Nirmla Devi & Ors. v. Surjit Singh & Ors.

CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Sarju Puri, Advocate for the petitioners. * * * L. N. MITTAL, J. (Oral) : Defendants no.6 to 8 have filed the instant revision petition under Article 227 of the Constitution of India assailing order dated

18.11.2009 (Annexure P-6) passed by learned Additional Civil Judge (Senior Division), Garhshankar, thereby allowing application moved by plaintiff-respondent no.1 Surjit Singh under Section 151 of the Code of Civil Procedure (in short – CPC). The plaintiff filed suit against respondents no.2 to 6 only on

23.10.1999 for specific performance of the agreement to sell dated

18.11.1997, allegedly executed by Mansa Ram (predecessor of respondents no.2 to 6). It was stipulated in the agreement that the sale deed was to be executed within five years. Mansa Ram died on 26.07.1999. The plaintiff served notice dated 24.08.1999 on defendants no.1 to 5 (respondents no.2 to 6), requiring them to execute sale deed as per agreement. However, in reply C. R. No. 1609 of 2010 2 to the notice, the said defendants did not disclose that Mansa Ram had executed any Will in favour of petitioners herein. The suit was, therefore, initially filed against respondents no.2 to 6 only, being natural legal heirs of Mansa Ram. In the written statement, respondents no.2 to 6 disclosed that Mansa Ram had executed Will in favour of the petitiones herein. Thereupon, the plaintiff moved application on 09.01.2004 under Order 1 Rule 10 CPC read with Order 6 Rule 17 CPC for impleading the petitioners herein and for making consequential amendments in the plaint. The said application was allowed by the trial court vide order dated 23.10.2005 and thereby petitioners herein were impleaded as defendants no.6 to 8 in the suit. The plaintiff, in his application under Section 151 CPC, alleged that while impleading the petitioners as defendants no.6 to 8, vide order dated 23.10.2005, the Court did not pass any order under Section 21 of the Limitation Act as to whether the suit against defendants no.6 to 8 i.e. petitioners herein would be treated to have been filed from the original date of institution of the suit or from the date of order dated 23.10.2005. The plaintiff accordingly prayed that suit against defendants no.6 to 8 be treated to have been filed, when the suit was initially filed against defendants no.1 to 5. The said application has been allowed by the trial court by impugned order and thereby, issue no.7 relating to bar of suit by limitation has also been decided in favour of the plaintiff. I have heard learned counsel for the petitioners and perused the case file. Learned counsel for the petitioners vehemently contended that without specific order of the Court under proviso to Section 21 of the Limitation Act, the suit is deemed to have been instituted against the added defendants on the date they were made party to the suit. Reliance in support of this contention has been placed on two judgments of Hon'ble Supreme Court namely Ramalingam Chettiar vs. P. K. Pattabiraman and C. R. No. 1609 of 2010 3 another reported as 2002 (2) Civil Court Cases 347 (S. C.) and Seenivasan vs. Peter Jebaraj and another reported as 2008 (3) Civil Court Cases 130 (S. C.) and also a judgment of Hon'ble Andhra Pradesh High Court in the case of Kisan Tobacco Company Growers and another vs. Donga Sriramulu reported as 2006 (2) Civil Court Cases 11 (A. P.). There cannot be any dispute with the proposition that there has to be an order by the Court under proviso to Section 21 of the Limitation Act that the suit shall be deemed to have been instituted on an earlier date against the added party. Section 21 of the Limitation Act provides that suit against the added defendant shall be deemed to have been instituted when he was so made a party. However, proviso to Section 21 of the Limitation Act lays down that where the Court is satisfied that omission to include a new plaintiff or defendant was due to a mistake made in good faith, it may be directed that the suit, as regards such plaintiff or defendant, shall be deemed to have been instituted on an earlier date. In the instant case, learned counsel for the petitioners concedes that for the first time, Will in favour of the petitioners executed by Mansa Ram was disclosed to the plaintiff in January 2004 only. The plaintiff immediately moved application under Order 1 Rule 10 CPC for impleading the petitioners as party to the suit. Prior to it, the plaintiff had no knowledge of the Will existing in favour of the petitioners and therefore, the plaintiff had no reason to implead the petitioners as party to the suit. It is thus manifest that there was no lapse or fault on the part of the plaintiff in not impleading the petitioners as party to the suit initially. The plaintiff lost no time in impleading them after coming to know of the Will and immediately moved application for their impleadment. Consequently, requirements of proviso to Section 21 of the Limitation Act are fully satisfied and the trial court has passed the impugned order giving benefit of the said proviso to the plaintiff. There is, therefore, no infirmity in the impugned order of the trial court. Judgments C. R. No. 1609 of 2010 4 cited by learned counsel for the petitioners, referred to herein above, simply stipulate that there has to be an order by the trial court under proviso to Section 21 of the Limitation Act. In the instant case, the said requirement has been satisfied by the trial court by passing the impugned order. Learned counsel for the petitioners also relied on a judgment of this court in the case of New Bank of India vs. Bhupinder Singh and others reported as 1991 Civil Court Cases 238 (P&H). However, in that case, no sufficient ground was made out for giving benefit of proviso to Section 21 of the Limitation Act to the plaintiff. In the instant case, however, the plaintiff has made out a good case for availing of the benefit of the said proviso. In addition to the aforesaid, it is also worth noticing that the suit has been filed for specific performance of the agreement dated

18.11.1997, which stipulated that the sale deed was to be executed within five years thereof i.e. up to 18.11.2002. The plaintiff moved application for impleading the petitioners as party on 09.01.2004 and the petitioners were impleaded as party on 23.10.2005. The suit would have been within limitation even if it is assumed to have been filed on 09.01.2004 or

23.10.2005. Learned counsel for the petitioners contended that under Article 54 of the Schedule to the Limitation Act, where no date for performance of the agreement is fixed, limitation period shall commence, when the plaintiff has notice that performance is refused. In the instant case, however, date for performance of agreement was fixed in the agreement by stipulating that the sale deed was to be executed within five years i.e. up to 18.11.2002 and therefore, according to Article 54 ibid, the limitation period commenced from the date fixed for the performance of the agreement i.e. from 18.11.2002 and the limitation period being three years, the suit could be filed up to 18.11.2005. For the reasons aforesaid, I find no infirmity or illegality in the C. R. No. 1609 of 2010 5 impugned order of the trial court so as to warrant interference in exercise of power of superintendence under Article 227 of the Constitution of India. The revision petition is without any merit and is accordingly dismissed in limine. March 10, 2010 monika ( L. N. MITTAL ) JUDGE