( 1 ) THIS petition by the defendants in Special Civil suit No. 583 of 1997 before the learned Civil Judge, Senior division, Nagpur, raises the question as to the circumstances in which a person joining as co-plaintiff much after the suit was filed could be given benefit of proviso to Section 21 of the Limitation Act.

( 2 ) FACTS relevant for deciding this petition and about which there is not much of a dispute, are as under : the defendants were alleged to have executed an agreement of sale in respect of certain property in favour of original plaintiff Manjudevi and her husband. A suit for specific performance of said agreement was filed on 30-5-1997 by Manjudevi alone (Special Civil Suit No. 583 of 1997), seeking execution of sale-deed in her own name against the petitioners and defendant Nos. 5 to 8 in whose favour a subsequent agreement was executed. However, the plaint as initially drafted bore the names of both manjudevi and her husband. Name of her husband binodkumar in the title as also his signatures on the last page of the plaint were erased by the counsel for the plaintiffs, who also sought to take advantage of exemption for court fee for women and stated so in para 16 of the plaint. Application Exhibit 5 for temporary injunction was, however, signed by both Manjudevi and Binodkumar and was verified by Binodkumar alone.

( 3 ) DEFENDANT Nos. 5 to 8 (subsequent prospective purchasers) also filed a suit against vendors bearing special Civil Suit No. 1123 of 1996. In the said suit, on 30-4-1997, both Manjudevi and Binodkumar applied for being joined as parties.

( 4 ) IN written statement filed on 26-11-2001 by the petitioners, they specifically raised objections to non-joinder of Binodkumar as also non-payment of court fee. Defendant Nos. 5 to 8 filed application Exhibit 45 on 28-2-2000 for rejection of plaint on the ground of non-payment of court fee, which was rejected by order dated 28-7-2000 holding that plaintiff Manjudevi was entitled to exemption in court fee.

( 5 ) ON 7-4-2004, one Bhushan Jain, who claimed to be holder of power of attorney dated 8-1-1999, filed application Exhibit 65 under Order 1 Rule 10 of the Code of civil Procedure for joinder of Binodkumar, which was opposed by the petitioners by reply dated 12-10-2004, wherein tenability of application filed by power of attorney was also questioned. On 18-10-2004, the said holder of power of attorney filed another application Exhibit 73 for bringing additional facts on record and also mentioned that the plaintiffs could be given benefit of proviso to Section 21 of the Limitation Act without expressly making such a prayer. This too was opposed by the petitioners by filing an elaborate reply.

( 6 ) BY his impugned order dated 7-4-2005, the learned Civil Judge, Senior Division, allowed both the applications. He also granted the prayer not made namely, benefit of proviso to Section 21 of the Limitation act to the plaintiffs without including it in operative part of order, but stating so in para 9 of his order. Aggrieved thereby, the petitioners have filed this petition. They only claim that plaintiff No. 2 Binodkumar may be deemed to have been added as a co-plaintiff only from 7-4-2004, the date of his application Exhibit 65, without being given the benefit of proviso to Section 21 of the Limitation Act.

( 7 ) I have heard both the learned counsel for the petitioner-defendants and the respondent-plaintiffs. Before embarking upon examination of rival contentions, it may be useful to reproduce provision of Section 21 of the Limitation act and its proviso as under :

21. Effect of substituting or adding new plaintiff or defendant.-- (1) 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 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

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