Vakalatnama filed on behalf of the opposite party nos. 2 and 3 be kept with the record.
This revisional application has arisen out of an order passed on May 15, 2012 by the learned Civil Judge (Junior Division), Howrah.
The impugned order was passed in connection with an application filed under Order I Rule 10(2) of the Code of Civil Procedure. The plaintiff-petitioners filed a suit for declaration that the plaintiffs and the defendant no. 1 are the co-sharers and the Sale Deed executed by the defendant no.1 in favour of defendant nos. 2 and 3 is illegal, invalid, collusive and not binding upon the plaintiffs along with other reliefs. The said suit was filed in the year 2006 which has since been re-numbered as Title Suit 31 of 2007. The defendant no. 2 is the mother of the party who is sought to be added under Order I Rule 10(2) of the Code of Civil Procedure. The defendant no. 2 entered appearance and filed a written statement on May 7, 2007 in which in paragraph 4 she has categorically stated that the suit is bad for non-joinder of necessary parties inasmuch as Bibhas Chandra Naskar, the son of the defendant no. 2 is the necessary party to the suit and in his absence the suit must fail. Thereafter the trial commenced. During the trial Bibhas deposed on behalf of his mother (defendant No. 2) on February 20, 2009. Thereafter the trial proceeded. It was only at the stage of argument that on March 16, 2012, the plaintiffs filed an application for addition of Bibhas under Order I Rule 10(2) read with Section 151 of the Code of Civil Procedure. In the said application, the plaintiffs tried to explain the delay in impleading Bibhas on the ground that during the course of argument the defendants had taken a plea of defect of parties since Bibhas jointly purchased the property along with his mother from the opposite party no. 1 by a Deed of Sale dated June 2, 1980 executed by the opposite party no. 2 and her son. The learned advocate for the plaintiffs on a bonafide mistake omitted to take proper steps for impleading the said Bibhas in the said suit as party defendant. It was submitted that Bibhas Chandra Naskar adduced evidence in the suit as D.W.2 on behalf of his mother and it is not in dispute that Bibhas was one of the executants of the said document which is the subject matter of challenge in the suit. It was also submitted that the impleadment of Bibhas at this stage would only cure the defect and would not cause any prejudice to the defendants. In support of such contention the learned counsel for the petitioners refers to (Munshi Ram VS Narsi Ram and Anr.) AIR 1983 Supreme Court 271 and (R. R. Naidu VS State of M. P. and Ors.), (2000)10 Supreme Court Cases 141.
In Munshi Ram (Supra), The appellant filed a suit for possession of a piece of land in exercise of his right of pre-emption against respondents 1 and 2 alleging that they had purchased the land from his father under a registered sale deed dated 16.5.1977 in total disregard of his right of pre-emption. It was stated in the plaint that the cause of action arose on 16.5.1977 and hence the suit filed on 29.1.1978 was in time. Certified copy of sale deed was also filed along with the plaint. In the certified copy of sale deed there was mention of only respondents 1 and 2 as vendees. In the written reply filed on 17.5.1978 one of the pleas was that all the vendees were not impleaded and hence the suit being for partial pre-emption was liable to be dismissed. On 14.6.1978 the Court proceeded to frame issues. In course of framing issues when the original sale deed was read it transpired that one M was also a vendee along with respondents 1 and 2. On the next day itself appellant filed an application to implead M and prayed for amendment of plaint stating 16.6.1977 also as the date of cause of action on which day according to him the possession of land was delivered to the vendees. The amendment was sought to save the suit from bar of limitation prescribed by Art. 97 of Limitation Act(emphasis led).”
The appellant thereafter obtained a certified copy of the sale-deed in question and filed the suit against respondents 1 and 2 who alone was shown as the vendees in that copy of the sale deed. The Hon’ble Supreme Court observed that the appellant had acted with due care and attention. When the original sale deed was read out in Court by the counsel for respondents 1 and 2, the appellant realised the mistake and filed the application on the very next day i.e. June 15, 1978 with all due diligence. In view thereof the suit against M should be deemed to have been filed on the date of the institution of the suit i.e. Jan. 29, 1978 itself, which on the facts and in the circumstances of the case, should be treated as the ‘earlier date’ referred to in the proviso to S.21(1) of the Act. There is no dispute that if the suit had been filed against M also on Jan. 29, 1978 it would have been in time and would not have suffered from the defect of non-joinder of a necessary party. The bar of limitation is thus got over by the appellant. Further, M being a necessary party has to be impleaded under O. 1, R. 10 C. P. C., to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit(emphasis added).
On such facts it was held that the omission to implead M as defendant was due to a mistake and such mistake was made in good faith and accordingly, proviso to Section 21(1) was held to be applicable.
In R. R. Naidu (Supra) the fact under consideration was that the appellant during his working as a clerk in the Office of the District Judge of Bilashpur was removed from service on June 10, 1961. Thereafter the departmental appeal filed by him was dismissed on September 1968 by the Registrar of the Hon’ble High Court of Madhya Pradesh at Jabbalpur. The appellant gave a notice of suit to the state of Madhya Pradesh under the Code of Civil Procedure on March 29, 1971 and thereafter on September 13, 1971 the suit was filed impleading the State of M.P. as the sole defendant. The proceedings went up to the Hon’ble High Court and the matter was remanded by the Hon’ble High Court directing the learned District Judge and the Registrar of M.P. High Court to be made parties following which the appellant impleaded the learned District Judge and Registrar as parties but objection was taken on the ground of limitation. The learned trial Court found that the suit is barred by limitation as against the learned District Judge and Registrar. The learned Appellate Court confirmed the findings on the question of limitation. The Hon’ble High Court in the Second Appeal confirmed the findings in relation to the limitation. A special leave petition was filed against the said order. The Hon’ble Supreme Court in disposing of the said S.L.P. observed that if there is delay in impleading the learned District Judge and the Registrar of the High Court it can be condoned under the proviso of Sub-Section (1) of Section 21 of the Limitation Act. The plaintiff had bonafide omitted to implead the learned District Judge and the Registrar but by mistake had impleaded the State of M. P. when he filed the suit in 1971 and accordingly, the delay was condoned as being bonafide.
Per contra, the learned counsel for the opposite parties submits that a fresh suit against Bibhas would be barred by limitation. It is submitted that unless the plaintiffs are able to establish that omission to add and implead Bibhas was due to a mistake made in good faith or bonafide the Court should not exercise its discretion in favour of the plaintiffs.
It is submitted that the facts would reveal that in 2007 or at least in 2009 the plaintiffs were aware that Bibhas was a necessary party. In fact, the Deed impugned contains the name of Bibhas and he is/was also one of the executants of the said Deed.
The learned counsel refers to a single Bench Decision of the Allahabad High Court reported in AIR 1995 All 19 (M/s. C. Doctor and Company Ltd. and Anr. VS M/s. Belwal Spinning Mills Ltd.) for the proposition that in considering a plea under Order 1 Rule 10(2) the Court is required to find out and ascertain if the claim against the person proposed to be added as a defendant has become barred by limitation. However, the said decision does not deal with the proviso to the said Section.
The proviso to Section 21(1) of the Limitation Act came up for consideration in Karuppaswamy and Ors. VS C. Rama Murthy (1993) 4 SCC 41. The Hon’ble Supreme Court upon consideration of the changes made to Section 22 of the Limitation Act, 1908 in Section 21 of the Limitation Act, 1963 held :
4. “A comparative reading of the proviso to sub-section (1) shows that its addition has been made all the difference. It is also clear that the proviso has appeared to permit correction of errors which have been committed due to a mistake made in good faith but only when the court permits correction of such mistake. In that event its effect is not to begin from the date on which the application for the purpose was made, or from the date of permission but from the date of suit, deeming it to have been correctly instituted on an earlier date than the date of making the application. The proviso to sub-section (1) of Section 21 of the Act is obviously in line with the spirit and thought of some other provisions in Part III of the Act such as Section 14 providing exclusion of time of proceeding bona fide in court without jurisdiction, when computing the period of limitation for any suit, and Section 17(1) providing a different period of limitation starting when discovering a fraud or mistake instead of the commission of fraud or mistake. While invoking the beneficient proviso to sub-section (1) of Section 21 of the Act an averment that a mistake was made in good faith by impleading a dead defendant in the suit should be made and the court must on proof be satisfied that the motion to include the right defendant by substitution or addition was just and proper, the mistake having occurred in good faith(emphasis led). The court’s satisfaction alone breathes life in the suit.
8. Thus in our opinion the course set out in Munshi case is attracted to the instant case since the High Court has found that the plaintiff-respondent had acted in good faith and had committed mistake in that frame of mind (emphasis led). Munshi case in our view, should clear the way in favour of the plaintiff-respondent, ending in dismissal of this appeal.
9. In passing, we think that it would be desirable to deal with some of the judicial precedents at least, relied upon by the respective learned counsel. Cases which arose under Section 22 of the old Indian Limitation Act, 1908, showing difference of opinion raging in the High Courts on the interpretation of the said provision interplaying with the relevant provisions of the Code of Civil Procedure, need not be adverted to. Others arising after January 1, 1964, the day of the enforcement of the Limitation Act, 1963 are noteworthy. Cases reported in Auraj Bhan v. Balwan Singh, Lalit Kumar v. Jairam Dass and Kisan Coop. Sugar Factory Ld. V. Rajendra Paper Mills are on their own facts in which the mistake pointed out was not found to have occurred in good faith. In contrast, in Rasetty Rajyalakshmamma v. Rajamuru Kanniah the mistake was found to have occurred in good faith and the impleadment of the legal representatives was allowed even after the expiry of the limitation for filing suit(emphasis led). The institution of the suit was rightly held therein to be not void ab initio.”
The proviso to Section 21(1) enables the Court on being satisfied that the omission to include a new plaintiff or a new defendant was due to a mistake made in good faith, to direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date.
In the instant case, it appears that although the son was not impleaded as a party but the son adduced evidence on behalf of the mother. The mother and the son are the joint signatories to the said deed. There is no dispute that the Deed of Sale executed in favour of the opposite party no. 2 is under challenge in which the son is also one of the purchasers/executants. It appears from the materials on record that such non-impleadment was due to oversight. In an adversarial proceeding, a party is always dependent upon his lawyer and acts on the basis of the advice given by his advocate. It is no doubt that the son should have been impleaded as a party. At the end of the trial, such mistake was detected. There is some negligence in conducting the matter which is not as fatal and a culpable negligence which would disentitle the plaintiff to implead the son of the defendant no. 2 at this stage. The consideration would have been different if the son did not appear at all. From the nature of the evidence, it can be said that the son, in fact, had deposed not only on behalf of the mother but also deposed on matters what he would have otherwise said had he been arrayed as a party and appeared to give evidence. The evidence of the son touching and concerning the issue is already on record. On such consideration the addition is allowed, upon payment of cost of Rs.6,000/- to be paid by the plaintiff to the opposite parties within one week from date as a condition precedent for permitting the plaintiff to implead the son of the opposite party no. 1.
The impugned order is set aside.
The revisional application thus succeeds.
Urgent photostat copy of this order, if applied for, be given to the parties upon compliance of necessary formalities.