Vivek Kumar Dhallam vs Nisha Puri and Another

Dr. Aftab H. Saikia, C.J.—Heard Mr. B.D. Sudan, learned counsel appearing for the petitioner as well as Mr. Pranav Kohli, learned

counsel appearing for respondent No. 1.

The legality and correctness of order dated 29-11-2010, passed by Sub-Judge, Jammu, in File No. 332-A/Civil Misc., has been assailed under

revisional jurisdiction of this Court.

Basic issue raised herein is that as to whether the petitioner be permitted to be impleaded in a restoration proceedings wherein the non-

applicant-plaintiff has sought for restoration of his civil suit, which was dismissed for non-prosecution on 09-12-2009.

The Learned Sub-Judge after hearing the learned counsel for the parties and relying upon the provision of law stipulated under Order 1, Rule

10(2), CPC, which reads as under:--

Order 1, Rule 10(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.

has passed the impugned order observing that the Court is empowered to add or strike out any party, at any stage, in a suit either suo motu or on

asking of any party. This provision of law does not take care of or make a mention of restoration proceeding. Further. it is observed that the

applicant seeking such impleadment can make such a motion in event of restoration of the suit but not during the pendency of the restoration

proceeding and, accordingly, the application was dismissed.

Admittedly, the suit in question was dismissed for non-prosecution on 09-12-2009 and, as such, till the same is restored to its file, there is no

proceeding pending before the concerned Court and the proceedings of the said civil suit would start only after its restoration.

Sub-rule (2) of Rule 10 of Order 1, CPC manifestly stipulates that ""Court may, at any stage of the proceedings"" either suo motu or on

application of the party, order to strike out the name of any party or add the name of any party; meaning thereby that this power can be exercised

at any stage of proceeding since its institution and till the judgment is reserved or pronounced. Power to implead the parties can be exercised only

when the proceeding is alive and still pending before the Court.

Since the suit has not yet been restored, this Court is in full agreement with the findings so recorded by the Court below in its impugned order

which is, on scrupulous scrutiny, found to be a well reasoned one. Accordingly, in the light of the provisions of Order 1, Rule 10(2), CPC, as

quoted above, it is held that this application is misconceived and premature.

In view of the above, this Court does not find any illegality, infirmity or any jurisdictional error warranting interference with the impugned order.

This Civil Revision, accordingly, stands dismissed.