http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7  

PETITIONER: MUNSHI RAM

       Vs.

RESPONDENT: NARSI RAM & ANOTHER

DATE OF JUDGMENT14/01/1983

BENCH: VENKATARAMIAH, E.S. (J) BENCH: VENKATARAMIAH, E.S. (J) BHAGWATI, P.N.

CITATION:  1983 AIR  271            1983 SCR  (2) 233  1983 SCC  (2)   8        1983 SCALE  (1)11

ACT:      Limitation Act,  1963 (Act  XXXVI of  1963), Article 97 read with Section 2 (h) read with proviso to Section 21 (1), scope of-Non-joinder  of the  defendant  due  to  bona  fide mistake discernible  from official  document  but  rectified later by  means of  an application without delay-Plea of Bar of limitation  must fail-Code  of Civil  Procedure, Order I, Rules 9  & 10-Amendment of pleadings under Order VI, Rule 17 is not necessary.

HEADNOTE:      The appellant  filed a  suit in  the court of sub-Judge Kaithal 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, Babu Ram under a  registered sale-deed  dated May  16, 1977  in total discharge of  his right  of pre-emption.  He stated  in  the plaint that  the cause  of action had arisen on May 16, 1977 and hence  the suit  filed on  January 29, 1977 was in time. The  certified   copy  of   the  sale  deed  issued  by  the Registration Office  recited that  the land  in question had been sold in favour of respondents 1 and 2 only. Respondents 1 and  2 filed  their written  statement on May 17, 1978 and took a  plea of non-joinder of all necessary parties without producing  the   original  sale  deed  with  them.  After  a replication denying  the plea  of non-joinder  was filed  on June 14,  1978 by the appellant, the counsel for respondents 1 and 2 read out the original sale deed in which it had been written that  one Munni  Devi wife  of Om Prakash was also a vendee along  with respondents  1  and  2,  where  upon  the appellant moved an application on June 15, 1978, under Order I Rule  10 read  with order  VI Rule 17 of the Code of Civil Procedure seeking  permission to  amend the  cause title and the pleadings.  On contest,  that trial  court accepted  the objection  to   the  said   application  and  dismissed  the application and  the  suit.  The  first  appeal  before  the Additional District  Judge  was  dismissed  and  the  second appeal before  the Punjab & Haryana High Court was dismissed at  the  stage  of  admission  without  giving  any  reasons therefor.      Hence the  appeal after  obtaining special leave of the Court.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7  

    Allowing the appeal, the Court ^      HELD :  1:1. A  change in  section 21 of the Limitation Act, 1963,  by inserting  a proviso to the effect 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 him should be deemed to have been instituted on any earlier date, has been made to reduce the severity of 234 the previous  law and  not to  deprive a  plaintiff  of  his rights against that person, if the Court is satisfied of the bonafides of the mistakes. [238 H, 239 A-B]      2:1. In the instant case, the omission to implead Munni Devi as  a defendant  was due to mistake as gleaned from the pleadings. The  certified copy  of the sale deed in question was obtained  from the  office of  the sub-Registrar, and in the said  copy the  name of  Munni Devi  was not  shown as a vendee at  all. On  the date when the suit was filed i.e. on 29th January, 1978 or till the counsel read out the original sale deed the appellant did not know by any other means that there was  any other vendee in addition to respondents 1 and 2. The  written statement was clearly drafted not mentioning her name,  Even the original sale deed was not produced with the written statement but the contents were read out on June 14, 1978 after the replication was filed denying the plea of non-joinder  of   necessary  parties.   The  fact  that  the appellants’ father  was the  vendor does  not  lead  to  the presumption of  his knowledge that Munni Devi was one of the vendees. In  fact the  appellant had  nothing to gain by not impleading Munni  Devi as  a defendant.  These circumstances lead to  the only  conclusion that  the appellant  had acted with due  care and attention, within the meaning of the term "good faith"  in section  2(h) of the Limitations Act, 1963, which the  courts below failed to note. (2) The suit against Munni Devi  should be  deemed to have been filed on the date of the  institution of  the suit i.e.January 29,1978 itself, treating that  as an  "earlier  date"  referred  to  in  the proviso to  section 21  (1) of  the Act,  since there  is no dispute that, if the suit had been filed against her also on January 29,  1978 it  would have  been in time and would not have suffered  from the  defect of  non-joinder of necessary party; and  because Munni  Devi is a necessary party and has to be  impleaded under sub-rule (2) of Rule 10 of Order I of Code of  Civil Procedure to enable the Court effectually and completely to  adjudicate upon  and settle all the questions involved in  the suit,  the amendment regarding the cause of action is unnecessary. [240 A-F]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION :  Civil Appeal No. 80 of 1983.      Appeal by  Special leave  from the  Judgment and  order dated the  22nd January,  1982 of  the Punjab & Haryana High Court in Regular Second Appeal No. 2140 of 1981.      L.M. Singhvi, K.B. Rohtagi, Bharat Inder Singh and H.S. Chandiok for the Appellant.      A.K. Sen and Aruneshwar Gupta for the Respondents.      The Judgment of the Court was delivered by      VENKATARAMIAH, J.  The simple question which arises for consideration in  this case  is whether the application made by the  appellant for  impleading an additional defendant to the suit out of which this appeal arises was in time.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7  

235      The appellant  filed a  Suit in the court of Sub Judge, Kaithal for possession of a piece of land in exercise of his right of  preemption against  respondents 1  and 2  alleging that they  had purchased  the land  from his father, Baburam under a  registered sale  deed dated  May 16,  1977 in total disregard of  his right  of pre-emption.  He stated  in  the plaint that  the cause  of action had arisen on May 16, 1977 and hence  the suit  filed on  January 29, 1978 was in time. Alongwith the  plaint he  produced a  certified copy  of the sale deed  dated May  16, 1977 and in that certified copy it had been  recited that the land in question had been sold in favour of  respondents 1  and 2  only. Respondents  1 and  2 appeared  in   the  trial  court  and  filed  their  written statement on  May 17,  1978. One  of the pleas urged by them was that  since all  the vendees  who had purchased the land had not  been impleaded  and since  on that account the suit had become  one for partial pre-emption, it was liable to be dismissed.  On   June  14,   1978  the   appellant  filed  a replication to  the said  written statement  and in  that he pleaded by  way of  reply to  the above contention raised by respondents 1  and 2  that the said contention was untenable as all the vendees had been impleaded and that respondents 1 and 2  should disclose  the names  of the  other  vendee  or vendees who  according to  them had  not been  impleaded  as defendants to the suit. The above reply was filed apparently on the  basis of  the recitals  in the certified copy of the sale deed  produced by  him into  court. On the basis of the pleadings the  trial court  proceeded to frame the issues on the same  date i.e.  June 14,  1978. Before  the issues were framed in  answer to  the submission made by the counsel for the appellant  that there was no basis for the above plea of non-joinder of necessary parties the counsel for respondents 1 and 2 read out the original sale deed in which it had been written that one, Munni Devi, wife of Om Prakash, was also a vendee along  with respondents  1 and  2. The  trial  court, therefore, raised an issue covering the above contention. On the very  next day i.e. June 15, 1978 the appellant filed an application under  rule 10  of Order  I read with rule 17 of Order 6 of the Code of Civil Procedure, the relevant part of which read as follows :           "1.  That  the  above  noted  case  is  fixed  for      23.11.78.           2.  That in the above noted case the defendant had      taken  a   preliminary  objection  that  the  necessary      parties have not been impleaded. 236           3.  That the copy supplied to the plaintiff by the      registration authorities contains the names of only two      vendees who  were originally impleaded by the plaintiff      as defendants.           4.   That yesterday  when the  issues  were  being      framed,  the  defendants  counsel  read  out  from  the      original sale deed the names of the vendees and then it      transpired that  there is  also a  third vendee  namely      Smt. Munni Devi, wife of Om Prakash.           5.   That  the  said  lady  vendee  could  not  be      impleaded as a party to the suit on account of the fact      that her  name was not finding place in the copy of the      sale  deed,   which  could  have  been  the  source  of      information to the plaintiff; and the non-impleading of      the said person was in good faith and bonafide.           6.   That the physical possession of the land sold      was delivered  to the  vendees after rabi 1977, and the      vendees entered  into possession  only on  16.6.77, and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7  

    the limitation  for the  suit also  started  from  that      date.           7.   That the  impleading of the said lady and the      inclusion of  fact mentioned in para 6 is necessary for      determining the real controversy in dispute.      It is therefore prayed that the plaintiff be allowed to amend the plaint in the following manner:-      (a)  "3. Smt.  Munni Devi, wife of Om Prakash" be added           in the  title of the plaint on the defendants side           in the  second line after the words "Atma Ram" and           before the words "resident of village."      (b)  The words "and from 16.6.77 when defendant vendees           entered into  physical possession of the land sold           which was capable of physical possession" be added           in the  2nd line  of para  9 after "16.5.1977" and           before the words "and".      In the above application, the appellant gave the reason for  impleading   Munni  Devi  as  a  defendant  along  with respondents 1  and 2 when the suit was filed and also prayed for amendment of the plaint stating June 16,1977 also as the date of cause of action 237 On which  date according  to him  the possession of the land was delivered  to the  vendees. It is obvious that the above amendment was  sought to  save the suit from being dismissed on the  ground that a necessary party had not been impleaded within the  period of limitation prescribed by Article 97 of the Limitation  Act, 1963  (hereinafter referred  to as  the Act) which reads thus :      "Description of    Period of   Time from which period      suit               limitation  begins to run      97. To enforce right          of pre-emption    One year When the purchaser takes          whether the                under the sale sought to              right  is founded           impeached, physical          on law or gene-            possession of the whole           ral usage or on            or part of the property          special contract           sold, or where the                                     special contract                                     subject-matter of the                                     sale does not admit of                                     physical  possesssion of                                     the whole or part of the                                     property, when the                                     instruction of sale is                                     registered."      That application  was contested by respondents 1 and 2. They denied  that possession  of the land was handed over to the vendees  on June  16, 1977, as alleged by the appellant. The trial  court after  hearing the  parties  dismissed  the application and  also the  suit. The  appeal  filed  by  the appellant before  the Additional District Judge, Kurukshetra against the  judgment and  decree of  the  trial  court  was dismissed. The second appeal filed by the appellant was also dismissed on  January 22,  1982 at the stage of admission by the Punjab and Haryana High Court without giving any reasons for its  decision. This  appeal by  special leave  is  filed against the judgment and order of the High Court.      On going through the records of this case, we find that the High  Court, the District Judge and the trial court have not at  all considered  the effect  of section 21 of the Act which governs this case. It reads thus :           "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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7  

    or added, 238      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 defendent      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."      It may  be noted  that the  provision corresponding  to section 21 of the Act in the Limitation Act 36 of 1963 which was repealed  and replaced  by Act,  was section  22 of  the Limitation Act IX of 1908 which read as follows ;           "22.  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.           (2) Nothing  in sub-section  (1) shall  apply to a      case where  a party is added or substituted owing to an      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".      It is  clear from  the  foregoing  that  there  was  no provision corresponding to the proviso to sub-section (1) of section 21  of the  Act in  section 22  of the repealed Act. Under the  former Limitation  Act when after the institution of suit  a new  plaintiff or  defendant was  substituted  or added, the suit as regards him was to be deemed to have been instituted when  he was so made a party. The severity of the above law is sought to be reduced by the introduction of the proviso to  section 21  (1) of  the Act  which provides 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 should be deemed to have been instituted on any earlier date. This 239 change in section 21 of the Act appears to have been made so that an  omission to  implead a  person owing  to a bonafide mistake does  not deprive  a plaintiff of his rights against that person if the Court is satisfied in that behalf.      We shall  now have to consider whether the appellant is entitled to  claim the  benefit of the proviso to section 21 (1) of the Act and if he is entitled to it, what is the date on which  the suit  against the  party proposed  to be newly added should  be deemed  to have  been instituted. It is not disputed that the appellant had obtained a certified copy of the sale  deed in  question  from  the  office  of  the  Sub Registrar before  the suit  was filed  and in that copy only respondents 1  and 2  had been  shown as  the vendees. Munni Devi was  not shown in that copy as a vendee. The suit which was filed  on January 29, 1978 was well within the period of limitation prescribed under Article 97 of the Act as against respondents 1  and 2.  There is  no evidence to show that on the date  of the  suit the appellant knew by any other means that there  was any  other vendee who had purchased the land along with  respondents 1  and 2.  In the  written statement

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7  

which was  clearly drafted,  the name  of Munni Devi was not mentioned. It  merely stated  that all  the vendees  had not been impleaded  as defendants.  The original sale deed which was with respondents 1 and 2 was not produced in Court along with the  written statement.  The appellant  who had  looked into the  certified copy  of the sale deed asserted that the plea that  the suit  should be  dismissed for non-joinder of necessary parties  was untenable as all the persons who were shown as  vendees in  the certified copy had been impleaded. He had  no reason  to suspect that there was an error in the certified copy  until the original sale deed was read out in the trial  court by  the counsel  for respondents 1 and 2 on June 14, 1978. It cannot be presumed that the appellant must have known  that Munni  Devi was  also a  vendee because the vendor was  his father. In fact the appellant had nothing to gain by  not impleading  Munni Devi also as a defendant when he filed the suit and there could be no motive for doing so. It must, therefore, be held that the omission to implead her as a defendant was due to a mistake. If such mistake is made in good  faith, the  proviso to  section 21  (1) of  the Act would be  attracted. The  meaning of  the  expression  ’good faith’ is explained in section 2 (h) of the Act thus:           "2.(h) "good  faith-nothing shall  be deemed to be      done in  good faith which is not done with due care and      attention". 240      In the  instant  case  the  appellant  had  obtained  a certified copy  of the  sale deed  in question and had filed the suit  against respondents  1 and  2 who  alone had  been shown as the vendees in that copy. It has to be held that in the circumstances  he had acted with due care and attention. When the  original of the 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 date i.e. June  15, 1978  with all due diligence. Hence we are of the view  that the  suit against Munni Devi should be deemed to have  been filed  on the  date of  the institution of the suit i.e.  January 29,1978 itself, which on the facts and in the circumstances  of  the  case,  we  consider,  should  be treated as  the ’earlier date’ referred to in the proviso to section 21  (1) of  the Act. There is no dispute that if the suit had  been filed  against Munni Devi also on January 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. Because Munni Devi  is a  necessary party,  she has  to be impleaded under sub-rule  (2) of  Rule 10  of Order  I of  the Code of Civil  Procedure   to  enable   the  Court  effectually  and completely to  adjudicate upon  and settle all the questions involved in the suit. The application filed by the appellant on June  15, 1978  is, therefore,  allowed. The amendment of the plaint  regarding the  date of  cause of action has thus become   unnecessary. The  judgments and decrees of the High Court, the  first appellate  court and the trial court have, therefore, to  be set aside as they have been passed against the appellant  only  on  the  ground  of  non-joinder  of  a necessary party within time. They are accordingly set aside. The suit  has now  to be  remanded to  the  trial  court  to dispose it  of in  accordance with law by recording findings on the  other issues  which arise  for consideration  in the suit. We accordingly do so. The plaint shall be permitted to be amended by the trial court by including the name of Munni Devi as a defendant before issuing summons to her.      For the  foregoing reasons,  the appeal  is allowed. No costs.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7  

S.R.                                         Appeal allowed. 241