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1996 Supreme(Cal) 441
HIGH COURT OF CALCUTTA
Gitesh Ranjan Bhattacharjee & Devendra Kumar Jain, JJ.
Deepchand Development Company Ltd.
vs.
Arun Kumar Khasnabis & Ors.
FA No. 353 of 1988
Decided on : November 29, 1996.
Advocate Appeared:
Ms. Chandra Bose for the appellant;
Ms. Bharati Chatterjee, M.D. Idrish for the respondent.
The Appellate Court has the power to rectify defects in an order passed by the trial court in order to achieve the ends of justice.
Headnote:
SPECIFIC PERFORMANCE - SECTION 21(1) LIMITATION ACT, 1963 - ADDITION OF PARTY - EFFECT OF AMENDMENT - POWER OF APPELLATE COURT TO RECTIFY DEFECTS IN ORDER - ORDER 41 RULE 33 C.P.C. - The Appellate Court has the power to pass an order in respect of any matter dealt with even at a stage anterior to the passing of the judgment, decree, or order appealed against.
Fact of the Case:
Plaintiff no. 1, the son of Phani Bhusan Khasnabis, filed a suit for specific performance of a contract regarding the sale of immovable property within the limitation period. Subsequently, he applied to add his mother, plaintiff no. 2, as a co-plaintiff, which was allowed by the trial court after the expiry of the limitation period. The defendant appealed, arguing that the suit was barred by limitation as it was not properly constituted until after the limitation period.
Finding of the Court:
The court held that the suit was not barred by limitation. It found that the omission to include the plaintiff no. 2 in the suit as originally framed was due to a bona fide mistake, and that she was a necessary party to the suit. The court also held that the amendment order passed by the trial court, allowing the addition of the plaintiff no. 2 as a party to the suit, should be deemed to have the effect of relating back to the date of filing of the suit.
Issues: Whether the suit was barred by limitation as it was not properly constituted until after the limitation period.
Ratio Decidendi: The court relied on the proviso to sub-section (1) of section 21 of the Limitation Act, 1963, which allows the court to direct that a suit shall be deemed to have been instituted on an earlier date if it is satisfied that the omission to include a plaintiff or defendant was due to a mistake made in good faith. The court also relied on Order 41 Rule 33 C.P.C., which gives the appellate court the power to pass any order which ought to have been passed by the trial court.
Final Decision: The court dismissed the appeal and held that the suit was not barred by limitation.
Gitesh Ranjan Bhattacharjee, J.
1. This appeal is directed against the judgment and decree' passed by the learned Assistant District Judge, 6th Court, Alipore in T.S. No. 42 of 1983. That was a suit for specific performance of contract regarding sale of immovable property. By the impugned judgment and decree the learned trial court granted decree for specific performance. The appellant was the defendant in the said suit. The present appeal has been preferred challenging the said judgment and decree.
2. In the suit it was the contention of the plaintiffs-respondents that there was an agreement between the defendant company and one Phani Bhusan Khasnabis, the predecessor in interest of the plaintiffs for sale of land and the said Phani Bhusan also paid earnest money as well as a part of the consideration money to the defendant company and in part performance of the agreement possession of the concerned property was also delivered to said Phani Bhusan Khasnabis but the defendant company did not execute deed of conveyance. It may be mentioned here that the plaintiff no. 1 Arun Kr. Khasnabis is the son of said Phani Bhusan Khasnabis, since des eased and the plaintiff no. 2 Sudha Rani Khasnabis is the widow of late Phani Bhusan Khasnabis. Originally the suit was filed on 14.5.83 by the plaintiff no.1 alone. Subsequently an application was filed for addition of his mother as plaintiff no. 2 in the suit and the said application was allowed by the learned trial court on 6.2.86. Under Art. 54 of the Limitation Act, 1963 a suit for specific performance of contract is required to be filed within three years from the date fixed for the performance or if no such date is fixed, then such suit is required to be filed within three years from the date when the plaintiff has notice that performance is refused. It is not in dispute that in the present case, in view of the facts and circumstances, the period of limitation under the said Art. 54 started running with effect from 14th July, 1980. Therefore in view of the said Art. 54 the suit for specific performance was required to be instituted within three years from the said date, that is, within 14th July, 1983. As a matter of fact the suit was filed by the plaintiff no.1 alone within the period of limitation. The only point urged on behalf of the appellant before us in this appeal is that the suit is barred by limitation as there was no properly constituted suit till the expiry of the period of limitation and the learned trial court should have dismissed the suit on that ground. Since the only point urged before us in this appeal is the ground of limitation and no other point has been urged, it is not necessary for us to advert our attention to the other aspects of the case. If we find that the suit is barred by limitation then the appeal will be allowed and the suit will be dismissed. On the other hand if we hold that the suit is not barred by limitation in that event the appeal will stand dismissed.
3. As we have seen, the suit was initially instituted within the period of limitation by the plaintiff no.1 alone as the son and heir of the deceased Phani Bhusan Khasnabis. Subsequently however he applied before the trial court on 6.2.86 for addition of his mother Smt. Sudha Rani Khasnabis as plaintiff no. 2 and the said application for addition of party was also allowed by the trial court by order dated 6.2.86. What is contended on behalf of the appellant before us in this appeal is that since Phani Bhusan died leaving behind the plaintiffs as his heirs (son and widow) the suit for specific performance should have been instituted jointly by both the plaintiffs within the prescribed period of limitation, but as a matter of fact initially the suit was instituted by the plaintiff no.1 alone and it was only after the expiry of the prescribed period of limitation the plaintiff no.2 was also added as a co-plaintiff in the suit. In this connection the learned Advocate for the appellant attracts
