What effect has substitution or addition of a new plaintiff or defendant in a suit upon question of limitation (Section 21)?

Section 21 of the Limitation Act deals with, the effect of the law of limitation when a new party is substituted or added as a plaintiff or defendant after the suit has been instituted. Clause (1) of section 21 lays down that a suit in which a party is subsequently joined shall be deemed to be instituted as regards him (new party on the date of his joiner).

Whether the suit becomes barred as regard him alone or as regards other parties also is a matter which will have to be ascertained with reference to the substantive law relating to the subject of necessary parties to an action and the law relating to limitation of actions contained in the statutes of the country.

For instance, if there are already two plaintiffs on the record of a suit and the third one is added in an action for the recovery of possession of land, say after 12 1/2 years after the cause of action has arisen, the question of limitation would be dealt with so far as this third plaintiff is concerned as if the suit was filed 12 1/2 years after the cause of action had arisen.

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It was a suit for the recovery of possession of immovable property from which the plaintiff had been illegally dispossessed; the suit should have been filed within 12 years of the date of dispossession.

In the instant case, the suit of the third plaintiff (newly added party) will be barred by limitation as having been filed 12 1/2 years after the cause of action arose by the dispossession. If this suit was such that the third plaintiff was a necessary party to the suit so that the suit could not go on without the third plaintiff being party to the suit, the whole suit would be barred and liable to be dismissed.

Similarly, if defendant is added as a party, the force of limitation will be calculated as it arises on the date on which the defendant was made a party to the suit, and if the addition of the defendant was beyond the period of limitation, the claim as against him would be barred by limitation and if the claim was such that it could not succeed as against the original defend­ant, without the addition of the third defendant, because no decree could be given without him, the whole suit would be barred.

But 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 of defendant shall be deemed to have been instituted on any earlier date and not on the date when he was made a party.

The rule, that if after the institution of a suit a party substituted or added as a plaintiff of defendant, the date of sub­stitution or addition is to be considered, as regards that party as the date of the institution of the suit except where the court is satisfied that the omission was due to a mistake made in good faith, does not apply to a case where a party is added or substituted owing to (i) an assignment of (ii) devolution of any interest the pendency of a suit or (iii) where the plaintiff is made a defendant or a defendant is made a plaintiff.

The reason is that in such cases the newly added person steps into the shoes of the deceased or the assignor, as the case may be, and no new considerations arise in ‘a matter of limitation, the cause of action remains the original cause of action. Such person can apply under Order 22 of the Civil Procedure Code for the substitution of their own names in place of the deceased of the assignor.