Section 21 Effect of substituting or adding new plaintiff or defendant

(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.

Effect of substituting or adding new plaintiff or defendant –

Clause (1) of Sec. 21 lays down that a suit in which a party is subsequently joined (substituted or added) shall be deemed to be instituted as regards him (new Party) on the date of his joinder. Provided that where the court is satisfied that the omission to include a new plaintiff or defendant was due to 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.

Clause (2) provides that nothing in sub-sec. (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 vice versa.

Thus, no question of limitation will arise under Sec. 21 in the case of transposition of parties. Change of position will not affect limitation in so far as a party who was already on record. Further, Sec. 21 has to be taken into account for adding a necessary party but the provisions of Sec. 21 will not apply in cases of adding a proper party against whom no relief is sought for by the plaintiff.

Example – A lends a sum to B and C on 1st March, 1984. A files a suit against B for the sum lent on 1st March, 1987. On 15th March, 1987, A adds C as a co-defendant in the suit. Is the suit barred? Here, the suit against A is in time. But C is joined as a codefendant after the period of limitation has expired; therefore, as against C, the suit is time-barred and must be dismissed.

All plaintiffs who have a joint cause of action must be impleaded before the expiry of the period of limitation. If some of them institute a suit within time and other plaintiffs are added after the period of limitation, the claim of the original plaintiffs also, who had a joint cause of action with the added plaintiffs, would be barred, as the claim could not be enforced without the additional plaintiffs. (K. Ammal V. Chemgaran AIR 1963 Ker. 344).

Where a suit is defective at its inception for non-joinder of all the mortgagees, it is not cured by the addition of the other mortgagees after the expiry of the period of limitation for the suit and under Sec. 20(1), the suit as regards the newly added mortgagees is already barred. However, where a suit was instituted within the period of limitation against all the adult members of a Joint Hindu Family, but after the expiry of that period two more minor defendants were added whose fathers were already defendants in the suit, it was held that the suit could not be dismissed against the minors (Banwari V. Sakhraj AIR 1931 AII. 585).

The effect of striking out the name of one of the defendants is that the suit so far as that defendant is concerned ends and if he is again impleaded by amendment it will be treated as seeking to add a new defendant and Sec. 21 is attracted.

Mis-description of parties – Where it is clear from the facts as to the person who intends to sue or is intended to be sued but is described wrongly, it is a case of misdescription of parties which can be corrected by the court at any time. A mere misnomer or misdescription can be corrected at any time because it is no addition of new party to attract Sec. 21.

Karuppaswamy V. C. Rama Murthy (AIR 1993 SC 2324) – In this case, the Supreme Court observed and held: A comparative ready of the proviso to Sec. 21(1) shows that its addition has made all the difference. The proviso has appeared to permit correction of errors, which have been committed due to a mistake made in good faith, but only when the court permits correction of such mistake. In that event its effect is not to begin from the date on which the application for the purpose was made, or from the date of permission but from the date of the suit, deeming it to have been correctly instituted on an earlier date than the date of making the application. The proviso to Sec. 21(1) is in line with the spirit and thought of some other provisions of the Limitation Act such as Secs. 14 and 17(1).

While invoking the beneficent proviso to Sec. 21(1), an averment that a mistake was made in good faith by impleading a dead defendant in the suit should be made and the court must on proof be satisfied that the motion to include the right defendant by substitution or addition was just and proper, the mistake having occurred in good faith.

In the present case, the trial court did not attribute any neglect or contumacy to the conduct of the respondent, rather it observed that had he known the date of the death of the defendant he would have filed the suit in the first instance against his heirs and legal representatives. Trial Court also opined that the plaintiff was ignorant of death and that is why he filed u/O. 22, Rule 4 of CPC. The High Court’s finding also shows that prompt action taken by the respondent was in good faith and allowing the suit against heirs and legal representatives of defendant 1 by dating back to Nov. 14, 1974 (the date on which the original plaint presented) was right u/Sec. 21(1) of Limitation Act.

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