Smt. Sharda Vyas and Vishnu Kant vs A.D.J. No. 2 and Others

Dinesh Maheshwari, J.—These two writ petitions have been preferred against the same order dated 17.10.2007 as passed by the Additional District Judge No. 2, Jodhpur in Civil Original Suit No. 146/2006 whereby the plaintiffs-respondents have been permitted to implead another defendant in their money recovery suit. The petitioner in CWP No. 2243/2008 is the defendant permitted to be added whereas the petitioner in CWP No. 7138/2007 in the original defendant. The petitions being related to the same impugned order have been heard together; and are taken up for disposal by this common order.

The background facts and relevant aspects of the matter are that the plaintiff No. 1 Ram Avatar and his father, the plaintiff No. 2 Heera Lal have filed a suit for recovery of Rs.2,06,000/- against the defendant Vishnu Kant stating his particulars as under:

fo".kqdkUr iq= Lo- Jh HkWaojyky th] tkfr&O;kl �czkg~e.k� ekfyd QeZ eSllZ ''kkjnk VS�MlZ] fuoklh 11@240 e.Mksj d`f"k e.Mh ds ihNs] ensj.kk dkyksuh] tks/kiqj-

O;lkf;d irk%& fo".kqdkUr iq= jh HkWaojyky th O;kl] dqynhi dwylZ] jktk eksVlZ ds ikl] izrki uxj] tks/kiqj-

While stating that the defendant Vishnu Kant is the adjoining neighbour of the plaintiff No. 1 and the parties were in good relations, the plaintiffs have averred that the defendant had been carrying on business of coolers in the name ''Kuldeep Coolers'' and had another business in the name of �Sharda Traders�; that on demand, the plaintiff No. 2 extended a loan to the defendant in the amount of Rs.2,00,000/- through cheque No. 0312641 dated 22.09.2000 drawn in the name of the firm Sharda Traders, the defendant represented himself to the owner whereof; and that interest was agreed to be paid @ 18% per annum. Such averments of the plaintiffs, relevant for the present purpose are reproduced hereunder:

�3� ;g fd izfroknh ds dFkukuqlkj oknhx.k dks ;g Kkr gqvk fd izfroknh dk dwyj cukus dk vPNk O;olk; gS A oknhx.k dks izfroknh ,d lTtu O;fDr ,oa vPNk O;kikjh yxk A oknh la[;k&nks us izfroknh dh lTturk ls izHkkfor gksdj izfroknh }kjk m/kkj jkf''k dh ekax djus ij oknh la[;k&nks us izfroknh dks tfj;s pSd uEcj 0312641 ds fnukad 22-9-2000 �ckbZl flrEcj] nks gtkj� nh cSad vkWQ jktLFkku fyfeVsM+] e.Mksj jksM+] tks/kiqj ds :i;s 2]00]000@& �v{kjs :i;s nks yk[k ek=� dtZ ds :i esa fn;s A izfroknh us oknh la[;k&nks dks bl tek jkf''k ij tqckuh rkSj ij 18 �vBkjg izfr''kr� lkykuk C;kt nsuk r; fd;k Fkk A oknh us izfroknh dks mijksDr pSd izfroknh dh QeZ eSllZ ''kkjnk V�SMlZ ds uke ls fn;k Fkk A izfroknh us vius vkidks eSllZ ''kkjnk V�SMlZ dk ekfyd gksuk crk;k Fkk A izfroknh dks mijksDr pSd dk Hkqxrku flrEcj] 2000 �flrEcj nks gtkj� es gh izkIr gks pqdk Fkk A oknh la[;k&nks dh ikl cqd dh Nk;k izfr izLrqr dh tk jgh gS ftles mijksDr nks yk[k :i;s dh izfof"V ekStwn gS A

The plaintiffs have further averred that the defendant did not make payment towards interest until July 2003 and when the plaintiff No. 2 threatened to file the suit for recovery of the due amount, on 24.07.2003, the defendant handed over 8 cheques each in the amount of Rs.25,000/-. The plaintiffs have stated the particulars and details of such cheques in paragraph No. 5 of the plaint; and according to the plaintiffs, first 4 cheques were given of the dates 03.08.2003, 30.08.2003, 19.09.2003, and 15.10.2003 respectively whereas in relation to other four cheques, the defendant was to give out the dates later. It has also been alleged that the defendant, while stating slump in his business, delivered such cheques after taking in writing from the plaintiff No. 2 that the amount was advanced without interest; and that the plaintiff, looking to his old age accepted the cheques with such writing though, according the plaintiffs, the defendant had earlier agreed to pay interest and there was no reason or occasion to advance the loan without interest.

According to the plaintiffs, the amount payable under the said post-dated 4 cheques was received but they could not receive the amount payable under the other 4 cheques as the defendant did not fill up the dates nor extended instructions in that regard. While producing original of such 4 unrealised cheques and photostat of 4 cheques that were encashed, the plaintiffs have stated that the plaintiff No. 2 for his old age and sickness has executed a transfer deed for recovery of the amount in question in favour of the plaintiff No. 1; and have prayed for money decree for amount allegedly due together with interest at the rate of 12% per annum. The plaintiffs have filed the suit on 25.09.2006 and according to them, the suit is within limitation for the last payment having been received through the cheque dated 15.10.2003.

The defendant Vishnu Kant in his written statement has denied the averments regarding his carrying on business in the name of Kuldeep Coolers and according to him, Kuldeep Coolers is the sole proprietorship concern of his wife Smt. Shashi Vyas and is managed by his son Kuldeep Vyas. The defendant has further asserted that the firm M/s Sharda Traders has been a sole proprietorship concern of his sisterin- law Smt. Sharda Vyas wife of Dharmendra Kumar Vyas and he was not and he is not related with the business of the said firm; and to his knowledge, Smt.Sharda Vyas has closed down the said firm in the year 2003. The defendant has denied the averments regarding the amount having been paid to him as loan but has asserted that the amount was paid to his sisterin- law Smt. Sharda Vyas and his brother Dharmendra Kumar Vyas through the cheque drawn in the name of the firm M/s Sharda Traders owned by Smt.Sharda Vyas. The defendant has alleged himself having stood guarantor in relation to the said transaction and having given such 8 cheques towards security. It has also been alleged that the plaintiff unauthorisedly encashed 4 of such cheques without information and when the defendant threatened to lodge a complaint to the police, the plaintiffs admitted their mistake and entered into a settlement that as the loan was advanced to the defendant''s brother and sister-in-law in the firm M/s Sharda Traders and the plaintiffs got encashed 4 cheques given towards security by the defendant, hence they would adjust the same in the amount due in Smt. Sharda Vyas. According to the defendant, it was further agreed that the remaining amount of Rs.1,00,000/- in the loan advanced to Smt. Sharda Vyas and Dharmendra Kumar Vyas shall be adjusted in the amount of Rs.1,00,000/- that was advanced by the defendant to the plaintiff No. 1 as loan on 24.06.2000 whose interest was paid from time to time by the plaintiff No. 1 and in this manner, no amount of the defendant would remain in due in plaintiff No. 1 and no amount of the plaintiffs would remain due in Smt.Sharda Vyas and Dharmendra Kumar Vyas; and the defendant would be entitled to recover the amount paid to the plaintiffs from Sharda Vyas and Dharmendra Kumar Vyas; and for this reason, the plaintiffs did not encash the remaining 4 cheques. Such averments, occurring in paragraph Nos. 3 and 7 of the written statement, again relevant for the present purpose are reproduced hereunder:

3&----tcfd lgh rF; bl izdkj gS fd vkilh laca/kks ,ao igpku ds dkj.k oknh la[;k 2 us izfroknh dh HkkHkh Jhefr ''kkjnk O;kl ,oa izfroknh ds HkkbZ /kesZUndqekj th O;kl fuoklh IyksV la[;k 11@240 ensj.kk dkWyksuh] tks/kiqj dks :i;s 2]00]000@& v{kjs nks yk[k :i;s dk mDr pSd la[;k 0312641 fnukad 22-9-2000 Jherh ''kkjnk O;kl dh ekfydkuk gd dh QeZ eSllZ ''kkjnk V�sMlZ dks fn;k Fkk A ftl pSd dh jkf''k Jherh ''kkjnk O;kl dh QeZ eSllZ ''kkjnk V�sMlZ }kjk izkIr dh xbZ gS] ,oa mDr jkf''k oknh la[;k 2 }kjk Jherh ''kkjnk O;kl ,oa /kesZUnzdqekj th O;kl dks vnk djus ds oDr izfroknh dks vkilh tku igpku ,oa fj''rsnkjh ds dkj.k tehu cuk;k x;k Fkk ,oa crkSj tehu izfroknh ds }kjk vius cSad [kkrk la[;k 13489 LVsV cSad vkWQ chdkusj ,.M t;iqj ''kk[kk ljnkjiqjk] tks/kiqj ds 8 psd izR;sd psd :i;s 25]000&25]000 v{kjs iPphl gtkj & iPphl gtkj :i;s ds crkSj flD;ksfjVh oknh la[;k 2 dks fn;s x;s Fks A

--- --- --- --- 7- ---tks jkf''k oknhx.k Jherh ''kkjnk O;kl dks nh xbZ jkf''k esa lek;kstu dj nsxs ,oa tks :i;s 1]00]000@& v{kjs ,d yk[k :i;s Jherh ''kkjnk O;kl ,oa /kesZUnzdqekj O;kl esa cdk;k jgrs gS] ml jkf''k dk lek;kstu izfroknh }kjk oknh la[;k 1 dks vko;''drk gksus ij tks :i;sa 1]00]000@& v{kjs ,d yk[k :i;as fnukad 24-6-2000 dks m/kkj fn;s gS A ftudk C;kt oknh la[;k 1 ds }kjk le; le; ij izfroknh dks vnk fd;k x;k gS A mDr ewy cdk;k jde :i;as1]00]000@& v{kjs ,d yk[k :i;s dk Jherh ''kkjnk O;kl dh cdk;k jkf''k esa dj fy;k tk;sxk A bl izdkj u rks izfroknh dh dksbZ jkf''k oknh la[;k 1 esa cdk;k jgsxh] vkSj u gh oknhx.k dh dksbZ jkf''k Jherh ''kkjnk O;kl ,oa /kesZUnzdqekj O;kl esa cdk;k jgsxh] vkSj izfroknh }kjk vnk dh xbZ jkf''k izfroknh Jherh ''kkjnk O;kl ,oa /kesZUnz dqekj O;kl ls izkIr dj ldsxs] D;ksfd mudh cdk;k jkf''k izfroknh }kjk oknhx.k dks vnk dh xbZ gS A ftl dkj.k gh okni= ds in la[;k 5 esa vafdr psd la[;k 045498] 045499] 045500 ,oa 505371 dh jkf''k oknhx.k us izkIr ugh dh gS] D;ksfd mijksDr inksa es fy[ks ekfQd cdk;k jde dk lek;kstu oknhx.k ,oa izfroknh ds e/; gks pqdk Fkk A

After such written statement of the defendant, the plaintiffs moved an application under Order I Rule 10 read with Order VI Rule 17 and Section 151 CPC and, while stating that cheque in the amount of Rs.2,00,000/- was given to the defendant Vishnu Kant who stated himself to be the owner of M/s Sharda Traders and who received such cheque after putting his signatures in the cheque-book of plaintiff No. 2, but with reference to the averments as taken in the written statement, the plaintiffs stated that although the defendant has not produced any document to show that Smt. Sharda Vyas is the proprietor of M/s Sharda Traders nor has filed any affidavit of Smt. Sharda Vyas but then, the firm M/s Sharda Traders remains a party to the suit as stated in the cause title and to avoid legal complication, it has become necessary to implead the said Smt. Sharda Vyas as party to the suit and, therefore, prayed that the said Smt. Sharda Vyas be permitted to be joined as defendant and the plaintiffs may be permitted to carry out the consequential amendment in the plaint. The application was put to contest by the defendant Vishnu Kant who, while reiterating the averments as taken in the written statement, submitted that Smt. Sharda Vyas could not be impleaded as defendant in the suit because the limitation for recovery of the amount advanced to Smt. Sharda Vyas on 22.09.2000 has already expired; and that the plaintiffs could not be permitted to carry out the amendment to fill up the lacuna in their suit.

The learned Trial Court in its impugned order dated 17.10.2007 has not agreed with the objection of the defendant with the observation that though all the earlier transactions had been with the defendant Vishnu Kant but as per the assertion in the written statement, Smt. Sharda Vyas is the owner of the firm M/s Sharda Traders; and if that be so, she is a necessary party to the suit. The learned Trial Court has also observed that the defendant Vishnu Kant was not entitled to raise such objection that could be taken only by Sharda Vyas and after her impleadment and her filing of written statement, issue regarding limitation could be framed and, being a mixed question of law and facts, could be determined after evidence of the parties. Thus, finding impleadment of Smt. Sharda Vyas and allowing consequential amendments necessary in the interest of justice, the learned Trial Court has granted the prayer as made by the plaintiffs.

The defendant Vishnu Kant preferred the writ petition (CWP No. 7138/2007) challenging the aforesaid order dated 17.10.2007 wherein notices for final disposal were issued on 14.11.2007 and further proceedings in the suit were ordered to remain stayed. Thereafter, on 28.03.2008, the added defendant Smt. Sharda Vyas preferred the other writ petition (CWP No. 2243/2008) against the same impugned order dated 17.10.2007. While considering the later writ petition filed by Smt. Sharda Vyas (CWP No. 2243/2008) for motion-admission, the previous writ petition filed by Vishnu Kant (CWP No. 7138/2007) was also taken up for consideration being a cognate matter; and both the petitions have been heard together.

Seeking to assail the order aforesaid, Learned Counsel Mr. S.D. Purohit appearing for the petitioner Smt. Sharda Vyas referred to the plaint averments and submitted that when the loan was allegedly advanced in the month of September 2000 and cheques towards its payment were allegedly given on 24.07.2003, even if there were any acknowledgment, the suit for money recovery filed on 25.09.2006 remains barred by limitation. Learned Counsel submitted that the suit itself being fundamentally barred by limitation, no such order of addition of the petitioner as defendant could have been passed. Learned Counsel further submitted that the plaintiffs moved the application only on 02.04.2007 and the order for addition of the petitioner Smt. Sharda Vyas was passed only on 17.10.2007 hence, apart that the suit as originally filed is beyond limitation, it would remain hopelessly barred by limitation so far the petitioner is concerned. Thus, Learned Counsel submitted, the learned Trial Court has acted illegally in allowing the application as moved by the plaintiffs. Learned Counsel further submitted that the fact remains that the suit has not been filed against M/s Sharda Traders but has been filed against Vishnu Kant stating the loan having been advanced to him; and in this suit, the petitioner could not have been ordered to be impleaded merely on the basis of the pleading of the defendant Vishnu Kant. Learned Counsel contended that the plaintiffs did not even file the proposed amended plaint and without considering as to what the plaintiffs seek to aver against and in relation to the petitioner, the learned Trial Court acted wholly illegally in permitting the plaintiffs to add the petitioner as a defendant and then to file a so-called consequential amended plaint. Learned Counsel has referred to and relied upon the decisions in the cases of Brij Mohan v. The Civil Judge (J.D.), Chirawa and Ors. 2008 (1) RJT 312, M/s C. Doctor & Company Ltd. and Anr. v. Belwal Spinning Mills Ltd. 1995 (1) CCC 620 (All), Madhosingh v. Union of India AIR 1955 Raj 57, and Om Prakash Sharma v. Prayag Narayan 1997 (3) RLW (Raj.) 1829 . Learned Counsel Mr. N.R. Choudhary appearing for the original defendant Vishnu Kant has also questioned the impugned order with further submissions that the application as moved in this case was totally baseless where the plaintiff alleged that impleadment of Smt. Sharda Vyas had become necessary to avoid legal complications although there were no legal complications because the plaintiffs had knowingly filed the suit only against Vishnu Kant. Learned Counsel submitted that it was very much within the knowledge of the plaintiffs, as per their pleading, that the amount of the alleged loan was delivered in the bank account of M/s Sharda Traders; and if the plaintiffs yet chose to frame their suit only against Vishnu Kant, who was only a guarantor, they could not have later been permitted to join the relevant person as party. According to the Learned Counsel, a person cannot be ordered to be impleaded only for the purpose of filling-up of lacuna in the case of the plaintiff. Per contra, Learned Counsel Mr. M.D. Book appearing for the plaintiffs submitted that no case for interference is made out as the learned Trial court has passed the order in proper exercise of its jurisdiction. Learned Counsel has referred to the pleading in the plaint and its cause-title and submitted that the plaintiffs have stated clearly about the loan advanced and part payment received; that the plaintiffs have stated the facts regarding the business of the defendant Vishnu Kant and regarding the firm M/s Sharda Traders as per the information available with them through the defendant only; and that the suit has essentially been filed against M/s Sharda Traders and not against Vishnu Kant in his personal capacity. Learned Counsel contended that if a person is left out and not impleaded bona fide, there is no prohibition in his impleadment later and rather such a course is countenanced by law; and in the present case, if Smt. Sharda Vyas was required to be joined as defendant, her non-impleadment at the initial stage could only be said be said to be a mistake in good faith; that neither the suit as originally filed is beyond limitation nor would it be barred by limitation qua Smt. Sharda Vyas. Learned Counsel has referred to the proviso to subsection (1) of Section 21 of the Limitation Act, 1963 and has relied upon the decisions in the cases of Munshi Ram Vs. Narsi Ram and Another, , Karuppaswamy and Ors. v. C. Ramamurthy 1994 (2) CCC 526 (SC), Chalasani Seetharama Swamy v. Chintapalli Ramachandra Rao 1994 (2) CCC 663 (AP), Pankaja and Anr. v. Yellappa (D) by LRs. and Ors. 2004 (3)CCC 401 (SC) and Siddalingamma and Another Vs. Mamtha Shenoy,

Having given a thoughtful consideration to the rival submissions and having examined the material placed on record, This Court is clearly of opinion that these writ petitions remain bereft of substance and deserve to be dismissed.

A comprehension of the plaint averments makes it clear that the specific case of the plaintiffs is that the plaintiff No. 2 advanced a loan to the defendant Vishnu Kant under the cheque dated 22.09.2000 drawn in the name of the firm M/s Sharda Traders; and the plaintiffs have specifically pleaded that the defendant represented himself to be the owner of the said firm M/s Sharda Traders.

The plaintiffs have further stated that in repayment of the amount so advanced, 8 cheques, each in the sum of Rs. 25,000/-, were given by the defendant Vishnu Kant on 24.07.2003; first 4 being post-dated cheques duly filled up and the remaining being undated cheques whose dates were to be stated by the defendant later. The fact that such kind of transaction did take place has not been disputed in the written statement filed by the defendant Vishnu Kant but, according to him, the loan was advanced to his sister-in-law and brother, Smt. Sharda Vyas and Dharmendra Kumar Vyas; the cheque as referred by the plaintiffs was given to M/s Sharda Traders, a firm of the ownership of Smt. Shadra Vyas; and he stood as guarantor and gave away 8 cheques towards security to the plaintiff No. 2. Significant it is to notice that the defendant has not denied encashment of 4 of his cheques aforesaid but has alleged it to be an act unauthorized and then, has proceeded to state another agreement between the parties whereby it was agreed that the remaining amount of Rs.1,00,000/- in the loan advanced to Smt. Sharda Vyas and Dharmendra Kumar Vyas shall be adjusted in the amount of Rs.1,00,000/- that was advanced by the defendant to the plaintiff No. 1 as loan on 24.06.2000 and in this manner, no amount of the defendant would remain due in the plaintiff No. 1 and no amount of the plaintiffs would remain due in Smt.Sharda Vyas and Dharmendra Kumar Vyas; and the defendant would be entitled to recover the amount paid to the plaintiffs from Sharda Vyas and Dharmendra Kumar Vyas.

In the wake of the pleadings available on record, it is difficult to agree with the submissions of the Learned Counsel appearing for the petitioners that the plaintiffs have chosen to implead only Vishnu Kant as a defendant and attempted impleadment of Smt. Shadra Vyas by way of an application has been in order to fill-up any lacuna. There is nothing on record to find even prima facie at this stage that the amount of loan was given to Smt. Shadra Vyas or that she ever made any payment against the said loan. Further, there is nothing on record to find at this stage if the plaintiffs had the knowledge about the true constitution of the firm M/s Sharda Traders, had the knowledge about the fact that Smt. Sharda Vyas is the owner of the said firm, and had knowingly framed the suit as if against Vishnu Kant only.

At this stage of proceedings, of course, no final opinion could be expressed on the respective stand of the parties but this much is certainly borne out from a comprehensive examination of the averments taken in the plaint that the suit was intended to be filed against the person who stood in the capacity of the loanee; and the defendant Vishnu Kant has been sued as owner of M/s Sharda Traders because, according to the plaintiffs, the loan was given to Vishnu Kant in the name of the firm M/s Sharda Traders; and Vishnu Kant represented himself to the owner of the said firm. Particulars of the defendant have been stated in the cause-title of the plaint in conformity with such averments of the plaintiffs.

In this suit, when the defendant Vishnu Kant would allege Smt. Shadra Vyas to be the owner of M/s Sharda Traders, the firm in whose name the cheque towards the loan amount was drawn, prayer for impleadment of Smt. Sharda Vyas cannot be said to be of any attempt to fill-up a fatal lacuna in the case; rather such impleadment is induced by the very averments taken by the defendant and then becomes moreover necessary when he would allege another multi-party agreement as noticed above. If at all Smt. Sharda Vyas was required to be joined a defendant in this suit at the inception, on the facts as available on record, such omission could only be said to be a mistake in good faith.

A great deal of argument was advanced on behalf of the petitioners that the suit itself is barred by limitation with reference to the date of acknowledgment as stated in the plaint. Such date of acknowledgment, i.e., 24.07.2003, is coupled with the averments in the plaint about the subsequent dates of the cheques and further with the assertion that the suit is within limitation from the date of the payment last received. Again, in view of such averments, it cannot be concluded at this stage that the suit is barred by limitation for any statement made in the plaint itself. The question of limitation, if at all, shall have to be determined in this case as mixed question of law and facts after evidence of the parties.

Another limb of arguments had been that the suit would be barred by limitation against Smt. Sharda Vyas. Such a submission is not supported by law and is rather contrary to the operation of proviso to Sub-section (1) of Section 21 of the Limitation Act, 1963. Of course, ordinarily, when a new defendant is added, the suit as regards him is deemed to have instituted when he is so added but if such omission to include the new defendant is found to have occurred due to mistake made in good faith, the Court may direct that the suit as regards such defendant shall be deemed to have been instituted on any earlier date. The learned Trial Court has, of course, not issued such directions in the impugned order and has left the question open with the observations that the defendant Vishnu Kant cannot raise such objection that could be raised by Smt. Sharda Vyas and after her written statement, such issue of limitation could be decided as mixed question of law and facts. In the facts and circumstances of the case, the course adopted by the learned Trial Court appears to be justified because at the time of passing of such order Smt. Sharda Vyas was not before the Court. In any case, it cannot be concluded at this stage that the suit against Smt. Sharda Vyas shall remain barred by limitation. However, if her joinder was at all necessary, at this stage only this much could be said that she was left out due to mistake in good faith.

The Hon''ble Supreme Court in the case of Karuppaswamy (supra) has been pleased to point out that the proviso to Sub-section (1) of Section 21 of the Limitation Act, 1963 has appeared to permit 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.

In view of the aforesaid proviso to Section 21(1) of the Limitation Act, 1963, the Division Bench decision of This Court in Madhosingh''s case (supra) rendered in relation to the Limitation Act, 1908 which did not contain such provision of correction of mistake in good faith, has no relevance to the questions at hands. It is also noteworthy that Madhosingh''s was a case where the suit for damages, intended to be filed against Railways, was filed in the personal name of the Manager of Railways and the Court found from the phraseology used in the plaint that the said Manager was sued as the plaintiff held him responsible for the damage. The decision of This Court in Om Prakash Sharma (supra) where a transferee pendente lite was sought to be impleaded in a suit relating to immovable property four years after the execution of the sale deed in favour of a third person and after the fact of such alienation was stated before the Trial Court stand on an entirely different footing and deals with different scenario. In the case of C. Doctor & Company Limited (supra), the suit was filed by the plaintiff-respondent against the petitioner Company for money recovery and the defendant-petitioner filed counter- claim and stated that the plaintiff asked them to issue a credit note to one Progressive Transport Agency and at request, such credit note was issued; and it was alleged that there was some arrangement between the plaintiff and Progressive Transport Agency that did not work out and the plaintiff wanted the defendants to raise dispute with Progressive Transport Agency which they did not and that antagonised the plaintiff leading to the suit. The plaintiff stated in the replication that no such suggestion was made to the defendant to issue a credit note to the said Progressive Transport Agency and it was for the defendant to implead the said Agency as co-defendant in order to show that such payment had been made. It was on such replication that the defendant proceeded to move application for impleadment of Progressive Transport Agency that was rejected by the Trial court with the observation that any claim which might have been there against Progressive Transport Agency that had become barred by limitation with passage of time. The Hon''ble Court pointed out that the defendant could not have compelled the plaintiff to implead a third person as party and the presence of the person sought to be joined was not necessary for just and proper adjudication of the case and in that context it was also observed that a person should not be impleaded or any amendment adding one defendant or some claim in a plaint that has become barred by limitation should not be allowed and it was pointed out that the claim, if any, against the proposed defendant Progressive Transport Agency, has already gone beyond limitation. For obvious difference of fact situation and for no occasion to apply Section 21 of the Limitation Act, the said case has no bearing on the question at hands. The case of Brij Mohan (supra) is entirely different where a third person sought impleadment in a suit on the basis of some averment taken in the pleadings of the parties; and This Court pointed out that the applicant could not thrust himself as co-defendant against the wishes of the plaintiff.

A submission has made on behalf of the petitioners that the consequential amendment was not even stated before the Court. In the given fact situation, at the time of making of the application, the plaintiffs could only have prayed for permission to implead Smt. Sharda Vyas as party and to permit them to file consequential amendment. The learned Trial Court has rightly granted such permission in this case.

During the course of arguments in these petitions, it was pointed out that the plaintiffs have already filed the consequential amended plaint and a copy thereof has been placed on record. Therein, the plaintiffs have taken relevant averments in paragraph 13-A pointing out the stand of the defendant Vishnu Kant in his written statement and the order passed by the Trial Court for impleadment of Smt. Sharda Vyas; and the plaintiffs have averred that if the defendant No. 1 would establish Smt. Sharda Vyas to be the owner of M/s Sharda Traders, the plaintiffs are entitled to get a decree against both the defendants and that the suit is within limitation per Section 21 of the Limitation Act, 1963. The pleadings as taken by the plaintiffs remain in accord with the order passed by the Trial Court.

Viewed from any angle, the challenge to the impugned order remains wholly meritless; and these writ petitions deserve to be dismissed. In the circumstances of the case and looking to the stand of the parties and the nature of the impugned order, This Court is further of the view that the writ petition as filed by original defendant Vishnu Kant (CWP No. 7138/2007) had been wholly unwarranted; and in relation to the said petition, the plaintiffs deserve to be allowed costs.

Accordingly, both these writ petitions are dismissed. The plaintiffs shall be entitled to costs in relation to CWP No. 7138/2007 quantified at Rs. 2,200/-; however, the parties shall bear their own costs in relation to CWP No. 2243/2008.