Report No. 150
Order I, Rule 10(5)
3.1. The first reference to the 1877 Act occurs in Order I, rule 10 of the Code. Order I of the Code deals with "Parties to Suits" and rule 10 thereof deals with certain situations in which necessity to add or substitute fresh parties in a suit already filed arises. The rule reads thus:
"10.(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 fit.
(2) 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 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 effectively 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 disability without his consent.
(4) 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 section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons."
3.2. The intention of sub-rule (5) above apparently is that where a fresh party is ordered to be added as defendant in a suit, such party should be treated as having become a party only on the date he is served with summons in the suit. This deeming fiction is created primarily, if not solely, to preserve the plea of limitation that could be raised by such party and to enable the third party to raise the plea on the footing that the suit, so far as he is concerned, should be deemed to have been instituted only on the date on which he has been served with summons in the suit.
3.3. The language used in the sub-rule, however, suffers from two infirmities. In the first place, it says that "the proceedings" as against such party "shall be deemed to have begun only on the service of summons" instead of using words "the suit shall be deemed to have been instituted" only on such service. These words do not offer adequate protection to the third party in regard to its plea of limitation which has to be based on the "date of institution" of the plaint and not on when "the proceedings are deemed to have begun" against a defendant. They are not effective enough to change the date of institution of the suit so far as the freshly added defendant is concerned.
3.4. Secondly, the language appears to be some what repugnant to the relevant provisions of the Limitation Act, viz., section 22 of the 1877 Act, which was in operation when the code was enacted and of the 1908 Act which replaced it. The provisions were materially the same and read thus:
"Section 22(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."
The effect of this provision was to postpone the date of institution of a suit, qua a newly added defendant, to the date on which he is made party, thus protecting his right to raise appropriate pleas of limitation. Sub-rule (5) of rule 10 clearly, intended to postpone this date still further and thus alter the impact of section 22 in such cases and to provide in effect, that the suit as against such party, be deemed to have been instituted on the date of service of the summons on him and that the provisions of Limitation Act were to apply as so modified.
3.5. On the language of sub-rule (2) of rule 10, the person added as a defendant under that sub-rule is either one who ought to have been added as a defendant even initially or one whose presence before the Court is found necessary for a complete and effective adjudication of all the questions involved in the suit.
Whether the omission to join him as defendant in the suit originally was due to a fault on the part of the plaintiff which is sought to be cured on his application or by the Court suo motu or whether the necessity to add him is felt by the plaintiff or the Court which proceeds to do so, the newly added defendant may not have been responsible for the delay in the initiation of the suit (or proceedings) against him and should not therefore, be deprived of any plea of limitation that may be available to him consequent on the delay between the original date of institution of the suit and the date on which he is added as a party.
This was the object of section 22(1) of the 1877 and 1908 Acts and rule 10(5) of Order I of the Code intended that this benefit should be further liberalised and made available till the date on which the newly added defendant receives the summons in the suit, after he is added as a party defendant. But then the sub-rule should have read:
"Notwithstanding any provision contained in the Indian Limitation Act, 1877, the suit shall, as regards any person added as defendant under sub-rule (2) shall be deemed to have been instituted only on the date on which he is served with summons in the suit".
The words "subject to the provisions of the Indian Limitation Act, 1877" are totally inapposite to the context. Those words only bring in the 1877 Act and since that Act had already provided for deeming the suit to have been initiated on the date when the new defendant is added, the words of rule 10(5) added nothing to the contents thereof by making the rule subject to section 22. Suggesting some Amendments to the Code of Civil Procedure, 1908 150.11
3.6. The purpose of rule 10(5) has, further, become more pointless after the enactment of the Limitation Act, 1963. Section 21 of the 1963 Act corresponds to section 22 of the 1877 and 1908 Act but its whole effect is changed by the insertion of a proviso section 21 reads:
"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, he 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 of defendant was due to a mistake made in good faith, it may direct that the suit shall be deemed to have been instituted on any earlier date.
3.7. The effect of section 8 of the General ClauSes Act, 1897 is to compel one to read the reference to section 22 of the 1877 Act in rule 10(5) as a reference to its successor provision viz., section 21 of the 1963 Act. Reading section 21 of the 1963 Act and rule 10(5) of Order I of the Code together it will be seen that they are pulling in opposite directions although rule 10(5) is expressed to be subject to section 21. The object of section 21 is to treat the suits against a new defendant as having been filed on the date on which he is made a party (with a direction to the Court to treat it as having been filed even earlier).
On the other hand, the purpose of rule 10(5) is to treat the suit as having been filed only on the date on which the new defendant is served with summons. In this context there is no sense in making rule 10(5) subject to section 21; its provision should, if at all be operative notwithstanding of anything contained in the Limitation Act, as already pointed out.
3.8. The real question that arises, therefore, is whether the refinement attempted in rule 10(5) of treating the date of service of summons as the date when "the proceedings are deemed to have.begun" against the new defendant is at all worthwhile and whether it will not be much simpler and more equitable to omit rule 10(5) altogether and allow the provisions of section 21 of the 1963 Act, which are intended to cover precisely the very situation provided for in Order I, rule 10 to operate directly without any change.
The answer to this question, we think has to be in the affirmative. Interests of justice and equity no doubt require that a third party should not be prejudiced in putting forward the pleas of limitation available to it as a consequence of the failure, omission or neglect to implead it earlier in the suit. It is quite just to provide, as section 21 of the 1963 Act does, that, in such cases as regards the newly added defendant, the date or institution of the suit shall be the date on which it is added as a party. The proviso empowering the Court to relax this rule is also necessary safeguard to protect a bona fide plaintiff.
On the other hand, the provision in rule 10(5) postpones the date of institution to the date of service summons on the newly added party. There is thus anomaly in the two provisions as, while under section 21 of 1963 Act suit shall be deemed to be instituted against the newly added defendant on the date he is added as a party, under rule 10(5), the suit shall be deemed to be instituted against such party not on the date he is added as party but on a later date, viz. the date on summons are served on him.
This is illogical because in principle limitation should be computed with reference to the point of time when the plaintiff has taken steps for initiating legal proceeding against the defendant in question and should not be made dependant on a later event. There is no need to postpone the institution of the suit beyond the date provided in section 21 of the 1963 Act. The provision in rule 10(5) is also inequitable and liable to be misused to delay the proceedings because it will enable recalcitrant third parties to resort to all kinds of devices to avoid service of summons on them till the period of limitation expires.
3.9. For the above reasons, it is clear that the necessity for rule 10(5) does not survive. It is therefore, recommended that sub-rule (5) of rule 10 of Order I of the Code of Civil Procedure, 1908.