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Addition of Parties; Suit when deemed to be filed

Addition of Parties : In Ram Prasad Dagduram Vs. Vijay Kumar Motilal Mirakhanwala, AIR 1967 SC 278 : [1966] Supp SCR 188 : (1967) 69 BOMLR 20 the appellant executed a mortgage in 1934 in favour of the proprietrix of a firm in the State of Hyderabad. The mortgage amount became due in 1943.

The first respondent, who was the daughter’s son of the mortgagee, claiming to be her adopted son filed a suit for foreclosure of the mortgage, in 1954, after the death of the mortgagee.

The trial Court dismissed the suit on the ground that the adoption was not established. The first respondent appealed to the High Court and, pending the appeal, applied for adding his natural mother as a co-plaintiff and her two sisters as defendants as they were not willing to join as plaintiffs, and sought consequential amendments in the plaint.

The High Court granted the application under 0. 1, r. 10(1), Civil Procedure Code, on 4th November, 1958 and thereafter, disposed of the appeal by passing a preliminary decree for foreclosure in favour of the added parties. The High Court did not go into the question of adoption but dismissed the first respondent’s suit.

Addition of Parties

Chief Justice A.K. Sarkar held that the order adding parties cannot be supported under either sub-r.(1) of sub-r. (2) of 0. 1, r. 10. Sub-r. (1) provided for addition of plaintiffs and could not therefore justify the addition of defendants.

In the case of addition of parties under sub-r. (2), the provisions of s. 22 of the Limitation Act admittedly apply and under it in the present case, a suit by the added parties, on the date they were added, would have been barred. It would have been futile, therefore, to make an order under sub-r. (2).

Ravji v. Mahadev’s case (I.L.R. 22 Bom. 672) doubted.

There is no reason to think that s. 22 of the Limitation Act does not apply to O.1, r. 10, sub-r. (1). A person suing as the proprietor of a firm does not sue in a representative capacity. He sues in his personal capacity.

Justice Mudholkar and Justice Bachawat held that the High Court bad power to join the co–plaintiff under 0. 1, r. 10(1) and to join her sisters as defendants under 0. 1, r. (2), and to allow consequential amendments of the plaint under 0. VI, r. 17, but, as regards the added parties, by reason of s. 22(1) of the Indian Limitation Act, 1908 the suit must be regarded as instituted on the date on which they were added and was therefore barred by limitation.

In 1951, the Hyderabad Limitation Act was repealed and the Indian Limitation Act was extended to the State. The Indian Act abridged the period of limitation for the enforcement of the mortgage, but did not impair or take away any vested right. Therefore, on the date of the institution of the suit, the law of limitation applicable was the Indian Act.

The respondent, as the original plaintiff, sued in his own right and on his own behalf. Therefore, the parties added must be regarded as a new plaintiff and new defendant respectively. Section 22 of the Limitation Act in express terms applies whenever a new plaintiff or a new defendant is substituted under 0. 1, r. 10(1) or (2). The effect of the section is that the suit must be deemed to have been instituted by the new plaintiff when he was made a party.

Ravji v. Mahadev, (1897) I.L.R. 22 Bom. 672, disapproved.

Since the suit in the instant case was for foreclosure only it was governed by Art. 132 of the Limitation Act and must be regarded as instituted in November 1958, beyond 12 years from the date when the mortgage money was due.

Vasudeva Mudaliar v. K. S. Shriniwas Pillai I.L.R, 34 I.A. 186, applied.

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