IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE ELEVENTH DAY OF AUGUST TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Revision Petition No.311 of 2011 Between: G. Narayana Reddy .. Petitioner AND M/s. Dolphin Felbser Mining Company Limited, Rajapeta, Wanaparthy Mandal and 5 others .. Respondents ORDER: This Civil Revision Petition is directed against the order in I.A.No.669 of 2010 in O.S.No.83 of 2008 on the file of the Court of Senior Civil Judge, Wanaparthy, dated 27-08-2010. The plaintiff, who filed the suit for damages to a tune of Rs.5,00,000/- against the defendants originally alleging excavated mineral waste to have been dumped in his land, came up with this application claiming that the written statement on behalf of the 1st defendant was filed in the name of Jumbo Mining Limited, due to which it is necessary to substitute the name of the company and its authorized agent as defendants 1 and 2 in the suit. The defendants resisted the application contending that it is the bounden duty of the plaintiff before filing the suit to ascertain the particulars and details of the defendant whom he is suing and when the defendants are no way connected with the alleged damage caused to the land of the plaintiff, he ought to have withdrawn the suit and filed a fresh suit against the Mining Company, which caused damage to his land. After hearing both sides, the trial Court passed the impugned order noting that the plaintiff never came up with a request for substitution till the stage of arguments and Jumbo Mining Limited, represented by P.K. Narayan as sought to be substituted was not even shown as the respondent to this application. The contention that the suit was filed against a wrong person and at that belated stage the plaintiff ought to have withdrawn the case was noted and the trial Court noted that it was not explained as to how Jumbo Mining Limited will step into the shoes of the 1st defendant. The trial Court also noted that the cause of action for the suit having arisen in July, 2007 and three years having elapsed since then, the plaintiff cannot now seek damages against a new person and as the nature and complexion of the suit will be changed, the substitution was disallowed and the petition was dismissed without costs. The plaintiff is before this Court contending that Jumbo Mining Limited, represented by Sri P.K. Narayan, authorized agent, styled to be representing the 1st defendant, filed vakalat and the written statement and also conducted the trial. The suit was thus filed against a wrong person and the defendants cannot take advantage of their own wrong as the cause of action and limitation start from the discovery of misrepresentation and fraud by Jumbo Mining Limited. The amendment of the cause title does not involve any question of limitation. Therefore, the plaintiff desired the impugned order to be reversed. Heard Sri S. Lakshma Reddy, learned counsel for the revision petitioner and Sri P. Animireddy, learned counsel for the 1st respondent. The point for consideration is whether the request of the plaintiff could have been considered by the Court below? The application for the so called substitution of the names of defendants 1 and 2 in the cause title of the plaint was filed under Section 151 of the Code of Civil Procedure and it is well settled that inherent powers of the Civil Court can be taken recourse to only in the absence of any express provision. Order 1 Rule 10 sub rule (2) of the Code of Civil Procedure specifically provides for striking out or adding of parties by the Court at any stage of the proceedings either upon or without the application of either party and wherever the Court is satisfied that it is just, a party improperly joined can be ordered to be struck out and a party, who ought to have been joined in order to enable the Court effectually and completely to adjudicate upon and settle all the questions in controversy, be added. Sub-Rule (4) of Rule 10 of Order 1 of the Code of Civil Procedure mandates that in case of addition of defendants, the plaint shall be amended and amended copies of the summons and of the plaint shall be served on the new defendant and if the Court thinks fit on the original defendant also. Sub-Rule 5 of Rule 10 of Order 1 makes the provisions of the Indian Limitation Act applicable subject to Section 22 of the Limitation Act, 1963 making the proceedings as against any person added as defendant deemed to have begun only on the service of the summons. The plaintiff herein ought to have made an appropriate application under this provision specifically satisfying the requirements of the said provision if it felt that the suit was instituted wrongly in the names of defendants 1 and 2 and that Jumbo Mining Limited and P.K. Narayan ought to have been impleaded as defendants to effectually and completely adjudicate the questions in controversy between the parties. It is seen from the record that even according to the plaintiff, the vakalat on behalf of the 1st defendant was filed even originally by Sri P.K. Narayan representing Jumbo Mining Limited though neither the company nor Sri P.K. Narayan were parties to the suit. The written statement, the copy of which is available on record was also signed by Sri P.K. Narayan though the contents of the written statement of the 1st defendant do not specifically disclose the identity of the company, which Sri P.K. Narayan was representing. However, when the affidavit in lieu of chief- examination was filed by the first witness of the defendants, he was specifically described as Manager of Jumbo Mining Limited and when the impugned order shows that the matter was at the stage of arguments, it can be presumed that the said witness would have been cross-examined on behalf of the plaintiff at which time the learned counsel for the plaintiff ought to have noted that the witness was representing some other company than the company described as the 1st defendant in the suit and ought to have taken appropriate steps for rectification, if any, in the suit. No such steps were taken and it was only at the stage of arguments that the plaintiff came up with this application for so called substitution of names in the cause title of the plaint, which is not shown to be permitted or authorized by any principle or provision laid down in any precedent. The trial Court cannot be considered wrong in refusing to consider the request when the company proposed to be substituted in the place of the 1st defendant and the person proposed to be substituted in the place of the 2nd defendant are not even made respondents to the application and were not given the notice of the application. The fact that such person filed vakalat earlier in the suit could not absolve the plaintiff from observing the legal formalities as prescribed by Order 1 Rule 10 of the Code of Civil Procedure and the corresponding Civil Rules of Practice. If the suit was instituted against a wrong person in the opinion of the plaintiff and if the plaintiff wanted to take recourse to the enabling provision of Order 1 Rule 10 sub-rule (2) of Code of Civil Procedure, the appropriate course of action would have been to seek such a relief after notice to and after hearing the proposed persons sought to be introduced into the cause title of the plaint. The Court would have then an opportunity to hear not only the plaintiff, but also the proposed parties and consider the justification or otherwise for the impleadment including the question of limitation, if any, which may be involved insofar as the claim against the company and the person sought to be brought on record as the defendants. Even if the nature and complexion of the suit may not be changed, the basis for the claim for damages being the same but against different persons, the Court would have been appropriately assisted only through such a legal course of action and not by way of an application as of now. It is significant to note that even in this revision, it is only the original defendants that were made as respondents to whom the notices have gone, on behalf of the 1st respondent among whom a learned counsel entered appearance. The notices of this revision petition were obviously not taken to the proposed persons 1 and 2 sought to be substituted and any adjudication concerning the inter se rights in their absence may not be reasonable and just. Therefore, while the impugned order needs no disturbance, it will be open to the plaintiff to make an appropriate application, if he is so advised and if he is so entitled, before the trial Court for appropriate reliefs under Order 1 Rule 10 sub-rule (2) of the Code of Civil Procedure, which will be determined by the trial Court on its own merits in accordance with law uninfluenced by any observations made in this order. While the plaintiff had such liberty to approach the trial Court, the Civil Revision Petition should fail subject to above observations. Accordingly, the Civil Revision Petition is disposed of. _____________________ G. BHAVANI PRASAD, J Date: 11-08-2011 Ksn