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2003 DIGILAW 1218 (PNJ)

Om Parkash v. Darshan Singh

2003-08-29

M.M.KUMAR

body2003
Judgment M.M.Kumar, J. 1. This petition filed under Article 227 of the Constitution challenges order dated 5.6.2003 passed by the Civil Judge (Jr. Division), Hansi declining the prayer of the defendant-petitioner whereby he claimed that newly added defendant-respondents should be treated to have been granted permission for impleadment from the date of filing the application for all intents and purposes. The order passed by the learned Civil Judges reads as under:- "Arguments on application under Order 1 Rule 10 C.P.C, heard. In their written statement, defendants had raised objection that Smt. Santosh widow of Har Chand, who has performed Kareva with plaintiff, is necessary party to the present suit. Thereafter plaintiff has filed the application under consideration. In view of the objection raised by defendants, present application is allowed and it is ordered that Smt. Santosh be impleaded as proforma defendant. Learned counsel for defendants No. 1 to 4 has contended that above given permission shall be treated from the date of filing of application and placed reliance upon Raghvir Prashad etc. v. Chet Ram, 1971 C.L.J. 612. I have gone through the authoritative pronouncement, however, the same is distinguishable on facts. In the referred case amendment in plaint was allowed whereas present situation deals with impleading of necessary party. Hence, the contention is turned down." 2. Mr. Sunil Panwar, learned counsel for the defendant-petitioner has argued that under Order 1 Rule 10(5) of the Code of Civil Procedure, 1908 (for brevity, the Act) read with Section 21 of the Limitation Act, 1963 it is provided that the added defendant would be deemed to be a party-defendant from the date he has been joined as a party defendant in the civil suit. 3. Mr. Narender Sura, learned counsel for the plaintiff-respondents has pointed out that Smt. Santosh widow of Har Chand is merely a proforma defendant and it would not make much difference even if she is deemed to have joined as party defendant from the date of the order. 4. After hearing the learned counsel for the parties, I am of the considered view that the order of Civil Judge declining the prayer of the defendant-petitioner is unsustainable in the eyes of law. In that regard, it would be appropriate to make a reference to the provisions of Order 1 Rule 10(5) and Section 21 of the Limitation Act, 1963 . Both the aforementioned provisions read as under:- "10. In that regard, it would be appropriate to make a reference to the provisions of Order 1 Rule 10(5) and Section 21 of the Limitation Act, 1963 . Both the aforementioned provisions read as under:- "10. Suit in the name of wrong plaintiff.- (1) xx xx xx xx xx(2) xx xx xx xx xx(3) xx xx xx xx xx xx(4) xx xx xx xx xx(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. 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 not made 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." 5. A perusal of Sub-rule (5) of Rule 10 of Order 1 makes it evident that any person arrayed as party-defendant would be deemed to have joined the proceedings against any other person from the date of service of summons. It has also been made subject to Section 21 of the Limitation Act, 1963 . A perusal of Section 21 of the Limitation Act also makes it evident that the suit is deemed to have been instituted against the arrayed defendant from the date of the order. Under the grab of impleadment under Order 1 Rule 10 no party can extend the period of limitation. Therefore the instant petition deserves to be allowed. 6. A perusal of Section 21 of the Limitation Act also makes it evident that the suit is deemed to have been instituted against the arrayed defendant from the date of the order. Under the grab of impleadment under Order 1 Rule 10 no party can extend the period of limitation. Therefore the instant petition deserves to be allowed. 6. It is further pertinent to mention that the plaintiff-respondents have also not raised any serious objection to the proposition of law that the newly added defendant should be deemed to have joined as party-defendant from the date of the order and not from the date of filing of the civil suit. 7. For the reasons aforementioned, this petition succeeds, the order of the Civil Judge dated 5.6.2003 is modified. The newly added party-defendant Smt. Santosh, widow of Har Chand would be deemed to have joined the proceedings from the date of the order dated 5.6.2003, for all intents and purposes.