Karnataka High Court
Bharat Petroleum Corporation Limited, ... vs B.S. Sridhara Murthy And Another on 13 January, 1999
Equivalent citations: 1999(2)KARLJ574
ORDER
1. Heard the learned Counsel for the revision petitioner-Sri C.K. Narayana Rao and Smt. Hymavathi holding brief for Sri H.R. Ananthakrishna Murthy, learned Counsel for the respondent 1. None appears for respondent 2.
2. This revision petition arises from the judgment and order dated 7-3-1998 whereby the Trial Court has allowed the amendment of the written statement and whereby it has allowed the defendant to raise the plea that the suit is not maintainable on account of misjoinder of cause of action. It has been pointed out by the learned Counsel for the revision petitioner and this position is not being disputed that this amendment has been sought only at the stage of arguments on merits of the suit. The Court below observed that.--
"The learned Counsel for the plaintiff has already advanced his arguments on main suit. But, the suit is still at the stage of hearing arguments on behalf of the defendants".
No doubt, thereafter the Court referred to their contention. It is the law of amendment that all amendments should be allowed unless they have a tendency to make out a new case or unless they have the tendency to cause irreparable damage and loss. But, there are certain provisions of law which have to be taken note of. The provisions of Order II which deals with frame of the suit and Rule 7, which provides for objections to misjoinder, very specifically points out that.--
"All objections on the ground of misjoinder of the causes of action shall be taken at the earliest possible opportunity and in all cases where issues are settled, at or before such settlement, unless the ground of objection has subsequently arisen, and any such objection not so taken shall be deemed to have been waived".
The provision is very clear and it mandates that objection as to the maintainability of the suit on the ground of misjoinder of causes of action in every case is to be taken at earliest stage and particularly where issues are framed at the time or before framing of issues and if that objection which was available at that time had not been taken by the party in defence, then law applies the legal fiction that the party should be deemed to have waived that objection. Once the party is deemed to have waived that objection, no doubt, legal right does and did accrue in favour of the plaintiff to the effect that the defendant should not be allowed to raise that plea on any subsequent stage. The Court below while allowing the amendment application did not apply its mind to this provision of law. Learned Counsel for the respondents contended that there was a plea that the plaintiff had got no cause of action. It was only an additional approach to this matter. I am unable to accept this contention. To say that the plaintiff had no cause of action in the suit stands on a different footing from the plea that suit is based on misjoinder of causes of action. As the Court below, while allowing the amendment, did not apply its mind to the relevant provisions of law with respect to such plea and legal fiction under deeming clause as contained in Rule 7 of Order II and it acted illegally and with material irregularity. When a legal right accrued under the law if amendment is allowed, the claimant will be made to suffer and as such, in my opinion, it is a fit case to allow the revision and revision is hereby allowed. Order impugned dated 7-3- 1998 whereby LA. IV has been allowed is set aside and LA. IV is rejected. The Court shall hear the arguments of the parties in the suit and shall dispose of the suit at the earliest.
Revision is allowed. No costs.