The following are the important orders and rules which a practicing lawyer need to remember to discharge his duties without delay.

  • Order 1 Rule 10          -For adding or removing parties
  • Order 1 Rule 10(4)     -Amending a Suit to add a defendant
  • Order 5 Rule 20          -Substituted Service
  • Order 6 Rule 17          -Amending the pleadings
  • Order 8 Rule 9            -Subsequent pleadings or Additional Written Statement

Let us examine the above Orders and Rules one by one.

  1. Order 1 Rule 10          -For adding or removing parties 

Bare Act: 

Rule 10. Suit in name of wrong plaintiff.- (1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the court may at any stage of the suit, if satisfied that the Suit has been instituted through a bonafide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the court thinks just.

(2) Court may strike out or add parties—The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.

(3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent.

(2. Order 1 Rule 10(4)     -Amending a Suit to add a defendant) 

(4) Where defendant added, plaint to be amended—Where a defendant is added, the plaint shall, unless the court otherwise directs, be amended in such manner as may be necessary, 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.

(5) Subject to the provisions of the Indian Limitation Act, 1877 (15 of 1877), section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons.

HIGH COURT AMENDMENT

KARNATAKA.—In Order I, Rule 10, add the following as sub-rule (6):

“(6) The Court may on the application of any party and after notice to the other parties affected by the application and on such terms and conditions as it may impose transpose a plaintiff to the position of a defendant or subject to the provision of sub-rule (3), a defendant to the position of a plaintiff. “(30.3.1967).

3. Order 5 Rule 20          -Substituted Service

Bare Act: 

20. Substituted service.- (1) Where the court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the court house, and also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the court thinks fit.

(1A) Where the court acting under sub-rule (1) orders service by an advertisement in a newspaper, the newspaper shall be a daily newspaper circulating in the locality in which the defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain.

(2) Effect of substituted service—Service substituted by order of the court shall be as effectual as if it had been made on the defendant personally.

(3) Where service substituted, time for appearance to be fixed—Where service is substituted by order of the Court, the Court shall fix such time for the appearance of the defendant as the case may require.

HIGH COURT AMENDMENTS

PUNJAB & HARYANA.- Add the following as proviso to R. 1:

‘Provided that if service in ordinary manner or by registered post is not affected for the first date of hearing the Court may direct substituted service in such manner as the Court may deem fit, even if no application is made by or on behalf of the plaintiff for the purpose.” Vide Punjab Gaz. dt. 11-4-1975 Pt.III )L.S) P.303. Hary. Govt. Gaz. dt. 25-3-1975 Pt. Ill (L.S.) P 189. Admn. Gaz. dt. 1-5-1975 Pt.II P.95.

4. Order 6 Rule 17          -Amending the pleadings

Bare Act:

17. Amendment of Pleadings.- the Court may at any stage at the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:

Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.

 

5.Order 8 Rule 9            -Subsequent pleadings or Additional Written Statement

Bare Act: 

9. Subsequent pleadings.- No pleading subsequent to the written statement of a defendant other than by way of defence to set-off or counter-claim shall be presented except by the leave of the Court and upon such terms as the Court thinks fit: but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time of not more than thirty days for presenting the same.

HIGH COURT AMENDMENT

Bombay, Dadra and Nagar Haveli.– For Rule 9, substitute the following:

“9. Subsequent pleading.— No pleading subsequent to the written statement of the defendant other than by way of defence to a set-off or counter-claim shall be presented except by the leave of the Court and upon such terms as the Court thinks fit, but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time for presenting the same.”

 

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