• Which is correct either order 1 rule 10 (2) or Order 1 rule 3 of CPC, in my case

I am plaintiff in partition suit and have made 2 persons as a defendant in the said suit, as Def No. 1 & Def No. 2. 

01. Now I want to add more persons as defendants as Def. No. 3 to Def. No. 10. My First Question : While drafting the application for adding party as defendants, Which Order I should put : Order 1 rule 10 (2) OR Order I rule 3. ? which is correct to add defendants. 

02. There are some typographical errors in my O.S. , which I want to Correct under Order 6 Rule 17. My Second Question : When such application I should file , because after adding the parties , i will have to add that in main suit by amendment . To avoid amendment application two times (1 for typographical errors and 2 for adding party) I should wait till first application is allowed. 

Thanks
Asked 4 years ago in Civil Law

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11 Answers

you have to make application under order 1 Rule 10 for adding parties as defendants 

 

Order 1, Rule 10(2): 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".

 

2) then apply to amend plaint 

Ajay Sethi
Advocate, Mumbai
94932 Answers
7574 Consultations

5.0 on 5.0

Have to file application under O 1 R 3. Rule 10 application if file by parties who wrongly impleaded or not impleaded in a suit and not by plaintiff.

On court permitting application under O1 R3, only amended title will submit and not application of amendment.

TO correct typographical errors, both application can file simultaneously.

Yogendra Singh Rajawat
Advocate, Jaipur
22669 Answers
31 Consultations

4.4 on 5.0

Move only one application under o 6 r 17 that is sufficient as you have to give details of the amendments have to be made by you including the array of parties, move immediately.

Koshal Kumar Vatsa
Advocate, Gurgaon
2283 Answers
3 Consultations

5.0 on 5.0

order 1 Rule 3 

 

swar Bhai C. Patel @ Bachu Bhai Patel vs. Harihar Behera&Anr.(16.03.1999 – SC),where the Supreme Court observed that:“This Rule requires all persons to be joined as defendants in a suit against whom any right to relief exists provided that such right is based on the same act or transaction or series of acts or transactions against those persons whether jointly, severally or in the alternative. The additional factor is that if separate suits were brought against such persons, common questions of law or fact would arise. The purpose of the Rule is to avoid multiplicity of suits

 

2) you have already filed suit and you want to add party as defendant then application has to be made under Order 1 Rule 10 of cpc 

Ajay Sethi
Advocate, Mumbai
94932 Answers
7574 Consultations

5.0 on 5.0

Corrigendum,

Both plaintiff and defendant can file application under O 1 R 10 and also any third party who may affect by suit.

Yogendra Singh Rajawat
Advocate, Jaipur
22669 Answers
31 Consultations

4.4 on 5.0

Order1 rule 10 will be applicable

Prashant Nayak
Advocate, Mumbai
32072 Answers
183 Consultations

4.1 on 5.0

1. The petition for addition of party is to be made under order 1 rule 10 of cpc.

2. Even if you have wrongly mentioned the relevant rue then also the petition is maintainable if the content of the petition and the prayer sought for is properly mentioned.

3. There is no applicability of order 1 rule 3 of cpc.

Devajyoti Barman
Advocate, Kolkata
22876 Answers
492 Consultations

5.0 on 5.0

You should make the application

under order 1 Rule 10

Mohit Kapoor
Advocate, Rohtak
10687 Answers
7 Consultations

5.0 on 5.0

1 Rule 10(2) C.P.C., covers two types of cases (a) of a party who ought to have been joined but not joined and is a necessary party, and (b) of a party without whose presence the question involved in the case cannot be completely decided.

O 1 Rule 3: The simple principle is that a person is made a party in a suit because there is a cause of action against him and when causes of action are joined, the parties are also joined.

 

1.  Based on the above explanation, you have to ascertain for what reason do you want add more defendants, accordingly you may file a petition before the court.

 

 

2. If you want to carry out any amendments, then you may wait for this petition to be allowed after which you can file a petition seeking permission of court to make amendments not only on this regard but also to the errors that are to be rectified.

T Kalaiselvan
Advocate, Vellore
85132 Answers
2215 Consultations

5.0 on 5.0

Your understanding is correct.

Thus you can decide further course of action as per prevailing circumstances.

 

T Kalaiselvan
Advocate, Vellore
85132 Answers
2215 Consultations

5.0 on 5.0

  1. As per the information mentioned in the present query, makes it clear that you want clarity on the best suitable provision of law.
  2. You wish to add more parties in be suit which would be the amendments in the memo of parties and hence, order 1 rule 10 would go for you for impleading the remaining one as necessary and proper party.
  3. Amendment to the pleadings will be subject to the discretion of the court as per Ofer 6 rule 17 of CPC.

Sanjay Baniwal
Advocate, South Delhi
5474 Answers
13 Consultations

5.0 on 5.0

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