JUDGMENT
1. Heard the learned counsel for the petitioner, Shri B. K. Saxena and Sri R. S. Singh, learned counsel for the opposite parties No. 1 and 2 as well as learned standing counsel.
2. Short counter-affidavit has been filed on behalf of opposite parties No. 1 and 2, is taken on record. Sri B. K. Saxena does not want to file rejoinder-affidavit. With the consent of parties, writ petition is disposed of finally at admission stage.
3. According to the learned counsel for the petitioner controversy relates to two rival committees of management. According to the petitioner's counsel election of Committee of Management of the College Chutki Bhandar Girls Inter College, Lucknow, was held on 12.8.2001, in which the petitioner was elected as Manager. On the other hand the learned counsel for the opposite party No. 2 submits that the election was held on 29.4.2001 on the direction of Director under the supervision of authorised controller. In the election held on 29.4.2001 the opposite party No. 2 Shri Om Prakash Sonkar was elected as Manager of the Committee of Management. The submission of the petitioner's counsel is that in pursuance to the order passed by this Court as well as Apex Court, the present litigation is continuing in the court below.
4. A suit for permanent injunction was filed by opposite party No. 2 and later on relief for declaration was also added by way of amendment. During the course of trial an amendment application was moved under Order I Rule 10 (2) of the C.P.C. read with Order VI Rule 17 of C.P.C. coupled with Section 151 of C.P.C. By the amendment, plaintiff had proceeded to add the State of U. P. as party through the Collector, apart from praying for other various amendment in the plaint. Copy of the amendment application has been filed as Annexure-4 to the writ petition. The submission of the petitioner's counsel is that he has no grievance against the impugned order passed by the trial court allowing the amendment application except to amendment done in pursuance to para 1 of the amendment application. The para 1 of the amendment application which was allowed with consequential benefits by the trial court is reproduced hereunder :
"That in the description of defendant No. 1 the words 'State of U. P. (through its' and after the words Joint Director of Education, Intermediate' the sign of) may be permitted to be deleted,"
5. A plain reading of para 1 shows that "earlier the State of U. P. through its Joint Director of Education, Intermediate, Lucknow Zone, Lucknow" was defendant. No. 1 in the suit. By the proposed amendment the plaintiff had deleted the word "State of U. P. through its" from the array of the parties as defendant No. 1, The consequence of the amendment is that now only "Joint Director of Education, Intermediate, Lucknow Region, Lucknow", shall be defendant No. 1 in the suit in question.
6. While passing the impugned order and allowing the amendment application, the learned trial court by the impugned order dated 5.2.2004 had allowed the amendment application with the observation that the impugned amendment shall not change the nature of the suit and does not mean to add something new. While allowing the amendment application, the trial court has relied upon the judgment of Apex Court in Sampath Kumar v. Ayyakannu and Anr., 2003 (1) SCCD 1 : 2003(1) AWC 18 (SC) : (2002) 7 SCC 559 and Raghu Thilak D. John v. S. Rayappan and Ors., (2001) 2 SCC 472. Judgment of the trial court was challenged by the petitioner by filing a revision under Section 115 of the Code of Civil Procedure. The revisional court has dismissed the revision by the impugned judgment dated 15.3.2004 with the finding that the revision was not maintainable.
7. In view of the above facts and circumstances, the defendant/ petitioner has approached this Court against the impugned orders as stated herein above. Shri B. K. Saxena, learned counsel for the petitioner has confined his argument and challenged the impugned order only to the extent that there cannot be deletion of certain portion which may result into admission of an officer of the State Government as defendant No. 1 in the plaint. The submission of Sri B. K. Saxena, learned counsel for the petitioner is that under Order I Rule 10 (2) of the Code of Civil Procedure Court may either add a party or delete a party by striking out. But it cannot delete certain words which may amount to addition of an officer of the State Government as defendant in the suit. The Order I Rule 10 (2) of C.P.C. is reproduced as under :
"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."
8. The further submission of Sri Saxena is that there was no misdescription of fact in the array of the party which may call for interference by the trial court while allowing the amendment done in pursuance to the pleading contained in para 1 of the amendment application. Shri Saxena has relied upon the judgment of the Apex Court in Kurapati Venkata Mallayya and Anr. v. Thondepu Ramaswami and Co. and Anr., AIR 1964 SC 818. In the said judgment the Apex Court has held that whenever there is misdescription of the party the trial court will have right to permit the plaintiff to amend the suit. The relevant portion of the judgment of the Apex Court is reproduced as under :
"The next question is whether...........................The suit as originally instituted, was thus perfectly competent. The High Court has observed that even assuming that it would have been more appropriate for the receiver to show in the cause title that it was the firm which was the real plaintiff and that the firm was suing through him it was merely a case of misdescription and that the plaint could be amended at any time for the purpose of showing the correct description of the plaintiff. We agree with the High Court that where there is a case of misdescription of parties it is open to the court to allow an amendment of the plaint at any time and the question of limitation would not arise in such a case."
9. In another judgment relied upon by Shri B. K, Saxena is a case in Bishandayal and Sons v. State of U. P. and Ors.,. (2001) 1 SCC 555. The relevant portion of the said judgment is reproduced as under :
"15. The next question for consideration is whether the amendment suit was not maintainable for want of notice under Section 80 of the Code of Civil Procedure. In this behalf the appellants have relied upon the cases of Amar Nath Dogra v. Union of India, State of Punjab v. Geeta Iron and Brass Works Ltd., Ghanshyam Dass v. Union of India and Vasant Ambadas Pandit v. Bombay Municipal Corporation. In these cases it has been held that a notice under Section 80, C.P.C. of equivalent notices under Section 278 of the Bombay Municipal Corporation Act are for the benefit of the respondents and the same can be waived as they do not got to the root of jurisdiction in the true sense of the term.
16. There can be no dispute to the proposition that a notice under Section 80 can be waived. But the question Is whether merely because in the amended written statement such a plea is not taken it amounts to waiver. This contention was argued before the appellate court. Even otherwise, we find that in the suit itself Issue No. 4 had been raised as to whether or not there was a valid and appropriate notice under Section 80. Such a point having been taken in the original written statement an issue having been raised, it was not necessary that in the amended written statement such a plea be again taken. On behalf, of the respondents, reliance has been placed on the case of Gangappa Gurupadappa Gugwad v. Rachawwa, wherein it has been held that where the plaintiff's cause of action is against a Government and the plaint does not show that notice under Section 80 was served, it would be the duty of the Court to reject the plaint. In this case the original notice was only in respect of a claim under the plaint as it originally stood. That claim was on the basis that there was a concluded contract and that the appellants had already acquired rights in the mill and the lands. As has been fairly conceded, those reliefs were not maintainable and were given up before the appellate court. The amended plaint was on an entirely new cause of action. It was based on facts and events which took place after the filing of the original plaint. It was a fresh case. Now the claim was for specific performance of the agreement alleged to have been entered into on 29.12.1978. Admittedly no notice under Section 80, C.P.C. was given for this case. As there was an issue pertaining to notice under Section 80, the trial court should have dealt with this aspect. The trial court failed to do so. It was then pressed before the appellate court. In our view, the finding in the impugned judgment that the suit based on this claim was not maintainable is correct and requires no interference. If a new cause of action is being introduced a fresh notice under Section 80, C.P.C, would be required to be given. The same not having been given, the suit on this cause of action was not maintainable."
10. By the impugned order though on one hand the Joint Director has become party but on the other hand the State Government through Collector has been added as party. Under clause (c) of sub-section (1) of Section 80 of C.P.C. the State Government may be impleaded as party only through Secretary or through the Collector of the District. The clause (c) of sub-section (1) of Section 80 of C.P.C. is reproduced as under :
"80 (1) (c) in the case of suit against (any State Government), a Secretary to that Government or the Collector of the district ; and in the case of a public officer, delivered to him or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims ; and the plaint shall contain a statement that such notice has been so delivered or left."
11. It appears that at the time of filing of suit the State Government was not, properly impleaded as party, in pursuance to statutory provision of clause (c) of sub-section (1) of Section 80, C.P.C. Accordingly, by the impugned amendment the State of U. P. has been added through Collector and "the State of U. P. through its" has been deleted. The argument of Shri B. K. Saxena is that there is no misdescription of fact in the array of parties seems to be not based on correct interpretation of Order I Rule 10 of C.P.C. Once the State of U. P. was arrayed as party through the Collector, Lucknow, the natural outcome was that, from the array of the party the proposed amendment as contained in para 1 of the amendment application should have been allowed. Once there is no dispute between the parties that the amendment as proposed under para 2 of the amendment application should have been allowed or no objection has been raised by the defendant against the said amendment then the grievance relating to amendment done in pursuance to para 1 of the amendment application seems to be neither just nor proper under the facts and circumstances of the case.
12. There can be misdescription of the fact or misdescription in array of party whenever the same person become defendant through two authorities. As and when the amendment was allowed and the State of U. P. become party through the Collector, the defendant No. 1 cannot continue in the plaint through Joint Director. I feel that it would be hyper- technical or too technical in case the petitioner's submission that the amendment done in pursuance to para 1 of the amendment application should not be allowed.
13. Apart from the above facts and circumstances there is one another fact which appears to exist in favour of plaintiff/opposite party. The trial court has granted exemption for filing of suit under Section 80(2) of the Code of Civil Procedure. Once exemption has been granted by the trial court under Section 80(2) of C.P.C. then it will make no difference in case the Joint Director of Education, Intermediate, Lucknow Region, Lucknow, becomes defendant No. 1 in the suit by the amendment done in pursuance to the impugned order. The facts and circumstances as well as grounds raised by the petitioner are neither changing the nature of suit nor they are adversely affecting the defence or the merit of the case.
14. So far as the interpretation of Order I Rule 10 of C.P.C. is concerned 'misdescription' shall include a deletion of words also in case the continuance of such word creates absurdity. The purpose of Order I Rule 10 of C.P.C. is to correct the placement of parties which are necessary for adjudication of controversy involved in the suit. Where continuance of certain words creates anomaly or absurdity then such situation itself may amount to misdescription of parties.
15. In the Black's Law Dictionary the word description has been defined as under :
"Description. - (1) A delineation or explanation of something by an account setting forth the subject's characteristics or qualities description of a paten table process. (2) A representation by words or drawing of something seen or heard or otherwise experienced description of the criminal description of the accidents. (3) An enumeration of specific identification of something description of items in the estate. (4) Legal description."
16. In the same Dictionary misdescription has been defined as under :
"Misdescription. - (1) A contractual error or falsity that deceives, injures, or materially misleads one of the contracting parties. {2} A bailee's inaccurate identification, in a document of title, of goods received from the bailor. (3) An inaccurate legal description of land in a deed."
17. Keeping in view the aforementioned definition of Dictionary meaning, the continuance of State Government as party through the Joint Director itself will amount to misdescription of party and accordingly the impugned order does not suffer from any illegality where the courts below has permitted to delete certain words. More-so when the State Government has been impleaded as defendant through the Collector, Lucknow.
18. There Is one other reason which call for no interference by this Court against the impugned order, while interpreting the provision contained in Order I Rule 10 of C.P.C. Under Order I Rule 10 of C.P.C. a discretion has been given to the Court to delete or add a party which may appear to it as just and proper under the facts and circumstances of the particular case. The deletion of words which has been allowed by the court below amounts to addition of Joint Director as party. Accordingly the impugned words have been rightly deleted by the trial court by exercising the power vested in it under the own discretion and call for no interference under Article 226 of the Constitution of India.
19. The Order I Rule 10 of C.P.C. grants ample power to the Courts to exercise jurisdiction at any stage of the proceeding either upon or without application of either party. The purpose of grant of such wide power to the trial court by Legislature is to give effect the judgment and decree of the Court so that on account of inclusion or exclusion of any party or ambiguity in the array of parties may not cause injustice to any party.
20. The Apex Court in a case of D. Saibaba v. Bar Council of India and Ors., 2003 (3) AWC 2495 (SC) : 2003 (2) SCCD 713 : (2003) 6 SCC 186, had relied upon certain paragraph from renowned book, i.e., "Principle of statutory Interpretation" written by Justice G. P. Singh. For convenience paras 17 and 18 of D. Saibaba's case (supra) is reproduced as under :
"17. The learned author states again :
"In selecting out of different interpretations 'the Court will adopt that which is just, reasonable and sensible rather than that which is none of those things', as it may be presumed 'that the Legislature should have used the word in that interpretation which least offends our sense of justice.
The Courts strongly lean against a construction which reduces the statute to a futility. A statute or any enacting provision therein must be so construed as to make it effective and operative 'on the principle expressed in the maxim : ut res magis valeat quam pereat'.
If the language used is capable of bearing more than one construction, in selecting the true meaning regard must be had to the consequences resulting from adopting the alternative constructions. A construction that results in hardship, serious inconvenience, injustice, absurdity or anomaly or which leads to inconsistency or uncertainty and friction in the system which the statute purports to regulate has to be rejected and preference should be given to that construction which avoids such results.
18. Reading words for word and assigning a literal meaning to Section 48AA would lead to absurdity, futility and to such consequences as Parliament could have never intended. The provision has an ambiguity and is capable of being read in more ways than one. We must, therefore, assign the provision a meaning-and so read it-as would given life to an otherwise lifeless letter land enable the power of review conferred thereby being meaningfully availed and effectively exercised."
21. In view of the above while applying the principle of "purposive interpretation". I feel the deletion of word by the trial court was not an act which may be termed as illegal and violative of provision contained , in Order I Rule 10 (2) of C.P.C.
22. Sri B. K. Saxena, submits that a revision is pending against certain order passed by the trial court pertaining to Section 80 of C.P.C. and this judgment may affect the merit of said revision. The argument of Sri B. K. Saxena seems to be unfounded as the revisional court is free to proceed ahead in accordance to law laid down by this Court as well as Apex Court.
23. In view of the above I find no force in the present writ petition. The impugned orders do not suffer any impropriety and illegality and call for no interference by this Court and accordingly the writ petition is dismissed. No cost.
24. Subject to above, the writ petition is dismissed.