Dr. P.K. Pandey vs Atul Tiwari

Tarun Agarwala, J.—Heard Shri Yogesh Agrawal, the Learned Counsel for the petitioner and Shri Shyam Sunder Mishra, the Learned Counsel for the opposite party.

The plaintiff-opposite party filed a suit against the defendant-petitioner claiming compensation for the negligence committed by the defendant while giving medical treatment to the son of the plaintiff. During the pendency of the suit, an amendment application was filed to amend certain paragraphs of the plaint and also to implead the son of the plaintiff as plaintiff No.2. This application under Order VI, Rule 17 of the CPC was rejected by the trial court, against which, a revision was filed, which was allowed by the impugned order on payment of cost. The defendant-petitioner, being aggrieved by the said order, has filed the present writ petition.

The Learned Counsel for the petitioner submitted that the application under Order VI, Rule 17 of the CPC could not be used for the purpose of impleading a plaintiff and that, for such a purpose, an application under Order I, Rule 10 of the CPC could only be filed. Further, assuming that such an order could be passed, the parameters to be considered, under the provision of Order I, Rule 10 of the Code of Civil Procedure, has not been taken into account. The Learned Counsel further submitted that the issues have been framed in the year 2006 and the trial has begun, and therefore, at this belated stage, the application under Order VI, Rule 17 of the CPC should not have been allowed. Lastly, the Learned Counsel for the petitioner submitted that the period of limitation for the relief claimed in the plaint is one year from the date of the distress, as provided under Article 79 of the Schedule I of the Limitation Act, 1963 and therefore, the impleadment of plaintiff No.2 claiming a relief of damages was beyond the statutory period of limitation.

Having heard the Learned Counsel for the petitioner, this Court is of the opinion that the submissions raised is bereft of merit. A perusal of the amendment application, no doubt, indicates that the amendment application was filed under Order VI, Rule 17 of the CPC and that, the plaintiff prayed for amendments of various paragraphs of the plaint and also prayed for impleadment of the son of the plaintiff as the plaintiff No.2. In my opinion, the said application has to be treated as a composite application under Order VI, Rule 17 read with Order I, Rule 10 of the Code of Civil Procedure. The mere fact that the application did not mention Order I Rule 10 of the CPC in the application does not make the application defective or fatal to the decision on the said application. Consequently, the submission of the Learned Counsel for the petitioner does not hold merit.

No doubt, the issues have been framed, but, at the moment, the evidence has not begun. The Supreme Court, in a large number of decisions, has held that the amendment can be made at any stage of the proceeding for sufficient cause to be shown and that an amendments could also be allowed even after the suit is decided in an appeal. In the present case, the Court finds that the plaintiff sought to implead the son as plaintiff No.2 in order to remove the lacuna, if any since the defendant had raised a plea that the person injured has not been impleaded. The revisional court was justified in impleading the son of the plaintiff as the plaintiff No.2 since a formal defect, if any, was only being removed.

In so far as the limitation Act is concerned, the suit was filed within the period of limitation, i.e., within one year from the date of distress, as provided under Article 79 of the Limitation Act.

A perusal of the various paragraphs of the plaint indicates the wrong treatment given by the defendant to the son of the plaintiff and the mental anguish and harassment, etc., caused to the plaintiff, and for that purpose, the plaintiff had prayed for compensation against the defendant. The impleadment of plaintiff No.2 has not enlarged the relief claimed by the plaintiff nor does it extends the period of limitation. The impleadment only removes the legal lacuna, if any.

Since necessary pleadings have already been made in the plaint, which has neither been subtracted nor been modified by the said amendment application, this Court does not find any error in the impugned order passed by the revisional court.

The decisions cited by the Learned Counsel for the petitioner in the case of Union of India & Ors. v. Major General Madan Lal Yadav (Retd), 1996 (3) Supr 191 has no application to the present facts and circumstances of the case. The Supreme Court has explained the meaning of the word ''commencement of the trial'', as provided under Sections 123(3) of the Army''s Act, 1950. The Learned Counsel has also placed reliance upon a decision in Banta Singh Ganga Singh and Others Vs. Harbhajan Kaur and Others, , in which it has been held that the application for amendment should be made bona fide and that, if a valuable right has been accrued upon the defendant, that cannot be removed by means of an amendment. In my opinion, this judgment is not helpful to the petitioner since the Court finds that the application was made bona fide by the plaintiff to remove a legal lacuna raised by the defendant, and such legal lacuna does not create a valuable or inherent right of the defendant.

The Learned Counsel has also placed reliance upon a case of Chinnaswami Naicker Vs. Kandasami Gounder and Others, , in which it has been held that no amendment can be made which is beyond the period of limitation.

There is no quarrel on the proposition of law enunciated in the aforesaid decision and as stated earlier, the period of limitation has not been enlarged by the plaintiff in the present case.

In view of the aforesaid, this Court does not find any merit to interfere with the impugned order. The writ petition is accordingly dismissed. In the facts and circumstances of the case, the parties shall bear their own cost.