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Report No. 89

III Effective Date

21.19. Date of impleading.- We now come to one point of detail. In section 21(1), it has been provided that the suit shall, as regards the added party, be deemed to have been instituted when he was so made a party. The expression "when he was so made a party" has given rise to three different interpretations.

21.20. Three different interpretations.- The first view is to the effect that a person becomes a party only when he is actually brought on the record as party. The Madras judgment1 on the subject observes as unde.-

"It cannot be said that a suit is instituted, if the plaintiff, who wants to file it in court, puts it into his drawer or keeps it in vakils' chambers. In the same manner, when a person is sought to be added as party, the person becomes a party only when he is actually brought on record as a party."

The reasoning in the Madras case is, with respect, obscure because an applicant who wishes to add other persons as parties has done all that is in his power by filing an application in court. The analogy of keeping the plaint in the vakils' drawer does not appear to be exactly applicable.

1. Ammayya v. Narayana, AIR 1925 Mad 487.

21.21. The second view on the subject is that a diligent applicant who had applied within the period prescribed should not suffer merely because the.court, for some reason or other, cannot, or does not, give him the relief within the period. On this principle it has been held by the same High Court1 that a new person is made a party not on the date of the order of the court directing to implead him, but on the date of the application to implead.

1. Trustees of Port of Madras v. Good Year India, AIR 1973 Mad 316.

21.22. A third view has been propounded in a Patna case1. The ratio of the judgment seems to be that the limitation in relation to claim as against the newly added defendant commences from the date of service of the summons on him. Reliance has been placed on Order I, rule 10(5), of the Code of Civil Procedure 1908 which speaks of the service of summons as the date when proceedings are deemed to have started. But the judgment also contains a sentence to the effect that the suit shall be deemed to have been instituted against the newly added defendant "when he was made a party to the suit".

1. Indy Bhushan v. Hare Ram, AIR 1972 Pat 229.

21.23. Need for amendments.- In view of the relative uncertainty of the position and to avoid any controversy on this point, it is desirable that a suitable explanation1 should be added to section 21(1) to make it clear that the date of the application for impleading a party will be deemed to be the date from which section 21(1) becomes effective.

1. For a draft, see para. 21.34, infra.

The Limitation Act, 1963 Back

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