ATTAR SINGH Vs. DEBI SAHAI

JUDGEMENT

(1.) This is a defendant's appeal arising out of a suit for recovery of possession. The plaintiffs claimed that they and defendant 2 were owners of the land in dispute and asked for the following relief: The plaintiffs and defendant 2 may be put in actual and absolute possession of the land, etc., by ejectment of the defendants.

(2.) Defendant 2 did not appear at the trial at all, and does not appear to have engaged a counsel. The trial Court decreed the claim in the following words : The suit is decreed with costs for possession, etc. The decree that was. framed by the trial Court read as follows: The claim of the plaintiffs and defendant 2 for possession, etc., be decreed and defendants should remove the materials etc.

(3.) The defendant preferred an appeal to the District Judge against the plaintiffs only and did not implead defendant 2 at all. It struck the appellate Court at the time of the argument that defendant 2 was a necessary party, and purporting to act under Order 2, the Court called upon the appellant to make him a party. Thereupon the appellant put in an application for impleading him. When notice was issued to the defendant 2, Prem Sukh, he appeared and strongly objected to his being impleaded. The appellate Court ultimately declined to implead him and cancelled its previous order. The result was that the appeal of the defendant failed even as against the plaintiffs. In appeal it is contended on behalf of the defendant that the appellate Court should, under Order 41, Rule 20 have impleaded defendant 2 because this omission was the result of some unfortunate mistake. The learned advocate for the appellant relies very strongly on a ruling of the Madras High Court in Kunhonna Rai V/s. Mankke Rai A.I.R. 1929 Mad. 343. That ruling certainly supports his contention. In that case the name of one of the plaintiffs had been under some mistake omitted from the memorandum of appeal. The learned Judges came to the conclusion that the recent decision of their Lordships of the Privy Council did not apply to the case and they had the power to correct a mistake and to have the appeal memorandum amended, by inserting the proper name and bringing on record the proper party. With all respect I am unable to agree with their view. The Civil P. C. draws a clear distinction between a mere amendment of a pleading and the addition of a party. In the case of a plaint, the amendment of a plaint can be made by the Court under Order 6, Rule 17, whereas addition of parties can be ordered under Order 1, Rule 10. The two are not identically the same. The addition of a new person as a party is not and cannot be described as an amendment of a pleading. Order 1, Rule 10(5), makes it clear that the addition of a party under that Rule would be subject to the provisions of Section 22, Limitation Act, and the proceedings against any person added as defendant shall be deemed to have begun only on the service of the summons. Under Section 22, Lim. Act, the suit shall be deemed to have been instituted as regards him when he was so made a party. It follows that in no case can a suit be considered to have been instituted (as regards a newly added party) earlier than the date when he was impleaded.