Make application to add parties
then file application for amendment of plaint as suggested by your lawyer
Order 1 Rule 10 (2) and Order 6 Rule 17
In my partition suit, which is already pending, I wish to add other our ancestor properties which I have forgotten to add. To add the parties, I have to file application under Order 1 Rule 10 of CPC, and once the court allows my application, then I have to file an application for amendment under Order 6 Rule 17 of CPC. Now Question : Order 1 Rule 10 of CPC is available only to add parties and not the area, therefore, When to add the area which is mentioned in right of records. As per my advocate, I have to file an application firstly to add for parties under Order 1 rule 10 of CPC and once that application is allowed then I have to file an application under Order 6 rule 17 of CPC, to amend the plaint for correcting the area. I am confused hence put the question before this forum. Please advice
Asked 5 years ago in Civil Law
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9 Answers
You can file a combine application to implead party and ammend the petition at the same time. Court will pass necessary orders
Move only one application under O 6 R 17 because in this application you have to mention all the relevant facts to the property including area, where it has come, so only move one.
O 1 R 10 is for impleadment of party. So not order 1 but order 6 application will file.
You need to amend the plaintiff amending the areas.
And add parties by order 1 rule 10.
Rule 10 oder 1 for adding new parties only. No way related to amendment of plaint under rule 6 order 17 which provides amendment in plaint before commencement of trial only. The court may allow after the trial has commenced if the court comes to conclusion that inspite of due diligence the party could not have raised the matter before commencement of trial.
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For any amendment to the plaint you may have to file a petition under Order VI Rule 17, therefore in the event of the petition filed under Order I Rule 10 also after the same i s allowed you may have to file a petition to amend the plaint accordingly.
Your advocate's advise seems to be right.
10. Suit in name of wrong plaintiff
(1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, it satisfied that the suit has been instituted through a bona fide mistake, and that it 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.
(2) Court may strike out or add parties--The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.
(3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent.
(4) Where defendant added, plaint to be amended.--Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant.
(5) Subject to the provisions of the Indian Limitation Act, 1877 (15 of 1877)1, section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons.
17. Amendment of pleadings
The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:
Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that is spite of due diligence, the party could not have raised the matter before the commencement of trial.]
Respected Sir
1. a conjoint reading of O.1 R.10 SUB RULES 2 AND 4 AND O.6 R.17, as highlighted above, would show that a composite application for adding parties and for amending the plaint can be made
2. even if separate applications were to be made, if you read O.1 R.10 (2) AND (4) carefully, it is clear that if addition of party defendant is allowed by court under sub rule 2, then relying on sub rule 4, the plaint can also be amended in such manner as the court considers necessary
3. for addition of other ancestral properties, O.6 R. 17 can be taken aid of
Order I rule 10 application is filed if you have added name of wrong defendant in the plait and you Wnt to change the defendant of plaint. To add parties to suit you should file application under Order 1 rule 9.
And after that you can make application for amendment of plaint under order VI rule 17.
Or you can make both application at same time.
