1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5513 OF 2000 Ricabdas Achaldas Oswal .. Petitioner versus Bhujballi Bhau Bahirshet (since deceased) by his heirs and legal representatives Baburao Bhujballi Bahirshet & Ors. .. Respondents Mr.C.G.Gavnekar for the petitioner. Mr.A.M.Kulkarni for respondent Nos.1(a) to 1(i). CORAM : A.S.OKA, J. DATE : 16th February 2010. JUDGMENT: . Heard learned counsel appearing for the parties. The petitioner is the 1st defendant in the suit filed by the 1st respondent. The challenge in this writ petition under Article 227 of the Constitution of India is to an order dated 9th August 2000 passed by the learned trial Judge by which an application made by the 1st respondent under Rule 17 of Order VI read with Order XXII and section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as the said Code) has been allowed. The suit is filed by the 1st respondent for redemption of mortgage. There is a prayer for possession. 2. An application at Exhibit 138 was made by the 1st respondent. It was contended in the application that the heirs of the original mortgagee were brought on record. Reference was made to the written statement of defendant Nos.3/5 in 2 which a contention was raised that suit is bad for non-joinder of necessary parties. It is stated that the Court had not framed issue based on the said contention. However, an issue was framed on 21st July 2000. It is stated that on the same day the defendant Nos.3/5 produced a copy of civil suit which disclosed that deceased Achaldas was survived by daughters. Therefore, application for amendment was made for impleading the three daughters of deceased Achaldas as parties. By the impugned order, the said application was allowed by permitting addition of the proposed defendant with retrospective effect from the date of institution of the suit. 3. The learned counsel appearing for the petitioner submitted that the application was made by the 1st respondent belatedly though objection of non- joinder of necessary parties was raised long back. He pointed out that the application was made after recording of evidence was completed and even arguments were heard partly. He submitted that the application could not have been entertained at such a belated stage. He submitted that the trial Court has committed an error by permitting amendment with retrospective effect from the date of institution of the suit though no such prayer has been made in the application and no such case was made out. 4. The learned counsel appearing for the legal representatives of the 1st respondent submitted that the daughters of Achaldas will not be necessary parties and in any case the suit will not be bad on account of their non-joinder 3 inasmuch as after making bonafide enquiry the 1st respondent has impleaded heirs of deceased mortgagee which were known to him. He relied upon a decision of the Apex Court in the case of Mohd.Hussain (Dead) by Lrs & Ors Vs. Occhavlal & Ors [(2008) 3 Supreme Court Cases 233]. He, therefore, submitted that no interference is called for. He also pointed out that till 21st July 2001 even issue on the basis of non-joinder of necessary party was not framed. He submitted that as heirs which were known to the 1st respondent have been impleaded, the decree will bind all legal representatives of the late Achaldas. 5. I have given careful consideration to the submissions. The operative part of the impugned order reads thus: “O R D E R Application is allowed for addition of the proposed defendant Nos.3(a),(b), (c) with retrospective effect from the date of institution of the suit. Plaintiff to carry out necessary amendment within seven days and place on record the copies with necessary process for service of summons on the very day. “ In the last part of the impugned order the learned trial Judge held that though Rule 10(2) of Order 1 of the said Code was not invoked, the basic characteristic of the application was one under Rule 10(2) of Order 1 of the said Code. Thus, the impugned order has been passed by exercising power of the Court under the said provision. 6. Section 21 of the Limitation Act reads thus: “21. Effect of substituting or adding new plaintiff or defendant.-(1) 4 Whereafter 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 was so made a party: Provided 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. (2) Nothing in sub-section (1) shall apply to a case where a party is added or substituted owing to assignment or devolution of any interest during the pendency of a suit or where a plaintiff is made a defendant or a defendant is made a plaintiff.” Thus, normal rule is that if a new defendant is added or substituted, the suit as regards the added party shall be deemed to have been instituted when the added party was made a party only if the Court is satisfied that omission to include a new plaintiff or defendant is due to a mistake made in good faith, it may direct that the suit as regards such defendant shall be deemed to have been instituted on any earlier date. 7. In the application made by the 1st respondent no such prayer was made for invoking the proviso to section 21. Moreover, no satisfaction as contemplated by proviso to section 21 has been recorded by the learned trial Judge in the impugned order. The contention regarding non-joinder of necessary parties was raised in the written statement of the 4th defendant filed in December 1982. It is true that names of the legal representatives who were not impleaded were not mentioned in the said written statement but a specific contention was raised that all legal representatives were not impleaded as parties. The 1st respondent could 5 have sought further and better particulars from the 4th defendant. The additional written statement was filed by the defendant No.3/5 in March 2000 raising the contention of non-joinder very specifically and the application was filed in July 2000. In any case the trial Court has not recorded any finding of fact justifying the decision allowing the addition of parties with retrospective effect from the date of institution of the suit. 8. The 1st respondent applied for impleading parties and therefore, at this stage the contention of the learned counsel appearing for the legal representatives of the 1st respondent that the added parties were not necessary parties cannot be considered. Whether the suit as against the added parties is barred by limitation is a matter which cannot be decided as of today and the trial Court at appropriate stage will have to decide the issue of limitation as and when the same is raised. 9. As far as the order impleading parties is concerned, the application was made immediately after the additional issue was framed. Therefore, the order impleading the parties cannot be interfered with, but the later part of the order allowing impleadment with retrospective effect will have to be quashed and set aside. 10. Hence, I pass the following order: : O R D E R : 6 (a) That part of the impugned order by which addition of defendant Nos. 3(a), 3(b) and 3(c) has been allowed with retrospective effect from the date of institution of the suit is set aside. However, the impugned order to the extent of addition of defendant Nos.3(a), 3(b) and 3(c) is confirmed. (b) All contentions of the parties including the contention regarding non- joinder of necessary parties and bar of limitation to be decided by the trial Court at appropriate stage. (c) Rule is partly allowed in above terms. (d) No orders as to costs. (e) Hearing of the suit is expedited. (A.S.OKA,J)