1. This revisional application is directed against an order dated 31.8.2009 passed by the Civil Judge (Senior Division), 1st Court, Howrah in Title Suit no. 53 of 2003 heard analogously with Title Suit no. 179 of 2002 by which an application for amendment of the written statement for incorporating the counter-claim was rejected.
2. The opposite parties instituted two suits; one being T.S No. 179 of 2002, against the petitioner and the Municipal Authorities, praying for declaration that they are the absolute owners and occupiers of the suit premises and the petitioner being the defendant no. 1 therein has no manner of right, title and interest in the schedule property and the notice dated 6.8.2002 issued by the Howrah Municipal Corporation Authorities are manufactured and collusive and a decree for permanent injunction restraining the petitioner from creating any disturbances and the other defendants therein from giving any effect to the said notice dated 6.8.2002, the other being T.S no. 53 of 2003 wherein the opposite parties prayed for decree for partition upon declaration that the petitioner, the sole defendant therein has not acquired any right, title and interest in respect of ‘B’ schedule property on the basis of deed of conveyance dated 26.6.2000.
3. In both the suits the petitioner appeared and filed written statement. Apart from the other defence it is sought to be contended by the petitioner that the deed of sale by which the opposite parties purchased the ‘A’ schedule property which includes ‘B’ schedule property is void and no right, title and interest has been acquired thereupon.
4. On the basis of the pleading, so made in the written statement as aforesaid, the petitioner filed an application for amendment of the written statement seeking to incorporate the prayer, by way of a counter-claim, for declaration that the deed of sale executed in favour of the opposite parties by which they claimed to have acquired right, title and interest in respect of ‘A’ scheduled property is void, illegal, unenforceable and not binding upon the defendant and a further declaration that the petitioner is the sole and absolute owner of piece and parcel of land measuring 2 cottaha 14 chittaks together with a structure standing thereupon which comprised in the holding no. 72/13 Basiruddin Munsi Lane (previously 72, Basiruddin Munsi Lane) District - Howrah and the insertion of the valuation statement.
5. The said applications for amendment were resisted by the opposite parties on the ground that the amendment sought to be incorporated, is barred by limitation.
6. The trial court rejected the said applications by separate orders but on a similar and identical ground i.e. the proposed amendment is barred by law of limitation, the issues are already settled and the evidence of parties has started.
7. Mr. Buddhadeb Ghosal, learned Advocate appearing for the petitioner strenuously argues that there is no bar incorporating the counter-claim by way of an amendment. He further argues that the court cannot jettison the petition for amendment on the ground of being barred by limitation. The limitation being the mixed question of fact and law, the court should not refuse the amendment as being barred by limitation. He relies the following judgments : Seema Dasgupta v. Gopal Banerjee 2004 (1) CHN 6, Bollepanda P. Poonacha & anr. v. K.M. Madapa 2008(3) CHN (SC) 90, Pankaja & Anr. v. Yellappa (2004) 6 SCC 415, Andhra Bank v. ABN AMRO Bank N. V. & Anr. (2007) 6 SCC 167.
Mr. Bidyut Kumar Banerjee, learned Senior Advocate appearing for the opposite parties argues that by way of a counter-claim the petitioner is seeking for decree for declaration that the deed of conveyance dated 5.7.1993 is illegal and void which is barred under Article 58 of the Limitation Act and such an amendment cannot be allowed. He strenuously argues that section 3 of the Limitation Act provides that the suit including the counter-claim shall be dismissed by the court if found to be barred by limitation even though the limitation has not been taken as a ground of defence. Thus he contends that the cumulative effect of Article 58 and section 3 of the Limitation Act is that the court is empowered to dismiss the amendment application having been barred under the law of limitation.
8. Having heard the submission as aforesaid, it appears that the trial court has rejected the said application for amendment as the relief sought to be incorporated by way of amendment is barred under Article 58 of the Limitation Act.
9. The dispute as it galore from the original pleadings of the parties is that the opposite parties claim themselves to be the owner of the premises of 72 Basiruddin Munsi Lane comprising 1 cottaha chittaks 9 sq. ft. of land together with a shed standing thereupon on a strength of a deed of conveyance dated 5.7.1993 being a portion of larger piece of land of 3 cottah 10 chittaks.
10. What is sought to be denied by the plaintiff in the plaint of both the suits is that the petitioner has not acquired any right, title and interest in respect of ‘B’ schedule property which is a portion of the larger premises as described in ‘A’ schedule property. On the other hand the petitioner has claimed their right, title and interest on the strength of the registered deed executed by the erstwhile owner and in an original written statement it is specifically contended that the deed on which the reliance is placed by the opposite parties to have acquired the larger premises being ‘A’ schedule property is void, illegal and not binding upon the petitioner.
11. On perusal of the written statement it appears that the fact challenging the deed of the opposite parties, though not explicit, can be found therein.
12. The scope under Order 6 Rule 17 of the Code is that the court shall allow the party to amend his pleadings in such a manner and on such terms as may be just, at any stage of the proceeding, if such amendment is necessary for the purpose of determining the real question in controversy between the parties. Since time immemorial the matter relating to the amendment of pleading, its scope and the discretion, being exercised by the court dealing an application for amendment of the pleading, was a matter of great concern. In Clarapede & Co. v. Commercial Union Association reported in (1883) 32 WR 262 (CA) in an appeal before the court of appeal, Brett M.R stated;
“……….The rule of conduct of the court in such a case is that, however negligent or careless may have been the first omission, and, however late the proposed amendment, the amendment should be allowed if it can be made without injustice to the other side. There is no injustice if the other side can be compensated by costs; but, if the amendment will put them into such a position that they must be injured, it ought not to be made……..”
13. The Privy Council in case of Charan Das v. Amir Khan reported in 47 Indian Appeals 255 observed that the power of a court to amend the pleadings should not be exercised in a routine manner if by amendment the legal right accrued to the party is taken away, yet in appropriate cases the court shall allow the amendment in special circumstances. In case of L.J. Leach & Co. Ltd. v. M/s. Jairdine Skinner & Co. reported in AIR 1957 SC 357, the fourjudge Bench of the Supreme Court held that if on the basis of an amended claim a fresh suit is barred such amendment should not be allowed but that does not take away the power of the court to allow amendment if that is required in the interest of justice in following words :
“16. It is no doubt true that courts would, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the court to order it, if that is required in the interest of justice.”
14. While approving and reiterating the principle enunciated in L.J. Leach & Co. Ltd. (supra) and Charan Das (supra), the three-judge Bench of the apex court in case of Pirgonda Hongonda Patil v. Kalgonda Shidonda Patil reported in AIR 1957 SC 363 held that if the amended claim would be barred by limitation but the same does not affect the power of the court to allow amendment if it is required in the interest of justice. The apex court in case of Jai Jai Ram Manohar Lal v. National Building Materia supply, Gurgaon reported in (1969) 1 SCC 869 held that the power to grant amendment of the pleading is intended to serve the ends of justice and is not shackled by mere pedantic and technical limitations. Yet in another judgment delivered in case of Pankaja & Anr. v. Yellappa (dead) by lrs. & Ors. reported in (2004) 6 SCC 415 the apex court while reiterating the ratio laid down in L.J. Leach & Co. Ltd. (supra) the Supreme Court held :
“15. This Court in the case of L.J. Leach and Co. Ltd. v. Jardine Skinner and Co. has held:
“16. It is no doubt true that courts would, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the court to order it, if that is required in the interests of justice.”
16. This view of this Court has, since, been followed by a threeJudge Bench of this Court in the case of T.N. Alloy Foundry Co. Ltd. v. T.N. Electricity Board. Therefore, an application for amendment of the pleading should not be disallowed merely because it is opposed on the ground that the same is barred by limitation, on the contrary, application will have to be considered bearing in mind the discretion that is vested with the court in allowing or disallowing such amendment in the interest of justice.
17. Factually in this case, in regard to the stand of the defendants that the declaration sought by the appellants is barred by limitation, there is dispute and it is not an admitted fact. While the learned counsel for the defendant-respondents pleaded that under Entry 58 of the Schedule to the Limitation Act, the declaration sought for by the appellants in this case ought to have been done within 3 years when the right to sue first accrued, the appellant-plaintiff contends that the same does not fall under the said entry but falls under Entry 64 or 65 of the said Schedule of 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, therefore, both the courts below have seriously erred in not considering this question before rejecting the prayer for amendment. In such a situation where there is a dispute as to the bar of limitation this Court in the case of Ragu Thilak D. John v. S. Rayappan has held:
“The amendment sought could not be declined. The dominant purpose of allowing the amendment is to minimise the litigation. The plea that the relief sought by way of amendment was barred by time is arguable in the circumstances of the case. The plea of limitation being disputed could be made a subject-matter of the issue after allowing the amendment prayed for.”
15. It has been held that the defendant can make a counter-claim by way of filing an application for amendment of the written statement in case of Seema Dasgupta v. Gopal Banerjee reported in 2004 (1) CHN 6 in following words :
“11. Supreme Court of India in the case of Mahendra Kumar & Anr. v. State of Madhya Pradesh & Ors. reported in AIR 1987 SC 1395 observed that Rule 6A did not, on the fact of it, bar the filing of a counter-claim by the defendant after he had filed the written statement. It has been laid down under Rule 6A that a counter-claim could be filed, provided the cause of action had accrued to the defendant before the defendant had delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim has been in the nature of a claim for damages or not. Therefore, the counter-clam filed by the defendant after filing of his written statement could not be said to be not maintainable.
The delay in taking out an application for amendment of the pleadings, if the same is necessary for the effective adjudication of the disputes, is not a ground for rejection of an application for amendment. The Supreme Court in case of Andhra Bank v. ABN AMRO Bank N. V. & Anr. reported in (2007) 6 SCC 167 observed:
“5. We have heard Mr. Rohit Kapadia, learned Senior Counsel appearing for the appellant and Mr. S Ganesh, learned Senior Counsel for the respondent. We have perused the original written statement as well as the applicant for amendment of the written statement. After going through the written statement and the application for amendment of the written statement, we are of the view that the amendment sought to be introduced by the appellant must be allowed. From a perusal of the impugned order of the Special Court we find basically that two grounds have been taken by the Special court for rejecting the prayer for amendment of the written statement. The first ground is that considerable delay has been caused by the appellant in filing the application for amendment of the written statement. It is well settled that delay is no ground for refusal of prayer for amendment. Mr. Ganesh appearing for ABN AMRO Bank submits before us that by filing of such application for amendment of the written statement which has been filed with long delay, the appellant sought to stall the hearing of the suit which has been fixed on 13.7.2007. In response to this Mr. Kapdia, learned Counsel for the appellant, submits that in the event the prayer for amendment is allowed by us his client undertakes to file the amendment written statement by day after tomorrow i.e. 12.7.2007 before the Special Court, since, we are of the view that delay is no ground for not allowing the prayer for amendment of the written statement and in view of the submissions made by Mr. Kapadia, we do not think that delay in filing the application for amendment of the written statement can stand in the way of allowing the prayer for amendment of the written statement. So far as the second ground is concerned, we are also of the view that while allowing an application for amendment of the pleadings, the court cannot go into the question of merit of such amendment. The only question at the time of considering the amendment of the pleadings would be whether such amendment would be necessary for decision of the real controversy between the parties in the suit. From a perusal of the amendment application we find that the appellant in its prayer for amendment has only taken an additional defence that in view of section 230 of the Contract Act, the suit itself is not maintainable. It is well settled, as noted herein earlier, that at the time of considering the prayer for amendment of the written statement it would not be open to the court to go into the fact whether in fact the suit in view of section 230 of the Contract Act was or is not maintainable.”
16. It is true that the court cannot look into the veracity of the statement sought to be incorporated by way of an amendment at the time of considering an amendment application. The consideration for amendment of plaint differs from the consideration for amendment of written statement. In case of written statement, the court should be more liberal than the plaint as held by the apex court in case of Bollepanda P. Poonacha v. K.M. Madapa reported in 2008 (3) CHN 90 (SC) in these words :
“9. Order 6 Rule 17 of the Code provides for amendment of pleadings. Subject of course to the applicability of the proviso appended thereto (which is not applicable in the instant case), such applications ordinarily are required to be considered liberally. It is also not much in doubt or dispute that amendment of written statement deserves more liberal consideration than an application for amendment of plaint. Order 8 Rule 9 again, subject to the statutory interdict enables a defendant to file additional pleadings.
10.the provision of Order 8 Rule 6A must be considered having regard to the aforementioned provisions. A right to file counterclaim is an additional right. It may be filed in respect of any right or claim, the cause of action therefor, however, must accrue either before or after the filing of the suit but before the defendant has raised his defence. Respondent in his application for amendment of written statement categorically raised the plea that the appellants had trespassed on the lands, in question, in the summer of 1998. Cause of action for filing the counter-claim inter alia was said to have arisen at that time. It was so explicitly stated in the said application. The said application; in our opinion, was, thus, clearly not maintainable. The decision of Sri Ryaz Ahmed (supra) is based on the decision of this court in Baldev Singh & Ors. v. Manohar Singh & Anr., 2006(6) SCC 498.
Further, the facts of the instant case are distinguishable from those of the Sri Ryaz Ahmed (supra). In that case, the proposed amendment by the defendant was allowed to be filed as he wanted to make a counter-claim by way of a decree for grant of mandatory injunction to remove the built up area on the disputed portion of land. It was therein held that instead of driving the defendant to file a separate suit therefor, it was more appropriate to allow the counter-claim keeping in mind the prayer of a negative declaration in the plaint. However, in the instant case, the counter-claim was purported to have been filed for passing of a decree for recovery of possession of the disputed land after the suit had been filed.
Baldev Singh (supra) is not an authority for the proposition that the court while allowing an application for amendment will permit the defendant to raise a counter-claim although the same would run counter to the statutory interdicts contained in Order 8 Rule 6A. Some of the decisions of this court in no uncertain terms held it to be impermissible.”
17. It has been held in case of Haridas Alidas Thadani & Ors. v. Godrej Rustom Kermani reported in (1984) 1 SCC 668 that mere insertion of a relief by way of amendment does not change and/or alter the nature and character of the suit nor was there any question of any valuable right of limitation having accrued to the party being taken away by the proposed amendment arises.
18. The foundational fact which would lead to challenge the deed is already there in the original pleading. The petitioner sought to incorporate the prayer i.e. the relief on the basis of such foundational fact by way of a counter-claim and sought to insert the valuation statement. Mere insertion of the prayer by way of counter-claim without making any new case or a pleading cannot be defeated on the touch-stone of the limitation.
19. The cause of action cannot be said to be a particular date or a fact but a bundle of fact if taken together would entitle the party to get the relief. Thus the cause of action has already been pleaded in the original pleading and an incorporation of a prayer does not mean the introduction of the claim for the first time so as to defeat on the anvil of limitation.
20. Thus the orders impugned suffer from illegality and infirmity and are not sustainable.
21. Accordingly the order dated 31.8.2009 passed in Title suit no. 53 of 2003 and the order dated 31. 8.2009 passed in Title Suit no. 179 of 2002 are hereby set aside.
22. The petitioner is directed to file the amended copy of the written statement-cum-counterclaim within three weeks from date. The opposite party is permitted to file the written statement to the counterclaim within four weeks from the date of service of the copy of the amended written statement-cum-counterclaim.
23. Both the revisional applications being C.O 3783 of 2009 and C.O 3784 of 2009 are allowed.
24. There shall be no order as to costs.
25. Urgent photostat copy of this order, if applied for, be given to the parties on priority basis.