imthiyaz (employee) 21 January 2009

Wrong Section

Dear All,

Our Advocate has filed an Interlocutary Application in Pending Final decree Proceedings to Delete some LR's Wrongly brought on record in section 151 of CPC in hurry or confusion,
He should have put in Order 1 rule 10(2), Later asked him, he told court will decide based on prayer not section and 151 CPC is inherent power of court so need to worry.

1) Whether subsequnet application be made again by my advocate in order 1 rule 10(2) or It is not required.

Thanks all

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7 Replies

Kuljit Pal Singh (Legal Professional) 21 January 2009

Dear Friend,

Sec 151 of CPC provide inherent powers to court to take decisions and hence, is just like residual section. and can be quoted any where. so any application given under this section is valid and legal, so need not to worry.

regards

kavi (lawyer) 21 January 2009

Dear lawyer,

Dear Court can decide petition made by you in sec 151. It will not affect the nature of the case its a mere procedural only. I think there will be no objection from other side also. its mere procedure not related to any law. if you feel so plead to judge to return your petition and file new one.

AEJAZ AHMED (Legal Consultant/Lawyer) 21 January 2009

Dear Imtiyaz,

1) Your Advocate can take permission of the Hon'ble Court for "AMENDMENT OF PROVISION OF LAW (i.e to add Order 1 rule 10(2) of CPC " either by filing a "MEMO" or "PETITION".

2) If Respondent/Otherside counsel didn't raised any objection either about the "Provision of Law" or for deletion of of some LR's, no need to file any petition or Memo.

sanjoy kumar (advocate) 21 January 2009

It is not fatal. O 1 r 10 CPC provides as follows :-

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.

It is clear from the above provision that an information to the court is necessary and thereafter, the court will pass suitable orders. Hence, you have not to worry about the filing of a petition u/s 151 CPC.

Sanjeev Dudhat (Lawyer) 22 January 2009

Dear Imtiyaz

the scope of S.151 contemplates the invoking of inherent powers when there is no provision in the civil procedures code available to tackle a situation. The inherent powers are in addition to powers specifically conferred on the Court by the Code

SEE AIR 1961 SC 218

regards

sanjeev

Ajay kumar singh (Advocate) 22 January 2009

I agree with Sanjeev 100%. Further I would like to say that the important thing is what prayer has been made in the petition and not what provision/ section has been quoted.The court may allow the petition very well.