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1983 DIGILAW 89 (GUJ)

SIZING MATERIALS CHEMICALS and ELECTRONIC PRIVATE LIMITED v. ASITKUMAR RAMESHCHANDRA MEHTA

1983-04-14

S.L.TALATI

body1983
S. L. TALATI, J. ( 1 ) THE petitioner-original defendant No. 2 challenges the order and decree passed by the Ahmedabad Small Causes Court No. 9 in Summary Suit No. 1280 of 1979 decided on 14-1-1983 as confirmed by the Bench of the Small Causes Court Ahmedabad in Application No. 24 of 1983 decided on 20th February 1984 ( 2 ) IT appears that original plaintiff-respondent herein had filed a summary suit to recover a sum of Rs. 1 900 and odd against defendant No. 1 as the air-conditioner was repaired. All correspondence etc. continued between the plaintiff and defendant No. 1. Ultimately when leave to defend application was filed the plaintiff chose to add defendant No. 2 as a party in the year 1981 as it revealed that the air-conditioner belonged to defendant No. 2. The Small Causes Court it appears passed a decree against both the defendants while the Bench of the Small Causes Court partly allowed the application and set aside the decree passed against defendant No. 1 and passed a decree against defendant No. 2 only for a sum of Rs. 1875 That decision is now challenged by filing this revision application. ( 3 ) IT is submitted that in view of Order 1 Rule 10 of the Civil Procedure Code the liability of defendant No. 2 could only begin when the summons of the suit was served on him and under these circumstances the suit so far as defendant No. 2 was concerned was barred by law of limitation. Emphasis is laid on sub-section (5) of Order 1 Rule 10 of the Civil Procedure Code which runs as under:" (5) Subject to the provisions of the Indian Limitation Act 1877 Section 22 the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons". ( 4 ) TO this proposition of law there could he hardly any controversy. Two judgments are cited in support of this contention. One is the case of Indu Bhushan Chakravarty v. Hareram Narayan Deo and Others AIR 1972 Pat 229 where it is laid down as under:"addition of defendant by amendment of plaint Limitation in relation to claim as against such defendant commences from the date of service of summons on him Order allowing amendment not making amendment subject to limitation is immaterial". ( 5 ) THE second case to which reference is made is the case of Bundu v. Smt. Hashmat AIR 1972 Raj 238 There the case was a case under Order 6 Rule 17 where the position would be entirely different. ( 6 ) NOW the facts of this particular case are required to be appreciated properly and the Small Causes Court and the Bench of Judges of the Small Causes Court appreciated the facts. It was clear to them that defendant No. 1 was a Director of a Limited Company which was defendant No. 2. It is true that a company is a separate legal entity. However the facts reveal that in the bungalow in which defendant No. 2 resided the company had its office. Now that therefore from the same premises the transactions were being carried on defendant No. 1 who was the Director of the company-defendant No. 2 carried on correspondence and ultimately got the airconditioner of defendant No. 2 repaired from the plaintiff. It is also true that defendant No. 1 gave a cheque which was signed by defendant No. 2 on 19-5-77. It is therefore urged that the plaintiff should have known that the air-conditioner belonged to defendant No. 2. The fact remains that althroughout residing in the same premises defendant No. 1 dealt with the air-conditioner and with the plaintiff though technically the air-conditioner belonged to defendant No. 2. Defendant No. 2 is expected to carry on the transactions through its Managers or Directors and the liability would always be of defendant No. 2. To a person who was a repairer if he believed that the Director who was dealing with the air-conditioner and bringing it from the same premises thought that the air-conditioner belonged to defendant No. 1 and filed a suit against defendant No. 1 can it be ever suggested that if he thought that the air-conditioner belonged to defendant No. 1 was he under a mistaken belief ? If he was under a mistaken belief that the air-conditioner belonged to defendant No. 1 and if he filed suit against defendant No. 1 the immediate question which is required to he answered is whether can he or can he not correct his mistake? Section 21 of the Indian Limitation Act is drafted with a specific purpose to meet with such eventualities. Section 21 of the Indian Limitation Act is drafted with a specific purpose to meet with such eventualities. Section 21 of the Indian Limitation Act runs as under:"21 (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. Now if that therefore the original plaintiff committed the mistake in filing a suit against defendant No. 1 because he was throughout dealing with defendant No. 1 in regard to this particular air-conditioner should he or should he not be allowed by the Court to correct his mistake. The immediate question which is posed by the learned Advocate for the petitioner is that at what point of time should he be allowed to correct that mistake because according to him though leave to amend application was filed as back as in the year 1979 the amendment application was given in the year 1981. This is begging the question. The real controversy and the real question is whether initially mistake was committed or not and whether that mistake was in good faith or not. Correction of a mistake which was committed in good faith does not require any particular time-limit which is laid down. It is for the Judge who allows the correction to decide at that particular stage or at any subsequent stage when the evidence comes before him whether that particular mistake which was originally committed in good faith was required to be allowed to be corrected in view of Section 21 of the Indian Limitation Act. If that is so done by the trial Court and confirmed by the Bench is it necessary in such a case to interfere at this stage in a revision application where what has been done is that a repairer has been awarded a decree for the labour that has put in. The learned Advocate appearing on behalf of the petitioner drew my attention to a case of Manshi Ram v. Narsi Ram and Another (1983) 20 GLT 136. The learned Advocate appearing on behalf of the petitioner drew my attention to a case of Manshi Ram v. Narsi Ram and Another (1983) 20 GLT 136. In fact that is a ruling which goes against him. It lays down as under:"it may be noted that the provision corresponding to Section 21 of the Act in the Limitation Act 1963 which was repealed and replaced by the Act was Section 22 of the Limitation Act 1908"it is clear from the foregoing that there was no provisions corresponding to the provision to Sub-Section (1) of Section 21 of the Act in Section 22 of the repealed Act. Under the former Limitation Act 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 party. The severity of the above law is sought to be reduced by the introduction of the provision to Section 21 (1) of the Act which provides that where the court is satisfied that the omission to include 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 a bona fide mistake does not deprive a plaintiff of his rights against that person if the Court is satisfied in that behalf. If such mistake is made in good faith the proviso to Section 21 (1) of the Act would be attracted. . . . Now that therefore when initially the day on which the suit was filed a mistake was committed in good faith that mistake is required to be corrected and the Court may allow that mistake to be corrected and put any date not necessarily the date on which the amendment is allowed not necessarily the date on which the services were made not necessarily the date of filing of the suit but any date the Court thinks fit in the peculiar facts and circumstances of the case. Now that therefore even if some other date was fixed the suit would have been within limitation because at the earliest the plaintiff might have come to know if his lawyer explained to him that well this is the leave to amend application and this is what it means. If the amendment relates back even to that date if the Judge so decided the suit would have been within limitation. Now therefore when considering the provisions of Section 21 the Small Causes Court Judge came to the conclusion that this was a mistake committed in good faith on appreciation of the facts as confirmed by the Bench. I think it is not open in revision to interfere in such a matter by this Court. Under the circumstances this revision application fails and is dismissed. Revision dismissed. .