INTELLECT SYSTEM PVT. LTD. Vs. UNITY ENGINEERING INDUSTRIES

JUDGEMENT

(1.) This Civil Revision Petition is directed against a judgment and decree of the Small Causes Court and it raises an interesting point with regard to the applicability of Sec. 21 of the Limitation Act. The petitioner states that the suit in question was originally filed against Intellect Electronics Pvt. Ltd. in the year 1981 and that Subsequently, in the year 1991 an application was made to the trial Court for rectification of an error. The plaintiff pointed out to the Court that the goods in question had been supplied to Intellect Systems Pvt. Ltd. who are the present petitioners and that the other Company which had originally been shown as the defendant is effectively run by the same person and from the same premises and that therefore, an error had take it place. The trial Court allowed the rectification as a result of which the cause title of the plaint was amended and the present petrs. were shown' as the defts. This action was challenged by the petrs. through a Civil Revision Petition before this Court. This Court dismissed the C.R.P. and observed that it is open to the petrs. to file their written statement in the proceedings. Petrs. learned Advocate submits that by implication, the High Court took the view that it was not in favour of challenge at an interlocutory stage and that if at all the petrs. desired to agitate the point, that they can do so by filing a supplementary written statement and that they can agitate whatever contentions they desire at the hearing of the suit need to observe here that this interpretation of the High Court order is not correct. If that were to be the position, the order would have specifically stated that it was open to the petrs. to take up those contentions through a supplementary written statement and to agitate them before the trial Court. On the other hand, the High Court dismissed the C.R.P. which means that the objections raised by the petrs. were rejected and the liberty was left open to the petrs. to file their written statement on merits and contest the matter.

(2.) The petrs., learned Advocate submitted that the application was allowed by the trial Court on 3.12.1991 and that therefore, for purposes of limitation the Court ought to have examined the question as to whether it was at all permissible to add on the present defts. or petrs. to the proceeding at a point of time which was beyond the period of limitation. Learned Advocate submits that the suit virtually changes complexion in so far as the introduction of a new party namely the present petrs. is virtually on par with a situation whereby the proceeding is instituted or commences against the present petr. at that point of time and that therefore, it is condition precedent for the plaintiff to satisfy the Court that on the date when the petrs. were added on as parties or substituted as defts., that the cause of action as against them was not barred by limitation. On the facts of the present case, it is demonstrated that the original transaction took place in the year 1988 and that even the cheque which is attributed to the defts. was issued on 8.8.1988 and that therefore, in December, 1991 the claim as against the defts. was extinguished by virtue of the operation of the 3 years limitation rule. Petrs, learned Advocate submitted that this aspect of the matter has been raised by the petrs. and that the learned trtal Judge has wrongly brushed aside this very important aspect of the matter. The contention is that the suit itself was time barred and that therefore, the decree passed in that proceeding will have to be set aside.

(3.) As against this position, the respts. learned Advocate has vehemently submitted that in the first instance the date when the application for rectification was made by the plaintiff is material. His submission is that if the plaintiffs applied to the Court for rectification of an error and adding on the present defts. in place of the originally shown party, that it is this point of time which is material and he demonstrates to me that on the date when the application was made to the trial Court, the cause of action as against the present defts. was not barred by limitation. Learned Advocate has relied on an earlier decision of this Court reported in 1973(2) K.L.J. 4861 wherein this Court has upheld precisely this aspect of the law namely that irrespective of when the application for rectification comes to be granted that it is the date when it was originally applied for which is material. Undoubtedly, these applications do take considerable time for disposal on certain occasions and therefore, this Court took the view that the amendment if granted would effectively date back to the date of the application. This Court also had occasion to observe that by virtue of this position, or almost by necessary implication that if the application was not time barred, then the effect of the rectification could also not be time barred as it would date back to the point of time when the suit was instituted. To my mind, this is the right way of assessing the time factor aspect of so far as otherwise, merely because an application may take a couple of weeks, months or years for disposal, the right that flow from the granting of that application cannot be denied to the party merely because of the time lag. The respondents learned Advocate has also relied on a decision of the Supreme Court reported in A.I.R. 1969 S. C. 126 72 wherein the Court had occasion to refer to two earlier decisions reported in AIR. 1961 S.C. 3253 and A.I.R. 1933 Bombay 3044 and to hold that the amendment must be deemed to have been f originally incorporated in the plaint from the , point of time when it was originally filed.