Order 6 Rule 17 of the CPC empowers the court to allow a party to amend his pleading at any stage of the proceedings subject to certain conditions; this Rule is reproduced below:
“17. Amendment of pleadings.— The Court may at any stage of the proceedings allow either party to alter or amend his pleading in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:
Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.”
However, in your case, the question is not merely of amendment of the pleadings, but also of adding a new party (respondent) in the suit, wherein question of limitation may arise.
In this regard, it is pertinent to point out that in the case of Alkapuri Coop. Housing Society Ltd. v. Jayantibhai Naginbhai, (2009) 3 SCC 467 : AIR 2009 SC 1948, in somewhat similar situation, the Supreme Court has held that:
“It is neither in doubt nor in dispute that the court’s jurisdiction to consider an application for amendment of pleading is wide in nature, but, when, by reason of an amendment, a third party is sought to be impleaded, not only the provisions of Order 6 Rule 17 of the Code of Civil Procedure (CPC) but also the provisions of Order 1 Rule 10 CPC would come into play. When a new party is sought to be added, keeping in view the provisions of sub-rule (5) of Rule 10 of Order 1 CPC, the question of invoking the period of limitation would come in.”
Sub-rule (5) of Order 1 Rule 10 of CPC, as referred to in the above Supreme Court judgment is reproduced below:
“(5) Subject to the provisions of the Indian Limitation Act, 1877 (15 of 1877), Section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons.”
It is noteworthy that Section 22 of the Indian Limitation Act, 1877, is equivalent to Section 21 of the Limitation Act, 1963 (36 of 1963), and the latter section is reproduced below:
“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.”
In the above-mentioned case, the Supreme Court further held that the question as to whether an application for amendment should be allowed in spite of delay and laches in moving the same, would depend upon the facts and circumstances of each case wherefor a judicial evaluation would be necessary. It was also held that there cannot be any doubt or dispute that an application for amendment of the plaint seeking to introduce a cause of action which had arisen during the pendency of the suit stands on a different footing than the one which had arisen prior to the date of institution of the suit.
In view of these reasons, it may depend on the facts and circumstances of the case and also the nature of the case whether a third party may be added as a new defendant in your suit at this late stage when the delay is of about 10 years. The question of limitations needs to be considered depending on facts and nature of the suit and the type of right being enforced. Moreover, it also depends on the facts of the case as to whether the application for amendment of the plaint can be considered as one seeking to introduce a cause of action which had arisen during the pendency of the suit or the one which had arisen prior to the date of institution of the suit. It is not possible to reply to this issue in the absence of detailed facts in the question. You may please consult some lawyer by disclosing full facts to him.
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.
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