Mahadeva Rao vs S.G. Chickanageswariah

In this revision petition, the petitioner who was defendant No. 8, has challenged the judgment and decree dated 30-11-1976 of the Additional Civil Judge, Bangalore District, Bangalore, in R. A. No. 128 of 1976 affirming the judgment and decree dated 30-6-1976 of the Munsiff. Doddaballavur In 0. S. No. 183 of 1971.

On 5-8-1971, the respondent/Plaintiff instituted O. S. No. 183 of 1971 for recover, of a sum of Rs. 1382 alleged to be -due by defendant No. 8 and seven others, On a memo filed by the plaintiff, the learned Munsiff by his order Dt. 10-1-74 deleted defendant No. 8. But, on a subsequent- application made by the plaintiff, the learned Munsiff by his order dated 19-6-1975, again impleaded defendant No. 8 as a party defendant. After such impleading, suit summons were served on defendant No. 8 and thereafter he appeared before Court and filed his written statement contesting the suit claim an various grounds.

On a consideration of the evidence placed before him, the learned Munsiff decreed the plaintiffs suit. Against the said judgment and decree of the learned Munsiff, defendant No. 8 filed an appeal in R. A. No. 128 of 1976 before the learned Civil Judge, in which he prominently urged that as by the time he was impleaded as a defendant, the suit claim against him was barred by time and therefore, the decree made against him was liable to be set aside. On an examination of the said and other contentions that were urged before him, the learned Civil Judge by his judgment dated 30-111976 has dismissed the said appeal.

Sri N. V. Ramachandra Rao, learned counsel for the petitioner, contends that when once the plaintiff has suo motu given up defendant No. 8, it was not open to the learned Munsiff to again implead him as a party defendant and decree the plaintiff''s suit as by that time, the said claim was barred by time against him and in decreeing the plaintiffs suit, the learned Munsiff has acted illegally and with material irregularity affecting his jurisdiction.

As noticed earlier, defendant No. 8 who was originally impleaded as a party was deleted at the request of the plaintiff himself. When the plaintiff had deleted defendant No. 8, undoubtedly it was . not open to the Court below to make any decree against him. As by the time defendant No. 8 was again impleaded, the suit claim against him had been barred by time. If the plaintiff had taken the risk to delete defendant No. 8 and im plead him after the expiry of the period of limitation, the period of limitation that had run out for instituting the said suit or another suit cannot be saved under the provisions of the Limitation Act.

In the course of his judgment, the learned Civil Judge has negatived the aforesaid plea of defendant No. 8 on the ground that the proviso to Section. 21(1) of the Limitation Act (hereinafter referred to as the Act) saves the suit claim against defendant No. 8. In the first place, the plaintiff had not moved the Court to exercise the power, If any, conferred on it by the proviso to Section 21(1) of the Act in order to claim the benefit of the proviso to Section 21(1) of the Act, a party to a suit must make out a case to justify the exercise of the power by the Court under the said provision. , In the absence of any application made by the plaintiff, the question of the Court exercising the power does not arise. Apart from this infirmity. I am also of the opinion that the proviso to Section 21(1) of the Act which applies to cases of initial omission, has no application to a case where a party impleads his opponent, but later with open eyes gives him up. In my opinion, the reliance placed by the learned Civil Judge on the proviso to Section 21(1) of the Act, is clearly illegal.

From the foregoing, it is clear that the suit filed by the plaintiff against defendant No. 8 was clearly barred by time and was, therefore, liable to be dismissed, As the suit against defendant No. 8 is liable to be dismissed as barred by time, the question of examining the tenability of the claim made by him or the tenability of the other defence urged by defendant No. 8 does not arise.

In the light of my above discussion, I allow this revision petition, set aside the judgments and decrees of the Courts below as against defendant No. 8 and dismiss the plaintiff''s suit against defendant No. 8.

Civil revision petition allowed.

As the respondent and his learned counsel are absent, I direct the parties to bear their own costs.

Revision allowed.