Guldas and Anr. v. Shri Ramesh Tomar & Ors.

1. This petition under Section 115 of the Code of Civil Procedure, 1908 (CPC) impugns the order of the trial court dated 2.7.2013 by which the trial court has refused to reject the plaint under Order VII Rule 11 CPC on the ground that the suit is barred by limitation.

2. The subject suit is a suit for possession under Section 6 of the Specific Relief Act, 1963 alongwith certain other reliefs. The suit was filed on 22.1.2003. In the plaint, dispossession of the plaintiff/respondent no.1 is 2014:DHC:5219 pleaded to have taken place between 5.1.2003 and 10.1.2003.

3. Originally in the suit there were only two defendants namely Sh. Hatam Singh and Sh. Harish Chhabra/respondent nos.[2] and 3 herein. Subsequently the defendant nos.[3] and 4/petitioners were added as parties by allowing an application of the respondent no.1/plaintiff under Order I Rule 10 CPC by the order dated 14.9.2004. The application under Order I Rule 10 CPC for adding petitioners as defendant nos.[3] and 4 as parties to the suit was filed on 16.4.2003 and the same was allowed by the trial court vide its order dated 14.9.2004.

4. In the impugned order, the trial court notes that since in the plaint, averments are made with respect to dispossession of the respondent no.1/plaintiff between 5.1.2003 and 10.1.2003, and since the defendant nos.[3] and 4/petitioners were added as defendants by virtue of an application which was filed on 16.4.2003, consequently as against the defendant nos.[3] and 4 the suit will have to be taken as filed on 16.4.2003 and which date of 16.4.2003 is within six months of the date of alleged dispossession as stated in the plaint said to have occurred between 5.1.2003 and 10.1.2003. The suit hence was held to have been filed within limitation of six months even against the petitioners/defendant nos.[3] and 4.

5. Learned counsel for the petitioners/defendant nos.[3] and 4 argues that a person becomes a party as per Section 21 of the Limitation Act, 1963 only on the date when an order is passed whereby such a person is made a party/defendant. It is argued that if a person has to be made as a party from an earlier date than the date of the order by which a person is made a party, like on a date of the institution of the suit, then, a specific order/direction had to be made when the application under Order I Rule 10 CPC was allowed on 14.9.2004, but since on 14.9.2004 the only order is that defendant nos.[3] and 4 are added as parties/defendants, these defendant nos.[3] and 4/petitioners have to be taken to become the defendants in the suit only on 14.9.2004 when the order was passed and since the date of 14.9.2004 is beyond six months from 5.1.2003 to 10.1.2003, the suit against defendant nos.[3] and 4/petitioners would be barred by limitation as having been filed beyond six months of the alleged dispossession of the respondent no.1/plaintiff. Reliance is placed on behalf of the petitioners upon the judgment of the Supreme Court in the case of Ramalingam Chettiar Vs. P.K. Pattabiraman & Anr. II (2001) SLT 509.

6. I am unable to agree with the arguments urged on behalf of the petitioners. No doubt Section 21 of the Limitation Act, 1963 states that a person who is added as a defendant in a suit, then the suit against such a person/defendant will be taken as having been instituted when the person is added as a defendant to the suit, however, the issue in the present case is as to whether a person is added as a party on the date of the application being filed to make such a person as a party/defendant or a person becomes a party/defendant only when the application is allowed later. I may note that this aspect of when a person is made as a party/defendant to the suit i.e whether from the date of the application being filed or whether on the date on which the application is allowed has not been decided in the judgment in the case of Ramalingam Chettiar (supra) relied upon on behalf of the petitioners.

7. In my opinion it is a settled principle of law that an act of the Court cannot/should not prejudice anyone. A plaintiff at best can file an application for adding a defendant, but thereafter he has no control of the court proceedings and any delay in disposal of the application cannot in law be to the account of and prejudice of a person who files the application. If the argument as urged by the petitioners is accepted, then, if theoretically sometime more than few years are taken for disposal of the application under Order I Rule 10 CPC to add a defendant, then, plaintiff would be unfairly prejudiced on account of delay caused in disposal of the application by the Court, and which position cannot be, in view of the settled law that an act of a Court cannot harm/cause prejudice to anyone. Allowing of an application will relate back to the date when the application is filed and thus a person is added as a party/defendant not on the date when the application is actually allowed but on the date when the application was filed. To hold otherwise would be to cause a grave and irreparable loss to a party for no fault of his. No doubt, whether a person is to be made as a party/defendant not from the date of filing of the application, but from an earlier date when the suit was filed, will have to be by a specific order of the Court under Section 21 of the Limitation Act, 1963, and for which there is the necessary discretion and jurisdiction in the Court, but in the present case the issue is not with respect to taking of the petitioners/defendant nos.[3] and 4 being added as parties on the date of filing of the suit but the defendant nos.[3] and 4/petitioners being added as defendants in the suit on the date of the filing of the application under Order I Rule 10 CPC. Since the application under Order I Rule 10 CPC had been filed by the respondent no.1/plaintiff for adding the defendant nos.[3] and 4/petitioners as the defendants in the suit on 16.4.2003 i.e within six months of the date of dispossession as per the plaint to have occurred between 5.1.2003 and 10.1.2003, the suit against the petitioners/defendant nos.[3] and 4 would be very much within limitation as against them, because the suit is to be taken to have been instituted against the petitioners/defendant nos.[3] and 4 on 16.4.2003.

8. In view of the above, there is no merit in the petition, and the same is therefore dismissed, leaving the parties to bear their own costs.

OCTOBER 09, 2014 VALMIKI J. MEHTA, J. Ne