GANESWAR MISHRA Vs. ADWAIT CHARAN MOHANTY

JUDGEMENT

(1.) The trial Court having accepted the plea raised by opposite party No. 1 that the suit was barred by limitation Under Section 21, Limitation Act (hereinafter referred to as the 'Act') the plaintiff -petitioner has filed this application Under Section 115 of the Code of Civil Procedure challenging the said order. The petitioner, Ganeswar Mishra, filed Money Suit No. 211 of 1977 in the Court of the Subordinate Judge, Cuttack, against opposite party No 1, Adwait Charan Mohanty, for recovery of Rs. 2520/ - as arrear house rent and arrear charges of water pipe, With interest, at the rate of 6 percent per annum on the claim. It was averred in the plaint that though arrear house rent amounting to Rs. 3744/ -, including the water pipe charges for the period commencing from January, 1973 to April, 1977 was due from the defendant as the arrear rent from 1 -1 -1973 to May, 1974 was barred by limitation the plaintiff was antitled to recover Rs. 2520/ - only. The rent was due in respect of the house situated in Ward No. 17 in Rajabagicha area of Cuttack town bearing holding No. 717. The defendant -opposite party No. 1 while denying the claim of the plaintiff -petitioner in his written statement, took the plea that the real owner of the house in question was Mahendr Kishore Mishra, son of the plaintiff, Ganeswar Mishra and hence the suit filed by the latter was not maintainable. This plea was reiterated by the opposite party No. 1 in the application filed by him on 22nd October, 1981 praying to the Court that the issue of maintainability of the suit, should be decided as a preliminary issue before going into its merits. On this application the parties were heard and by its order dated 23 -1 -1982 the Court in exercise of its power under Order 1, Rule 10(2), C. P. C, directed the plaintiff to implead Mahendra Kishore as a party to the suit. Indeed the trial Court held that he was the owner of the house in question. In accordance with the said direction the petitioner filed an application on 16 -2 -1982 to implead Mahendra Kishore Mishra as a party to the suit and by order dated 17 -4 -1982 on hearing the counsel for both the parties the Court impleaded Mahendra Kishore Mishra as proforma defendant No. 2 in the suit. Mahendra Kishore Mishra filed his written statement stating that the plaintiff was the owner of the property and the suit at his instance was maintainable. Thereafter the opposite party No. 1 in his application filed on 8 -7 -1982 prayed to the count to take up the question of limitation as a preliminary issue 'The contention raised in the application was that since Mahendra Kishore Mishra, the real plaintiff in the suit was impleaded as party on 17 -4 -1982 the claim in the suit was barred by limitation and the suit was to fail on that court. This application was disposed of by the trial Court by its order dated 20 -7 -1982 upholding the contention of the defendant -opposite party No. 1 and the said order is impugned in the present case. The suit having been dismissed on the ground of limitation by the aforesaid order a decree was drawn up on 31 -7 -1982 and it was sealed and signed on 5 -8 -1982.

(2.) THE learned counsel for the petitioner contended that the Court below clearly erred in dismissing the suit on the ground of limitation applying the provisions of Section 21 of the Act. The learned counsel for the opposite party No. 1 while supporting the impugned order raised the question of maintainability of the civil revision.

(3.) COMING to the merits of the impugned order, the question is whether the provisions of Section 21 of the Act is attracted on the facts and in the circumstances of the case. As noticed earlier, Mahendra Kishore Mishra was impleaded as proforma defendant No. 2 by order dated 17 -4 -1982 of the trial Court after hearing the parties. The said defendant in his written statement supported the case of the plaintiff -petitioner that he was the owner of the premises in question and was therefore entitled to recover the arrear rent due from the defendant in respect of the said premises. At this stage Section 21 of the Act may be quoted : '21 (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 : Provided that 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 as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date. (2) Nothing in Sub -section (1) shall apply to a case where a party is added or substituted owing to assignment or devolution of any interest during the pendency of a suit or where a plaintiff is made a defendant or a defendant is made a plaintiff.' The argument raised in the case centres round Sub -section (1) of Section 21. All that the said provision states is that 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. Under the proviso to Sub -section (1) the Court is given the discretion to direct that the suit as regards the newly added plaintiff or defendant shall be deemed to have been instituted on any earlier date if it is satisfied that the omission to luclude the new plaintiff or defendant was due to a mistake made in good faith. Even assuming that the provision Under Section 21(1) is applicable to the case it could Be said that against the newly added defendant No. 2 the suit should be held to have been instituted on 17 -4 -1982 and not earlier. It is pertinent to note here that the plaintiff seeks no relief against defendant No. 2. Indeed, defendant No. 2 fully supported the plaintiff in his written statement. In these circumstances, the plaintiff could not be non -suited applying Section 21(1) of the Act as has been held by the trial Court in the impugned order. Perhaps to get over this position the Court below observed that defendant No. 2 was the real plaintiff and therefore the suit should be deemed to have been filed by him. But this position is not available to the defendant in view of the order dated 17 -4 -1982 allowing the application of the plaintiff -petitioner to implead Mahendra Kishore Mishra as defendant No. 2. It is pertinent to mention here that in the said order the Court clearly came to the conclusion that by bona fide mistake and due to oversight Mahendra Kishore Mishra was not made a party to the suit earlier. In view of this order it was not open to the Court below to hold that though impleaded as defendant No 2, Mahendra Kishore Mishra must be deemed to be a plaintiff in the suit. In effect the Court transposed defendant No. 2 to the category of plaintiff which was not sought for by any of the parties. Thus the Court below clearly erred in holding that the suit was barred by limitation applying Section 21 of the Act.