| SooperKanoon Citation | sooperkanoon.com/1118477 |
| Court | Andhra Pradesh High Court |
| Decided On | Jan-03-2014 |
| Judge | HON'BLE SRI JUSTICE M.S.RAMACHANDRA RAO |
| Appellant | Smt.Waheeda Begum and or |
| Respondent | Md.Yakub and and O |
HON'BLE SRI JUSTICE M.S.RAMACHANDRA RAO CIVIL REVISION PETITION No.4683 of 2013 03-01-2014 Smt.Waheeda Begum and Ors.....Petitioners Md.Yakub and and Ors....Respondents Counsel for the Petitioners:Sri Vedula Srinivas Counsel for the Respondents:Sri Ashok Kumar Agarwal HEAD NOTE: ?.Cases referred:
1. AIR1957S.C. 357 2. (2008) 14 S.C.C. 632 3. (2004) 6 S.C.C.415 4. (2002)7 SCC559 5. (2008) 5 SCC1176. (2008) 14 SCC3647. (2006) 4 S.C.C. 385 8. AIR2009S.C. 1433 9. AIR2011S.C. 41 10. 2012 AIR SCW103511. AIR1957SC444(1) 12. 2012 (1) ALT64413. LAWS(MAD) -2011-7-260 14. LAWS(DLH) -2012-8-354 THE HON'BLE SRI JUSTICE M.S.RAMACHANDRA RAO C.R.P.No.4683 of 2013
ORDER: This Revision petition is filed challenging the order dt.05-10-2013 in I.A.No.1009 of 2013 in O.S.No.450 of 2004 of the X Additional Chief Judge (F.T.C.), City Civil Court, Hyderabad.
2. The said suit was filed by petitioners herein for partition of the plaint schedule property into 14 equal shares and to allot 7 shares to them and for separate possession of the said share. Written statement was filed in the year 2005. Issues were framed in the year 2006 and on 12-09-2007, an affidavit in lieu of chief examination was filed by 2nd petitioner.
3. The petitioners filed application I.A.No.405 of 2009 for amendment of the plaint schedule to correct the extent of the property shown in the plaint schedule as 4200 sq. yds. instead of 1000 sq. yds mentioned in the plaint originally. It was allowed and the plaint schedule was amended.
4. The petitioners thereafter filed I.A.No.269 of 2011 again for amendment of the plaint for correction of the plaint schedule by changing the door number and the boundaries thereto. This was opposed by the respondents. But the trial Court allowed the application and this amendment was carried out.
5. When petitioners had filed the suit, they had paid ad volerem Court Fee of Rs.1,80,026/- as they were not in joint possession of the plaint schedule property. On 04-02-2011, seven years after filing of the suit, a docket order was passed by the Court below requiring its office to address a letter to the concerned Sub-Registrar to furnish the valuation of the property as on 04-05-2004. In response to it, the Joint Sub Registrar addressed a letter dt.31-03-2011 taking a view that the valuation of the property should be Rs.19,800/- per square yard. Taking this into account, the trial Court passed order dt.28-07-2011 calculating court fee payable on the said basis and directing payment of deficit Court fee by the petitioners.
6. This was challenged in C.R.P.No.3472 of 2011 by the petitioners 2 to 4. Stay of the said order was granted. Ultimately the Revision was allowed on 15-07- 2013 setting aside the order of the trial Court and directing it to dispose of the suit expeditiously.
7. The case of the petitioners is that 1st petitioner is the first wife of one Md. Ishaque, petitioner no.s 2-4 are their children, on the death of her husband , she and other petitioners are entitled to 7/14 share in the plaint schedule property. The respondents are the children of Late Md.Ishaque through another wife Mrs. Mariam Begum and respondents 1-4 are their children. The respondents deny the relationship of 1st petitioner with Md.Ishaque and contend that 1st petitioner is a stranger to the family and she is not entitled to any share in the plaint schedule property. Pending suit, the 1st petitioner died and the other petitioners, who are her legal representatives, are contesting it.
8. It is alleged by the petitioners that part of the land which is subject matter of the suit was acquired under the provisions of the Land Acquisition Act, 1894 by the Greater Hyderabad Municipal Corporation for laying road leading to Birla Planetarium; that on 06-02-2006 an award No.B/1147/2004 was passed by the competent authority apart from a subsequent award dt.18-05-2009 in proceedings in File No.E/793/87; that in the former award, a sum of Rs.63,16,755/- was awarded and in the latter award, a sum of Rs.6,17,93,352/- was awarded apart from interest; that against the former award, O.P.No.6 of 2006 was filed before the 1st Senior Civil Judge, City Civil Court, Hyderabad, and against the later award, O.P.No.2541 of 2010 was filed under Section 30 of the Land Acquisition Act, 1894.
9. The petitioners filed I.A.No.1009 of 2013 to amend the plaint by inserting certain paragraphs in the body of the plaint and also to amend the relief portion in the plaint by claiming (i) a share in the above compensation and (ii) also a share in the mesne profits from a portion of the plaint schedule property allegedly in occupation of respondents and for share in rents from a portion of the said property allegedly let out to a Hotel 'Sukh Sagar'.
10. In the affidavit filed along with the said I.A, they alleged that they were not aware of the awards passed in the above referred proceedings since the respondents had deliberately not informed the acquisition authority about their interest in the acquired property; that they are also entitled to 7/14th share in this compensation amounting to Rs.3,40,55,053/-; had they known about these proceedings, they would have made a claim in the suit itself; but as the awards were passed subsequent to the filing a suit in respect of property covered by the plaint schedule in the suit and the respondents did not disclose about these proceedings in their pleadings in the suit, the plaint be permitted to be amended once again by inserting certain paragraphs in the body of the plaint and also to amend the relief portion in the plaint by claiming share in the above compensation. They also pleaded that they are entitled to the said reliefs as legal heirs of Md.Ishaque and also as legal heirs of Smt.Bilkis Jahan Begum.
11. It is also stated that they had to file a third party petition in O.P.No.2541 of 2010 pending before the Chief Judge, City Civil Court, Hyderabad for issuance of certified copies of the pleadings, and on receiving the pleadings, they filed applications to reopen O.P.No.2541 of 2010 and to implead them as parties on 04-09-2013. It is also stated that even in O.P.No.6 of 2006, applications to implead them have been filed and they are pending adjudication. It is contended that the respondents did not disclose these facts to the Courts where the O.Ps were pending or to the trial Court in this suit with a mala fide intention to knock away the entire compensation running into crores of rupees, depriving them of their rightful share.
12. Counter affidavit was filed by the respondents opposing this application. They contended that the petitioners have nothing to do with the family of Md. Ishaque, that they are total strangers and have no connection with the property of the family. They also contended that the suit itself is a luxury litigation filed only to usurp some of the compensation awarded to the respondents on account of the acquisition proceedings mentioned supra. It is also alleged that previously two amendment petitions have been filed and the present one is a third application and this indicates the speculative nature of the litigation embarked by the petitioners in respect of the plaint schedule property. It is pointed out that at para 5 in page 5 of the plaint itself, 1st petitioner on her own, stated that she came to know through relevant sources that some land acquisition proceedings were going on at the instance of Birla Planetarium authorities, that some part of the land was acquired for the purpose of road widening, that she had also issued a notice to the Birla Planetarium authorities on 08-07-2004 and a copy of the said notice had also been filed by 1st petitioner, wherein she requested to pay compensation. It is therefore contended that 1st petitioner/plaintiff was aware of the land acquisition proceedings even at the time of filing of the suit and therefore the contention of the petitioners that they came to know about these proceedings after filing of the suit cannot be believed. It is also pointed out that the affidavit in lieu of chief examination was filed on 12-09-2007 itself by P.W.1, but in stead of proceeding with the trial, petitioners are trying to drag on the matter on one pretext or other by filing repeated applications for amendments of the plaint. They also denied that they had let out the non-residential portion of the plaint schedule property to a 'Hotel Sukh Sagar' on a monthly rent of Rs.1.00 lakh.
13. Before the Court below, it was also submitted that the application for amendment is barred by limitation as the limitation for filing a suit for partition is three years from the date of accrual of the cause of action under Article 113 of the Limitation Act, 1963, and that the cause of action for the partition suit arises on the date when the demand for partition was made and was denied by the defendants.
14. By order dt.05-10-2013, the Court below dismissed the I.A.No.1009 of 2013. It recorded in detail the respective contentions of the parties and held that the petitioners ought to have enquired about all the land acquisition proceedings and then filed the suit. It also held that amendment of the plaint after commencement of the trial is not permissible under Order VI Rule 17 CPC and that the petitioners failed to establish that in spite of due diligence, they could not have raised these aspects before the commencement of the trial. It also held that the petitioners had not contended that these are all subsequent events which necessitated the proposed amendment.
15. Challenging the same, this Civil Revision Petition is filed.
16. Heard Sri V.Srinivas, learned counsel for the petitioners and Sri Ashok Kumar Agarwal, learned counsel for the respondents.
17. The learned counsel for the petitioners contended that the petitioners had no doubt some information that acquisition proceedings were going on in respect of a portion of a plaint schedule property for purpose of laying a road of the Birla Planetarium by Greater Hyderabad Municipal Corporation, but the notification under Section.4 of the land Acquisition Act,1894 itself was issued admittedly in 2005 ( as per para 6 of the counter of the respondents in the I.A) and the awards in respect of property acquired had been passed on 06-02- 2006 and 18-05-2009 respectively after the filing of the written statement by the respondents; that the respondents had not been able to establish that the petitioners were given any notice under Section 9 or Section 12 of the Land Acquisition Act,1894 or had knowledge otherwise of the filing of L.A.O.P.Nos.6 of 2006 and 2541 of 2010; therefore, proviso to Order 6 Rule 17 CPC has no application to the facts of the case available; it would be impossible for the petitioners to ascertain when the notification under the said Act was issued, when the award was passed or whether the O.Ps were filed and if so, when and where they were filed, since neither the GHMC nor Birla Planetarium nor the respondents have disclosed these facts by issuing any notice to the petitioners. He also contended that mere fact that earlier two applications for amendment filed by the petitioners had been allowed does not mean that the petitioners, if circumstances warranted, cannot seek further amendment of the plaint seeking a share in the compensation amount. As regards the plea of bar of limitation raised by the respondents before the Court below, he contended that the amendment is not barred by limitation and that it is only one of the factors to be taken into account by the Court in exercising it's discretion as to whether the amendment was to be allowed or refused, and it did not affect the power of the Court to allow the amendment if the amendment is required in the interest of justice. He also contended that Art.113 of the Limitation Act, 1963 has no application and the contentions of the respondents that it applies, is not tenable. He relied on L.J.Leach and Co. Ltd., and Another Vs. Messrs Jairdine Skinner and Co.,1, South Konkan Distilleries and Another v. Prabhakar Gajanan Naik and Others2 and Pankaja and Another Vs. Yellapa (D) by L.Rs. and Others3, Sampath Kumar v. Ayyakannu and another4, Chander Kanta Bansal v. Rajinder Singh Anand5, Rajkumar Gurawara (dead) through LRs v. S.K.Sarwagi and Company Pvt. Ltd.6 He contended that even if the said plea is tenable, there is no absolute rule that in every case where relief is barred because of limitation, amendment should not be allowed and it is always open to the Court to allow the amendment to serve the ultimate cause of justice and to avoid further litigation. He also contended that the Court should not go into the correctness or falsehood of the case pleaded in the amendment application nor record any finding about it's merits, at the time of considering an application for amendment. He pleaded that Courts should take notice of subsequent events in order to shorten the litigation. He relied on Rajesh Kumar Agarwal and Others Vs. K.K.Modi and Others7.
18. The learned counsel for the respondents on the other hand contended that the Court below had rightly dismissed the application for amendment of the plaint; that 1st petitioner was aware of the land acquisition proceedings as can be seen from the averments made in para 5 in page 5 of the plaint and the petitioners should have made enquiries and ascertained the details of the land acquisition proceedings and then filed the suit. He also pleaded that respondents had no obligation or duty to disclose that petitioners have interest in land to the acquisition authorities. He contended that and as the petitioners had not acted with due diligence, proviso to Or VI R.17 CPC would be attracted and therefore the order of the trail court dismissing the I.A does not warrant any interference in this Revision Petition. He relied upon Rajkumar Gurawara (6 Supra), Vidyabai and Others Vs. Padmalatha and Another8, Van Vibhag Karamchari Griha Nirman Sahakari Sanstha Maryadit (Regd) Vs. Ramesh Chander and Others9, J.Samuel and Others Vs. Gattu Mahesh and Others10, Harish Chandra Bajpai v. Triloki Singh and Another 11and Ramoji Rao and Another Vs. M.A.E.Kumar Krishan Varma and Another12. He also relied on T.Bai Ammal v. T.Sampath13 and Sat Bhan singh v. Mahipat singh14 to contend that Art.113 of the Limitation Act, 1963 would apply.
19. I have noted the submissions of both sides.
20. The crucial question in the present case is whether the petitioners were able to establish that inspite of ".due diligence"., they could not have raised the issues now raised in the amendment application before the commencement of trial, since they are seeking amendment of the plaint after the trial has commenced.
21. From the facts narrated above, it is clear that the suit is filed in the year 2004; written statement was filed by the respondent in 2005; issues were framed in 2006 and on 12-09-2007, affidavit in lieu of chief examination had been filed by P.W.1 on behalf of the petitioners. Thus there is no dispute that the trial had commenced by the time the I.A.1009/2013 was filed. It is also clear that prior to filing of I.A.No.1009 of 2013, the petitioners had filed I.A.No.405 of 2009 seeking amendment of the plaint in respect of the extent and I.A.No.269 of 2011, in respect of door number and boundaries of the plaint schedule property and these applications were allowed.
22. It is also true that in the plaint at para-5 in page-5, it is stated by 1st petitioner/original plaintiff as under: ".While so, prior to the issuance of notice to Smt. Marium Begum the plaintiffs were informed through reliable sources that some land acquisition proceedings were going on Birla Planetarium authorities acquired some part of the land for the purpose of road widening, by taking notice of the above events through reliable sources the plaintiffs herein were constrained to issue a legal notice to Birla Planetariums authorities on 08-07-2004 etc..........".
23. Order VI Rule 17 CPC states as follows: ".17. Amendment of pleadings: The Court may at any stage of the proceedings allow either party to alter or amend his pleadings 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 is spite of due diligence, the party could not have raised the matter before the commencement of trial.".
24. In Raj Kumar Gurawara (6 supra), the Apex Court considered this provision and held that it confers jurisdiction on the Court to allow either party to alter or amend his pleadings at any stage of the proceedings and on such terms as may be just, provided such amendment seeks determination of the real question and controversy between the parties; that pre-trial amendments are to be allowed more liberally than those amendments sought to be made after commencement of the trial; since the opposite party would not be prejudiced if an amendment were to be allowed before the commencement of the trial, and he would have an opportunity of meeting the amendment sought to be made, pre-trial amendments would normally be allowed liberally; but if amendments are allowed after commencement of the trial, normally prejudice may be caused to the opposite party, and that is why post-trial amendments are restricted unless they satisfy the conditions prescribed in the proviso.
25. In Vidyabai (8 supra), it was held that for the purpose of proviso to Order VI Rule 17 CPC, the trial is deemed to have commenced on the date of the issues were framed. This decision was followed by this Court in Ramoji Rao (12 supra).
26. In J.Samuel (10 supra), considering the proviso to Order VI Rule 17 CPC, the Supreme Court held that no application for amendment shall be allowed after the trial has commenced, unless the Court has come to the conclusion that in spite of due diligence, the party could not raise the matter before the commencement of the trial. It held that due diligence is the idea that reasonable investigation is necessary before certain kinds of relief are requested and duly diligent efforts are a requirement for a party seeking to use the adjudicatory mechanism to attain the anticipated relief. It held that due diligence is a critical factor to be considered in determining whether or not an amendment sought after commencement of trial is to be allowed.
27. From the facts narrated above, it is no doubt true that petitioners had mentioned in the plaint that they had information through reliable sources that ".some". land acquisition proceedings were going on at the instance of the Birla Planetarium authorities in respect of part of the plaint schedule properties for the purpose of road widening and that they had issued a legal notice to the Birla Planetarium authorities on 08-07-2004. The petitioners had also filed a copy of the said notice and also mentioned about it in the plaint. In the said notice, petitioners had requested the Birla Planetarium to pay compensation.
28. It is not the case of the respondents that in the notification issued under section 4 of the Land Acquisition Act, 1894, the names of petitioners were mentioned. It is also not their case that a notice under Section 9 had been issued to the petitioners to appear in the proceedings for determination of compensation under Section 11 of the Act or that a notice was given to them of passing of the award under Section 12 of the Act. It has also not been stated by the respondents that the information regarding the details of the acquisition were furnished to her by the Birla Planetarium authorities in response to the notice dt.08-07-2004 issued by her.
29. In the counter filed by the respondents in para 6, it is categorically stated by them that initially possession of the land was taken without any proceedings under the Land Acquisition Act, 1894 and that the notification under Section 4 (1) of the said Act had been issued by the GHMC in the year 2005 after the litigation in C.R.P.Nos.6886 and 6994 of 2003 in E.P.No.4 of 1983 in O.S.No.75 of 1965. When the notification under Section 4 (1) of the Act itself was issued in the year 2005 in respect of the acquired land and there is no evidence to show that the said notification mentioned the name of petitioners, it is absurd in my opinion to expect the petitioners to give the details of all these proceedings, which occurred after the issuance of notification under Section 4 (1) of the Act in the year 2005, in a plaint which was filed in the year 2004. In my opinion, the Court below ignored these pleadings of the respondents and practically placed an impossible burden on the petitioners to discharge.
30. Admittedly, the two awards fixing the compensation in respect of lands acquired under the above notification were passed on 06-02-2006 and 18-05-2009 after the framing of the issues by the trial Court. It is not the case of the respondents that in the written statement filed by them in 2005 in the present suit, they had given any details about the acquisition proceedings to enable the petitioners to know about them. Therefore to expect the petitioners to have details at the time of filing of the suit or at any rate prior to the framing of the issues, is asking them to do the impossible. The law does not impose such an impossible obligation on a party. Without having any information even as regards the date of acquisition of the property, to expect the petitioners to mention the details about the notification, awards or the O.Ps filed by respondents, would not be fair. It would not also be possible for the petitioners to get this information in the office of the Municipal Corporation of Hyderabad either, as they would not furnish it to them. It would be like asking the petitioners to look for a needle in a haystack.
31. It is also pertinent to note that proceedings in the suit had been stayed in C.R.P.No.3472 of 2011 (filed by petitioners challenging the order of the Court below dt.28-07-2011 asking them to pay certain amount as the deficit Court Fee) and the said Revision was allowed only on 15-07-2013. After securing the details relating to the awards passed and the O.Ps filed, petitioners have filed the application for amendment on 20-09-2013. In the affidavit filed in support of this application, it is specifically stated that petitioners were not aware of these details prior to the commencement of the trial. I see no reason to disbelieve the said plea of the petitioners. The mere fact that there was a mention about acquisition proceedings in the plaint cannot be construed as indicative of the petitioners having full knowledge about all the facts relating to the acquisition at the time of filing of the suit or prior to the commencement of the trial, without either the Municipal Corporation or the Birla Planetarium or the respondents issuing any notice to them or informing them about the details of the acquisition or about the awards determining compensation.
32. Considering the facts set out supra, I am fully satisfied that the petitioners had established that in spite of due diligence they could not have raised these matters before the commencement of trial. Therefore the bar of proviso to Or VI R.17 CPC is not attracted.
33. It is pertinent to note that the trial Court, in spite of the issue of bar of limitation having been raised by the respondents, did not deal with it in the impugned order.
34. While the petitioners assert that the proposed amendments do not attract the bar of limitation, the respondents assert that they are barred. There is some controversy whether Art.113 of the Limitation Act, 1963 is attracted or Art.64/65 of the said Act.
35. As regards the plea of limitation, in L.J.Leach and Co. Ltd (1 supra), cited by Counsel for the petitioners, a 4 Judge Bench of the Supreme Court 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.".
36. In South Konkan Distilleries (2 supra), also cited by Counsel for the petitioners, the Court reiterated this principle and held that where the amendment was barred by time or not was a disputed question of fact, prayer for amendment could not be rejected and in those circumstances, the issue of limitation can be made an issue in the suit itself. It observed: ".14. From the above, therefore, one of the cardinal principles of law in allowing or rejecting an application for amendment of the pleading is that the courts generally, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of filing of the application. But that would be a factor to be taken into account in the exercise of the discretion as to whether the 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.
15. In Ragu Thilak D. John v. S. Rayappan ((2001) 2 S.C.C. 472) this Court also observed that where the amendment was barred by time or not, was a disputed question of fact and, therefore, that prayer for amendment could not be rejected and in that circumstances the issue of limitation can be made an issue in the suit itself. In a decision in Vishwambhar v. Laxminarayan ((2001) 6 S.C.C. 163, this Court held that the amendment though properly made cannot relate back to the date of filing of the suit, but to the date of filing of the application. Again, in Vineet Kumar v. Mangal Sain Wadhera (AIR1985S.C. 817) this Court held that if a prayer for amendment merely adds to facts already on record, the amendment would be allowed even after statutory period of limitation.".(emphasis supplied) 37. In Pankaja (3 supra), cited by Counsel for the petitioners also the Supreme Court held: ".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 ((2001)2 S.C.C472 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.".
18. We think that the course adopted by this Court in Ragu Thilak D. John case ((2001)2 S.C.C472 applies appropriately to the facts of this case. The courts below have proceeded on an assumption that the amendment sought for by the appellants is ipso facto barred by the law of limitation and amounts to introduction of different relief than what the plaintiff had asked for in the original plaint. We do not agree with the courts below that the amendment sought for by the plaintiff introduces a different relief so as to bar the grant of prayer for amendment, necessary factual basis has already been laid down in the plaint in regard to the title which, of course, was denied by the respondent in his written statement which will be an issue to be decided in a trial. Therefore, in the facts of this case, it will be incorrect to come to the conclusion that by the amendment the plaintiff will be introducing a different relief.". (emphasis supplied) 38. In Sampath Kumar (4 supra), the amendment of the plaint was sought prior to the commencement of trial. Therefore, the said decision cited by the counsel for petitioners, is not applicable to the present case. In Chander Kanta Bansal (5 supra), cited by the counsel for the petitioners, the Supreme Court held that the proviso to Order VI Rule 17 only limits the scope of jurisdiction of the court to permit amendment of pleadings after the commencement of the trial and the proviso does not create an absolute bar or shut out the entertaining of an application for amendment, post commencement of trial, but only permits it to be allowed if the party seeking amendment shows that, in spite of due diligence, he could not raise the plea previously. In Rajesh Kumar Agarwal and others (7 supra), the Supreme Court held that the Court should not go into the correctness or falsehood of the case set up in the amendment, nor record a finding on the case set up in the amendment, at the time of considering an application for amendment.
39. In Van Vibhag Karamchari Griha Nirman Sahakari Sanstha Maryadit (Regd.) (9 supra), cited by the counsel for respondents, the Supreme Court held that an amendment of the plaint in a suit for declaration of title and injunction by seeking the relief of specific performance cannot be granted after a lapse of eleven years, and such amendment cannot be allowed in view of the bar of limitation under Article 54 of the Limitation Act. In that case, on the facts, the court found that inclusion of the plea of specific performance by way of amendment virtually altered the character of the suit also and as the said relief was not sought in the plaint when originally filed, it would amount to relinquishment of that relief since the cause of action to claim specific performance was available on the date of filing of the suit itself. The facts of the said case are totally different from the present case. Moreover, the two-Judge Bench of the Supreme Court in that case cannot be said to have dissented from the four-Judge Bench decision of the said Court in L.J.
Leach and Co. Ltd. (1 supra), which had taken a view that a Court is not bound to reject an application for amendment if a fresh suit on the amended claim would be barred by limitation.
40. The decision in Harish Chandra Bajpai (11 supra), cited by the counsel for the respondents, also does not apply to the present case because the said case dealt with amendment to an election petition under the Representation of The People Act, 1951, where admittedly the law is particularly strict when compared to ordinary civil suits. On the facts of that case, there was also a finding by the court that no explanation was given why application for amendment was made after long delay and why the new allegations were not made in the original petition. Therefore, the said decision is clearly distinguishable.
41. Therefore, in view of the above decisions, merely because it is contended by the respondents that the suit on the amended claim would be barred by limitation, the application for amendment of the plaint cannot be rejected. In the present case, there is a dispute as to whether the claim sought to be made by way of amendment is barred by limitation or not. Therefore, the Court below can frame an issue on the point of bar of limitation to grant the said relief in the suit and then decide it.
42. I am also of the opinion that the decisions in T. Bai Ammal (13 supra) and Sat Bhan Singh (14 supra), cited by the counsel for the respondents which held that Article 113 of the Limitation Act, 1963 is attracted, need not be considered in this Revision. The court below, after allowing the amendment sought by the petitioners, and after allowing the respondents to file additional written statement, shall frame an issue on the point of bar of limitation of the relief claimed by the petitioners, and then decide it keeping in view the circumstances in which the amendment had been sought by the petitioners and Section 17 of the Limitation Act, 1963.
43. The petitioners have also sought to amend the plaint by adding a relief claiming 7/14th share in mesne profits for alleged illegal use and occupation of the suit schedule property by the defendants and for deriving rents from the commercial portion of the suit schedule property by letting it out to a hotel by name ".Sukh Sagar". at the rate of Rs.1,00,000/-. The trial court did not advert to this at all in it's order. In the counter filed by respondents, they have merely denied the allegation that they had let out the non-residential portion of the plaint schedule property to the Hotel ".Sukh Sagar". on a monthly rent of Rs.1,00,000/-. While it is true that the petitioners have not stated in their application when they came to know about the alleged letting out of the commercial portion of the suit schedule property to the said Hotel, the respondents have also not pleaded that the petitioners were aware of the said fact by the date of filing of the suit. As stated supra, their plea is one of total denial. In this view of the matter, I am inclined to hold that the application for amendment of the plaint claiming the further relief as to share in rents/mesne profits can also be allowed. Like in the case of the first relief sought by petitioners, the court below shall frame an issue as to bar of limitation for claiming this relief also, after the respondents file additional written statement.
44. For the above reasons, Civil Revision Petition is allowed and the order dt.05-10-2013 in I.A.No.1009 of 2013 in O.S.No.450 of 2004 is set aside and I.A.No.1009 of 2013 is allowed subject to the above directions. As the suit is an old suit of the year 2000, endeavour shall be made by the trial Court to dispose it of as expeditiously as possible preferably within a period of six months from the date of receipt of a copy of this order. No costs.
45. As a sequel, the miscellaneous petitions, if any pending, shall stand closed. __________________________________ JUSTICE M.S.RAMACHANDRA RAO Date:
03. 01-2014