ORDER
M. Karpagavinayagam, J.
1. Thiru Alankadu Immudi Ahora Dharma Sivachariar Aiyra Vaisya Madam, petitioner herein, filed a suit against the respondent for recovery of possession, damages and mesne profits in the year 1998. Respondent filed a written statement in the year 2000, denying the title of the petitioner. Hence, the petitioner/plaintiff filed an application under Order 6 Rule 17 C.P.C. to amend the plaint, claiming the relief of declaration of title over the suit property as well. The said application was opposed by the respondent/defendant, on the ground that it was barred by limitation, as the application was filed after three years. Accepting the said objection, the trial Court dismissed the application on 28.01.2004. Hence, this revision by the petitioner/plaintiff.
2. According to the learned counsel for the petitioner, delay in filing the application cannot be a ground for rejecting the application at the threshold and the amendment seeking for declaration is quite essential for complete and effective adjudication of dispute between the parties, as the proposed amendment is to add consequential relief to the main relief.
3. Justifying the order impugned, learned counsel for the respondent would submit on the strength of the decision reported in 2001 (4) CTC 174 (Tamil Nadu Electricity Board v. Tamil Nadu Alloy Foundry Co. Ltd.), rendered by this Court, that the application for amendment seeking for new relief should have been filed within the period of limitation, namely, three years and, as such, the order impugned is valid.
4. Substantiating his plea, learned counsel for the petitioner would cite the following judgments :
(i) : (1997)IIMLJ128 (K.S. Alagarsamy v. P. Natarajan and Anr.);
(ii) : (1997)IMLJ560 (Muthammal v. Thamburati and 6 Ors.);
(iii) : (1998)IIMLJ508 (Kalavathi v. Chitra);
(iv) 2003 (2) L.W.21 (Sampath Kumar v. Ayyakannu and Anr.); and
(v) : AIR2004SC4102 (Pankaja and Ane. v. Yellappa (dead) by Lrs. and Ors.)
5. A perusal of the above judgments could set forth the following guidelines, while dealing with an application under Order 6 Rule 17 C.P.C., seeking for amendment of the prayer :
(1) The general rule is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit on new case or cause of action is barred.
(2) It is well recognized that where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts to no more than a different or additional approach to the same facts, the amendment will be allowed even after the expiry of the statutory period of limitation.
(3) The object of Courts and rules of procedures is to decide the rights of the parties and not to punish them for their mistakes. Further, a party is strictly not entitled to rely on the statute of limitation when what is sought to be brought in by the amendment can be said in substance to be already in the pleading sought to be amended.
(4) Even though the amendment sought to be made is subject to law of limitation, if the cause of action is not going to be changed, it is open to the affected party to take necessary steps for amendment of the plaint. No doubt, no amendment will be allowed to introduce a new set of ideas to the prejudice of any right acquired by any party of lapse of time.
(5) For merely allowing an application for amendment, there is no adjudication of the merits of the amended pleas introduced that the merits of the amended pleas have got to be adjudicated upon after allowing the opposite side to put-forth additional pleadings in answer to the same and that certainly the additional pleadings may take in also the plea of bar of limitation.
(6) By allowing the amendment, no injury or injustice is caused to the other side. No jurisdictional error is also involved in this case because of the amendment being ordered. The amendment application should be allowed, since it is not going to change the nature of the plea nor does it affect the rights of the defendants. The defendants are entitled to put-forward all their contentions even after the amendment is allowed.
(7) The question of limitation should not have been decided by the Court below at present, since it is a question to be decided on merits with oral and documentary evidence. At present, we are concerned with the amendment application, which is governed only under Order 6 Rule 17 C.P.C. The amendment application should be allowed, if it is not going to change the nature of suit nor does it affect the rights of the defendants.
(8) The basic structure of the suit is not altered by the proposed amendment. What is sought to be changed is the nature of relief sought for by the plaintiff. In the opinion of the trial Court, it is open to the plaintiff to file a fresh suit and that is one of the reasons, which has prevailed with the trial Court. We fail to understand, if it is permissible for the plaintiff to file an independent suit, why the same relief, which could be prayed for in a new suit, cannot be permitted to be incorporated in the pending suit.
(9) Where a suit was filed without seeking an appropriate relief, it is a well settled rule of practice not to dismiss the suit automatically, but to allow the plaintiff to make necessary amendment, if he seeks to do so.
(10) Pre-trial amendments are allowed more liberally than those which are sought to be made after the commencement of the trial or after conclusion thereof. In former case, generally, it can be assumed that the defendant is not prejudiced because he will have full opportunity of meeting the case of the plaintiff as amended. In the latter cases, the question of prejudice to the opposite party may arise and that shall have to be answered by reference to the facts and circumstances of each individual case.
(11) The law in this regard is quite clear and consistent that there is no absolute rule that in every case where a relief is barred because of limitation an amendment should not be allowed. Discretion in such cases depends on the facts and circumstances of the case. The jurisdiction to allow or not allow an amendment being discretionary, the same will have to be exercised on a judicious evaluation of the facts and circumstances. If the granting of an amendment really subserves the ultimate cause of justice and avoids further litigation, the same should be allowed.
(12) In regard to the stand of the defendants that the declaration sought by the plaintiffs is barred by limitation, there is dispute and it is not an admitted fact. While the defendants pleaded that Under Entry 58 of the Schedule to the Limitation Act, the declaration sought for by the plaintiffs in this case ought to have been within three years when the right to sue first accrued, the plaintiffs contend that the same does not fall under the said entry but falls under Entry 64 or 65 of the said Schedule to the Limitation Act, which provides for a limitation of 12 years, therefore, according to them, the prayer for declaration of title is not barred by limitation. In such a situation, where there is a dispute as to the bar of limitation, the amendment sought could not be declined. The dominant purpose of allowing the amendment is to minimise the litigation. The plea of limitation, being disputed, could be made a subject-matter of the issue, after allowing the amendment prayed for.
6. While deciding the controversy raised in this case, we have to bear the guidelines referred to above.
7. According to the petitioner/plaintiff, he is the owner of the suit property and since the respondent was the tenant and rent was not paid, he sought for a decree of recovery of possession.
8. The suit was filed in the year 1998. Admittedly, written statement was filed by the respondent/defendant on 16.06.2000, denying the title of the plaintiff. Then, all more the necessary for the plaintiff was to file an application under Order 6 Rule 17 C.P.C., to seek for amendment of the plaint, by seeking the relief of declaration as well.
9. The main objection raised by the defendant before the trial Court was that the right of seeking for declaration, when it was denied through written statement, must be made within three years of such a denial and the application under Order 6 Rule 17 C.P.C. was made on 05.12.2003 i.e., after three-and-a half years, even though written statement was filed on 16.06.2000.
10. It is the contention of the learned counsel for the respondent/defendant that under Entry 58 of the Schedule to the Limitation Act, the said relief could be asked only within three years.
11. On the other hand, it is contended by the learned counsel for the petitioner/plaintiff that Entry 58 would not apply to the present facts of the case and that the case would fall under Entry 64 or 65 of the Schedule to the Limitation Act, which provides for a limitation of twelve years.
12. Thus, it is clear that there is a dispute with reference to the applicability of the Entry, which provides for a limitation within three years.
13. The decisions referred to above would clearly indicate that the application for amendment can be allowed so long as there is no change of cause of action or there is no new case put-forth. Even though it is not the case of the defendant that there is a new cause of action as is evident from the counter filed by him in the application under Order 6 Rule 17 C.P.C., the trial Court has found that there is a change of cause of action also. This finding is patently wrong. Even in the plaint, the plaintiff specifically averred that the Madam/plaintiff was the owner of the property. On the strength of the said pleading already made in the plaint, now the application is filed for amendment, seeking for the relief of declaration. Therefore, it cannot be said that there is a change of cause of action. On the other hand, as indicated above, there is a dispute with reference to the period, within which the bar of limitation would apply.
14. According to the petitioner, it falls under Entry 64 or 65, but, according to the respondent, Entry 58 would apply.
15. When there is no change of cause of action and no introduction of a new case, the trial Court ought to have allowed the application for amendment and also the parties to put-forth their contentions, with reference to the bar of limitation also, during the course of trial. In stead of doing so, the trial Court had chosen to give a finding that since the case fell under Entry 58 of the Schedule to the Limitation Act, the application would be barred by limitation, which is wrong. Therefore, the order impugned is set aside. The trial Court is directed to frame an issue with reference to the point of limitation also and go on with the trial, after giving necessary opportunity to the parties.
16. Civil Revision Petition is allowed. No costs. Consequently, the connected C.M.P. No. 6397 of 2004 is closed.