Gurcharan Singh vs Firm Qimat Rai Janak Raj

J.V. Gupta, J.—This is defendant''s second appeal against whom suit for the recovery of Rs. 1340/- was dismissed by the trial Court, but was decreed in appeal.

One Sarwan Singh executed a pronote for a sum of Rs. 1000/-in favour of the plaintiff-firm Qimat Rai Janak Raj on October 28, 1971. The interest was stipulated to be paid at the rate of Rs. 1. 0 per mensem. Sarwan Singh died after taking the said loan and consequently the suit for the recovery of Rs 1340/- was filed on July 30, 1974 against his heirs who were his brothers and sister (Daya Singh and Atma Singh and Mukand Kaur) as Sarwan Singh died unmarried. Daya Singh and Atma Singh filed their written statement on October 29, 1974, when it was brought to the notice of the plaintiff for the first time that Sarwan Singh deceased had executed a will in favour of Gurcharan Singh son of Daya Singh defendant. This necessitated the filing of an application for impleading the legatee Gurcharan Singh as defendant to the suit. The application dated April 22, 1975, was filed in this behalf. The trial Court vide its order dated April 29, 1975, allowed the said application and consequently Gurcharan Singh son of Daya Singh was impleaded as defendant to the suit and the names of the other defendants against whom suit was originally filed were deleted. The trial Court found that Sarwan Singh deceased executed the pronote and the receipt in favour of the plaintiff and it was also found that the suit against Gurcharan Singh who was impleaded as defendant after the expiry of the period of limitation of three years was barred by time. Consequently, the suit was dismissed. In appeal, the learned District Judge reversed the said findings of the trial Court and came to the conclusion that in view of the provisions of section 21 of the Limitation Act read with its proviso the suit of the plaintiff against Gurcharan Singh defendant will be deemed to have been filed within time. Consequently, the plaintiff''s suit was decreed. Dissatisfied with the same, the defendant has filed the second appeal in this Court.

The appeal was admitted at the time of motion hearing on the question as to whether on the strength of the application dated April 22, 1975, under Order 1, rule 10, Civil Procedure Code, filed by the plaintiff-firm, the benefit of the proviso to section 21 of the Limitation Act, 1983, should be given that the suit was time barred against Gurcharan Singh.

Section 21 of the Limitation Act reads as under :

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--------

Reading the section with the proviso, it is quite evident that if the Court is satisfied that the omission to include the defendant was due to a mistake made in good faith it may direct that the suit as regards such defendant shall be deemed to have been instituted on an earlier date. Admittedly, it was for the first time on October 29, 1974, when written statement was filed on behalf of Daya Singh that it was revealed that Sarwan Singh deceased had made a will in favour of Gurcharan Singh son of Daya Singh. There is nothing on the record to show that the plaintiff had any knowledge of the will earlier to that. Under these circumstances, the plaintiff acted bona fide and in good faith in filing the suit against the legal heirs of the deceased Sarwan Singh. Admittedly, when the suit was filed it was within limitation. On the facts and circumstances of the case, the proviso to section 21 is clearly attracted as the mistake had occurred in good faith in not impleading Gurcharan Singh defendant in the first instance. In this view of the matter, the appeal fails and is dismissed with costs.