Harbans and another vs Gurbaksh Singh

M.M. Punchhi, J. (Oral)

This is a revision petition against an interlocutory order passed by Shri R.P. Bishnoi, SubJudge, IInd Class, Narwana, in a pre emption suit.

It appears that Angrez Singh, a minor, through his guardian and mother Smt. Pritam Kaur, sold some agricultural land to Gurbax Singh and others, vendee respondents. The plaintiffpetitioners filed a suit for preemption. In the array of parties, they only impleaded the vendees and omitted to implead Angrez Singh, the vendor. Even, amongst the vendeerespondents, the first one was described as defendantset No. 1 and the remaining were described as defendants set No. 2. This division amongst the defendants, prima facie was innocuous. The said division served no purpose. However, the plaintiff petitioners woke up and applied before the learned SubJudge for amendment of the array of the parties of the plaint, and consequential amendment in the plaint so as to implead Angrez Singh minor vendor, through his guardian and mother Smt. Pritam Kaur, as a defendant describing him to be in one set and the other vendeerespondents all together in the other set. The prayer was opposed and the learned SubJudge vide order now sought to be revised, rejected the paryer being of the view that the application by the petitioners for impleading Angrez Singh, the vendor, had been filed beyond the period of limitation and that a very valuable right had come to be vested in the defendants as also that the amendments sought on the description of the vendeerespondents were not based on typographical or accidental errors. It is this view of the learned SubJudge which has been challenged by Mr. J.K. Sharma, learned counsel appearing for the petitioners.

It is not disputed by the learned counsel for the respondents that the vendor in a preemption suit is not a necessary party, though a proper party. Impleading of a proper party at any stage of the proceedings would not involve per se any question of limitation. As such, the impleading of Angrez Singh minor in the manner sought, should have been allowed. In this regard, there is a material irregularity in the exercise of discretion which deserves to be ratified under section 115 of the Code of Civil Procedure. On the other ground also misdescription of a party without involving any affectation to the merits of the case, cannot be refused, unless the misdescription was deliberate or misleading to achieve a particular purpose. Here, as the plaintiffpetitioners have sought to explain, the setting of the defendants was meant initially to bring in the vendor in one set and the vendees in the other, but the omission of the name of the vendor, in the array of the parties led to the misdescription of the defendants inter se. On this score also, there is a material irregularity in the exercise of jurisdiction. The amendment sought for should have been allowed.

In these circumstances, this petition succeeds, the impugned order is set aside and the amendments sought for are allowed subject to payment of Rs. 200/ as costs. Let the costs be paid on the date to be fixed by the trial Court. Parties through their learned counsel are directed to put in appearance before the learned SubJudge on August 6, 1985.