SUJIT NARAYAN PRASAD,J. - (1.) This writ petition is under Article 227 of the Constitution of India, whereby and whereunder the order dated 19.12.2018, passed on petition dated 01.08.2018 filed under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure, is under challenge.
(2.) The brief facts of the case as per the pleading made in the writ petition that one Quamar Jamal, the sole respondent in whose favour the landlord Md. Aslam has created an instrument by way of power of attorney in the year 2012, upon which, eviction suit has been filed by the sole respondent Quamar Jamal being registered as Title (Eviction) Suit No.16 of 2013 against the petitioner for eviction from the said premises on the ground of default in payment of rent. The title eviction suit has been proceeded and when it reaches to the stage of evidence, a petition has been filed by one Md. Aslam, the creator of the power of attorney in favour of the sole respondent, invoking the jurisdiction conferred under Order VI Rule 17 of the CPC by seeking leave allowing him to be impleaded as plaintiff through amendment. Rejoinder to that petition was filed on 28.09.2018 by the petitioner/defendant, inter alia, stating therein that Md. Aslam is stranger to the suit and as such he has no locus standi to file amendment under Order VI Rule 17 of the CPC. Further, on the ground that the plaintiff- Quamar Jamal, the power of attorney holder being examined as P.W.1 and as such since the petition filed under Order VI Rule 17 of the CPC itself is not maintainable, therefore, no order can be passed by allowing the prayer made therein. The trial court after appreciating the rival submissions of the parties has passed an order on the petition dated 01.08.2018 filed under Order VI Rule 17, taking into consideration the time taken by the said Md. Aslam resorting to the provision under Order I Rule 10(2) of the CPC and allowed him to be added as a party after deleting the name of plaintiff-Quamar Jamal.
(3.) Mr. A.K. Sahani, learned counsel for the petitioner has agitated the following grounds, for assailing the aforesaid order: (i) Md Aslam is the creator of power of attorney, whereby and whereunder the power to sue has also been delegated upon the sole respondent-Quamar Jamal and in pursuance to the said power of attorney when instructed by the said Md. Aslam-landlord since the rent had not been paid regularly, therefore, taking the ground of default in payment of rent a suit has been filed for eviction by the said Quamar Jamal, who has also been examined as P.W-1, therefore the petition filed by Md. Aslam will be treated to be by a stranger and the said petition since has been filed by stranger to the suit, cannot be considered for its acceptance allowing the said Md. Aslam to be impleaded as plaintiff to the suit. (ii) The trial court has resorted to the provision of Order I Rule 10(2) of the Code of Civil Procedure. Although the said provision confers power upon the competent court of civil jurisdiction to substitute or add a person as plaintiff but for that a separate petition ought to have been filed but the trial court has committed gross illegality in passing the said order while dealing with the petition filed under Order VI Rule 17 of the Code of Civil Procedure, therefore, the order impugned is not sustainable in the eye of law. (iii) The condition as stipulated under Order I Rule 10 provides the condition of substitution or addition as plaintiff only in a case where there is bona fide mistake in impleadment or wrong person has been impleaded as plaintiff but no such condition is available herein since it is an admitted case of the said Md. Aslam that he has given power of attorney in favour of Quamar Jamal, meaning thereby, he has been delegated with the power to contest the case on his behalf and as such it cannot be said bona fide mistake and wrong has been committed by him hence order passed under Order I ;