ASLAM RIAZ HUSSAIN, J.-This appeal is directed against the judgment of the Lahore High Court dated 10-2-1972, whereby it accepted the respon--dent's R. S. A.
2. The facts of the case for the purpose of this appeal are briefly, that Ahman the father of Amir respondent, sold 119 kanals and 2 marlas of agricultural land to Hayat appellant No. 1 and Lala (the latter being the predecessor-in-interest of appellants Nos. 2 to 6) on 18-4-1961, through a registered sale-deed for an ostensible consideration of Rs. 12,000. The vendor's son Amir respondent filed a suit against Ahman the vendor, and Hayat and Lala, the two vendees, to pre- empt the said sale on 23-11-1961, in the Court of Civil Judge, at Sargodha. On 15-1-1962, the plaintiff- respon--dent made an application under Order 1, rule 10, C. P. C., before the Court for impleading the legal representatives of Lala stating that he had died during the pendency of the suit. This application was allowed on 14-5-1962. Hayat appellant, however, raised a preliminary objection stating that Lala had died on 22-10-1961, prior to the institution of the suit and the suit having been filed against a dead person was not maintainable, and further that his legal heirs could not be brought on the record as defendants after the expiry of the period of limitation. Issues were thereafter framed on the basis of pleadings of the parties. The following issue is relevant for the purpose of this case :- "Whether Lala (i.e. defendant No. 3) died after the filing of the suit and whether the suit is not dismissable having regard to the date on which his representatives were substituted as defendants."
3. Subsequently on 3-11-1962, the plaintiff-respondent 'admitted in the Court that Lala had died on 22-10-1981, i.e. a month prior to the institution of the suit.
After hearing the arguments on both sides, learned Civil Judge held that the suit against a dead man was a nullity. Relying on Messrs Chand Oil Mills v. Haji Muhammad Zakaria & Co. PLD 1958 Kar. 510he held further that since the legal representatives of Lala had been made parties on 14-5- 1962, when the plaintiff's application under Order 1, rule 10, C. P. C., seeking to implead them as defendants was accepted, the suit against them was barred by limita--tion which had expired by that date. He, therefore, dismissed the suit on 28-11-1962.
Feeling aggrieved. Amir filed an appeal against the dismissal of his suit before the District Judge, who dismissed the same concurring with the view of the learned trial Judge, -i.e. that the suit against the legal representa--tives of Lala must be deemed to have been instituted on the date on which they were actually added as defendants by order of the learned Civil Judge.
Amir then filed a Regular Second Appeal before the Lahore High Court which was accepted by a learned Single Judge who set aside the judgments of both the Courts below holding the suit to be within limitation, and remanded the same to the trial Court for disposal in accordance with law.
Feeling aggrieved against the judgment of the High Court Hayat and others (appellants- defendants) filed a petition for Special Leave to Appeal before this Court. Leave was granted to them on 27-11-1972, on the ground that there were conflicting judgments on the question raised in the petition which needed examination.
4. We have heard the learned counsel for the parties at length. The sole question requiring decision in this case is whether a new defendant is deemed to have been made a pasty to the suit on the date when an application under Order I, rule 10, C. P. C., to implead him is filed, or on the date when such an application is finally allowed by the original or the appellate Court. The learned Civil Judge has based his judgment on Messrs Chand Oil Mills v. Haji Muhammad Zakaria & Co. And 2 others.
This judgment is not of any assistance, firstly, because in that case the application for impleading a new defendant was filed after the period of limitation had already expired. Secondly, because no reasons have been given for the view expressed therein.
This question also came up for consideration in Haji Wahab Ali Bari and others v. Kadam Ali and others (l), but that judgment, too, is not of much assistance because no case law whatsoever was discussed therein for arriving at the conclusion that the proceedings against newly added party are deemed to commence on the service of summons to them.
This question again came up for consideration in Syed Khadim Ali Shah and others v. Additional District Judge, Sheikhupura (2), and the learned Court took the view that under section 22 of the Limitation Act, the amend--ment if allowed, would not be effective retrospectively but will take effect from the date on which the amendment is permitted to be made. But unfortu--nately again the judgment does not contain any discussion whatsoever on the point in issue and no case law has been referred to therein.
The learned counsel for the respondents also cited before us Haveli Shah and another v. Khan Saheb Sheikh Painda (3). But this judgment is based on different facts and does not appear to have any application to the case in hand.
6. We have given our anxious thought to the question and do not feel persuaded to agree with the view taken in the above-noted judgments. Before we proceed to give our reason for this, we consider it proper to reproduce the relevant provision of law. Application for impleading parties to a suit is made under Order 1, rule 10, C. P. C., which reads as follows :- Order 1, rule 10, C. P. C. Suit in name of wrong plaintiff.-(1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.
Court may strike out or add parties.-(2) The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely, to adjudicate upon and settle all the questions involved in the suit, be added.
(3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent.
Where defendant added, plaint, to be amended.-(4) Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies
(1) PLD 1963 Dacca 364(2) Law Notes 1978 Lah. 402
(3) AIR 1926PC88 agricultural land to Hayat appellant No. 1 and Lala (the latter being the predecessor-in-interest of appellants Nos. 2 to 6) on 18-4-1961, through a registered sale-deed for an ostensible consideration of Rs. 12,000. The vendor's son Amir respondent filed a suit against Ahman the vendor, and Hayat and Lala, the two vendees, to pre-empt the said sale on 23-11-1961, in the Court of Civil Judge, at Sargodha. On 15-1-1962, the plaintiff-respon--dent made an application under Order 1, rule 10, C. P.
C., before the Court for impleading the legal representatives of Lala stating that he had died during the pendency of the suit. This application was allowed on 14-5-1962. Hayat appellant, however, raised a preliminary objection stating that Lala had died on 22-10-1961, prior to the institution of the suit and the suit having been filed against a dead person was not maintainable, and further that his legal heirs could not be brought on the record as defendants after the expiry of the period of limitation. Issues were thereafter framed on the basis of pleadings of the parties. The following issue is relevant for the purpose of this case :- "Whether Lala (i.e. defendant No. 3) died after the filing of the suit and whether the suit is not dismissable having regard to the date on which his representatives were substituted as defendants."
3. Subsequently on 3-11-1962, the plaintiff-respondent 'admitted in the Court that Lala had died on 22-10-1981, i.e. a month prior to the institution of the suit.
After hearing the arguments on both sides, learned Civil Judge held that the suit against a dead man was a nullity. Relying on Messrs Chand Oil Mills v. Haji Muhammad Zakaria & Co. PLD 1958 Kar. 510he held further that since the legal representatives of Lala had been made parties on 14-5- 1962, when the plaintiff's application under Order 1, rule 10, C. P. C., seeking to implead them as defendants was accepted, the suit against them was barred by limita--tion which had expired by that date. He, therefore, dismissed the suit on 28-11-1962.
Feeling aggrieved. Amir filed an appeal against the dismissal of his suit before the District Judge, who dismissed the same concurring with the view of the learned trial Judge, -i.e. that the suit against the legal representa--tives of Lala must be deemed to have been instituted on the date on which they were actually added as defendants by order of the learned Civil Judge.
Amir then filed a Regular Second Appeal before the Lahore High Court which was accepted by a learned Single Judge who set aside the judgments of both the Courts below holding the suit to be within limitation, and remanded the same to the trial Court for disposal in accordance with law.
Feeling aggrieved against the judgment of the High Court Hayat and others (appellants- defendants) filed a petition for Special Leave to Appeal before this Court. Leave was granted to them on 27-11-1972, on the ground that there were conflicting judgments on the question raised in the petition which needed examination.
4. We have heard the learned counsel for the parties at length. The sole question requiring decision in this case is whether a new defendant is deemed to have been made a pasty to the suit on the date when an application under Order I, rule 10, C. P. C., to implead him is filed, or on the date when such an application is finally allowed by the original or the appellate Court. The learned Civil Judgehas based his judgment on Messrs Chand Oil Mills v. Haji Muhammad Zakaria & Co. And 2 others. This judgment is not of any assistance, firstly, because in that case the application for impleading a new defendant was filed after the period of limitation had already expired. Secondly, because no reasons have been given for the view expressed therein.
This question also came up for consideration in Haji Wahab Ali Bari and others v. Kadam Ali and others (l), but that judgment, too, is not of much assistance because no case law whatsoever was discussed therein for arriving at the conclusion that the proceedings against newly added party are deemed to commence on the service of summons to them.
This question again came up for consideration in Syed Khadim Ali Shah and others v. Additional District Judge, Sheikhupura (2), and the learned Court took the view that under section 22 of the Limitation Act, the amend--ment if allowed, would not be effective retrospectively but will take effect from the date on which the amendment is permitted to be made. But unfortu--nately again the judgment does not contain any discussion whatsoever on the point in issue and no case law has been referred to therein.
The learned counsel for the respondents also cited before us Havel! Shah and another v. Khan Saheb Sheikh Painda (3). But this judgment is based on different facts and does not appear to have any application to the case in hand.
6. We have given our anxious thought to the question and do not feel persuaded to agree with the view taken in the above-noted judgments. Before we proceed to give our reason for this, we consider it proper to reproduce the relevant provision of law. Application for impleading parties to a suit is made under Order 1, rule 10, C. P. C., which reads as follows :- Order 1, rule 10, C. P. C. Suit in name of wrong plaintiff.-(1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.
Court may strike out or add parties.-(2) The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely, to adjudicate upon and settle all the questions involved in the suit, be added.
(3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent.
Where defendant added, plaint, to be amended.-(4) Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies
(1) PLD 1963 Dacca 364(2) Law Notes 1978 Lah. 402
(3) AIR 1926PC88 of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant.
(5) Subject to the provisions of the Indian Limitation Act, 1877, section 22, the proceedings against any person added as defendant shall be deemed to have begun on the service of the summons."
The portion material for the present is sub-rule (5). It would be noticed that according to this sub- rule, when a person is added in a suit as a defendant, the proceedings as against him shall be deemed to have begun only when summons are served on him. But this is subject to the provisions of Section 22 of the Limitation Act, 1877. In other words, while for other purposes the proceedings against the newly added defendant shall begin on the service of summons on him, but for the purposes of limitation they shall deem to have begun from the point of time as provided by section 22 of the Limitation Act. The relevant portion of the said section reads as follows : "Section 22.-(t) Where, after the institution of suit, a new plaintiff o defendant is substituted or added, the suit shall, as regards him deemed to have been instituted when he was so made a party. . (2) . ---------------.."
7. Now according to this section, when a new person is substituted o added as a party in a suit already pending, then the suit as regards him shall be deemed to have been instituted only from- the point of time when he is so made a party. In other words for purposes of determining whether the suit qua him is barred by limitation, the time shall be computed as if the suit had been filed by him. (if he is a plaintiff), or against him (if he is a defendant), on the date on which he was "So made a party". The word `so' used here evidently refers to his being made a party by `substitution' in place of another party or by `addition' as a new party.
8. As already observed the question that needs to be resolved in this case is as to when exactly is a person made a party within the meaning or for the purposes of section 22(1) of the Limitation Act ; on the date when the application to implead him is filed, or on the date when the Court (original or appellate) passes the order accepting the application to make him a party to the suit.
A reading of sub-rule (5) of rule 10 of Order I, C. P. C., shows that the Court can add. a party either on its own motion or on an application being made to it in that behalf. If the Court adds a party in exercise of its suo moto powers then, obviously, that person must be deemed to have been made a party on the day on which the Court made such an order. But when the Court does so on an application made to it, the position would be different. Supposing a person makes an application for the addition of a new party within the period of limitation, but as a result of the mechanization of the opposite-party or due to delay on part of the Court, as a result of over work or other factors, or due to the fact that the original Court wrongly rejects the application . And the application has to be got accepted through the higher Court, the final order adding the new person as a party to the suit is passed much after the expiry of the prescribed period of limitation, can it be said by any mode of reasoning, that section 22(1) of the Limitation Act should be so interpreted as to hold that the person in question was made a party on the date on which the application was ultimately accepted. We cannot favour the view that the applicant should be made to suffer for delay caused in the Court, for that would amount to penalising him for no fault on his part. As such we are of the view that the relevant date is the one on which the application was filed and not the one on which it was accepted and the order of the Court impleading a new C person a party to the suit must be deemed to have effect from the date of which the application to implead the party was filed.
The question before us has been considered by various High Courts all over the Indo-Pak Sub- Continent for the last more than a century. In most of them the same view was taken as has been taken in the present case. In point of time the first was Ram Krishna Moreshwar and another v.
Rama Bai and another (1). Subsequently the same view was taken (obiter) in S. Subbarava lyer etc. v. Veithinatha lyer and another (2) [obiter], Mahomedbhai Husaeinbhai v. Ismail Haji Halimbhai (3).
Messrs Manghumal Jethanand v. Messrs Aratmal Satramdas (4) and in South India Industrials v.
Mothey Narsima Rao (5), in which 17 Bombay 29 and 5 I. C. 931, were followed while Ammayya Pillai v. Nerayyana Chetti (6), was dissented from. In that case Mr. Justice Relly made the following observation : "It appears to me to be obviously the right principle to adopt in the matter, as otherwise though an application might be made in time, as in this case, by the dilatoriness of the Court or by the manoeuvres of the opposite-party or by a mistaken decision of the Court, which had to be put righton appeal or revision, the order to which the party applying was entitled might not be made until the suit had become time-barred, and it would be unreasonable to leave the party who had applied in good time at the mercy of such chances. It is contrary to one of the clear principles of the Law of Limitation that a diligent party who has come to Court with his suit or his application within the period prescribed should be defeated because the Court for some reason cannot or does not give him his relief within that period. The heavy penalty for exceeding the arbitrary periods of limitation is to be counter-balanced by the assurance of safety when within them."
The above-noted Madras Judgment was then followed in almost all the subsequent cases including Hasannand v. Nandiram and others (7), Muhammad Sultan and others v. Abdul Rehaman and others (8), Prafulla Kumar v. Bas Gajendra Singh and another (9), Ramanlal and another v. Ramgopal (10), Mst. Phulawanti and another v. Kashmiri Lal (11) and Messrs Haldar Joo Vishnath v. State of Jammu and Kashmir and others (12).
The same question was also considered in Sethi Gardandas Vishindas v. Rijhibhai and others (13), wherein the learned Judge observed as follows :- .
"If the plaintiff being ignorant of the death of Pamanmal joined him as a party to the suit, he was in no worse position than that in which he
(1) 1 L R 17 Born. 29(2) (1909) 51 C 931
(3) (1911) 121 C 586(4) AIR 1924 Sind 47
(5) AIR 1927 Mad. 468 (6) AIR 1925 Mad. 487
(7) AIR 1930 Sind 259(8) AIR 1937 Rang. 175
(9) AIR 1945 Nag. 57(10) AIR 1954 Raj. 135
(11) AIR 1956 Pat. (Pepsu) 17(12) AIR 1960 J A K. 141
(13) AIR 1937 Sind 47 would have been had he failed to join Pamanmal if alive. He could at any time before the period of limitation for institution the suit against Pamanmal join Pamanmal if he was alive and could likewise joint the persons who had succeeded to his estate if he was dead."
9. From what has been observed above we find that the view taken by the learned Single Judge of the High Court is the correct one and he has rightly accepted the respondent's R. S. A. The appeal is consequently dismissed.