stage of the suit or even at the
appellate stage and upon such terms and conditions as it thinks just. No person
can be added as a plaintiff without his consent.
Striking out or adding parties:-
Sub-rule
(2) of Rule 10 empowers the court to add any person as a party to the suit
on either of the two grounds:
(i)
Such a person
ought to have been joined as a plaintiff or a defendant, and is not so joined;
or
(ii)
Without his
presence, the question involved in the suit cannot be completely decided.
Anil Kumar v.
Shivnath (1995) 3 SCC 147;
It
was held that the purpose of this provision is to bring, all the persons
interested in the dispute, before the court, at the same time, so that the dispute may be finally determined at the same time in the presence of all the
parties without the delay, inconvenience, and expense of several actions and
trials and inconclusive adjudications.
Effect:-
Where any person is added as a defendant
in the suit, as regards him, the suit shall be deemed to have been instituted
from the date, he is joined as a party (Rule 10(5).
According
to Rule 10 (4) where a defendant is added, the plaint shall be amended and the
amended copies of the summons and the plaint must be served on the new
defendant.
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