1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR Letters Patent Appeal No. 425 of 2009 IN Writ Petition No. 2936 of 2009 [decided] [Smt. Manjudevi V. Chhawachharia Vs. Shekhar G. Kinkhde (deceased) through Lrs. & another] Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Mr. P.V. Vaidya, Adv., for the appellant. Mr. V.V. Bhangde, Adv., for respondent nos. 1 (A) to 1 (C) and 2. ----- CORAM : A.H. JOSHI AND A.R. JOSHI, JJ. DATE : 04th November, 2009. 1. Heard. 2. Appellant herein is original plaintiff. Regular Civil Suit No. 583 of 1997 was instituted in the name of sole plaintiff. 3. On 7th April, 2007, plaintiff-appellant filed application under Rule 10 of Order-I of Civil Procedure Code and prayed for following relief :- i) Shri Vinodkumar s/o Sitaram Chhawachharia, husband of the plaintiff, may be added 2 as party/plaintiff no.2 to the instant suit. 4. The foundation of the application is spelt out in para 2, part whereof reads as follows:- 2. That though the agreement was entered into between the plaintiff and her husband on the one part and defendants on the other part, the defendants were specifically made aware of the fact that the sale deed will be executed in favour of the present plaintiff only, and the defendants will execute the sale deed in favour of plaintiff only. Therefore, as the defendants failed to abide by the agreement, present suit was filed by plaintiff alone. However, the husband of the plaintiff as an abundant precaution, before filing of the instant suit, had executed a special power of Attorney in favour of the plaintiff thereby authorising her to file the suit in her own name and seek specific performance of contract. ..... 5. Plaintiff then filed another application on 18th October, 2004, and prayed that facts narrated therein, which pertain to the description of what reveals from records and proceedings, be taken into consideration. 6. The learned Trial court allowed application Exh.65 by order dated 7th April, 2005 and permitted plaintiff s husband Binod Sitaram Chhawchharia to be added as plaintiff no.2. 3 7. This order [Annex.9] dated 7th April, 2005 was challenged before this Court by filing Writ Petition, which was registered as Writ Petition No. 2936 of 2005. 8. Said Writ Petition No. 2936 of 2005 was heard and decided by this Court [Coram : R.C. Chavan, J.]. This Court has allowed the petition partly with following operative order:- 21. The petition is, therefore, allowed. The impugned order on the applications Exhibits 65 and 73 is modified and the observations in para 9 thereof to the effect that as regards the suit filed by the plaintiff no.2 it must be deemed to have been instituted on the date of presentation of plaint against the defendant are quashed and set aside. 9. The plaintiff-appellant herein takes exception to this order of the learned Single Judge of this Court, and she wants that addition of plaintiff in suit ought to relate to the date of suit, and learned Single Judge ought not to have interfered. 10. Serious emphasis is placed on disclosure of intention of the plaintiff naturally emerging from record. These conclusions on facts have been incorporated by present appellant in Exh.73  the application dated 18th October, 2004. Based thereon, it is 4 urged that the intention at the time of filing of suit was to file suit jointly by plaintiff and her husband, and in the result, it can be seen from the original of the plaint that it was signed by the husband which signature has been erased by white ink, the application for temporary injunction is also signed and verified by Binod, the husband of the plaintiff and same is the case of signature of Binod on the Vakalatnama on record in said suit. 11. From all these circumstances, appellant wants to urge that intention was to institute the suit jointly which, however, due to mistake, came to be instituted in the name of sole plaintiff, and what was sought to be corrected is a ministerial error which effort was in the nature of a correction of deficiency of a formal nature, and did not in any manner prejudice the defendants. 12. Appeal has been strongly opposed, inter alia, urging that the averments contained in the application [Exh.65] abundantly announce the plaintiff s intention that the enforcement of right was sought in favour of sole plaintiff alone and, therefore, whether or not plaintiff s husband is impleaded carried least significance. 13. This Court finds from the portion of para 2 of Annexure-5 [Exh.65] that on plaintiff s showing, the enforcement of right 5 was to be done in favour of sole plaintiff and, therefore, it is totally insignificant whether the plaintiff now sought to be inducted was a party in the beginning or would be treated to have been added on the day when permitted by the Trial Court. 14. The finding and observation of the learned Single Judge of this Court that whatever was done, i.e., filing of a suit in the name of sole plaintiff and withholding of presence of the husband from the lis was done by plaintiff and her husband with open eyes and full knowledge by the plaintiff, and was solely aimed at saving the Court fees cannot be said to be without any foundation, or based on imagination. The findings contained in the impugned order are seen to be well founded. 15. In the result, appeal does not deserve any indulgence, and is dismissed. Judge Judge |Hedau| 6