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Judgment
A.H. Joshi, J.—Rule, returnable forthwith. Heard by consent.
Petitioner is challenging the order passed below Exh.40 allowing plaintiff''s application for amendment for addition of defendants who are co-sharers.
The ground of challenge is that:
(a) The objection as to non-joinder was raised much earlier but it was connived at.
(b) The reason assigned towards delay is false.
(c) The plaintiff is not diligent.
(d) The plaintiff has filed application after hearing has commenced and as per amended Rule 17 of Order 6 of the Code of Civil Procedure, 1908, such belated application should not be allowed.
Admittedly suit is for partition of joint family property and objection is that all other co-sharers are not arrayed as defendants.
Proper parties is a legal matter. Any defect in this regard is attributable to legal advise. Pleadings & applications are drafted by lawyers who knows the record. Any statement contained in the application which does not confirm to record therefore unless contrary is shown knowledge of such facts can not be attributed to the party. Therefore, no undue importance can be given to the contents of application in total disregard to surrounding and the fact of the matter.
On facts admittedly if defendants proposed to be added as party to suit are not arrayed it will non suit the plaintiff temporarily. The right of such persons to get impleaded does not come under embargo as their undivided interest in suit property remains unaffected, so happens to the right of the plaintiff which does not get extinguished even due to dismissal of suit.
It is also not disputed that the lis does not come to end if Exh.40 is rejected.
The objection to amendment though is based on the form & frame of law, it is devoid of bonafides, sincerity and commitment to the progress of administration of justice as a litigant and as a citizen.
Rejection of Exh.40 shall ensure perpetuation of litigation, which eventuality can be curtailed by bringing proposed defendants before the court in the array as defendants in pending suit. This course gives a long term solution which needs to be preferred to a short term solution which certainly suits the defendants possessing and enjoying the property.
Therefore the ends of justice get protected if addition of parties is allowed at this stage.
This Court is satisfied that the reasons assigned in the impugned order are legal and proper and do not warrant interference on grounds what so ever, as the provisions of CPC are to be read on the whole and not in isolation. It can not be forgotten that the trial of suit is in the quest of justice & truth. In an effort of following procedural rules ultimate role & rule of justice cannot be forgotten.
Rule therefore is discharged with costs.