( 1 ) THIS petition by the defendants in Special Civil suit No. 583 of 1997 before the learned Civil Judge, Senior division, Nagpur, raises the question as to the circumstances in which a person joining as co-plaintiff much after the suit was filed could be given benefit of proviso to Section 21 of the Limitation Act. ( 2 ) FACTS relevant for deciding this petition and about which there is not much of a dispute, are as under : the defendants were alleged to have executed an agreement of sale in respect of certain property in favour of original plaintiff Manjudevi and her husband. A suit for specific performance of said agreement was filed on 30-5-1997 by Manjudevi alone (Special Civil Suit No. 583 of 1997), seeking execution of sale-deed in her own name against the petitioners and defendant Nos. 5 to 8 in whose favour a subsequent agreement was executed. However, the plaint as initially drafted bore the names of both manjudevi and her husband. Name of her husband binodkumar in the title as also his signatures on the last page of the plaint were erased by the counsel for the plaintiffs, who also sought to take advantage of exemption for court fee for women and stated so in para 16 of the plaint. Application Exhibit 5 for temporary injunction was, however, signed by both Manjudevi and Binodkumar and was verified by Binodkumar alone. ( 3 ) DEFENDANT Nos. 5 to 8 (subsequent prospective purchasers) also filed a suit against vendors bearing special Civil Suit No. 1123 of 1996. In the said suit, on 30-4-1997, both Manjudevi and Binodkumar applied for being joined as parties. ( 4 ) IN written statement filed on 26-11-2001 by the petitioners, they specifically raised objections to non-joinder of Binodkumar as also non-payment of court fee. Defendant Nos. 5 to 8 filed application Exhibit 45 on 28-2-2000 for rejection of plaint on the ground of non-payment of court fee, which was rejected by order dated 28-7-2000 holding that plaintiff Manjudevi was entitled to exemption in court fee. Defendant Nos. 5 to 8 filed application Exhibit 45 on 28-2-2000 for rejection of plaint on the ground of non-payment of court fee, which was rejected by order dated 28-7-2000 holding that plaintiff Manjudevi was entitled to exemption in court fee. ( 5 ) ON 7-4-2004, one Bhushan Jain, who claimed to be holder of power of attorney dated 8-1-1999, filed application Exhibit 65 under Order 1 Rule 10 of the Code of civil Procedure for joinder of Binodkumar, which was opposed by the petitioners by reply dated 12-10-2004, wherein tenability of application filed by power of attorney was also questioned. On 18-10-2004, the said holder of power of attorney filed another application Exhibit 73 for bringing additional facts on record and also mentioned that the plaintiffs could be given benefit of proviso to Section 21 of the Limitation Act without expressly making such a prayer. This too was opposed by the petitioners by filing an elaborate reply. ( 6 ) BY his impugned order dated 7-4-2005, the learned Civil Judge, Senior Division, allowed both the applications. He also granted the prayer not made namely, benefit of proviso to Section 21 of the Limitation act to the plaintiffs without including it in operative part of order, but stating so in para 9 of his order. Aggrieved thereby, the petitioners have filed this petition. They only claim that plaintiff No. 2 Binodkumar may be deemed to have been added as a co-plaintiff only from 7-4-2004, the date of his application Exhibit 65, without being given the benefit of proviso to Section 21 of the Limitation Act. ( 7 ) I have heard both the learned counsel for the petitioner-defendants and the respondent-plaintiffs. Before embarking upon examination of rival contentions, it may be useful to reproduce provision of Section 21 of the Limitation act and its proviso as under : 21. ( 7 ) I have heard both the learned counsel for the petitioner-defendants and the respondent-plaintiffs. Before embarking upon examination of rival contentions, it may be useful to reproduce provision of Section 21 of the Limitation act and its proviso as under : 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 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. (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. ( 8 ) THE learned counsel for both the parties relied on several judgments where this proviso has been considered by the Courts. In Inderchand Mulchand Banwat v. Manoj premchand Sharma and others, reported at 2001 (Supp.)Bom. C. R. 410, relied on by the learned counsel for the respondent, it was held that if omission to include a party was in good faith, the Court is under an obligation to direct that suit in relation to such a party shall be deemed to have been instituted on the date of filing of suit. ( 9 ) IN Munshi Ram v. Narsi Ram and another, reported at (1983) 2 SCC 8 , on the basis of a certified copy of a sale-deed, two vendees had been impleaded. The defendants objected, that another vendee was not joined. On the basis of certified copy, the plaintiff maintained that all vendees had been joined. Before framing issues, the defendants read out original sale-deed which disclosed another vendee. The plaintiff applied under Order 1 rule 10 and Order 6 Rule 7 of the Code of Civil Procedure for joining this vendee. The Trial Court and the first and second Appellate Courts rejected the application. Before framing issues, the defendants read out original sale-deed which disclosed another vendee. The plaintiff applied under Order 1 rule 10 and Order 6 Rule 7 of the Code of Civil Procedure for joining this vendee. The Trial Court and the first and second Appellate Courts rejected the application. The supreme Court held that the Court below had failed to consider the effect of the proviso in Section 21 of the limitation Act, 1863, which reduced the severity of corresponding Section 22 of the old Limitation Act, 1908, and observed as under : 7. . . . 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 a party. The severity of the above law is sought to be reduced by the introduction of the proviso to Section 21 (1)of the Act which provides 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 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. ( 10 ) THE Apex Court found on facts that when the suit was filed, the plaintiff had no means to know that there was any other vendee. In the cleverly drafted written statement, name of third vendee was not mentioned. It was only alleged that all vendees had not been joined. The plaintiff had no reason to suspect that there was an error in certified copy until original was read out in the Court. The plaintiff filed application for joinder of third vendee on the very next day with due diligence. The Court referred to meaning of good faith in Section 2 (h) of the Limitation act, that nothing shall be deemed to have been done in good faith, which is not done with due care and attention. The plaintiff filed application for joinder of third vendee on the very next day with due diligence. The Court referred to meaning of good faith in Section 2 (h) of the Limitation act, that nothing shall be deemed to have been done in good faith, which is not done with due care and attention. The Court then concluded that omission to sue third vendor was in good faith and allowed the appeal. ( 11 ) IN Inderchand Mulchand Banwat v. Manoj premchand Sharma and others, reported at 2000 (4) Mh. L. J. 455, relying on above judgment, as also the judgment in Jai jai Ram Manohar Lal v. National Building Material Supply, gurgaon, reported at AIR 1969 SC 1267 , this Court allowed the application to implead proprietor in a suit originally filed against a servant working in the shop, after such objection was taken by the servant in written statement, without disclosing name of proprietor. The applicant enquired with Registrar, found who was proprietor, and sought to join him. The application had been rejected by the Trial Court holding that the claim would be time-barred on the date of joinder of proprietor was sought. ( 12 ) IN Hirasingh Sardarsing Parmar v. Ramkuwarbai sardarsingh Parmar, reported at 2008 (1) Bom. C. R. 811, the court was considering a bona fide mistake in failing to add daughters of owner of property in a suit by her son to recover possession from person claiming to be step-mother of plaintiff. The Court observed as under : 7. . . . It is the duty of the Court to see that every matter is finally and effectually decided. When it is found, in fact, that the party has a good case, it should not loose due to the follies. The object of Order 1, Rule 10 is to discourage contest of technical pleas and to save honest and bona fide claimant from being non-suited. The power to strike out or add parties can be exercised by the Court at any stage of the proceedings. Without the presence of these Durgabai and ratnabai, the suit could certainly not be finally and effectually decided and for final and effectual adjudication, it is necessary that both of them should be before the Court. It may be seen that the judgment was not about applying proviso to Section 21 of the Limitation Act. Without the presence of these Durgabai and ratnabai, the suit could certainly not be finally and effectually decided and for final and effectual adjudication, it is necessary that both of them should be before the Court. It may be seen that the judgment was not about applying proviso to Section 21 of the Limitation Act. ( 13 ) IN Jai Jai Ram Manohar Lal v. National Building material Supply, Gurgaon, reported at AIR 1969 SC 1267 , the facts were different. A suit filed in the business name of proprietory concern was objected to on the ground that the firm was unregistered partnership. The plaintiff sought to amend the title adding his name as proprietor of the proprietory concern. The High Court held that action must be deemed to have been instituted on the date of such substitution, and on that day the claim was barred by limitation. The observations of the Apex Court, reversing the judgment of the High Court, in paragraphs 7 and 8, relying on by the learned counsel for the respondent, are as under : 7. IN the present case, the plaintiff was carrying on business as commission agent in the name of Jai Jai Ram Manohar Lal. The plaintiff was competent to suit in, his own name as manager of the Hindu undivided family to which the business belonged; he says he sued on behalf of the, family in the business name. The observations made by the High court that the application for amendment of the plaint could not be granted, because there was no averment therein that the misdescription was on account of a bona fide mistake, and on that account the suit must fail, cannot be accepted. In our view, there is no rule that unless in an application for amendment of the plaint it is expressly averred that the error, omission or misdescription is due to a bona fide mistake, the court has no power to grant leave to amend the plaint. The power to grant amendment of the pleadings is intended to serve the ends of justice and is not governed by any such narrow or technical limitations. 8. The power to grant amendment of the pleadings is intended to serve the ends of justice and is not governed by any such narrow or technical limitations. 8. SINCE the name in which the action was instituted was merely a misdescription of the original plaintiff, no question of limitation arises : the plaint must be deemed on amendment to have been instituted in the name of the real plaintiff, on the date on which it was originally instituted. ( 14 ) THE learned counsel for the petitioners relied on the observations in Shiv Gopal Sah @ Shiv Gopal Sahu v. Sita Ram Saraugi and others, reported at 2007 (5) SCALE 198 , on the question of introducing time-barred claims by applications for amendment of plaint. The Court held in paragraphs 11 and 12 as under, while repelling the attempt to introduce a time-barred claim. 11. We have gone through the amendment application carefully where we do not find any explanation whatsoever for this towering delay. We would expect some explanation, atleast regarding the delay since the delay was very substantial. The whole amendment application, when carefully scanned, does not show any explanation whatsoever. This negligent complacency on the part of the plaintiffs would not permit them to amend the plaint, more particularly when the claim has, apparently, become barred by time. 12. It is quite true that this Court in a number of decisions, has allowed by way of an amendment even the claims which were barred by time. However, for that there had to be a valid basis made out in the application and first all of them had to be bona fides on the part of the plaintiffs and a reasonable explanation for the delay. It is also true that the amendments can be introduced at any stage of the suit, however, when by that amendment an apparently time barred claim is being introduced for the first time, there would have to be some explanation and secondly, the plaintiff would have to show his bona fides, particularly because such claims by way of an amendment would have the effect of defeating the rights created in the defendant by lapse of time. When we see the present facts, it is clear that no such attempt is made by the plaintiffs anywhere more particularly in the amendment application. When we see the present facts, it is clear that no such attempt is made by the plaintiffs anywhere more particularly in the amendment application. ( 15 ) THE learned counsel for the petitioners also relied on judgment in Deena (dead) through LRs. v. Bharat Singh (Dead) through LRs. and another, reported at (2002) 6 SCC 336 , where despite objection to non-joinder of necessary party, the plaintiffs chose to proceed with the suit and withdrew the suit under Order 23 of the Code of Civil procedure with liberty to file a fresh suit by an application which they filed when the matter was before the first appellate Court. Both the Courts below held that the plaintiffs were not entitled to have the period spent in prosecuting the lis in the absence of necessary party excluded as time spent in prosecuting remedies in good faith. The High Court reversed these findings. The supreme Court reversed the judgment of the High Court holding that it could not be said that the plaintiffs were prosecuting the previous suit in good faith. ( 16 ) THE learned counsel for the petitioners submitted that the crux of the matter is thus whether the omission to include the name of Binodkumar as a new plaintiff was due to a mistake made in good faith, which is a question of fact. According to him, the very conduct on which the plaintiffs rely shows that it was decidedly not in good faith. Therefore, he submitted that decisions on which the plaintiffs place reliance have no application. In Munshi ram v. Narsi Ram and another, reported at (1983) 2 SCC 8 , the plaintiff had no means of knowing that there was a third vendor, till the original sale-deed was read out, and then the very next day, he applied for joinder of the other vendor without loss of time. In Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon, reported at air 1969 SC 1267 , only a misdescription was being corrected. In Inderchand Mulchand Banwat v. Manoj premchand Sharma and others, reported at 2000 (4) Mh. L. J. 455, too the moment the plaintiff was made aware that the defendant was not proprietor, steps to find out the proprietor and then to sue him were taken. In Inderchand Mulchand Banwat v. Manoj premchand Sharma and others, reported at 2000 (4) Mh. L. J. 455, too the moment the plaintiff was made aware that the defendant was not proprietor, steps to find out the proprietor and then to sue him were taken. ( 17 ) THE learned counsel for the petitioners submitted that the conduct of the plaintiffs in the case stands in stark contrast. The plaintiffs consciously took a decision to file the suit in the name of only Manjudevi, possibly to avoid paying court fee. The learned counsel for the respondent-plaintiffs contested this and submitted that the plaintiffs in fact wanted to file suit in the names of both the plaintiffs and both of them had signed the plaint. They had also handed over requisite amount for purchase of court fee stamp and a challan for depositing the amount in Reserve bank of India had also been prepared. Name of binodkumar was deleted by Adv. P. K. Mishra without plaintiffs knowledge after plaintiffs had left for Assam, who then gave the wrong advice to go ahead with such a suit and thus it was a mere mistake as explained in application exhibit 73, wherein proviso to Section 21 of the Limitation act was invoked for the first time. ( 18 ) THE learned for the petitioners submitted that application Exhibit 73 could not at all have been considered, as it related to events which allegedly occurred before the signatory got power of attorney on 8-1-1999, which he was not entitled to depose to. For this purpose, he placed reliance on judgment of the Supreme Court in janki Vashdeo Bhojwani and another v. Indusind Bank Ltd. and others, reported at (2005) 2 SCC 217 . On behalf of the respondent, reliance was placed on my observations in judgment dated 23-6-2009 in Writ Petition No. 2436 of 1997 about receiving evidence of a husband in wifes suit for recovery of possession of premises on the ground of bona fide need under the Rent Act. I have carefully considered these contentions. There is decidedly some substance in objection to reliability of account of Bhushan Jain, the holder of power of attorney about events relating to filing of suit in 1997, long before he got power of attorney. There is no reference anywhere about his participation in instructing Adv. Mishra or filing the suit. I have carefully considered these contentions. There is decidedly some substance in objection to reliability of account of Bhushan Jain, the holder of power of attorney about events relating to filing of suit in 1997, long before he got power of attorney. There is no reference anywhere about his participation in instructing Adv. Mishra or filing the suit. All the same, rather than throwing out applications Exhibits 65 and 73 filed by Jain on behalf of the plaintiffs on this ground, it will be appropriate to examine if the respondent-plaintiffs have made out a case that Binodkumar was not joined as coplaintiff due to a mistake made in good faith. ( 19 ) THE learned counsel for the petitioners rightly pointed out the following factors indicating absence of good faith : (i) Both the plaintiffs themselves had sought to join as defendants in suit by subsequent purchasers (Special Civil Suit No. 1123 of 1996) by application dated 30-4-1997, i. e. even before the present suit was filed and so knew who were necessary parties. (ii) In the suit in para 10, the plaintiffs had come with the specific case that they wanted sale-deed to be executed in favour of Manjudevi alone original plaintiff and in para 16 claimed exemption from payment of court fee, as a woman. (iii) Other defendants objected to non-payment of court fee by application Exhibit 45 on 28-2-1999. (iv) The defendants (petitioners) had raised an objection at the threshold about non-joinder of Binodkumar in written statement dated 26-11-2001. (v) In application Exhibit 65 filed on 7-4-2004 long after objection by defendants on 26-11-2001 the plaintiffs reiterated that the sale-deed was to be executed in favour of Manjudevi alone, but by way of abundant precaution, Binodkumar executed power of attorney in favour of Manjudevi to file suit in her name, which is not even referred to in the plaint. On the other hand, attempt is made to show that the suit was in fact filed by both manjudevi and Binodkumar and Binodkumars name was scored out by Adv. Mishra, against who no complaint is made. (vi) The claim in application Exhibit 65 is contradicted by recitals in para 3 of Exhibit 73 that both manjudevi and Binodkumar signed plaint, vakalatnama, etc. and left for Assam and were not even aware that the counsel had deleted the name of Binodkumar. Mishra, against who no complaint is made. (vi) The claim in application Exhibit 65 is contradicted by recitals in para 3 of Exhibit 73 that both manjudevi and Binodkumar signed plaint, vakalatnama, etc. and left for Assam and were not even aware that the counsel had deleted the name of Binodkumar. And yet, the plaintiffs state that on reaching Assam, Manjudevi (and not both husband and wife) informed the counsel on telephone that the sale-deed in respect of the suit property was to be executed in her name alone. ( 20 ) IT is clear from the above that far from there being any mistake in good faith, there was no mistake at all, but a conscious decision to file suit in the name of manjudevi alone. There is no question of mistaken advice as well, since even before filing the suit, the plaintiffs knew that they were necessary parties and had sought their impleadment in the other suit. Even after objections were raised, the plaintiffs refused to wake up and promptly rectify the alleged mistake. Allurement of avoiding to pay court fee has led plaintiffs to this disastrous adventure. The learned Judge was grossly in error in granting benefit of proviso to Section 21 of the Limitation Act to such parties, whose actions were not in good faith and not at all bona fide. ( 21 ) THE petition is, therefore, allowed. The impugned order on the applications Exhibits 65 and 73 is modified and the observations in para 9 thereof to the effect that as regards the suit filed by the plaintiff No. 2 it must be deemed to have been instituted on the date of presentation of the plaint against the defendants are quashed and set aside.