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What effect has substitution or addition of a new plaintiff or defendant in a suit upon question of limitation (Section 21)?

January 12, 2019 0 Comment

It was a suit for the recovery of possession of immovable property from which the plaintiff had been illegally dispossessed; the suit should have been filed within 12 years of the date of dispossession.

In the instant case, the suit of the third plaintiff (newly added party) will be barred by limitation as having been filed 12 1/2 years after the cause of action arose by the dispossession. If this suit was such that the third plaintiff was a necessary party to the suit so that the suit could not go on without the third plaintiff being party to the suit, the whole suit would be barred and liable to be dismissed.

Similarly, if defendant is added as a party, the force of limitation will be calculated as it arises on the date on which the defendant was made a party to the suit, and if the addition of the defendant was beyond the period of limitation, the claim as against him would be barred by limitation and if the claim was such that it could not succeed as against the original defend­ant, without the addition of the third defendant, because no decree could be given without him, the whole suit would be barred.

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But where the court is satisfied that the omission to include a new plaintiff or defendant was due to a mistake in good faith, it may direct that the suit as regards such plaintiff of defendant shall be deemed to have been instituted on any earlier date and not on the date when he was made a party.

The rule, that if after the institution of a suit a party substituted or added as a plaintiff of defendant, the date of sub­stitution or addition is to be considered, as regards that party as the date of the institution of the suit except where the court is satisfied that the omission was due to a mistake made in good faith, does not apply to a case where a party is added or substituted owing to (i) an assignment of (ii) devolution of any interest the pendency of a suit or (iii) where the plaintiff is made a defendant or a defendant is made a plaintiff.

The reason is that in such cases the newly added person steps into the shoes of the deceased or the assignor, as the case may be, and no new considerations arise in ‘a matter of limitation, the cause of action remains the original cause of action. Such person can apply under Order 22 of the Civil Procedure Code for the substitution of their own names in place of the deceased of the assignor.

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