Posted On by &filed under Allahabad High Court, High Court.

Allahabad High Court
Hingu Lal vs Baldeo Ram And Ors. on 10 July, 1902
Equivalent citations: (1902) ILR 24 All 553
Bench: J Stanley, Banerji


John Stanley, C.J. and Banerji, J.

1. This is an appeal against the decree of the District Judge of Mirzapur, dismissing the suit of the plaintiff, appellant, on the ground that it is barred by the provisions of Section 43 of the Code of Civil Procedure. The property claimed is a house which originally belonged to one Sahai. After Sahai’s death it was in the possession of his widow, Musammat Kabutra, who died in 1892. The defendants are the brother, and the sons of the brother of Musammat Kabutra, and they are alleged to be in possession of the house. The plaintiff claims to be entitled to the house as next heir of Sahai after his widow’s death. The suit was resisted upon the ground, amongst others, that it offended against the provisions of the 43rd section of the Code. The Court of first instance overruled this plea and decreed the plaintiff’s claim. The defendants appealed, and in their appeal they reiterated the plea based on the provisions of Section 43. The lower appellate Court allowed the plea and dismissed the suit. The plaintiff appeals to this Court. It appears that the plaintiff’s father Ram Das brought a suit against two persons, Mathura and Gopal, claiming to recover certain cash and ornaments alleged to have belonged to Sahai. The defendants, Baldeo Ram and Bawan, appear to have brought a suit for certain immovable property before the institution of Ram Das’ suit, and they applied to the Court, under Section 32 of the Code of Civil Procedure, to be added as defendants to the suit brought by Ram Das. Their application was granted, and they were made defendants. The learned Judge of the lower appellate Court has held that the plaintiff’s father Ram Das was bound to amend his plaint in the suit brought by him, and to add a prayer for recovery of possession of the house now in suit as soon as Baldeo Ram and Bawan were made parties to it, and that his omission to do so precludes the plaintiff from bringing the present suit. We are unable to agree with this view. As regards Ganeshi, defendant, who was not a party to the former suit, Section 43 certainly has no application. As regards the other defendants also, we think that that section cannot operate as a bar. The learned Judge says, that when Baldeo Ram and Bawan were added as defendants to Ram Das’ suit, Ram Das was bound, under the provisions of Section 33 of the Code of Civil Procedure, to amend his plaint, and “to bring the whole of his claim against all the four defendants for adjudication before the Court.” The learned Judge overlooks the fact that the plaintiff in that suit had no claim in respect of the house against the original defendants. Section 33 does not certainly contemplate that upon the addition of defendants to a suit a cause of action different from that upon which the suit was founded, which may have accrued to the plaintiff against the added defendants, should be added to the claim. All that Section 33 requires is, that when a defendant is added the paint should be amended in such manner as may be necessary, and an amended copy of the summons served on the defendants. The amendment there referred to is such amendment as is necessitated by the addition of a defendant, and not such an amendment as would add to or alter the nature of the suit as originally brought. Further, the learned Judge seems to have lost sight of the provisions of Section 44 of the Code of Civil Procedure, which forbids the joinder with a suit for the recovery of immovable property, or to obtain a declaration of title to such property of any claim other than the claims specified in the section. Now the suit brought by Ram Das was a suit to recover movable property, and he could not have added to such a suit a claim for possession of immovable property without violating the provisions of Section 44. We think that the learned Judge was clearly wrong in dismissing the suit. We therefore allow the appeal, set aside the decree of the Court below, and remand the case under Section 562 of the Code of Civil Procedure to that Court for trial on the merits. The appellant will have the costs of this appeal. Other costs will follow the event.

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