Section 21 of the Limitation Act, 1963 provides that:
(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.
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However, 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.
ADVERTISEMENTS:
(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.
Section 21 of the Limitation Act applies to suits. The word ‘suit’ in Section 21 includes only the stages of a suit down to its termination by the decree of the trial court, and does not include an appellate stage or proceedings in execution of the decree made in the suit. An application under Order XXI, Rule 101 of the CPC is not a suit; and this section does not apply. Section 21 is not applicable to an application Section 21 applies to the case of all persons brought on record after the expiry of limitation.
Section 21 of the Limitation Act refers only to the parties subsequently added. Change of position will not affect limitation so far as a party who was already on record. In Mahcidulci v. Chirangilal [AIR 1963 MP, 51] it has been held that Section 21 has to be taken into account for adding a necessary party but the provisions of these sections will not apply in adding a proper party against whom no relief is sought for by the plaintiff. In Venkatasubbamma v. Veeravadra [AIR 1961 AP 495], it has been held that no question on limitation will arise under Section 21 in the case of transposition of parties.
ADVERTISEMENTS:
Section 21(1) of the Limitation Act specifically provides that in so far as a newly added plaintiff is concerned the suit will be deemed to have been filed only when he was made a party to the suit.
In K. Ammal v. Chemgaran [AIR 1963 Ker. 344], it has been held that all plaintiffs who have a joint cause of action must be impleaded before the expiry of the period of limitation. If some of them institute a suit within time and the other plaintiffs are added after the period of limitation, the claim of the original plaintiffs also, who had a joint cause of action with the added plaintiffs, would be barred.
When a party is brought on the record out of time, the question of limitation does not arise when there is no relief claimed against that party.
A suit is not said to be properly constituted unless all the necessary parties are impleaded in it, and the addition of these parties after the period of limitation will necessitate a dismissal of the suit. Section 21 applies where the party subsequently added is a proper party, even though he is not a necessary party, and he cannot be added after the expiry of the period of limitation.
ADVERTISEMENTS:
In Banwari v. Sakhraj [AIR 1931 All. 585] it has been held that where a suit was instituted within the period of limitation against all the adult members of a joint Hindu family, but after the expiry of that period two more minor defendants were added whose fathers were already defendants in the suit, it was held that the suit could not be dismissed against the minors.
The provisions of Section 21 are attracted only when parties are added and not otherwise when parties are effectively represented through persons whose actions bind them so that a decree passed against them is binding on them, then specific mention of the name of one such person subsequently in the title of the suit cannot be treated as addition of a new party.
In Mahadeva Rao v. S.G. Chikanageshwaraiah [AIR 1981 Kant. 16] it has been held that the effect of striking out the name of one of the defendants is that the suit so far as that defendant is concerned ends and if he is against impleaded by amendment it will be treated as seeking to add a new defendant and Section 21 is attracted.
In Keshbinder v. Bindu Basini [AIR 1979 Cal. 384] it has been decided that even after remand a new party may be added in lower court, if such party is found to be necessary and such addition is not contrary to the direction given by the appellate court remanding the suit.
In Chun Choudhary v. State of Bihar [AIR 1989 Pat. 34], it has been held that the proviso to sub-section(l) of Section 21 clothes the court with the discretion to condone the delay in filling the application for addition of parties after the period of limitation provided the same is made bona fide and good cause is shown therefore.
In Karuppaswamy v. C. Ramamurthy [AIR 1993 SC 2324], the Supreme Court has pointed out that the proviso to Section 21 of the Limitation Act permits correction of errors which have been committed due to a mistake made in good faith but only when the court permits correction of such mistake and that in that even its effect is not to begin from the date on which the application for the purpose is made or from the date of permission but from the date of the suit, deeming it to have been correctly instituted from the date i.e., from the date prior to the date of application.
Where it is clear from the facts as to the person who intends to sue or is intended to be sued but is described wrongly it is a case of misdescription of parties which, can be corrected by the court at any time. A mere misnomer or misdescription can be corrected at any time because it is no addition of new party to attract Section 21.
In Purushottam & Co. v. Manilal [AIR 1961 SC 325] the Supreme Court has held that where a suit is filed against a firm it is still a suit by all partners of the firm unless it is proved that all the partners had not authorised the suit.
In Bibi Asma v. Suresh Prasad [1978 BLJR 552] it has been held that even if a suit was filed against a dead person, his legal representatives can be brought on record if the cause of action does not stand barred by time in the mean time.
Section 21 does not apply to addition of parties in revision.
Addition of parties in appeal is governed by Order XLI Rule 20 of the CPC and not by Section 21 of the Limitation Act.
Sub-section(2) of Section 21 of the Limitation Act makes it very clear that the provision of addition would not apply to a case where a party is added or substituted owing to assignment of devolution of any interest during the pendency of the suit or where plaintiff is made a defendant or a defendant is made a plaintiff.
Sub-section 2 of Section 21 provides that no respondent shall be added after expiry of the period of limitation for appeal, unless the court for reasons to be recorded allows that to be done on such terms as to costs as it thinks fit.
In Maniruddin v. Sarat Chandra [ILR (1949) 1 Cal. 85], it has been held that sub-section 2 of Section 21 will apply only to those cases where the claim of the person transposed as plaintiff can be sustained on the plaint originally filed, or where the person remaining as plaintiff after transposition can have sustained his claim against the transposed defendant on the basis of the plaint originally filed.