Calcutta High Court
Pvt. Ltd. & Ors vs Orient Beverages Ltd. & Ors on 20 September, 2019
Author: Sahidullah Munshi
Bench: Sahidullah Munshi
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE
G.A. No. 3121 of 2016
In
C.S. 144 of 2016
SQUARE FOUR ASSETS MANAGEMENT & RECONSTRUCTION CO.
PVT. LTD. & ORS.
... Plaintiffs
-Versus-
ORIENT BEVERAGES LTD. & ORS.
... Defendants
BEFORE:
THE HON'BLE JUSTICE SAHIDULLAH MUNSHI
September 20, 2019.
Mr. Joy Saha, Sr. Adv.
Mr. Samrat Sen
Mr. Zeeshan Haque
Mrs. Reshmi Ghosh
Mr. Subranil Dey
Mr. Sudipta Paul
... for the plaintiffs
Mr. Kaushik Banerjee
... for the respondent no.1
Mr. Anindya Kumar Mitra Mr. Sarathi Dasgupta Mr. Arijit Basu ... for the respondent no.3 2 Mr. Abhrajit Mitra Mr. Arnab Chakraborty Ms. Praggya Bhowmick ... for the respondent no.8 The Court : This application has been taken out by the plaintiff and has been affirmed by one Arun Kumar Singh, Manager and Principal Officer of plaintiff no.1 that is Square Four Assets Management and Re-construction Company Private Ltd. It has been stated that the deponent has been duly authorized by the plaintiff nos.1 & 3 and also by the trust.
The application has been filed by the plaintiffs seeking of amendment of the plaint. According to the plaintiff/petitioner the proposed amendment is to be made in the plaint by way of addition of three more defendants namely; (1) Rupendro Mullick; (2) Tapendra Mullick and (3) Suvendro Mullick as defendant nos. 4, 5 and 6. The plaintiff has also prayed for consequential amendment in the cause title of the plaint as also necessary changes in paragraph no. 1 of the plaint where instead of plaintiff no. 2 & 3 as shown in the original plaint it should be plaintiff nos. 3, 4, 5 and 6. One Arun Kumar Singh is the manager and principal officer of plaintiff no. 1 has been authorized by the plaintiff nos. 2 & 3 and by the trust to make and affirm the affidavit in support of this application. The suit has been filed, inter alia, praying for:
i. A decree against the defendant no.1 for eviction and for recovery of vacant and khas possession of the demised premises No. 50, Chowringhee Road, Kolkata- 700071; 3 ii. A decree against the defendant No.2 for eviction and recovery of vacant and khas possession of the portion of the demised premises No. 50, Chowringhee Road, Kolkata- 700071; iii. A decree against the defendant No.3 for eviction and recovery of vacant and khas possession of the portion of the demised premises No. 50, Chowringhee Road, Kolkata- 700071; iv. A decree against the defendant No.4 for eviction an recovery of vacant and khas possession of the portion of the demised premises No. 50, Chowringhee Road, Kolkata- 700071; v. A decree against the defendant No.6 for eviction and recovery of vacant and khas possession of the portion of the demised premises No. 50, Chowringhee Road, Kolkata- 700071; vi. A decree against the defendant No.7 for eviction and recovery of vacant and khas possession of the portion of the demised premises No. 50, Chowringhee Road, Kolkata- 700071; vii. A decree against the defendant No. 8 for eviction and recovery of vacant and khas possession of the portion of the demised premises No. 50, Chowringhee Road, Kolkata- 700071; viii. A decree against the defendant No. 9 for eviction and recovery of vacant and khas possession of the portion of the demised premises No. 50, Chowringhee Road, Kolkata- 700071; ix. A decree against the defendant No. 10 for eviction and recovery of vacant and khas possession of the portion of the demised premises No. 50, Chowringhee Road, Kolkata- 700071; 4 x. A decree against the defendant No.11 for eviction and recovery of vacant and khas possession of the portion of the demised premises No. 50, Chowringhee Road, Kolkata- 700071; xi. Decree for Rs.3,01,50,435/- against the defendant no. 4 on account of Municipal/Property Tax as stated in paragraph 22 above together with all other and/or further arrear of Municipal/Property Tax on and from 30th April, 2016 with all penalties, interest, costs and charges payable thereon until realization;
xii. Decree for Rs.9,82,93,132/- against the defendant No.3 on account of Municipal/Property Tax as stated in paragraph 22 above together with all other and/or further arrears of Municipal/Property Tax on and from 30th April, 2016 with all penalties, interests, costs charges payable thereon until realization;
xiii. Decree for Rs.3,53,60,556/- against the defendant No.6 on account of Municipal/Property Tax as stated in paragraph 22 above together with all other and/or further arrears of Municipal/Property Tax on and from 30th April, 2016 with all penalties, interests, costs and charges payable thereon until realization;
xiv. Decree for Rs.4,19,37,966/- against the defendant No.9 on account of Municipal/Property Tax as stated in paragraph 22 above together with all other and/or further arrears of Municipal/Property Tax on and from 1st April, 2016 with all 5 penalties, interests, costs and charges payable thereon until realization;
xv. A decree for mesne profits against the defendant no.1 at the rate of Rs.50,00,000/- per day and all cost and consequences which the plaintiffs may suffer for recovery of possession on and from 1st October, 2015 until realization; xvi. A decree for mesne profits against the defendants and each of them proportionately in respect of areas occupied by each defendant at the reate of Rs.165/- Sq. ft. per month and/or at the rate of Rs.5.50/- per Sq. ft. per day on and from 1st Octobr, 2015 until realization;
xvii. A decree for mandatory injunction directing the defendant nos.
2 to 11 to continue to pay the municipal rates and taxes to the Kolkata Municipal Corporation as assesses in accordance with their respective proportionate shares till their occupation of the suit property;
xviii. Alternatively an enquiry into the mesne profit and decree in favour of plaintiffs for such sum as may be found due and payable;
In paragraph 6 of the plaint it has been stated by the plaintiffs that at all material times, the trust had four Trustees being:
i. Dipendro Mullick ... Plaintiff No.2
ii. Hirendro Mullick ... Plaintiff No.3
iii. Rupendro Mullick ... Plaintiff No. 4 and
6
iv. Purnendro Mullick ... Plaintiff No. 5
It has been stated that Punendro Mullick died on 13th May, 2016 and upon his death his two sons being Tapendra Mullick and Suvendro Mullick were appointed as trustees by a resolutation dated 14th May, 2016. At present the said Trust has five trustees being Dipendro Mullick, Hirendro Mullick, Rupendro Mullick, Tapendra Mullick and Suvendro Mullick of whom Dipendra and Hirendra are the present plaintiff Nos. 2 & 3. According to the plaintiff/petitioner Rupendro Mullick resides and works in the United Kingdom. Inasmuch as Rupendro Mullick works in the United Kingdom, it was deemed prudent not to add him as plaintiff to the suit (emphasis given by me). It has been stated that the suit was instituted with the consent and concurrence of Rupendro Mullick but for the reasons best known to the plaintiffs, he was not added as plaintiff for convenience and inasmuch as Rupendro Mullick resides in United Kingdom and further that since it was inconvenient for him to be directly involved as a party to the suit he was not made party. So far as Tapendra Mullick and Suvendro Mullick are concerned, they were mistakenly not added as parties/plaintiffs as the plaintiffs/petitioner were under mistaken impression that the trust and all its trustees were adequately and sufficiently represented by the plaintiff nos. 2 &
3. According to the plaintiffs/petitioner trustees, including Rupendro, Tapendra and Suvendra were of the opinion that three trustees namely; Rupendro Mullick, Tapendra Mullick and Suvendro Mullick could be excluded from the suit on the basis of an order dated 15th 7 January, 1988 passed by a Coordinate Bench of this Court. The said order dated 15th January, 1988 has been made part of this application being Annexure 'C'. it is contended by the petitioners that Rupendro issued a letter to the plaintiff nos. 2 & 3 ratifying the acts of the plaintiff nos. 2 & 3 in granting the said Lease to the plaintiff no.1 and in filing or defending any suit and/or proceeding before any Court of Law. A copy of the letter dated 17th August, 2016 has been marked as Annexure "D" to this application.
It is the plea of the plaintiff that during hearing of another General application no. 3121 of 2016 it came to light that the defendant no5 has merged with the defendant no.3.
The present application for amendment has been seriously opposed by the defendants by filing separate written objection. Mr. Aninda Kumar Mitra has made extensive argument opposing plaintiff's prayer for amendment. Mr. Abhrajit Mitra has also made separate argument but ultimately, adopted what has been submitted by Mr. Aninda Kumar Mitra.
In support of the prayer for amendment Mr. Joy Saha, learned Senior Counsel submitted that prayer for amendment is consequential to the addition or deletion of a party. He submitted that Order 1 Rule 10 of the Code of Civil Procedure sufficiently authorizes the Court to add or delete a party from the proceeding at the discretion of the Court at any stage of the suit. He draws attention of this Court to Order 1 Rule 10 (2) which specifically 8 mentions "Court may strike out or add parties" at any stage of the proceeding, 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, may be added in the suit. He further submitted that in the event of such addition being allowed by the Court within the purview of this Order 1 Rule 10 unless the Court otherwise directs the plaint is to be amended.
Mr. Saha, submitted that no specific change is to be brought into the plaint save and except it is to be added by way of addition. Three defendants in the suit namely proposed defendant nos. 4, 5 &
6. By such addition there should be no change in nature and character of the suit. Drawing attention to the statement in the plaint Mr. Saha submitted that the claim as has been made in the suit remains un-altered even if this Court allows his prayer for amendment consequent to addition of three plaintiffs. He further submitted that it is too technical for a Court to refuse the prayer for addition and to allow consequential amendment in the plaint. he further submitted that it is the duty of the Court to invoke the jurisdiction under Order 1 Rule 10 of the Court to prevent multiplicity of proceeding.
Mr. Saha submitted that in order to resolve the controversy this amendment is necessary. Confronting the submission made by Mr. 9 Mitra that the suit initially was framed in a manner not sanctioned by law and therefore, the suit is a void suit. In such a void suit Court cannot or should not exercise its jurisdiction to ratify the same by either addition or deletion or by amendment and their submissions that had it not been a void suit the attempt so made could have been allowed. Contradicting Mr. Mitra's submission that a suit under the Trust Act is to be filed by all the trustees and power of one trustee cannot be delegated to other trustees. Mr. Anindra Kumar Mitra, learned senior Advocate appearing for the defendant/Steel Authority of India submitted that three trustees were wilfully and deliberately not joined as plaintiffs which is evident from paragraph 10 and 12 of the affidavit in support of summons. According to him Order 1 Rule 10(2) of the Code cannot be invoked in the case of such wilful non- joinder of necessary parties. He submitted that Order 1 Rule 10(2) should be read in conjunction with Order 1 Rule 9 (proviso) and sub- rule (1) of Order 1 Rule 10. Order 1 Rule 9 (proviso) expressly provide that when a suit is bad for non-joinder of necessary parties, the provisions that no suit shall be defeated by reason of non-joinder of parties is not applicable. According to him Sub-rule (1) of Order I Rule 10 specially deals with the case of joinder of plaintiffs, whereas Sub-rule (2) of Order 1 Rule 10 deals generally with addition of parties. Court is empowered to add a plaintiff when non-joinder of parties had been made through - (i) bona fide mistake; and (ii) necessary for determination of the real mater in dispute. Both the conditions are conjunctive and none of the two conditions is fulfilled 10 in this case. It is a case of deliberate omission to add all the Trustees as plaintiffs. The addition of the left out Trustees is not necessary for determination of the real matter in dispute in the suit, namely, whether the defendants are liable to be evicted. He submitted that discretionary power under Order 1 Rule 10(2) to add parties should not be exercised suo moto in case of deliberate omission to join necessary parties and when an application for addition can be made even now but the plaintiff has not made any attempt to file any application for additions of party and reasons for not taking out any such application remains undisclosed. What has prevented the plaintiff from submitting an application for addition of these three left out trustees has not been explained either in the application or before the Court at the time of oral submission being made.
Mr. Mitra, further submitted that all trustees constitutes one body in the eye of law and he relied on paragraph 26, 28 and 29 of the decision in the case of Shati Vijay and Co. & Anr. -Vs. - Princess Fatima Fouzia & Ors. reported in (1979) 4 SCC 602. In the same decision he also relies on paragraph 31 and 32 and submitted that the trustees cannot delegate their power. Mr. Mitra also relied on a decision in the case of Atmaram Ranchhodbhai -Vs.
- Gulamhusein Gulam Mohiyaddin & Anr. Reported in AIR 1973 Gujarat 113 and relied on paragraph 9, 10 & 11. He submitted that all four trustees must join in filing the suit for recovery of possession of the property of the trust. Suit for recovery of possession of the 11 property of a tenant after determination of lease cannot be maintained by co-trustee.
He submitted that suit not filed by all trustees, is a void suit and he relied on a decision in the case of Numazar Dorab Mehta & Ors. -Vs. - The Assam Co. Ltd. reported in 2004(1) CLJ 283. Mr. Mitra further submitted that suit which is bad at the institution not curable by subsequent amendment and to this he referred a decision in the case of Darves Haji Mahamad Sidik and Anr. -Vs. - Jainuddin valid Haji Badruddin and Ors. reported in ILR XXX Bombay 603. Mr. Mitra further cites a decision in the case of V. Samanna Iyar -Vs. - Kadathur village Rajavaikal Channel Silt Clearance Committee represented by A. Ramasubramania Aiyar reported in AIR 1926 Madras 577 to argue when the suit is bad on the date of institution, the Court has no jurisdiction to make any order for amending the plaint or for addition of parties. He submitted that defect is not a curable defect and therefore, the application is liable to be rejected. A Calcutta decision has been relied on in the case of Abdul Rahaman -Vs. - Sm. Angur Bala Manna & anr. reported in AIR 1974 Calcutta 16 by Mr. Mitra to argue that grant of tenancy by the Managing Trustee alone has been held to be void. The suit filed by the tenant, although decreed on merits, was dismissed by the Appellate Court on the ground of delegation of power. He submitted that when the suit is non-est in the eye of law, this Court cannot assume jurisdiction to direct amendment of the plaint by addition of the party. He has yet relied on another decision in the 12 matter of Abani Kanta Pal reported in 89 Calcutta Weekly Notes 1158 to argue that the Court has no jurisdiction to amend when they have no jurisdiction to entertain the suit because the suit is a void suit.
Mr. Saha learned counsel appearing for the plaintiff in order to controvert submissions made by Mr. Mitra has submitted that all trustees even if not made parties to the suit, suit cannot be held to be not maintainable due to non-joinder of parties. He submitted that Power of Attorney dated 12th September, 2015 issued by the Trust Estate represented by Purnendro, Hirendro and Dipendro Mullick (three out of four Trustees) authorizing, inter alia, one Arun Kumar Singh to institute legal proceedings on behalf of the trust appearing at page 13 of the Supplementary Affidavit filed in connection with G.A. No. 3121 of 2016 is valid. He also submitted that Power of Attorney dated 5th August, 2016 issued by the Trust Estate represented through Dipendro, Hirendro, Suvendro and Tapendra Mullick (four out of five Trustees) to institute legal proceedings on behalf of the Trust appearing in the Supplementary Affidavit in G.A. 3121 of 2016 is also valid. He submitted that Tapendra and Sevendro were inducted as trustees on 14th May, 2016 upon the death of their father. Purnendro and have never acted contrary to the desire of decision of the other trustees and in fact had always consented to the filing of the suit and to the grant of lease in favour of the plaintiff no.1. Such fact, according to him is manifest from the fact that Suvendro Mullick in one of the witnesses to the said deed of lease granted in favour of the plaintiff no.1 and the power of attorney dated 13 12th September, 2015 issued by the Trust in favour of Arun Kumar Singh to institute the present suit. He further submitted that a letter dated 17th August, 2016 were issued by Rupendro Mullick one of the trustees of the Trust, resides in United Kingdom had ratified the acts of plaintiff nos. 2 &3 instituting C.S. No. 144 of 2016. Mr. Saha in his submission added that under order 6 Rule 17 of Code of Civil Procedure, upon an application being made by a party, this Hon'ble Court, in the interest of justice may allow such amendments to be made as may be necessary for the purpose of determining the real issue in controversy between the parties in order to fulfill the object underlying the principles of Order 6 Rule 17 the Court had any such power to add any party to the proceedings. He also draw attention of the consistent view of the Courts with regard to the principle of allowing application for amendment, where it does not introduce a new cause of action or raises a new case. According to the Mr. Saha the amendments should be allowed liberally and Courts ought not to adopt a hyper technical approach while considering such prayer.
So far the submission that a trustee cannot delegate his functions of running and managing the trust estate having regard to the provisions of Sections 47 and 48 of Indian Trust Act, Mr. Saha submitted that plaintiffs have already asserted that although Sections 47 and 48 of Indian Trust Act, 1882 states about the non-delegation of the functions of the trustee and indicates the execution of its duties jointly, certain exceptions have been carved out wherein one 14 trustee may act for and on behalf of all. He pointed out that the exceptions are :
I. Where the trust deed allows execution of the trust by one or more or by a majority of the trustees;
II. Where the delegation of power is necessary;
III. Where the delegation is in the usual course of business;
IV. Where the delegation is with the consent of the
beneficiary who is competent to contract.
After hearing rival contention of the parties it is necessary to decide whether the amendment as has been sought for is bona fide or the prayer for amendment is misconceived and/or mala fide, if it is found that the application has been made bona fide the same should be allowed or else it would be rejected.
Section 47 of the Trust Act deals with the power of a trustee whether he can delegate or not. Section 47 and 48 of the Trust Act are set out below:
"S.47. Trustee cannot delegate.--A trustee cannot delegate his office or any of his duties either to a co-trustee or to a stranger, unless(a) the instrument of trust so provides, or
(b) the delegation is in the regular course of business, or (c) the delegation is necessary, or (d) the beneficiary, being competent to contract, consents to the delegation.
Explanation.--The appointment of an attorney or proxy to do an act merely ministerial, and involving no independent discretion is not a delegation within the meaning of this section.
15
Illustrations
(a) A bequeaths certain property to B and C on certain trusts to be executed by them or the survivor of them or the assigns of such survivor. B dies, C may bequeath the trust property to D and E upon the trusts of A's will.
(b) A is a trustee of certain property with power to sell the same. A may employ an auctioneer to effect the sale.
(c) A bequeaths to B fifty houses let at monthly rents in trust to collect the rents and pay them to C. B may employ a proper person to collect these rents.
Comments No trustee can delegate his powers and duties to another transtee and any agreement to do so would be illegal and void and would not be covered by any of the exceptions in section 47; H.E.H.: The Nizam's Jewellery Trust (in re:), AIR 1980 SC 17.
S.48. Co-trustees cannot act singly.--When there are more trustees than one, all must join in the execution of the trust, except where the instrument of trust, otherwise provides."
Section 47 says a trustee cannot delegate his office or any of his duties either to a co-trustee or to a stranger unless the instrument of trust provides the same or such delegation is in the regular course of business or that such delegation is necessary or the beneficiary have competence to contract consents to the delegation.
Power to file a suit by a trust cannot be delegated by the trustees to a stranger to the trust established. Therefore, it is not the question whether the power of attorney is executed validly or not or 16 whether the power of attorney even if executed in England is enforceable in this country is also not the question. The question if whether the same empowered the stranger to verify the plaint and the application for amendment for and on behalf of any of the trustees to the trust estate. Since in the present case not a single trustee has verified and/or affirmed the plaint or petition for amendment the application itself is not maintainable.
Having regard to the above it can be held that the suit being not filed by nor verified and affirmed by any of the trustee, institution of the suit is defective and in such defective suit whether the application for amendment can rectify the defects which is a defect inherent at the institution of the suit. If there is any institutional defect in the suit, in my view, order 6 Rule 17 cannot be adhered to remove such defect to give a fresh life to the plaint. If the amendment application cannot be allowed the argument which has been made by the learned counsel for the plaintiff praying before the Court to invoke jurisdiction of Order 1 Rule 10, in my view is a far cry and cannot be allowed. Court need not exercise its discretion to add necessary parties or to delete unnecessary parties at the choice of the plaintiff or the defendants. This is always done to do substantial justice but when plaintiff has consciously omitted someone to bring as plaintiff again causing institutional defects, Court cannot indulge for removal of such defects by invoking power under Order 1 Rule 10 of CPC. If such a power is to be exercised in this case the same will tantamount to abuse of the process of law which I refrained from 17 doing. That apart it is apparent from the facts that suit was instituted on 17.05.2016 whereas Tapendra and Suvendro were inducted as trustees on 14th May, 2016. No reasonable explanation could be offered by the plaintiffs in the application for amendment as to why they were left out in the plaint. A person may be represented by an attorney but when the person himself is left out from the institution of the suit makes the suit defective under the trust Act. Although, the plaintiff/petitioners have repeatedly argued that this is only an addition of some of the left out trustees and there is no chance for change of nature and character of the suit but it is not known as to why instead of filing an application for addition of party the petitioners filed an application for amendment of plaint. The plaintiffs have kept the Court in dark about such steps not being taken. What he could have directly done, without doing so he has tried to achieve his purpose in a circuitous and/or roundabout way. It is the settled principle of law that the amendment application should be rejected if the same suffers lack of bona fides. In my view although, the plaintiff/petitioners' approach before this Court is only with regard to the additions of party but the problem is deep rooted where under the garb of amendment and addition of party the plaintiff tries to validate an invalidly instituted suit, although this is incidental to the institution of the suit but nobody has argued this point whether the implication of allowing the amendment is in any way related to any question of limitation. This application of limitation is always incidental to filing of the suit. If any such amendment is allowed it 18 may have some adverse effect on other question related to institution of suit. Prayer for relief against the defendant whether the suit is maintainable on the day when the application for amendment was made and whether it was maintainable on the day when the suit was initially filed, the time gap whether would cause any prejudicial effect to the defendant has not been clarified by the plaintiffs. The application for amendment is totally silent on the issue whether any approved right will be defeated if the amendment is allowed or not. As I have already held that I do not find any bona fide on the part of the plaintiff/petitioner to pray for impleading the parties as plaintiffs although, they say this is a bona fide omission but the plaint averment discloses that the parties have been left out consciously and this is no bona fide and/or accidental omission. In such a situation Court should not be lenient in allowing the plaintiff's prayer for amendment to implead some parties or to exercise its suo moto power to add parties.
As has already been argued by Mr. Mitra and the decisions relied on by him to the effect that non-joinder of majority of the trustees as plaintiffs is fatal and the plaint as filed in the suit is void and non-est in the eye of law, the question to cure any such defect cannot be permitted by addition of the left out trustees under the garb of amendment of plaint. I have considered the ratio in the matter of Abani Kanta Pal reported in 89 Calcutta Weekly Notes 1158 which says "Courts have no jurisdiction to amend when they have no jurisdiction to entertain the suit. It is a void suit." The ratio decided 19 in Abani Kanti Paul (supra) has not yet been upset by any superior Court. The decision is pat on the point which also dealt with the issue whether amendment under Order 6 Rule 17 was maintainable or not. The decision given by this Court under Section 115 of the Code of Civil Procedure filed by the plaintiff, which was directed against an order rejecting the prayer for amendment of the plaint. The suit was filed by the plaintiff for a declaration that he was a partner of a partnership firm having one fourth share therein and was carrying on business. The plaintiff prayed for appointment of a Commissioner for accounts and for other incidental reliefs. The defendant/opposite parties entered appearance and contested the suit by filing written statement and, inter alia, contended that the petitioner and opposite parties had no right, title and interest in the husking mill business subject matter of this suit. This prayer for amendment of written statement was to incorporate therein a statement to the effect that the so called firm not having been registered, the suit was not maintainable at all and was liable to be dismissed under the provisions of Section 69(1) of the Indian Partnership Act. The said application of the opposite parte no.1 was allowed by the learned Assistant District Judge. Thereafter, the petitioner also filed an application under Order 6 Rule 17 of the Code of Civil Procedure, praying for amendment of the plaint for the deletion of the prayer for declaration and for inclusion of a prayer for dissolution of the alleged partnership firm. The learned Assistant District Judge disallowed the said prayer for amendment of the plaint 20 as the alleged firm was not registered as required under Section 69(1) of the Indian Partnership Act. Aggrieved thereby the Revisional Application was filed before this Hon'ble Court.
The only question arose for decision was whether the learned Assistant District Judge was justified in refusing amendment of the plaint, as prayed for by the plaintiff/petitioner. This Hon'ble Court ultimately, held that when the plaint is treated a void plaint and if it is considered that there was no filing of the plaint at all when such a plaint contravene the provision of Sub-section (1) and (2) of the Section 69 of Indian Partnership Act, question of amendment of such a plaint does not arise at all. Court, however, held that if the plaint is not a void plaint but a defective one, in that case an amendment may be made for the purpose of curing or removing the defect. The first instance is applicable in the present case and in my view, the present application also should suffer the same fate where the defect is incurable. Having regard to such proposition laid down by the Court it is difficult for this Court to accept the contention raised by Mr. Saha that Court can at any stage add or strike out a party under Order 1 Rule 10 and as a consequential effect thereof can also allow amendment necessary for the purpose. He has cited a decision in the case of Sree Sree Iswar Radha Bihari Jew & Sree Sree Iswar Salgram Jew represented by Basudeb Das -Vs. - Malati P. Soni reported in 2019 (2) WBLR Calcutta 431 which is distinguishable on fact. This decision particularly dealt with the question raised in reference to "commencement of trial should be considered to have 21 happened in relation to the expression mentioned in the prayer to Order 6 Rule 17". The issue decided in the said decision does not answer the question raised in the present case. Therefore, this decision does not help Mr. Saha to argue that amendment can be brought in particular addition of party can be made at any stage and Court should be very very lenient to exercise a jurisdiction under Order 1 Rule 10 even suo moto.
The other related aspects Mr. Mitra argued before this Court but I do not deal with those as they are not germane here. The present issue is whether amendment should be allowed or rejected. Provision of Order 1 Rule 10(2) to add or strike out parties is a discretionary power of the Court and may be exercised even suo moto in a case where there has been a bona fide omission but cannot be so leniently allowed when I found such omission is not bona fide.
Therefore, the application cannot be allowed and the same is rejected.
Urgent Photostat certified copy of this judgment, if applied for, be delivered to the learned counsel for the parties, upon compliance of all usual formalities.
(Sahidullah Munshi, J.)