Delhi High Court
Guldas And Anr. vs Shri Ramesh Tomar & Ors. on 9 October, 2014
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ C.R.P.No. 164/2013 and C.M. No.13891/2013 (stay)
% 9th October, 2014
GULDAS AND ANR. ......Petitioners
Through: Mr. Satyanarayan, Advocate.
VERSUS
SHRI RAMESH TOMAR & ORS. ...... Respondents
Through: Mr. Rajan Bhatia, Advocate for
respondent No.1.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? Yes
VALMIKI J. MEHTA, J (ORAL)
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
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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
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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
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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
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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.
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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
