Adding or Substituting Parties: Section 21, Limitation Act

A suit filed in time against one defendant does not automatically save a claim against another person added years later. Section 21 of the Limitation Act fixes the date of institution for a new party: as regards him, the suit begins when he is made a party, unless the court finds that his omission was a bona fide mistake. The section does not apply where a party comes in by assignment or devolution, or by transposition. This note explains the rule, the proviso and exclusions, the related CPC provisions, and the limits on adding time-barred claims by amendment.

1. The Provision

Figure 1: How section 21 operates

• s.21(1). Where, after a suit is instituted, a new plaintiff or defendant is substituted or added, the suit is, as regards him, deemed to have been instituted when he was made a party.
• Proviso. Where the court is satisfied that the omission to include the new party was due to a mistake made in good faith, it may direct that the suit, as regards him, be deemed instituted on any earlier date.
• s.21(2). Section 21(1) does not apply where a party is added or substituted owing to assignment or devolution of any interest during the pendency of the suit, or where a plaintiff is made a defendant or a defendant a plaintiff.
• New in 1963. The proviso was introduced by the 1963 Act to relieve a plaintiff whose omission was an honest error, such as a mistake about the correct name or identity of the party liable.

2. Scope

Figure 2: Where section 21(1) applies

• Misdescription. Correcting the name of a party already before the court, such as a wrongly spelt name or the wrong description of a firm, is not adding a new party. The suit is treated as instituted against him from the start.
• Good faith. Good faith under s.2(h) requires due care and attention. A plaintiff who knew of the proper party and chose not to sue him cannot invoke the proviso.
• Devolution. Where a party dies or his interest is assigned while the suit is pending, his successor steps into his shoes; the suit is not treated as newly instituted against the successor.
• Transposition. Moving a plaintiff to the side of the defendants, or the reverse, does not change the date of institution as regards him.

3. Related Provisions

Figure 3: Parties and pleadings: the CPC and the Schedule

• Order I Rule 10(5), CPC. As against an added defendant, the proceedings are deemed to begin on service of the summons, but this is expressly subject to the Limitation Act, so s.21 governs limitation.
• Legal representatives. Bringing the legal representative of a deceased party on record must be done within 90 days of the death (Article 120); setting aside an abatement within 60 days of the abatement (Article 121). Delay in either may be condoned under s.5.
• L.J. Leach and Co v Jardine Skinner (1957). The Supreme Court held that although an amendment adding a time-barred claim is ordinarily refused, the court has power to allow it in special circumstances where the interests of justice require.
• Pankaja v Yellappa (2004). The Court reaffirmed that there is no absolute bar on an amendment introducing a time-barred claim; it is a matter of discretion, and limitation is one factor to weigh.

4. Examples

• New defendant. A suit on a contract is filed in time against A. Two years later, after limitation has expired, the plaintiff adds B as a co-promisor. As regards B, the suit is instituted on the date B is added, so it is barred against B unless the proviso applies.
• Bona fide mistake. The plaintiff sued the wrong company in a group because the invoices bore its name. On finding the true contracting party, the plaintiff applies to add it. If the court finds a good-faith mistake, it may treat the suit as instituted against the correct company on the original date.
• Death pending suit. The defendant dies during the suit, and his heirs are brought on record within 90 days. Section 21(1) does not apply; the suit continues against the heirs from its original date.

5. Frequently Asked Questions

Does section 21 apply when the heirs of a deceased defendant are substituted?

No. Substitution on death is a case of devolution of interest during the pendency of the suit, which s.21(2) excludes. The heirs must, however, be brought on record within 90 days of the death under Article 120, or the suit abates as against the deceased.

Is correcting the name of a defendant the same as adding a new defendant?

No. Where the right person was sued under a wrong name or description, correcting the misdescription does not bring in a new party, and the suit is treated as instituted against him from the original date.

Can a court treat the suit against a newly added defendant as filed on the original date?

Yes, under the proviso to s.21(1), if it is satisfied that the plaintiff's omission to include that defendant was due to a mistake made in good faith. Since good faith requires due care and attention, a plaintiff who knew of the proper party and failed to sue him will not get the benefit.

Does section 21 apply when a plaintiff is transposed as a defendant?

No. Section 21(2) excludes cases where a plaintiff is made a defendant or a defendant is made a plaintiff. The date of institution as regards that party does not change.

6. Related Topics

• Topic 3: Bar of Limitation, Section 3. When a suit is instituted.
• Topic 19: Continuing Breaches and Wrongs, Section 22. The next provision.