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Report No. 89

Chapter 21

Section 21: Addition or Substitution of Parties

I Introductory

21.1. Section.-effect of addition or substitution of parties on limitation.- The sections of the Act that have been so far considered were about computing the period of limitati.-something concerning the period prior to the institution of proceedings. The Act now (in section 21) devotes some attention to determination of the date when the proceedings are deemed to have been instituted. The general rule, of course, is that a suit commences when the plaint is presented.1

This rule creates no problems when all the parties are before the Court from the very beginning. However, often it so happens that in the course of litigation, a new plaintiff or defendant is substituted or added. In such a case, the general rule, if taken literally, cannot apply, and one needs a specific provision in that regard. That is to be found in section 21.

Section 21(1) enacts (in the main paragraph) that as regards a new plaintiff or defendant substituted or added after the institution of a suit, the suit is deemed to have been instituted "when he was made a part.-a date which would necessarily be later than the date of presentation of the plaint.

There is, however, a proviso to sub-section (.-inserted at the instance of the Law Commissio.-under which, 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 shall, as regards such plaintiff or defendant, be deemed to have been instituted on any earlier date.

Sub-section (2) of section 21 makes it clear that sub-section (1) does not apply to the following two case.-

(i) where the addition or substitution is due to assignment or devolution of any interest during the pendency of a suit, or

(ii) where the parties are transposed.

The reason for making this clarification is obvious. In the first case, the predecessor-in-interest of the added party was already on the record, and the suit is only sought to be continued against the successor. In the second case, the party transposed was himself on record, though arrayed on the opposite side.

1. Section 3(2)(a).

2. Cf. Law Commission of India, 3rd Report, (Limitation Act, 1908), para. 54.

21.2. Newly added proviso to section 21(1), and its exposition by the Supreme Court.- As stated above, acting upon the recommendations of the Law Commission,1 a proviso has been added to sub-section (1) of section 21 to enable the court to direct that a suit shall as regards a newly added plaintiff or defendant be deemed to have been instituted on an earlier date, if certain conditions are satisfied.

The Supreme Court also regretted that this newly added proviso had no application to the facts of the case before it, with the result that it had no power to direct that the suit should be deemed to have been instituted on a date earlier than November 4, 1958.

1. Law Commission of India, 3rd Report, (Limitation Act, 1908), para. 54. See Ramprasad v. Vijay Kumar, AIR 1967 SC 278 (284).

21.3. Law before the addition of the proviso.- Before the addition of the proviso in section 21(1), there was considerable difference of opinion as regards the power of the court to add new parties on a date when the relevant limitation period had already expired. In a Calcutta case,1 an eminent judge, Ameer Ali, J. refused to permit the addition of one of the partners after the expiry of the limitation period and observe.-

"What was the reason for leaving him (i.e., one of the partners) out I do not know. These people have innumerable combinations and for all kinds of reason, firms with different names but the same partners, firms with the same names and different partners and so forth. They take undue advantage of the facilities provided by the law and they must not be surprised if the law sometimes takes advantage of them".

Same was the view of the High Courts of Madras,2 Rajasthan3 and Jammu and Kashmir.4

1. Bhairobux v. Deokaran, AIR 1934 Cal 253.

2. Vyarathammal v. Somasundaram, AIR 1960 Mad 134.

3. Hiralal v. Jagan Nath, AIR 1957 Raj 298.

4. Mohi-ud-din v. Chandra Mohan, AIR 1966 J&K 64.

21.4-5. On the other hand, in a Madras case, a foreign firm instituted a suit in its own name which it could not do in view of Order 30, rule 1, Code of Civil Procedures, 1908. Upon an objection being raised regarding the maintainability of the suit, the firm sought an amendment of the plaint by the substitution of the names of the partners. It was held that there was no addition of new plaintiffs, but merely a classification of the individuals already on record.1 It is unnecessary to multiply the authorities.

1. Mohideen v. V.O.A. Mohamed, AIR 1955 Mad 294.

21.6. The Calcutta1 case was criticised, and dissented from by the Madhya Pradesh High Court2 in which a comparison has been drawn between the drafting of Order 30, rule 2 of Civil Procedure Code and Order I, rule 10 thereof. Whereas the latter specifically makes a mention of the Limitation Act, the former does not do so and the court for this reason concluded that in the absence of any reference to section 22 of the Limitation Act in Order 30, rule 2, Code of Civil Procedure, 1908, it would not be proper to apply it to the disclosure of names. The omission to sign the plaint by one partner was allowed to be cured in a case from Himachal Pradesh,3 on the ground that this was not a case of addition of new plaintiff.

1. Bhairo Bux Mangilal v. Deokaran, AIR 1934 Cal 253 (para. 21.3, supra).

2. Firm Narain Das v. Anand Behari, AIR 1958 MP 408.

3. Bijai Ram v. Jai Ram, AIR 1955 HP 57.

21.7. A peculiar situation arose in a Patna case,1 where the names of only two out of five partners appeared in the certificate of registration and the remaining partners were sought to be added as proforma defendants after the expiry of the period of limitation. By harmonious construction of section 69 of the Partnership Act, Order 30, rule 1, of the Code of Civil Procedure and section 22 of the Limitation Act of 1908 (corresponding to present section 21), the court allowed the application on the ground that the provisions of section 22 of the Limitation Act 1908 were not attracted in such a case.

1. Chaman Lal v. Firm New India Traders, AIR 1962 Pat 25.

21.8. Newly added proviso utilised by Courts.- The enabling powers of this proviso have been utilised for the benefit of the party who, on account of a bona fide mistake, had failed to add a necessary party to a suit. In Madras1 the court allowed the plaintiff to bring on record the legal representatives of a defendant who had died on or before the date of filing of the su.-which fact was not within the knowledge of the plaintiff.

1. Ramamurthi v. Karuppa Sami, (1979) 1 mg 298.

The Limitation Act, 1963 Back

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