Substitution Or Addition Of Parties Not Permissible Under Order VI Rule 17 Of CPC: Calcutta High Court

The Calcutta High Court has held that substitution of legal heirs of a deceased plaintiff as well as addition more plaintiffs in a suit, would not be permissible under Order VI Rule 17 of the Civil Procedure Code, 1908, (“CPC”).

A single-bench of Justice Krishna Rao disposed of the application by allowing the prayer for amendment of pleadings by the plaintiffs and held:

This Court finds that the said amendments will not change the nature and character of the suit and the said amendment is formal in nature. As regard the deletion of the name of the plaintiff no. 4 on account of the death of the plaintiff no. 4 and substitution of the legal heir of the plaintiff no. 4 and addition of the name of the plaintiff nos. 8 and 9 are not permissible within the preview of the provisions of Order VI, Rule 17 of the Code of Civil Procedure.

These observations came in an amendment application moved by the plaintiffs, praying for leave to amend the cause title, body, and schedule of plaint in a suit for possession.

Plaintiffs submitted that plaintiff no 4 had died in November 2022, leaving behind his wife, Bharati Mitra, whose name needed to be substituted in place of the plaintiff no 4.

It was further submitted that plaintiff no 4 was also the power of attorney holder of plaintiff no 5, and that the cause title had to be amended with the name “Argha Mitra” to be substituted for “Amrita Mitra” who now became the power of attorney holder of plaintiff no 5.

Plaintiffs further submitted that Amrita Mitra and Amitabh Mitra would need to be added as plaintiffs no 8 and 9, along with an amendment to the schedule of property, to incorporate the details of the suit premises.

Plaintiffs prayed to replace the word “possession” in their prayer, with the words “ejectment and eviction” through such amendment as well.

Plaintiffs submitted that the amendments sought were formal in nature, and would not affect the nature and character of the suit, but were necessary for proper adjudication of the suit, failing which the plaintiffs would suffer irreparable loss & injury.

Defendants on the other hand, submitted that the plaintiff’s application was not maintainable, since they could not substitute or add parties through an amendment, due to there being specific provisions of the CPC for the same.

It was argued that the amendment sought by the plaintiff would change the nature and character of the suit, as the plaintiffs had already prayed for possession in their plaint, but now sight to delete the word possession and add ‘eviction and ejectment.’

Defendants argued that the descriptions of the proposed plaintiffs, no 8 and 9, had not been provided in the application, but only in the proposed amendment plaint, and that the newly amended plaint had only been affirmed by one plaintiff, without any explanation from the others.

Upon hearing the parties, the Bench looked at Order VI Rule 17 of the CPC, and concluded that the amendments being sought by the plaintiffs in the form of substitution/amendment of parties could not be done under the aforesaid provision of the CPC, and accordingly allowed the application for amendment moved by the plaintiffs.

Citation: 2023 LiveLaw (Cal) 276

Case: Thakurani Shree Shree Durga Mata Jew, & Ors. v Kangali Charan Raul & Anr.

Case No: GA 4 of 2023 in CS 219 of 2012

Click Here To Read/Download Judgment