Suresh Kumar & Anr. v. Maya Chand & Ors.

CORAM: HON'BLE MR. JUSTICE ALOK SINGH Present : Mr. J.K. Goel, Advocate for the petitioners

3. Whether Reporters of local papers may be allowed to see the judgment? Yes To be referred to the Reporters or not? Yes Whether the judgment should be reported in the Digest? Yes ALOK SINGH, J. (ORAL)

1. Plaintiffs-petitioners have invoked supervisory jurisdiction of this Court under Article 227 of the Constitution of India assailing the order dated 15.9.2010 passed by Civil Judge (Jr. Divn.) Kurukshetra whereby an application moved by the plaintiffs under Order 1 Rule 10(2) CPC seeking permission to implead Tara Chand as one of the co-defendant was rejected.

2. The brief facts of the present case are that plaintiffs filed a suit for declaration with consequential relief of permanent prohibitory injunction against the defendants. The suit was filed on

28.5.2001. Original defendants have filed their written statement in the year 2002. Defendants have taken specific plea in the written statement that suit is bad for non-joinder of the necessary party since all the vendees are not impleaded as party in the present suit. C.R. No. 6245 of 2010 2 Thereafter, issues were framed and plaintiffs have started leading their evidence. On 11.3.2010 after almost nine years from the date of filing of the suit plaintiffs-petitioners have moved present application. Learned trial Court observed that application seeking impleadment of Tara Chand as one of the co-defendant should have been moved at the earliest, in view of the fact that defendants, way back in the year 2002, have taken defence in their written statement that suit is bad for non-joinder for all the vendees.

3. Order 1 Rule 10 C.P.C. reads as under:-

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 bona fide 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 the 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 C.R. No. 6245 of 2010 3 disability without his consent. (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.

4. From the perusal of Order 1 Rule 10(5) CPC, this Court finds that if a person is added as a defendant during the pendency of the suit, the limitation against him for filing the suit would commence from the date of service of summons after impleadment.

5. Section 21 of the Limitation Act reads as under:-

21. Effect of substituting or adding new plaintiff or defendant. - (1) Where after the institution of a suit, a new plaintiff or, defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party: Provided that where the court is satisfied that the omission to include a new plaintiff or defendant was due to a mistake made in good faith it may direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date. (2) Nothing in sub-section (1) shall apply to a case where a party is added or substituted owing to assignment or devolution of any interest during the pendency of a suit or where a plaintiff is made a defendant or a defendant is made a plaintiff. C.R. No. 6245 of 2010 4

6. From the perusal of Section 21 of the Limitation Act, this Court is of the opinion that suit against the newly added defendant shall be deemed to have been instituted from the date of his impleadment and not from the earlier date, unless Court for the reasons recorded, finds that newly impleaded party could not be impleaded due to mistake made in good faith.

7. Perusal of the application under Order 1 Rule 10 CPC would show that no explanation is coming forward that Tara Chand was not impleaded due to mistake made in good faith. Cause of action for the suit is said to have arisen in the year 2001. Impleadment application is moved on 11.3.2010. As per Article 58 of the Limitation Act, 1963 suit for declaration should be filed within 3 years from the date right to sue accrues. On 11.3.2010, the date of impleadment application, suit against Tara Chand was time barred. None can be permitted to implead new defendant, if suit on the date of impleadment has already become time barred against the person sought to be impleaded as defendant unless of course, bonafide mistake is explained as contemplated under Section 21 of the Limitation Act.

8. I do not find any reason to interfere with the impugned order.

9. Dismissed.

27.09.2010 (ALOK SINGH) JUDGE