JUDGMENT

Anil Kumar, J.(Oral)

IA No. 6477/1993

1. This is an application by the plaintiff/applicant under Order 1 Rule 10 of the Code of Civil Procedure for impleading Sh. Arun Kumar Jain, s/o. Shri Bimal Pershad Jain, r/o. D-1083, New Friends Colony, New Delhi, karta of Bimal Pershad Jain & Sons, HUF.

2. Plaintiff contended that he has filed suit for specific performance of agreement to sell dated 19.1.1983 in relation to property bearing Municipal Nos.F-7/1 to 4 and F-7/8 to 11 ad measuring 9790 sq. feet. The plaintiff contended that the cause of instituting the suit for specific performance arose on 18.2.1992 when defendant No. 1 issued the notice allegedly terminating the agreement to sell.

3. The plaintiff, therefore, filed the suit for specific performance making Sh. Bimal Pershad Jain as defendant No. 2 (ii) as party to the suit in the plaint dated 15.12.1992. After the institution of the suit the notices were issued to the defendants. On the summons issued, from the service report dated 2.4.1993, it transpired that Sh.Bimal Pershad Jain had expired even before the institution of the suit on 3.8.1991.

4. The plaintiff applicant contended that despite due diligence on his part he could not ascertain about the demise of defendant No. 2(ii) prior to the institution of the suit and in the circumstances he has sought impleadment of Sh. Arun Kumar Jain, s/o. Sh. Bimal Pershad Jain who had become the karta of Bimal Pershad Jain & Sons, HUF and deletion of the name of Sh. Bimal Pershad Jain who expired on 3.8.199 1.

5. The plaintiff has relied on AIR 1998 Bombay 149, Stephen Laslie Victor D'Souza and others v. Stanley Antony D'Souza and others, AIR 1993 Punjab & Haryana 111, Jaswant v. The Financial Commissioner and others and AIR 1993 SC 2324, Karuppaswamy and others v. C. Ramamurthy to contend that a plaintiff is entitled to invoke proviso to Section 21(1) of the Limitation Act, 1963 on filing a suit against several defendants, one of which is already dead when the suit was filed. If a mistake was bona fide and plaintiff became aware of the defendant's death much later on, the appropriate parties can be impleaded.

6. The application is contested by defendant No.1 contending that the application under Order 1 Rule 10 of the Code of Civil Procedure is not maintainable as the suit has been filed against a dead person and application cannot be filed for substitution of the legal representatives of deceased defendant who had died prior to the institution of the suit. The defendant has refuted the allegations made by the applicant/plaintiff in the plaint on merits also.

7. In support of the plea opposing the application under Order 1 Rule 10 of the Code of Civil Procedure, the non-applicant has also relied on AIR 1994 Bombay 74, The Official Liquidator High Court, Bombay v. Taru Jethmal Lalvani and Others and 110 Indian Cases, 281, Roop Chand v. Sardar Khan.

8. In Stephen Laslie Victor D'Souza (Supra), relied by the plaintiff/ applicant, it was held that a plaintiff is entitled to invoke proviso to Section 21(1) of the Limitation Act, 1963 on filing a suit against several defendants one of which is already dead when the suit was filed, if the mistake of non-impleadment was bona fide and plaintiff became aware of the defendant's death much later on. It was held that the appropriate parties can be impleaded and the suit against them will be from the date of institution of the suit. It was held that Section 21 of the Limitation Act, 1963 states about effect of substituting or adding new plaintiff or new defendant and proviso to Section 21 states 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.

9. A Division Bench of Punjab & Haryana High Court in the matter of Jaswant (Supra) had rejected the contenti