- (1.) This petition is directed against the order of the trial Court allowing application of Hukam Singh-plaintiff-pre-emtor, seeking amendment of the plaint by addition of Bishnu vendee as defendant.
(2.) The salient facts are that Hukam Singh filed suit for possession of the entire demised property by pre-emption against Kanhaiya and his son Sube Singh. In their written statement the said two defendants raised an objection that the suit was for partial pre-emption, inasmuch as Bishnu the third vendee, had not been impleaded as defendant. After the expiry of the period of limitation, Hukam Chand on 20.1.1978 applied for amendment of the plant by adding Bishnu as defendant. The controversy whether such a relief was permissible to a pre-emptor or not has now been set at rest by an authoritative pronouncement of the Supreme Court in Munshi Ram v. Narsi Ram and another,1982 2 SCC 8.
(3.) Section 21 of the Limitation Act, '1963 governing the case in hands, reads :- "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." It deserves mention now that in Section 22 of the repealed Limitation Act, 1908, there was no provision corresponding to the proviso to sub-section (1) to Section 21 of the Act. As such their Lordships have laid down that :- "When after the institution of a suit a new plaintiff or defendant was substituted or added, the suit as regards him was to be deemed to have been instituted when he was so made a party. The severity of the above law is sought to be reduced by the introduction of the provisio to Section 21(1) of the Act which provides 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 should be deemed to have been instituted on any earlier date. This change in Section 21 of the Act appears to have been made so that an omission to implead a person owing to bonafide mistake does not deprive a plaintiff of his rights against that person if the court is satisfied in that behalf. For applying the ratio it may as well be mentioned that expression 'good faith' explained in Section 2(h) of the Limitation Act, 1963, reads :- "Nothing shall be deemed to be done in good faith which is not done with due care and attention ;" In the case in hand Hukam Singh annexed certified copy (Mark 'A') of the sale deed with his plaint. Therein, as rightly held by the trial Court, Kanhaiya and Sube Singh with their parentage were recited as the vendees. As such Hukham Singh impleaded both of them as defendants. Doubtless, in their written statement the two defendants pointed out that Bishnu, the third vendee had not been impleaded; but the fact remains that the defendants did not substitute the said averment by producing the original sale deed with their written statement on November 14, 1977. In this situation Hukam Singh was left with no alternative than to again reply on the abovesaid recital made in the certified copy of the sale deed (Mark 'A'). It deserves mention here that an identical circumstance found favour with their Lordships of the Supreme Court in Munshi Ram's case . In order to further establish to bonafides of Hukam Singh, his learned counsel contended that the present suit is for possession of the entire property, which is subject matter of the sale deed Mark 'A'. No ulterior motive could be attributed to Hukam Singh for not impleading Bishnu as defendant.;