(1.) The question is whether the suit was in time as against defendant 3, assuming, what has not yet been decided that time ran from 1 April, 1921. The plaint was presented against defendants 1 and 2 on the 3 November, 1922. The plaintiffs presented their application, I.A. No. 130 of 1923, to bring defendant 3 on record on 27 January, 1923, and an order to that effect was made by the Subordinate Judge on the 23 February, 1923. But on 10 October, 1923 the Subordinate Judge granted a review, set his order of 23 February, 1923 aside and directed that the plaintiffs application, I.A. No. 130 of 1923, should be re-heard. On 26 April, 1924 he dismissed that application. Against that dismissal the plaintiffs preferred C.R.P. No. 752 of 1924 to this Court, and on 12 March, 1925 my learned brother found that the Subordinate Judge's dismissal of the plaintiffs application was wrong and ordered that defendant 3 be added as a party to the suit. When the suit came on again for hearing before the Subordinate Judge on 29 October, 1925 he found that, though defendant 3 had been added as a party by my learned brother, no summons had been served on him as a defendant in the suit and therefore under Rule 10(5) of Order 1, Civil P. C., proceedings in the suit had not yet begun against him. If that was the correct view, then the suit was already barred as against defendant 3, even assuming that time began to run not earlier than 1st April, 1921. The Subordinate Judge therefore dismissed the suit as against defendant 3, and the present appeal is against that order.
(2.) It has not been seriously disputed before us that the reason given by the Subordinate Judge for his order now under appeal is untenable. It is clear that he has overlooked the opening words of Rule 10(5) of Order 1, viz.: Subject to the provisions of the Indian Limitation Act, 1877, Section 22.
(3.) Under that section the suit must be deemed to have been instituted against defendant 3 when he was made a party. Admittedly he was made a party to the suit by my learned brother's order of 12 March, 1925. But it is contended for the plaintiffs that, though the order was made on that day, the effect of that order is that defendant 3 must be deemed to have been made a party at a much earlier date. It is clear in my opinion that the order of my learned brother on 12 March, 1925 must be regarded as the order which the Subordinate judge should have made when he finally disposed of the plaintiffs application, 1. A. No. 130 of 1923, on 26 April, 1924 and must be taken to have had effect at least from that date. But the plaintiffs go further and contend that the order relates back to a still earlier date, viz., the date of their application, I.A. No. 130 of 1923, that is 27 January, 1923. Undoubtedly the effect of the Subordinate Judge's order granting a review was to make that application remain pending on his file from the date of its presentation to its final disposal on 26 April, 1924. It was decided in Ramkrishna Moreshwar V/s. Ramabai (1892) ILR 17 B 29. that, when a party is added on application, the addition must be deemed to have effect from the date of the application; and that principle appears to have been recognised obiter in Subbaraya Aiyar v. Vaithinatha Aiyar (1909) ILR 33 M 115. It is true that in Ammayya Pillai V/s. Vaithinatha Chetti (1924) 21 LW 125. "Devadoss, J., refused to adopt that principle in interpreting Section 22 of the Limitation Act. In his judgment he mentioned Rdmkrishna Moreshwar V/s. Ramabai (1892) ILR 17 B 29. but said that it had no application to the case with which he was dealing. Why it had no application is not clear from the report. If he meant that the principle of Ramisrishna Moreshwar V/s. Ramabai(1892) ILR 17 B 29. was wrong, then with the greatest respect I an? unable to follow him. It appears to me to be obviously the right principle to adopt in the matter, as otherwise, though an application might be made in time, as in this case, by the dilatoriness of the Court or by the manoeuvres of the opposite party or by a mistaken decision of the Court, which had to be put right on appeal or revision, the order to which the party applying was entitled might not be made until the suit had become time-barred, and it would be unreasonable to leave the party who had applied in good time at the mercy of such chances. It is contrary to one of the clear principles of the Law of Limitation that a diligent party who has come to Court with his suit or his application within the period prescribed should be defeated because the Court for some reason cannot or does not give him his relief within that period. The heavy penalty for exceeding the arbitrary periods of limitation is to be counterbalanced by the assurance of safety when within time. The order made by my learned brother on 12 March, 1925 must, I think, be deemed to have taken effect not merely on the date when it should have been made by the Subordinate Judge, if he had taken a correct view of the position, viz., 26 April, 1924, but on the date when the plaintiffs application was presented to him, viz., 27 January, 1923.