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Ganapathi (Padala) Suryakumari v. Dr. Erra Ramadevi & Anr.
Factual and Procedural Background
The petitioner (plaintiff in the suit) filed a suit for a mandatory injunction to remove a basement (the ABFE red marked portion of the plaint plan) and for a permanent injunction restraining the defendant from constructing a wall. During the pendency of the suit the plaintiff filed an application on 29-5-2002 under Order I, Rule 10 and Order VI, Rule 17 and Section 151 C.P.C. to add a proposed party as defendant No. 2. The I Additional Junior Civil Judge, Kakinada, East Godavari District, kept the matter pending and on 26-9-2006 allowed I.A. No. 1449 of 2004 in O.S. No. 689 of 2000, directing that the proposed party be added as defendant No. 2 and giving effect to that order from 26-9-2006. The present civil revision petition challenges that order and decree dated 26-9-2006.
Legal Issues Presented
- Whether impleadment of a party by an order allowing an application under Order I, Rule 10 C.P.C. relates back to the date of filing of the application (29-5-2002) or takes effect only from the date of the order (26-9-2006).
- What is the effect of Section 21 of the Limitation Act, 1963 and Sub‑rule (5) of Rule 10 of Order I C.P.C. on the date from which proceedings against a subsequently added defendant are deemed to have begun, including the role of service of summons and the proviso to Section 21.
Arguments of the Parties
Plaintiff's Arguments
- The plaintiff argued that because the application for impleadment was filed on 29-5-2002, the impleadment of the proposed defendant No. 2 should date back to that filing date.
- To support this contention the plaintiff relied on Section 21 of the Limitation Act, 1963 and Order I, Rule 10 C.P.C.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The court examined Section 21(1) of the Limitation Act and the provisions of Order I, Rule 10 C.P.C., including Sub‑rule (5) of Rule 10 of Order I. It noted that Section 21 distinguishes original parties from those added or substituted later and explained that ordinarily the date of institution for a subsequently added party is the date on which the court passes the order allowing their addition. The court observed that the proviso to Section 21 is an exception allowing, where the omission to include a necessary party is a bona fide mistake and the court is satisfied, that the party may be treated as party from the date of institution of the suit.
The court gave particular weight to Sub‑rule (5) of Rule 10 of Order I, which provides that, subject to Section 21 of the Limitation Act, proceedings against a person added as defendant are deemed to have begun only on service of summons. The court reasoned that an order of impleadment alone is not sufficient; the order becomes effective in practice only when summons are taken out and served on the added party. Accordingly, impleadment in ordinary course takes effect from the date of the order, subject to the proviso to Section 21 and the requirement of service of summons.
Applying these principles, the court found no illegality or irregularity in the court below's decision to give effect to impleadment from the date of its order (26-9-2006) and dismissed the revision petition at the stage of admission.
Holding and Implications
Revision Petition Dismissed
Direct effect: The civil revision petition was dismissed at the stage of admission and the order of the court below allowing impleadment was upheld as effective from the date of that order (subject to service of summons and the proviso to Section 21). There shall be no order as to costs. The opinion does not state any broader precedent beyond applying the cited statutory provisions.
1. Heard the learned Counsel appearing for the petitioner.
2. This Civil revision petition is directed against the order and decree, dated 26-9-2006, passed by the I Additional Junior Civil Judge, Kakinada. East Godavari District in allowing the application I.A. No. 1449 of 2004 in O.S. No. 689 of 2000 from the date of order itself.
3. The petitioner is the plaintiff, respondent No. 1 is defendant No. 1 and respondent No. 2 is proposed defendant No. 2 in the suit before the Court below.
4. For the sake of convenience, in this order, the parties herein are referred to as per their array in the suit.
5. The suit is filed for mandatory injunction for removing the basement verified in ABFE red marked portion of the plaint plan and for permanent injunction restraining the defendant from constructing the wall. During the pendency of the suit, the plaintiff, for some reason, probably from the information furnished in the affidavit filed in support of the application, felt that it is expedient to add the proposed party as defendant No. 2 to the suit. In this regard, the present application under Order I, Rule 10 and Order VI, Rule 17 and Section 151 C.P.C., had been filed by the plaintiff on 29-5-2002 before the Court below seeking to add the proposed party as defendant No. 2 to the suit. For various reasons, the Court below had kept the matter pending and eventually passed an order on 26-9-2006 allowing the said application and as a result of which, the proposed party was directed to be added as defendant No. 2 to the suit. The Court below while allowing the said application given effect to the said order from the date of the order i.e. 26-9-2006.
6. The learned Counsel appearing for the plaintiff contends that since the application had been filed in the year 2002 itself, impleadment of the proposed party as defendant No. 2 to the suit shows dates back to the date of filing of the application i.e. 29-5-2002.
7. To substantiate the said contention, the learned Counsel appearing for the plaintiff took this Court to the provisions of Section 21 of the Limitation Act, 1963 (for brevity
"the Act"), and Order I, Rule 10 C.P.C.
8. A plain reading of section 21(1) of "the act" makes it abundantly clear that the defendant, who is substituted or added, it shall be deemed that the suit is instituted insofar as the person who is substituted or added as a plaintiff or defendant at a latter point of time i.e., from the date of filing of the suit.
9. In other words, there is a clear distinction between the original parties to the suit and parties who are added subsequently. So far as the parties original to the suit are concerned, the date of institution of the suit should be treated as the date of actual institution of the suit, and so far as the parties subsequently added may be plaintiffs or defendants are concerned, the date of institution of the suit should be reckoned as the date on which the order is passed by the Court allowing the application filed under Order I, Rule 10 C.P.C.
10. Of course, proviso states that subject to the satisfaction of the Court if any omission to include a party, who is actually a necessary party, is a bona fide mistake, such impleadment of the party, though at a latter point of time, can be treated by the Court as a party from the date of institution of the suit. The proviso is rather an exception to sub-section (1) of section 21 of "the act".
11. It is further to be seen that the learned Counsel appearing for the plaintiff lays much stress on Sub-rule (5) of Rule 10 of Order I of C.P.C. which reads thus:
10. Suit in name of wrong plaintiff:
(1)to(4)...
(5) Subject to the provisions of the Limitation Act, 1963 (36 of 1963), Section 21, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons.
12. From a bare reading of the said provision, it is abundantly clear that such an addition of the party at a latter date from the date of filing of the suit shall come into force only from the date of service of summons.
13. If we put it in a different way, mere ordering also is not sufficient. The order of the Court allowing a party to the suit to bring some third party as a party to the suit would come into effect not actually from the date of ordering but from the date of taking out summons. The logic is simple. If summons are not taken and served on the party, the order of the Court would become ineffective since the party who sought impleadment of the third party as a party to the suit did not take necessary steps.
14. Therefore, from the very language incorporated under sub-rule (5) of rule 10 of order i c.p.c, read with section 21 of "the act". it is abundantly clear that the impleadment in ordinary course would be from the date of order passed by the Court subject to the exception as provided in the proviso of section 21 of "the act" and further subject to the service of summons.
15. From the above reasoning, I do not find any illegality or irregularity in the order passed by the Court below.
16. In the result the civil revision petition is dismissed, at the stage of admission. There shall be no order as to costs.
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