Delhi District Court
Raj Bala Bansal vs Anil Kumar Bansal on 27 April, 2013
1
IN THE COURT OF SHRI MAN MOHAN SHARMA
ADDITIONAL DISTRICT JUDGE (CENTRAL) 1
TIS HAZARI COURTS, DELHI
CS No.: 297/2007
Raj Bala Bansal
....Plaintiff
Versus
Anil Kumar Bansal
....Defendant
Application under Section 151 CPC
ORDER
This is an application under Section 151 CPC seeking deletion of the name of defendant no. 3 namely Smt. Shanti Devi Bansal from the array of the parties filed by the plaintiff.
2. The statement of ld. counsel for plaintiff was recorded on 22.04.2013 as under: I have instructions to say that since defendant no.3 Smt. Shanti Devi has expired on 18.02.2013 and no relief was claimed against her in the suit. She was made only a performa party which has been specifically stated in para 24 of the plaint, name of defendant no. 3 Smt. Shanti Devi Raj Bala Bansal Vs. Anil Kumar Bansal C. S. No. 297/2007 Page 1 of 4 2 may be deleted from the array of the parties. Amended memo of parties has already been filed.
3. It is submitted by ld. counsel for plaintiff that defendant no. 3 has expired on 18.02.2013; she was only made a proforma party in the suit and no relief was sought against her and therefore, her name be deleted from the array of parties. The plaintiff is dominus litus and it is his prerogative as to whom he is suing or wants to sue. The defendant has no right to dictate the plaintiff on this aspect. It is prayed that the application be allowed.
4. Per contra, the application has been vehemently opposed. It is submitted that the suit no. CS 297/07 and CS 298/07 have been consolidated. It is incumbent upon the plaintiff to comply with the provisions under Order 22 Rule 4 CPC and the LRs of deceased defendant no. 3 be brought on record. When the law has provided that a particular thing has to be done in a particular manner, the recourse to general provisions cannot be had. Thus, the application of plaintiff under Section 151 CPC (General Provision) in derogation of order 22 Rule 4 CPC (Specific Provision) is not maintainable. The defendant no. 2 has furnished the list of LRs of deceased defendant no.3 and it is mandatory to serve them and bring them on record. In this suit there Raj Bala Bansal Vs. Anil Kumar Bansal C. S. No. 297/2007 Page 2 of 4 3 is reference to the name of defendant no.3 time and again and therefore, it is preposterous to state that she is merely a proforma party. It is prayed that application be dismissed.
5. I have considered the rival submissions.
6. It is axiomatic to state that the plaintiff is dominus litus. Thus, the plaintiff cannot be asked to sue a particular person against his will. However, it cannot be said that the plaintiff is dominus the parties also. Order 1 Rule 10 (2) CPC vests powers in the Court to strike out or add parties. This power can be exercised suo motu by the Court.
7. In the case in hand, if the plaint is read in a meaningful manner and in entirety it is crystal clear that the plaintiff has not sought any relief against the defendant no.3. Para 24 of the plaint clearly retreats that the defendant no. 3 has been arrayed in the suit being a necessary and proper party and no relief has been claimed against her. What is to be seen under Order 22 Rule 4 CPC, amongst others, whether the right to sue survives or not. The non compliance of the impleadment of LRs, if it is otherwise required, would invite the adverse consequences of abatement of suit against the deceased defendant which takes place by operation of law and even passing of a formal Raj Bala Bansal Vs. Anil Kumar Bansal C. S. No. 297/2007 Page 3 of 4 4 order by the Court is not a prerequisite. Such abatement takes place on its own on the expiry of 90 days from the date of death of the particular defendant.
8. In the instant case, the stand of the plaintiff is that the defendant no. 3 is only a proforma party. It was so stated at the time of institution of the suit in the plaint and has been retreated in the above refer to statement of the ld. counsel for plaintiff. The plaintiff has exercise his prerogative and it is always subject to consequences of law. Therefore, I do not see any reason to disallow the application of plaintiff.
9. Accordingly, the application is allowed and it is directed that the name of defendant no. 3 is struck off the array of the parties. An amended memo of parties reflecting the factum of striking off the name of defendant no.3 consequent upon her death be filed by the plaintiff.
10. Application stands disposed of accordingly. Announced in the Open Court On this day of 27th April 2013 (MAN MOHAN SHARMA) ADJ (Central)1, Delhi Raj Bala Bansal Vs. Anil Kumar Bansal C. S. No. 297/2007 Page 4 of 4