Civil Revision No. 5377 of 2009 --1-- IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Civil Revision No.5377 of 2009 Date of decision. 17.09.2009 1. M/s Gandhi Farm Fuel Compllex, Abohar, through its Parnter Ashok Kumar, son of Sardari Lal s/o Kalu Ram, r/o near G.D. Senior Secondary School, New Suraj Nagri, Abohar, Tehsil Abohar, District Ferozepur. 2. Ashok Kumar (Parnter of M/s Gandhi Farm Fuel Complex, Abohar) s/o Kalu Ram, r/o near G.D. Senior Secondary School, New Suraj Nagri, Abohar, Tehsil Abohar, District Ferozepur. 3. Smt. Anita Kumari ((Parnter of M/s Gandhi Farm Fuel Complex, Abohar) wife of Om Parkash son of Bihari Lal, r/o College Road, opposite Giorgio Hotel, Abohar, Tehsil Abohar, District Ferozepur. ....... Petitioners Versus 1. M/s Shashi Kant Rohit Kumar Ahuja, Abohar, through its Sole Proprietor Rohit Kumar, s/o Shashi Kant, r/o Abohar, Tehsil Abohar, District Ferozepur (a person incapable to protect his rights, as found by the Court of Civil Judge (Jr.Divn.), Abohar Court, in enquiry vide order dated 19.02.2004), through his next friend and father Shashi Kant s/o Bhupinder Rai, r/o College Road, Abohar, District Ferozepur. 2. Rohit Kumar s/o Shashi Kant, r/o Abohar, District Ferozepur Sole Proprietor of M/s Shashi Kant Rohit Kumar Ahuja, Abohar (a person incapable to protect his rights, as found by the Court of Civil Judge (Jr.Divn.), Abohar Court, in enquiry vide order dated 19.02.2004), through his next friend and father Shashi Kant s/o Bhupinder Rai, r/o College Road, Abohar, District Ferozepur. 3. Smt. Chanda w/o Sh. Shashi Kant son of Bhupinder Rai, r/o College Road Abohar, District Ferozepur. 4. Smt. Divya d/o Shashi Kant, w/o Rajesh Duggal s/o Vijay Duggal, r/o 321, Master Tara Singh Nagar, Jalandhar. ...... Respondents Civil Revision No. 5377 of 2009 --2-- CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr.Dhirender Chopra, Advocate for the petitioners. **** Sham Sunder, J. This revision-petition is directed against the order dated 24.08.2009, (Annexure P-1), rendered by the Court of Civil Judge ( Junior Division ), Abohar, vide which it declined the application, which was filed by the defendants/revision-petitioners, for dismissal of the suit and for discarding the evidence of Shashi Kant. 2. According to the averments, contained in the application, the Court never permitted or ordered the plaintiffs/respondents, to amend the plaint. They, however, amended the plaint. It was stated that the said amended plaint could not be taken on the file, nor the evidence of Shashi Kant could be accepted, on the basis of the amended plaint. Accordingly, a prayer was made, that since the amended plaint had been filed without the permission of the Court, the same was taken off the record and the evidence recorded in pursuance thereof of Shashi Kant, be not taken into consideration. Civil Revision No. 5377 of 2009 --3-- 3. In reply, it was pleaded that the application was not maintainable and was liable to be dismissed. It was stated that the case was fixed for the evidence of the defendants, but they failed to produce the same, and filed the application, with a view to delay the proceedings. 4. After hearing the Counsel for the parties, and, on going through the evidence and record of the case, the trial Court, dismissed the application, vide order dated 24.08.2009, (Annexure P-1). 5. Feeling aggrieved, the instant revision petition, has been filed by the revision-petitioners. 6. I have heard the Counsel for the revision- petitioners, and have gone through the documents, on record, carefully. 7. The plaintiffs/respondents, filed a suit for recovery of Rs.2,76,000/- against the defendants/revision- petitioners. An application under Order 32 Rule 4 of the Code of Civil Procedure, 1908, for appointment of next friend/guardian of Rohit Kumar, plaintiff, was filed on 15.03.2004. On 19.02.2004 an enquiry was conducted by the Court and it found that Rohit Kumar was unable to reply to the questions, put to him. Even at that time, the statement of the father of Rohit Kumar was recorded and he stated that Civil Revision No. 5377 of 2009 --4-- Rohit Kumar was suffering from mental disability, and he could not protect his interest properly. In these circumstances, the Court directed that since Rohit Kumar was suffering from mental disability, and was unable to protect his interest properly, the suit could only be filed by the next friend. In these circumstances, the application for permission to sue on behalf of Rohit Kumar, plaintiff, through his next friend, was filed. An affidavit under Order 32 Rule 4 of the Code of Civil Procedure, 1908,in support of the application, was also filed on 07.06.2005. The plaintiff was again directed to file the list of the relatives of minor plaintiff. Accordingly, a list of the relatives of plaintiff, Rohit Kumar, was filed on 09.08.2005. Notice of the application for appointment of guardian of Rohit Kumar was issued to the said persons on 09.08.2005. The amended plaint was not ordered to be filed, but inadvertently the same was filed by the plaintiffs. The defendants/revision- petitioners stated that they did not want to file any fresh written statement to the amended plaint and the earlier written statement be read. Even if the amended plaint was filed, it was with regard to filing the suit by Rohit Kumar through his next friend. There is nothing on the record that in the amended plaint, any new plea was taken, which was prejudicial to the interests of the defendants/revision-petitioners. Had the Civil Revision No. 5377 of 2009 --5-- amended plaint been filed, taking some pleas except the plea, that in pursuance of the order of the Court, Rohit Kumar, was suing through his next friend , the matter would have been different. When the amended plaint was filed, no objection was raised by the Counsel for the defendants/ revision- petitioners. Thereafter, the matter remained lying, in the Court, for three years, when the application, upon which, the order impugned, was passed, was filed. Why the defendants/revision-petitioners slept over the matter, for over three years, is not known. There is nothing, on the record, that the evidence of Shashi Kant, which was recorded by the Court, was against the original pleadings and, therefore, the same could not be taken into consideration. The trial Court, thus rightly held that the application was moved just with a view to protract the disposal of the case. Even, it is evident, from the order impugned (24.08.2009) that the order stood rectified by the trial Court. Such an order must be with regard to the taking on record the amended plaint inadvertently. In this view of the matter, the order impugned, does not suffer from any illegality, material irregularity, or perversity, warranting the interference, of this Court, in its revisional jurisdiction, under Article 227 of the Constitution of India. The same is liable to be upheld. The submission of the Civil Revision No. 5377 of 2009 --6-- Counsel for the revision-petitioners, being without merit, must fail, and the same stands rejected. 8. For the reasons recorded above, the revision-petition, being devoid of merit, must fail, and the same is dismissed. ( Sham Sunder ) Judge September 17, 2009 dinesh