News

October 10, 2019

Mere non-mentioning of an incorrect provision is not fatal to the application if the power to pass such an order is available with the court: SC


[ by Legal Era News Network ]

Justices-Aniruddha-Bose-and-Deepak-Gupta

A bench of Justices Deepak Gupta and Aniruddha Bose ruled that mere non-mentioning of an incorrect provision is not fatal to the application if the power to pass such an order is available with the court.

One MMT, owner of a land executed a power of attorney in favour of one ARL who exercising his power under the power of attorney, sold the land to PNJ. MMT filed a civil suit against the predecessor-in-interest of the appellants and ARL challenging this sale.

One JCS purchased land from MMT on payment of Rs.10,00,000/ in March 2007. The sale deed was registered and, according to JCS, possession was handed over to him by MMT. According to JCS, MMT had given an undertaking in the sale deed that there was no proceeding pending with regard to the suit land. MMT died in June 2007. Thereafter, JCS filed an application under Order I Rule 10, Code of Civil Procedure, 1908 (CPC) for impleading him as plaintiff no. 2 before the trial court.

The trial court dismissed the application filed by JCS for impleadment holding that he was not a necessary or proper party and that fresh cause of action arose in his favour and he could file a separate suit.

JCS thereafter filed a petition under Article 227 of the Constitution before the High Court, which was allowed by the High Court mainly on the ground that even if the legal heirs of MMT wanted to withdraw from the suit, they could do so but the rights of JCS, would be vitally affected. Therefore, JCS was entitled to be impleaded as a party in the suit.

The appellants who are defendants in the suit challenged the order of the High Court before the Supreme Court.

The Court ruled that the application was wrongly filed under Order I Rule 10 CPC. It should have been filed Order XXII Rule 10 CPC. Further, the court also held that mere non-mentioning of an incorrect provision is not fatal to the application if the power to pass such an order is available with the court.

The Court concluded that JCS had purchased the land from MMT for Rs.10,00,000/, payment of which was made by cheque. Therefore, JCS had a vital interest in the suit and had a right to continue the suit.

Full View Judgement


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