1. Challenge in his revision petition is made against the order dated 11.12.2009 passed in Misc. (J) case No. 287/08 arising out of Title Suit No. 139 of 2008 in an application under order 1 rule 10 read with section 151 of the Code of Civil Procedure (‘CPC') seeking striking out the name of the defendant No. 5 from the array of the defendants in the cause title of the suit and impalement of her legal heirs in her place substituting the names of defendant Nos. 5, 6 and 7 in the suit whereby and where under the learned trial court allowed the petitioner to strike out the name of the defendant No. 5 from the suit but did not pass any order in regard to impalement of her legal heirs in her place.

2. Heard Mr. M. Dutta, learned counsel appearing for the petitioner. Considering the grievance made, this court seems it fit to dispose it of at the motion stage itself without issuing notice to the opposite parties since the matter relates to adding of parties as defendants in the suit.

3. The brief facts in a nutshell is depicted herein below as follows:

The petitioner herein as plaintiff brought a suit against the defendants numbering 5(five) in total seeking a decree directing the defendants to complete the construction of the flat described in Schedule B of the plaint. But the defendant No. 5 died on 22.5.2005 and the suit is filed against a dead person, but the petitioner had no knowledge about the same and, hence, the application has been filed under order 1, rule 10 read with section 151 of the CPC as indicated above. The suit is now pending in the court of learned Civil Judge No. 2, Kamrup, Guwahati.

4. Admittedly the suit has been filed against a dead person and in the application under Order 1, rule 10 of the CPC filed before the learned trial court which is numbered as Misc. (J) case No. 287/08 arising out of title suit No. 139/08, the following relevant averments were made which are quoted hereunder-

"2. That the defendant Nos. 4 and 5 were the landowners where the flat was to be constructed by the defendant No. 1 firm.

3. That pursuant to the filing of the suit when steps were sought to be taken to the plaintiff could learn for the fast time that the defendant No. 5 had expired.

4. That the plaintiff has in the meanwhile learnt that the defendant No. 5 had expired on 22.5.2005 much before the suit was filed. The said defendant had left behind her sons, namely Sri Jhulan Ch. Choudhury, Chan Ch. Choudhury and Tagar Choudhury as her legal heirs, on whom the landed property belonging to the defendant No. 5 had devolved by right of inheritance and who are looking the affairs of her landed properties.

5. That the petitioner has also learnt there is some dispute amongst the sons of defendant No. 5 and the defendant No. 4.

6. That since the defendant No. 5 had expired before filing of the suit, the said defendant number 5 was wrongly impleaded in the suit. As such her name may be struck off from the plaint.

7. That the sons of the defendant No. 5 who are the legal heirs of late Sushama Bose by right of inheritance has inherited her landed properties and are actually looking after the property. Therefore, the opposite party Nos. 5, 6 and 7 are necessary parties to the suit. Therefore, they may be allowed to be impleaded as defendant Nos. 5, 6 and 7.

8. That the plaintiff did not know the fact that the defending No. 5 had expired and was under the impassion that she was alive when the suit was filed.

9. That unless Sri Jhulan Ch. Choudhury, Chan Ch. Choudhury and Tagar Choudhury are impleaded as defendants the petitioner/plaintiff would suffer irreparable loss and injury. The said persons are necessary parties to the suit and their presence is vital to tie adjudication of the issues in the suit.

10. That there is no negligence or laches on part of the plaintiff and the plaintiff in spite of the best efforts and due diligence could not ascertain about the fact that the defendant No. 5 had expired.

11. That relief sought for are just and necessary for granting the relief claimed in the suit and unless the relief as prayed for are granted the petitioner would suffer irreparable loss and injury.

12. That the application is not barred by limitation or any other statute or law.

13. That the application is filed bona fide and for securing the ends of justice. In the premises aforesaid, it is most respectfully prayed that your Honour may be pleased to strike off the name of the defendant No. 5 and be further pleased to implead opposite parties above named as defendant Nos. 5 to 7 and or pass such other or further order as your Honour may deem fit and proper. And for this act of kindness as in duty bound the plaintiff shall every pray".

The record of the case would show that there was no objection against the aforesaid Misc. (J) case No. 287/08 rather two of the legal heirs of defendant No. 5 have entered appearance in the suit giving in detail the address of another legal heir of the defendant No. 5 who is also sought to be added as defendant No. 7 along with the defendant Nos. 5 and 6.

5. In such a situation the court is to take recourse to section 21 of the Limitation Act, 1963 (Act) which govern this case, it reads, thus-

"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 may direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date.

(2) Nothing in sub-section (1) shall apply to a case where a party is added or substituted owing to assignment or devolution of any interest during the pendency of a suit or where a plaintiff is made a defendant or a defendant is made a plaintiff."

6. The proviso to sub-section (1) of section 21 of the Limitation Act is obviously in line with the spirit and thought of some other provision in Part II of the Act such as section 14 providing exclusion of time of proceeding bona fide in court without Jurisdiction, when computing the period of limitation for any suit, and section 17(1) providing a different period of limitation starting when discovering a fraud or mistake instead of the commission of fraud or mistake. While invoking the beneficent proviso to sub-section (1) of section 21 of the Act, an averment that a mistake was made in good faith by impleading a dead defendant in the suit should be made. The court must on proof be satisfied that the motion to include the right defendant by substitution or addition was just and proper, the mistake having occurred in good faith. The courts satisfaction alone breathes life in the suit. This finds support from the decision rendered by the Apex Court in Munshi Ram v. Narsi Ram and Another, AIR 1983 SC 271.

7. It is noteworthy that the learned trial court did not attribute any neglect on the conduct of the petitioner/plaintiff in filing the petition under order 1 rule 10 read with section 151 of the CPC with all due diligence on knowing the fact that the defendant No. 5 had died on 22.5.2005. In fact the petitioner had nothing to gain by not impleading the legal heirs of defendant No. 5 also as defendants when he filed the suit and there could be no motive for doing so. It must, therefore, be held that the omission to implead the legal heirs of the defendant No. 5 was due to a mistake. If such mistake is made in good faith he proviso to section 21(1) of the Act would be attracted. The meaning of the expression "good faith" is explained in section 2(h) of the Act which is quoted hereunder -

"’Good faith' - nothing shall be deemed to be done in good faith which is not done with due care and attention."

8. In the present case, the petitioner as plaintiff brought the suit against a dead person and on knowing the fact he filed an application under order 1, rule 10 of the CPC which can be termed that in the circumstances he has acted with due care and attention and, hence, the court is of the view that the suit against Sri Jhulan Ch. Choudhury, Chan Ch. Choudhury and Tagar Choudhury should be deemed to have been filed on the date of the institution of the suit, i.e., on 7.6.2008 itself, which on the facts and in the circumstances of the case, this cou

rt consider should be treated as the earlier date referred to in section 21(1) of the Act. The said legal heirs of the defendant No. 5 are necessary party and they should be impleaded under sub-rule (2) of rule 10 of order 1 of the CPC to enable the court effectively and completely to adjudicate upon and settle all the issues involved in the suit. The application filed by the petitioner plaintiff being Misc. (J) Case No. 287/08 is allowed directing the learned trial court to implead the legal heirs of defendant No. 5 as party defendants in the suit with a direction to the learned trial court to dispose of the suit in accordance with law. The plaint shall be permitted to be amended by the trial court by including the names of Sri Jhulan Ch. Choudhury, Chan Ch. Choudhury and Tagar Choudhury as defendants in the suit. 9. For the foregoing reasons the petition is allowed and accordingly disposed of with the aforesaid directions. No costs.