JUDGMENT Mr. Rajesh Bindal J.: - Challenge in the present petition is to the order dated 9.5.2011, passed by the learned court below, whereby the application filed by respondent No. 1-plaintiff for impleading the petitioners as defendants in the suit, was allowed. 2. Briefly, the facts of the case are that late-Dewan Chand Setia entered into an agreement to sell dated 26.6.2002 for sale of House No. B- 08/446, situated on Radaur Road, Camp Yamuna Nagar, District Yamuna Nagar for a total sale consideration of Rs.10,00,000/-. Earnest money of Rs.1,00,000/- was paid. The last date for execution of the sale deed was fixed as 31.8.2002. The vendor having not executed the sale deed, various notices were issued by respondent No.1-plaintiff on 28.8.2002, 4.9.2002 and 26.9.2002. The suit for possession by way of specific performance of agreement to sell was filed by respondent No. 1-plaintiff on 31.8.2005 against the legal heirs of Dewan Chand Setia, as he had expired. During the pendency of the suit, an application under Order 1 Rule 10 CPC was filed for impleading the petitioners also as defendants in the suit being legal heirs of deceased-Dewan Chand Setia. The application having been allowed by the learned court below vide impugned order dated 9.5.2011 that the petitioners, who have been directed to be impleaded as defendants, are before this court. 3. Learned counsel for the petitioners submitted that the learned court below has failed to deal with the objection raised by the petitioners regarding the suit against them being time barred either on the date the application for impleading them as defendants in the suit was filed or the date on which the court allowed the same. An objection to that effect was taken, but the same has not been properly dealt with by the learned court below. Even in the application, the prayer was not that the petitioners should be deemed to be impleaded as party from the date of filing of the suit. He further submitted that in terms of Order 1 Rule 10(5) CPC, a suit against a newly added defendant shall be deemed to have been filed only on the date service of the defendant is effected.. In support of the submissions, reliance was placed upon a judgment of this court in Om Parkash v. Darshan Singh, 2004 (1) PLR 539. 4. In support of the submissions, reliance was placed upon a judgment of this court in Om Parkash v. Darshan Singh, 2004 (1) PLR 539. 4. On the other hand, learned counsel for respondent No. 1- plaintiff submitted that while directing impleadment of the petitioners as defendants in the suit, while allowing the application filed by the plaintiff, the learned court below placed reliance upon the provisions of Section 21 of the Limitation Act, 1963 (for short, ‘the Act’), which enables the court to implead parties from the date the suit was initially instituted, in case the mistake is bonafide. In support of his contention that mistake of the plaintiff while not impleading the petitioners as defendants in the suit being legal heirs of deceased-Dewan Chand Setia at the time of initial filing was bonafide, reference was made to paragraph No. 1 of the plaint, where it was stated that the defendants are the only legal heirs of deceased- Dewan Chand Setia. While filing written statement, the defendants in the suit, who are none else than widow and sons of deceased-Dewan Chand Setia, did not raise any plea regarding the suit being bad on account of non-joinder of necessary parties as all the legal heirs had not been impleaded. The averments made by the plaintiff in paragraph 1 of the plaint were admitted. Even in paragraph 10 of the written statement, it was stated by the defendants that they are the absolute owners of the property in dispute. Defendant No. 5, namely, the widow of deceased-Dewan Chand Setia, being one of the legal heirs, had appeared in the witness box as DW- 2. Even in her cross-examination, she stated that she and her four sons are the owners of the property in dispute after the death of Dewan Chand Setia. In fact, the plaintiff came to know about the fact that there are other legal heirs of deceased-Dewan Chand Setia only when on 27.4.2010, application for amendment of the written statement was filed by the defendants seeking to take up the plea that the suit is bad for non-joinder of necessary parties. Immediately after notice was issued in the application, the plaintiff moved application under Order 1 Rule 10 CPC seeking to implead the legal heirs which, according to the defendants, had not been impleaded initially in the suit. Immediately after notice was issued in the application, the plaintiff moved application under Order 1 Rule 10 CPC seeking to implead the legal heirs which, according to the defendants, had not been impleaded initially in the suit. In support of the submissions, reliance was placed upon Karuppaswamy v. C. Ramamurthy, AIR 1993 SC 2324 and Telagareddy Yesu Rama Eswara Prasad and another v. Life Insurance Corporation of India and others, 2010 (1) Civil Court Cases 505. 5. Heard learned counsel for the parties and perused the relevant referred record. 6. Before dealing with respective contentions raised by learned counsel for the parties, it would be appropriate to refer to certain portions of pleadings and the relevant provisions. The same are extracted below: “ Paragraphs 1 and 10 of the plaint 1. That the defendants being sons and widow of late Sh. Dewan Chand Setia son of Sh. Duni Chand are only legal heirs of above said Dewan Chand. xx xx xx 10. That the cause of action for the present suit arose to the plaintiff against the defendant firstly on 26.6.2002 when the agreement to sell was executed and lastly a day before yesterday when the defendant totally refused to execute the sale deed and threatened to alienate the property in question to somebody else illegally and unlawfully and also threatened to change the existing nature of the suit property. So the plaintiff has no other remedy except to file the present suit. Hence this suit. Paragraphs 1 and 10 of the written statement 1. That para No. 1 of the plaint is admitted to be correct. x xx xx 10. That para No. 10 of the plaint is wrong and hence denied. There is no cause of action against the answering defendant. It is submitted that the answering defendants being absolute owner of the suit property has every right to deal in the property in the manner they like. The plaintiff has filed the present false and frivolous suit only to grab the valuable property of the answering defendants only on the basis of alleged agreement to sell which is a manipulated document. [Emphasis supplied] Paragraph 2 of the application under Order 6 Rule 17 CPC filed by the defendants for amendment of the written statement 2. The plaintiff has filed the present false and frivolous suit only to grab the valuable property of the answering defendants only on the basis of alleged agreement to sell which is a manipulated document. [Emphasis supplied] Paragraph 2 of the application under Order 6 Rule 17 CPC filed by the defendants for amendment of the written statement 2. That the defendants want to add in the preliminary objection of the written statement, which would be read as under: “The suit is bad for non-joinder of necessary parties. After death of Dewan Chand Setia his estate has been inherited by the defendants as well as daughters of Dewan Chand Setia. But those daughters have not been joined as party in this suit. Hence, the suit is liable to be dismissed on the ground of non-joinder of necessary parties.” Section 21 of the Limitation Act, 1963 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.” 7. From a perusal of the pleadings initially filed and also the contents of the application for amendment of the written statement filed by the defendants, it is evident that an agreement to sell was allegedly executed by Dewan Chand Setia on 26.6.2002. The last date for execution of the sale deed was fixed as 31.8.2002. The sale deed having not been executed and the vendor having died in the meantime, a suit was filed by respondent No. 1-plaintiff on 31.8.2005 impleading the legal heirs of deceased-Dewan Chand Setia. The last date for execution of the sale deed was fixed as 31.8.2002. The sale deed having not been executed and the vendor having died in the meantime, a suit was filed by respondent No. 1-plaintiff on 31.8.2005 impleading the legal heirs of deceased-Dewan Chand Setia. The case set up by the plaintiff in the suit filed was that the defendants impleaded in the suit are the only legal heirs of deceased-Dewan Chand Setia, who had agreed to sell the property in question to the plaintiff. In the written statement filed by the defendants, the stand was that the defendants already impleaded are the only legal heirs of Dewan Chand Setia. Not only this, it was claimed by the counsel for respondent No. 1-plaintiff that even in her cross-examination, defendant No. 5, widow of deceased-Dewan Chand Setia, had stated that she and her sons are the owners of the property being legal heirs of deceased-Dewan Chand Setia. The proceedings in the suit continued. It was only when application was filed by the defendants seeking to amend the written statement by taking a preliminary objection to the effect that the suit is bad for non-joinder of necessary parties on account of nonimpleadment of the daughters of deceased-Dewan Chand Setia that the plaintiff came to know about the legal heirs, other than impleaded as defendants in the suit. From the pleadings or the material on record, learned counsel for the petitioners had not been able to establish that the fact regarding the petitioners being the legal heirs of deceased-Dewan Chand Setia was either in the knowledge of the plaintiff before filing of the suit or it was ever brought to his notice after filing thereof till such time the application for amendment of the written statement was filed. 8. The grouse sought to be raised by learned counsel for the petitioners is that the learned court below has not dealt with the objection raised by the petitioners that the suit against the petitioners on the date of filing of the application was time-barred. Section 21 of the Act, as has been reproduced above, provides that where after the institution of a suit, a new plaintiff, or defendant is substituted or added, the suit, as regards him, shall be deemed to have been instituted when he was so made a party. Section 21 of the Act, as has been reproduced above, provides that where after the institution of a suit, a new plaintiff, or defendant is substituted or added, the suit, as regards him, shall be deemed to have been instituted when he was so made a party. Proviso thereto provides that in case the court is satisfied that the omission to include a party was due to a mistake made in good faith, it may direct that the suit as regards the newly added party shall be deemed to have been instituted on any earlier date. 9. Hon’ble the Supreme Court in Karuppaswamy’s case (supra) considered the import of proviso to Section 21 of the Act. It was opined that in case there is a bonafide mistake in not impleading correct parties at the initial stage, against the newly impleaded party the suit shall be deemed to have been instituted on the date of original filing. Relevant paragraphs 8 and 9 thereof are extracted below: “8. A later judgment of this court reported in Munshi Ram v. Narsi Ram, (1983) 2 SCC 8, being under the Limitation Act, 1963 is more on the point. Thus the appellant filed a suit for possession of a piece of land in exercise of his right of pre-emption against respondents 1 and 2 alleging that they had purchased the land from his father under a registered sale deed dated 16-5-77 in total disregard of his right of preemption. It was that the stated in the plaint that the cause of action arose on 16-5-77 and hence the suit filed on 29-1-78 was in time. Certified copy of sale deed was also filed along with the plaint. In the certified copy of sale deed there was mention of only respondents 1 and 2 as vendees. In the written reply filed on 17-5-78 one of the pleas was that all the vendees were not impleaded and hence the suit being for partial pre-emption was liable to be dismissed. On 14-6-78, the court proceeded to frame issue. In that course when the original sale deed was read it transpired that one M was also a vendee along with respondents 1 and 2. On 14-6-78, the court proceeded to frame issue. In that course when the original sale deed was read it transpired that one M was also a vendee along with respondents 1 and 2. On the next date itself the appellant filed an application to implead M and prayed for amendment of the plaint stating 16-6-77 also as the date of cause of action on which day according to him the possession of land was delivered to the vendees. The amendment was sought to save the suit from bar of limitation prescribed by Article 97 of Limitation Act. The suit and application were dismissed as also the first appeal and the second appeal before High Court. This Court held that the omission to implead M as defendant was due to a mistake. The mistake was made in good faith and hence the proviso to sub-section (1) of Section 21 of the Act would apply and the suit deemed to have been filed on 29-1-78 against M and thus it would be within time as required by Art. 97. The decision of the High Court thus reversed. It was also opined that M being a necessary party had to be impleaded under Order 1 Rule 10 CPC, to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit. 9. Thus in our opinion the course set out in Munshi’s case (AIR 1983 SC 271) (supra) is attracted to the instant case since the High Court has found that the plaintiff-respondent had acted in good faith and had committed mistake in that frame of mind. Munshi’s case, in our view, should clear the way in favour of the plaintiff-respondent, ending in dismissing of this appeal.” 10. The same view was followed by Andhra Pradesh High Court in Telagareddy Yesu Rama Eswara Prasad and another’s case (supra). 11. The issue was also dealt with by Hon’ble the Supreme Court in Ramalingam Chettiar v. P. K. Pattabiraman and another, (2001) 4 SCC 96 and it was opined that Section 21 of the Act contemplates two situations as are envisaged under the substantive provision and the proviso thereto. Proviso to Section 21 of the Act enables the court to implead any party to the suit from any date prior to the order passed in case it is satisfied that mistake was in good faith. Proviso to Section 21 of the Act enables the court to implead any party to the suit from any date prior to the order passed in case it is satisfied that mistake was in good faith. Relevant paragraph 6 thereof is extracted below: “6. Learned counsel for the respondent referred to the proviso to Section 21 of the Limitation Act and on the strength thereof argued that even if the application for impleadment of the State of Tamil Nadu was allowed on 11.10.1979 the said order has to be understood as if impleadment of Defendant 2 was with effect from the date of filing the suit. There is no substance in the argument. Section 21 of the Limitation Act contemplates two situations – one under the substantive provision which provides that where after filing of a suit, a new plaintiff or defendant is substituted or added, the suit shall, as regards him, be deemed to have been brought on the day when he was added or substituted as a party in the suit. The second situation contemplated under the proviso to the substantive provision is where the court is satisfied that a new plaintiff or defendant was omitted to be added or substituted due to a mistake in good faith, the court may direct that the suit, as regards the newly added or substituted party, shall be deemed to have been instituted on any earlier date. Thus, under the proviso, if the court is satisfied, it can direct that the suit, as regards newly-added or substituted plaintiff or defendant, shall be deemed to have been instituted on an earlier date. In such a case, the court after substituting or adding a party in the suit is required to pass a separate/further order that the suit, as regards the newly-added defendant or plaintiff, shall be deemed to have been instituted with effect from the date the suit was laid.” [Emphasis supplied] 12. The judgment of this Court in Om Parkash’s case (supra), relied upon by learned counsel for the petitioners, is not applicable in the facts and circumstances of the case, as it was not a case in which proviso to Section 21(1) of the Act was invoked and the plea of mistake in good faith was raised. 13. The judgment of this Court in Om Parkash’s case (supra), relied upon by learned counsel for the petitioners, is not applicable in the facts and circumstances of the case, as it was not a case in which proviso to Section 21(1) of the Act was invoked and the plea of mistake in good faith was raised. 13. In the case in hand the learned court below has recorded a satisfaction that the mistake in not impleading the petitioners as defendants in the suit initially was bonafide. In the facts and circumstances of the case, the satisfaction so recorded cannot be said to be erroneous. 14. For the reasons mentioned above, on application of principles of law, as laid down by Hon’ble the Supreme Court in the facts and circumstances of the case, no illegality has been committed by the learned court below in allowing the application and directing that the suit shall be deemed to have been instituted against them on the date of original filing. 15. Accordingly, the present petition is dismissed. ---------0.B.S.0------------