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2007 DAILYLAW 2211 (DEL)

PAWAN GUPTA v. PRITPAL SINGH SALUJA

2007-09-06

Sanjiv Khanna

body2007
MUKUNDAKAM SHARMA, CJ, J. ( 1 ) THIS appeal is directed against the order dated 14th December, 2005 passed by the learned Single Judge allowing the application filed by the respondent / plaintiff seeking for amendment of the plaint. The amendment sought for by the respondent, was addition of an additional party, namely, Ms. Mani Gupta, who is the wife of the appellant, in the pending suit filed by the respondent praying for recovery of money. The amendment was prayed for in view of the defence taken by the appellant in his written statement that the sum of Rs. 2,56,000/-, which was given in the name of M/s Friends Industrial Corporation by cheques dated 30th March, 2000 and 7th July, 1999 were not received by him and the said friends Industrial Corporation is a sole proprietorship of his wife. ( 2 ) IN the suit, recovery was sought in respect of the amount which was allegedly given on loan by the respondent to the appellant to M/s Gupta Sales Corporation and M/s Friends Industrial Corporation. After the aforesaid written statement was filed, it transpired that the appellant is the proprietor of M/s Gupta Sales corporation, whereas his wife Mrs. Mani Gupta is the proprietor of M/s Friends industrial Corporation. Money given to both entities on loan is the subject matter of the suit for recovery. In that view of the matter, application was filed by the respondent praying for addition of Ms. Mani Gupta as one of the defendants. ( 3 ) THE said prayer was considered by the learned Single Judge. On appreciation of the relevant facts and taking into consideration the fact that part of the amount which is sought to be recovered was also given to M/s Friends Industrial corporation of which Ms. Mani Gupta was the sole proprietor, the application for amendment was allowed holding that she is a necessary party and that in her absence it would not be possible to determine the real controversy between the parties. ( 4 ) THE aforesaid findings are under challenge in this appeal on which we have heard learned counsel for the parties. The aforesaid facts stated herein before make it crystal clear that without impleading Ms. Mani Gupta, the respondent will not be entitled to the relief of recovery of the amount which was allegedly given to M/s Friends Industrial Corporation. Ms. The aforesaid facts stated herein before make it crystal clear that without impleading Ms. Mani Gupta, the respondent will not be entitled to the relief of recovery of the amount which was allegedly given to M/s Friends Industrial Corporation. Ms. Mani Gupta is the sole proprietor of M/s Friends Industrial Corporation and since the alleged loan given to the said M/s Friends Industrial Corporation is also a subject matter of the suit, therefore, she has been rightly made a party to the suit. When the aforesaid amendment was allowed directing for impleadment of Ms. Mani Gupta, the suit was at the pre-trial stage. No prejudice is caused to the appellant herein by the aforesaid amendment being allowed. The amendment is pursuant to the defence taken in his written statement. In this connection, we may also appropriately refer to the provisions of Order I Rule 10 of the Code of Civil procedure, 1908 (hereinafter referred to as the Code ). Under sub-section (2) of section 10 of Order I of the Code, a Court may at any stage of the proceedings, either upon or without any application, can order that the name of a third party be included or name of a party be struck out, as the case may be, who ought to have been joined or ought not to have been joined, so as to enable the Court to effectively and completely adjudicate upon and settle the question involved in the suit. ( 5 ) ONE of the grounds on which the aforesaid objection is raised for impleadment of Ms. Mani Gupta by the appellant herein is that the suit against her would be barred by limitation. It may be stated that the appellant is not representing ms. Mani Gupta. ( 6 ) IN our considered opinion, the said issue would arise for consideration only after Ms. Mani Gupta is impleaded as a party. She can take up the said plea in the suit, which, when raised, would have to be considered by the learned Single judge in accordance with law. In this connection we may also refer to the provisions of Section 21 of the Limitation Act, which provides for the effect of substituting or adding new plaintiff or defendant. She can take up the said plea in the suit, which, when raised, would have to be considered by the learned Single judge in accordance with law. In this connection we may also refer to the provisions of Section 21 of the Limitation Act, which provides for the effect of substituting or adding new plaintiff or defendant. Sub-section (1) of Section 21 provides that 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 or she was so made a party. There is a proviso to the sub-section which provides 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. No such order is passed as contemplated under the proviso by the learned Single Judge. Therefore, in our considered opinion, the right of the appellant or his wife is fully protected under the orders of the Court. Besides, we may also refer to the decision of the Supreme Court in Ragu Thilak D. John v. S. Rayappan and others reported as (2001) 2 SCC 472 . In the said decision, it was held by the supreme Court that the dominant purpose of allowing the amendment is to minimise the litigation and that when the plea that the relief sought by way of amendment is barred by time is arguable and debatable, it could be made a subject matter and issue in the suit after allowing the amendment prayed for and on that ground the amendment should not be declined. In our considered opinion, the ratio of the aforesaid decision is squarely applicable to the facts of the present case. The appeal, therefore, has no merit and is dismissed. ( 7 ) WE, however, make it clear that if a plea and bar of limitation is raised by the newly added party, the same would be a matter in issue in the suit which could be framed by the learned Single Judge and decided as per law. ( 8 ) AS the parties addressed arguments on merits instead of arguing on the delay application, we have proceeded to hear the main appeal. ( 8 ) AS the parties addressed arguments on merits instead of arguing on the delay application, we have proceeded to hear the main appeal. Since we have dismissed the appeal, the condonation application also stands disposed of accordingly.