The main legal point established in the judgment is the requirement for the Trial Court to pass a specific order regarding the date of institution of the counter claim for newly added parties as per Section 21(1) of the Limitation Act.

JUDGMENT

M S Jawalkar, J. - Heard Mr. S. D. Padiyar, learned Counsel for the revision applicant and Mr. Guru Shirodkar, learned Counsel for the respondent nos. 3, 4 and 5.

2. The present revision application is filed by applicants, the newly added defendants, in counter claim in Regular Civil Suit no.136/2011/E. For the sake of brevity, it will be referred to as "the said suit".

3. For the sake of convenience, parties will be described as per their nomenclature in the suit.

4. The present revision application is filed being aggrieved by the order below exhibit 57 in the said suit i.e. application under Order 7 Rule 11 of the Code of Civil Procedure (CPC), by the newly added defendants in counter claim.

5. There is no dispute that the original suit is filed on 11.05.2011 by the plaintiffs no.1 and 2. The suit was filed against the defendant nos.1 to 3 (respondent nos.3 to 5 in the present application) for the relief in the nature of permanent injunction against the defendants from doing any work of construction specifically of compound wall or the room in the suit property.

6. The defendant nos. 1, 2 and 3 filed written statement on 06.07.2011 and also filed counter claim against the plaintiff nos. 1 and 2 seeking relief in the nature of declaration and injunction. Issues were framed on 13.06.2012.

7. On 29.07.2015, one application was moved by the defendant nos.1 to 3 under Order 1 Rule 10 of CPC to add present applicants as the parties to the counter claim. On 09.10.2015, the Court passed the order adding present petitioners as defendants in the counter claim. It is also admitted fact that summons were served to the present applicant on 20.02.2016. On 11.03.2016, written statement to the counter claim was filed by the newly added parties (present applicant) and they have also filed on the same date, application under Order 7 Rule 11 of the CPC on two grounds that there is no cause of action disclosed in the application against the present applicant and secondly, counter claim is ex-facie hopelessly barred by the law of limitation to the extent of newly added parties. On these counts prayed for rejection of counter claim against them.

8. Defendant nos.1 to 3 filed their reply to the said application and the learned Civil Judge, Junior Division, rejected the application vide order dated 27.06.2016.

9. The learned Counsel for the applicant Mr. Padiyar, submitted that the Trial Court has not exercised jurisdiction vested in it while giving a finding that the applicants are necessary parties to decide the controversy in the counter claim even though there is no cause of action disclosed in the counter claim with respect to the present applicant. It is also submitted that the learned Trial Court misconstrued jurisdictional bar created under the proviso to Section 21 of the Limitation Act in respect of the claims being barred by the law of limitation as against the petitioners.

10. The learned Counsel for the applicant relied on the citation reported in in the case of Ramalingan Chettiar vs. . K.Pattabiraman & anr., (2001) 4 SCC 96 , wherein the Apex Court held that

"Section 21 of the Limitation Act contemplates two situations - one under the substantive provision which provides that where after filing of a suit, a new plaintiff or defendant is substituted or added, the suit shall, as regards him, be deemed to have been brought on the day when he was added or substituted as a party in the suit. The second situation contemplated under the proviso to the substantive provision is where the court is satisfied that a new plaintiff or defendant was omitted to be added or substituted due to a mistake in good faith, the court may direct that the suit, as regards the newly added or substituted party, shall be deemed to have been instituted on any earlier date. Thus, under the proviso, if the court is satisfied, it can direct that the suit as regards newly added or substituted plaintiff or defendant shall be deemed to have been instituted on a