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2004 DIGILAW 16 (AP)

Murali Mohan Naidu v. Iskala Nadi Ramanna

2004-01-06

P.S.NARAYANA

body2004
P. S. NARAYANA, J. ( 1 ) SRI Radha Krishna, learned counsel representing the appellants had raised the following substantial question of law :"whether the question of limitation had been appreciated in proper perspective in accordance with law by the Courts below. " ( 2 ) THE learned counsel in all fairness submitted that except the above question, no other question need be gone into in the present second appeal. ( 3 ) THE learned counsel would maintain that the ingredients of Section 21 of the Limitation Act, 1963 had not been satisfied and findings in this regard had not been recorded in accordance with law and hence, the Courts below had totally erred in decreeing the suit filed by the first respondent/plaintiff. On the contrary, Sri Lakshminarayana Reddy, learned counsel representing the first respondent/plaintiff had pointed out that the suit was initially filed for recovery of amount on the basis of promissory note executed by one Yellappa, as against the first defendant Boya Pullamma who is also the daughter of Yellappa. The learned counsel also submitted that in the light of the specific stand taken, the appellants/defendants 2 to 4 herein also were impleaded as parties in O. S. No. 181 of 1989 on the file of Principal District Munsif, Nandikotkur. The learned counsel would maintain that at any rate the estate of Yellappa was represented even initially, but the other defendants were also brought on record and hence this was just and bona fide mistake and the suit is within the period of limitation in the light of the provisions of Section 21 of the Limitation Act, 1963. ( 4 ) HEARD both the Counsel. ( 5 ) THE first respondent herein Isakala Nadipi Rarnananna filed the suit O. S. No. 181 of 1989 pn the file. Of Principal District Munsif, Nandikotkur for recovery of Rs. 5. 035. 00 due on a promissory note executed by one Yellapa for Rs. 2,400. 00. The suit was resisted on the ground of forgery. On the respective pleadings of the parties, the issues were settled and on appreciation of oral and documentary evidence, the suit was decreed. Aggrieved by the same, an appeal A. S. No. 52 of 1991 was preferred on the file of Subordinate Judge, Nandikotkur, which was also dismissed and aggrieved by the same the present appeal, had been preferred. On the respective pleadings of the parties, the issues were settled and on appreciation of oral and documentary evidence, the suit was decreed. Aggrieved by the same, an appeal A. S. No. 52 of 1991 was preferred on the file of Subordinate Judge, Nandikotkur, which was also dismissed and aggrieved by the same the present appeal, had been preferred. Both the Courts had recorded the concurrent findings that the suit is within limitation as against the other defendants. Defendants 2 to 4 were impleaded as parties, so as to represent the estate of deceased Yellappa. ( 6 ) SECTION 21 of the Limitation Act, 1963 reads as hereunder :"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 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 owning 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. " ( 7 ) IT is clear from the facts of the case that originally the suit was instituted as against the daughter of the deceased Yellappa and in the light of the stand taken that Ex. B1 is the last testament executed by late Yellappa in relation to the properties left by him, the plaintiff had brought on record to the other defendants also, so as to represent the estate of the deceased Yellappa. In the facts and circumstances of the case, it can be definitely said that it is only a bona fide mistake and at any rate, even at the initial stage, the suit was insti-tuted as against the daughter, one of the legal representatives of the deceased Yellappa. In the facts and circumstances of the case, it can be definitely said that it is only a bona fide mistake and at any rate, even at the initial stage, the suit was insti-tuted as against the daughter, one of the legal representatives of the deceased Yellappa. Hence, in the peculiar facts and circumstances, the findings recorded by both, the Courts below that the suit is not barred by limitation as against the other defendants also is definitely sustainable. Except this question, no other question had been canvassed before this Court. In view of the same, the second appeal shall stand dismissed. No costs. Appeal dismissed.