GUMMACDI RAMULU Vs. GADEY SRINIVASA RAO
LAWS(APH)-1992-1-27
HIGH COURT OF ANDHRA PRADESH
Decided on January 27,1992

GUMMACDI RAMULU Appellant
VERSUS
GADEY SRINIVASA RAO Respondents

JUDGEMENT

- (1.)The petitioners filed a suit O.S.No. 126 of 1987 in the Court of the Subordinate Judge, Bhimavaram to recover the value of paddy supplied to a firm by name M/s. Surya Balaji Trading Company in which defendants 1 to 4 are partners. Defendants 1 to 4 filed a written statement contending inter alia that there is another partner of the firm. Thereupon plaintiff filed an application I.A.No. 1639 of 1990 under Order 1 Rule 10 CPC to implead that partner as fifth defendant in the suit. The defendants contested that application on the ground that the claim against the proposed party is barred by time, since the paddy was supplied on 10-4-1986 and the petition to implead fifth defendant was filed on 29-11-1990 i.e., more than three years after the cause of action arose. That contention was accepted by the learned Subordinate Judge who dismissed the petition, Against which this revision is filed.
(2.)The learned Counsel for the petitioner has referred to Section 21 (1) of the Limitation Act of 1963 which reads thai 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. The proviso reads that where the Court is satisfied that the omission to include a new plaintiff or defendant was due 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. He has pointed out that in the corresponding proviso i.e., Section 22 (1) of the Limitation Act of 1908 this proviso was not in existence and the Law Commission recommended for the insertion of the proviso to cover cases where on account of a mistake in good faith parties are not impleaded at the time of filing of the suit. Now, according to his contention, if the court finds that a party is a proper or necessary party, he can be impleaded as a party under Order 1 Rule 10 CPC but if the party raises a plea that the claim is barred by limitation that has to be decided. An issue can be framed on that aspect that has to be decided at the time of trial of the suit, because the Court must be satisfied on evidence that the party was not impieaded originally in the suit on account of a mistake made in good faith. Having regard to the change in law between Section 22 (1) of Limitation Act 1908 and the provision of Section 21 (1) of the Limitation Act, 1963 by insertion of proviso, I agree with the contention of the learned Counsel for the petitioner that if a party was not impieaded on account of a mistake made in good faith the party can be impieaded under Order 1 Rule 10 CPC subject to the question of limitation being decided at the time of the disposal of the suit. Therefore the Appeal allowed and the fifth respondent is impieaded as fifth defendant in the suit and if a contention is taken by any of the defendants that the claim in so far as the fifth defendant is concerned is barred by limitation, the trial Court shall frame an issue on that question and decide the question alongwith the suit.
(3.)With that direction the CRP is allowed. No costs.
;


Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.