Section 21 of the Limitation Act, 1963

Section 21 of the Limitation Act, 1963 is exclusively applicable to suits and lays down that if a new plaintiff or defendant is added or substituted after the institution of a suit, the suit, as regards him (added or substituted plaintiff/defendant as the case may be), is deemed to have been instituted when he was so made a party i.e., brought on record.

For example: A instituted a suit against B and C on 6.12.2012. D was added as a plaintiff on 20.11.2014 subject to court directing any earlier date.

Order I Rule 10(2) of the Civil Procedure Code, 1908 provides for the addition of necessary and proper parties. In adding necessary parties against whom no relief is sought for by the plaintiff, Section 21 of the Limitation Act has to be taken into account. However, with respect to the addition of proper parties, Section 21 has no application.

The proviso attached to Section 21(1) empowers the court to condone the delay in filing the application for the addition of parties after the period of limitation, provided that the same is made bona fide and good cause is shown therefore. If the court has condoned the delay, the suit with respect to such plaintiff or defendant shall be deemed to have been instituted on any earlier date.

Sub-section (2) thereof makes it very clear that these provisions would not apply to the case where a party is added or substituted owing to the assignment or devolution of any interest during the pendency of the suit or where the plaintiff is made a defendant, as the case may be, into the suit as originally filed.

Sub-section (2) of Section 21 of the Limitation Act applies only to those cases where:

• the claim of the person transposed as plaintiff can be sustained on the plaint as originally filed, or
• the person remaining as a plaintiff after the said transposition can sustain his claim against the transposed defendant on the basis of the plaint originally filed.

For Sub-section (2) to apply, all that is necessary is that the suit as filed originally should remain the same after the transposition of the plaintiff, and there should be no addition to its subject matter.

Where a suit as originally filed is properly framed with the proper parties on record, the mere change of a party from the array of defendants to that of plaintiffs under Order I Rule 10 of the Civil Procedure Code will not make him a new plaintiff and will not bring the case within this section.

In such a case, Sub-section (2) will not apply. For instance, where one of the plaintiffs refusing to join as plaintiff was first made a defendant and thereafter transposed as a plaintiff, he is not a new plaintiff.

Relevant Case laws:

• In Mahadeva Rao vs. S.G. Chickanageswaiab, AIR 1981 Kant 16, it was held that the effect of striking out the name of the defendants is that the suit so far as that defendant is concerned ends and if he is again impleaded by amendment it will be treated as seeking to add a new defendant and section 21 is attracted.
  URL: www.indian kanoon.org/doc/1135477/
• In Karuppaswamy vs. Rama Murthy, AIR 1993 SC 2324, it was held that, while invoking the beneficent proviso to section 21(1), an averment that a mistake was made in a good faith. The court’s satisfaction alone breaths life in suit.
  URL: www.indian kanoon.org/doc/1711892/
• In Atul Anand vs. Nanak Food Industries, 132 (2006) DLT 481, it was held that where in ignorance of death of a person, suit filed, legal heirs can be brought on record subsequently thereon section 21 of Limitation Act would apply.
  URL: www.indian kanoon.org/doc/1482060/