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Thursday, August 27, 2015

It is clear that on the facts in the above case the amendment was allowed subject to the plea of limitation which could be taken up by the defendant when the trial in the case proceeds.-“In the present case, the factual situation is totally different and the appellants have not filed any suit for specific performance against the first respondent within the period of limitation. In this context, the provision of Article 54 of the Limitation Act is very relevant. The period of limitation prescribed in Article 54 for filing a suit for specific performance is three years from the date fixed for the performance, or if no such date is fixed, when the plaintiff has notice that performance is refused.-Here admittedly, no date has been fixed for performance in the agreement for sale entered between the parties in 1976. But definitely by its notice dated 3-2-1991, the first respondent has clearly made its intentions clear about refusing the performance of the agreement and cancelled the agreement. Even though the prayer for amendment to include the relief of specific performance was made about 11 years after the filing of the suit, and the same was allowed after 12 years of the filing of the suit, such an amendment in the facts of the case cannot relate back to the date of filing of the original plaint, in view of the clear bar under Article 54 of the Limitation Act. Here in this case, the inclusion of the plea of specific performance by way of amendment virtually alters the character of the suit, and its pecuniary jurisdiction had gone up and the plaint had to be transferred to a different court.- In Prithi Pal Singh and Anr. v. Amrik Singh and Ors., (2013) 9 SCC 576, this Court was concerned with a suit claiming pre-emption under the Punjab Pre-emption Act, 1913. An amendment was sought to the plaint claiming that the plaintiff was entitled to relief as a co-sharer of the suit property. This Court after considering some of its earlier judgments held:- “In our opinion, there is no merit in the submissions of the learned counsel. A reading of the order passed by this Court shows that the application for amendment filed by Respondent 2 was allowed without any rider/condition. Therefore, it is reasonable to presume that this Court was of the view that the amendment in the plaint would relate back to the date of filing the suit. That apart, the learned Single Judge has independently considered the issue of limitation and rightly concluded that the amended suit was not barred by time.” [at para 11]- The original written statement read as a whole unmistakably indicates that the defendant had not accepted the plaintiff’s title. Secondly, while allowing the amendment, the High Court in its earlier judgment dated 28th March, 2002 had expressly remanded the matter to the trial court, allowing the defendant to raise the plea of limitation. -There can be no doubt that on an application of Khatri Hotels Private Limited (supra), the right to sue for declaration of title first arose on the facts of the present case on 16th May, 1990 when the original written statement clearly denied the plaintiff’s title. By 16th May, 1993 therefore a suit based on declaration of title would have become time-barred. It is clear that the doctrine of relation back would not apply to the facts of this case for the reason that the court which allowed the amendment expressly allowed it subject to the plea of limitation, indicating thereby that there are no special or extraordinary circumstances in the present case to warrant the doctrine of relation back applying so that a legal right that had accrued in favour of the defendant should be taken away. This being so, we find no infirmity in the impugned judgment of the High Court. The present appeal is accordingly dismissed.

                                 REPORTABLE



                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                       CIVIL APPEAL NO.  6595 OF 2015
              (arising out of S.L.P. (Civil) No. 15513 of 2015)


L.C. HANUMANTHAPPA (SINCE DEAD)                …Appellant(s)  REPRESENTED
BY HIS LRS.

                                   VERSUS
H.B. SHIVAKUMAR                            ...Respondent


                        J U D G M E N T

R.F. Nariman, J.



Leave granted.



2.    The present case arises out of cross suits filed by the  parties.   On
9th March, 1990, one L.C.  Hanumanthappa  filed  a  suit  against  one  H.B.
Shivakumar  for  permanent  injunction  restraining  the   defendants,   his
servants and agents from disturbing the peaceful  possession  and  enjoyment
of the suit schedule property. In this suit, namely, O.S. No. 1386  of  1990
filed before the City Civil Court, Bangalore, the plaintiff averred that  he
is the absolute owner, and in lawful possession and enjoyment  of  the  suit
property. He also averred in the said suit that  the  schedule  property  is
clearly  distinguishable  and  could  be  identified   without   difficulty.
According to the plaintiff, the cause of action  arose  when  the  defendant
tried to trespass on the schedule property two  days  before  the  suit  was
filed.



3.    Within a few days from the filing of this suit, the defendant  in  the
first suit filed a suit being suit number O.S. 1650 of  1990   in  the  City
Civil Court at  Bangalore  against  one  L.C.  Ramaiah  and  the  said  Shri
Hanumanthappa stating that the defendants had  attempted  to  trespass  into
the suit schedule property about 15 days prior to the suit being filed,  and
asked for a permanent injunction against  the  said  defendants  restraining
them from interfering with the peaceful  possession  and  enjoyment  of  the
suit schedule property.  The plaintiff also  claimed  to  be  the  owner  in
possession of the suit schedule property.



4.    In the written statement to O.S. No. 1386  of  1990  dated  16th  May,
1990, the defendant not only referred to his own  suit  which  had  by  then
already been filed, but specifically stated as follows:-

“4.   The boundaries furnished by the plaintiff to old  survey  site  No.13,
in the plaint schedule is totally false and that has nothing to do with  the
boundaries mentioned in his document.

5.    The Plaintiff has failed to established any relationship  between  old
site No.13 and Corporation No.12/2, as claimed by him in the plaint.

6.    The allegations that at the time  of  the  purchase  of  the  schedule
property by the plaintiff, western boundary  was  a  building  site  bearing
No.14 and however subsequently the said portion left for building  site  has
been converted as road and is being used as such  since  several  years  are
false and further it is false  to  state  that  the  east  of  the  schedule
property bearing building site No. 12 is situate and the same was  belonging
to one H. Venkataramanappa and however, the said site has been sold  by  him
and now the said property is owned by one Sri Ahmadullah  khan  and  he  has
constructed a building thereon, as alleged in para 2 of the plaint.

7.    The plaintiff has purposefully distorted  the  boundary  of   his  old
site No. 13 to bring substantially the boundaries  of  site  No.15,  old  3,
C.T.S. No. 1157 (city Survey) which exclusively belongs to the defendant.

13.   The suit for injunction is not maintainable in that, he has failed  to
establish title with possession over site  No.  old  13,  and  that  is  not
establishing any connection between  old  site  No.13,  and  new  No.  12/2,
alleged to be assigned by Bangalore City Corporation or about 6-6-1989.”




5.    It can thus be seen that on 16th May, 1990  itself  the  plaintiff  in
O.S. No. 1386 of 1990 was put on notice that his  suit  for  injunction  was
not maintainable as he had failed to establish title over the suit  schedule
property.



6.    Both suits were tried together, and by a judgment  dated  10th  March,
1999, the Court of Additional City Civil Judge  at  Bangalore  decreed  O.S.
No. 1650 of 1990 and dismissed O.S. No. 1386 of 1990.  In the first  appeals
filed against the  said  judgment,  the  High  Court  of  Karnataka  by  its
judgment dated 28th  March,  2002  allowed  R.F.A.  No.  415  of  1999,  and
dismissed R.F.A. No. 456 of 1999, and remanded the matter back to the  trial
court for fresh consideration. The High Court  while  remanding  the  matter
observed as follows:-

“10.  The trial Court had also appointed the Commissioner. The  Commissioner
after inspecting the properties has given his report. The  commissioner  has
also been examined  as  PW.2.  From  looking  into  the  pleadings  and  the
evidence adduced by the parties, it is crystal clear that the dispute is  in
respect of the identity of two properties and to  declare  right  and  title
over the properties. The respondent in this case has not disputed  the  sale
deed which stands in the name of  the  appellant.  Since  the  defendant  is
disputing  and  existence  of  the  suit  schedule  property,  the   present
application is filed for  declaration  of  his  title.  The  respondent  has
resisted the application, contending that  the  relief  sought  for  by  the
appellant is  barred  by  limitation  and  that  relief  sought  by  way  of
limitation. However, such a plea can be raised by the respondents by  filing
additional written statement. Considering  the  fact  that  the  dispute  in
respect of an immovable property  and  question  of  identification  of  two
properties have been involved, as the defendant is also  not  disputing  the
sale deed of the appellant, this court to allow  the  application  filed  by
the appellant for amendment of plaint seeking additional evidence.

11.   Accordingly, R.F.A. No. 415/99 is allowed.  The  judgment  and  decree
passed in O.S. No. 1386/90, is set aside. The  matter  is  remanded  to  the
Trial Court to hold fresh enquiry after giving reasonable opportunities  for
both the parties. The defendant  is  entitled  to  file  additional  written
statement and also entitled to raise the question of limitation.  The  Trial
Court shall dispose of the  suit  within  six  (6)  months  from  to-day  in
accordance with law. The judgment and decree passed in O.S.  1650/90,  which
is the subject matter of RFA 415/99 is concerned, there is no need for  this
court to disturb the decree of injunction and that the decree  that  may  be
passed in O.S. 1386/90 by the  Trial  Court  will  have  a  bearing  on  the
judgment and  decree  in  O.S.  No.  1650/90.  In  the  event  of  appellant
succeeding in O.S. 1386/90, the judgment and decree passed in  O.S.  1650/90
in favour of Shivakumar for bare injunction will  be  unenforceable  against
the appellant – Hanumathappa. However, it is made clear  till  the  disposal
of O.S. 1386/90, the  respondent/plaintiff-shivakumar  in  O.S.  1650/90  is
hereby directed to maintain status-quo. If such an order is not passed,  the
respondent/plaintiff-Shivakumar may proceed with the construction and if  he
is allowed to construct and in the event of appellant succeeds in  O.S.  No.
1386/90, than it will lead to multiplicity of proceedings. Therefore  it  is
necessary to direct the respondents to maintain status-quo.”



7.    On 1st April, 2002, the plaintiff  in  O.S.  No.  1386  of  1990  then
sought to amend the plaint in terms of the said judgment by adding  para  5A
to the plaint in which the plaintiff stated:-

“5A.  “The Plaintiff submit that the Defendant has no manner of right  title
and interest in the plaint Schedule Property. The Defendant has  denied  the
title of the plaintiff in respect of the suit Schedule  Property.  Hence  it
is just and essential to declare that the plaintiff  is  absolute  owner  in
possession of the Schedule property. If the declaration  as  sought  is  not
granted the  Plaintiff  who  is  the  absolute  owner  from  05/05/1956  and
enjoying the property as absolute owner thereof, will be put great loss  and
prejudice. On the other hand no hardship or prejudice will be caused to  the
defendant if the declaration as sought is granted.”


8.     A decree for declaration of title to the suit schedule  property  was
then added as a prayer to the amended  plaint.  On  1st  August,  2002,  the
defendant filed an additional  written  statement  in  which  the  defendant
stated that  the  said  plea  based  on  a  new  cause  of  action,  namely,
declaration of title, was time-barred.



9.    After remand, by its judgment and decree dated 16th April,  2009,  the
City Civil Court at Bangalore decreed the suit O.S. No. 1386  of  1990.   It
turned down the plea of limitation by stating that  since  in  the  original
written  statement  the  defendant  had  admitted  the  title  of  plaintiff
Hanumanthappa, and only in the written statement dated 1st August, 2002  was
title denied for the first time  after  the  amendment  of  the  plaint  was
moved, the relief of declaration claimed by the plaintiff  would  be  within
the period of limitation.



10.   In R.F.A. No. 796 of 2009, by the impugned judgment dated  5th  March,
2015, the High Court reversed the said judgment on limitation  stating  that
the original written statement filed on 16th May, 1990  had  clearly  stated
that the plaintiff did not have the necessary title  to  the  suit  schedule
property, and as the amendment of the plaint  was  moved  long  after  three
years from 16th May, 1990, it was clear that it was time-barred.   O.S.  No.
1386 of 1990 was thus dismissed on limitation alone.  The  High  Court  also
turned down the plea with reference to Section 22  of  the  Limitation  Act,
1963 stating that on the facts of the present case limitation could  not  be
extended because the wrong in the present case was not a continuing wrong.



11.   Learned counsel for the appellant has argued that  once  an  amendment
to the plaint is allowed, it necessarily relates back to the date  on  which
the plaint was originally filed, and since the amendment was allowed in  the
present case by the judgment dated 28th  March,  2002,  the  said  amendment
related back to 9th March, 1990 when  the  suit  was  originally  filed.  He
further argued that the suit was based  on  title,  and  the  title  of  the
plaintiff was admitted in paragraph 2 of the original written statement,  as
was held by the trial court in its  judgment  dated  16th  April,  2009.  He
therefore submitted that the  impugned  judgment  ought  to  be  set  aside.
However, he did not press the plea of continuing wrong on the facts  of  the
present case.



12.   Learned counsel for the respondent, on the  other  hand,  argued  that
the plaintiff’s title was clearly denied in the original  written  statement
and three years having  elapsed  from  the  said  date,  the  amendment  was
obviously time-barred.  Further, the judgment dated 28th March, 2002  itself
made it clear that  the  amendment  was  allowed  subject  to  the  plea  of
limitation  being  raised.  He  further  argued  that  the  amendment   made
introduced a completely new  cause  of  action  based  on  fresh  facts  and
therefore any  amendment  made  could  not  possibly  relate  back  as  such
amendment would be clearly time-barred.



13.   We have heard learned counsel for the  parties.  It  is  not  disputed
that Article 58 of the Limitation Act would  apply  to  the  amended  plaint
inasmuch as it sought to add the relief  of  declaration  of  title  to  the
already existing relief for  grant  of  permanent  injunction.    In  Khatri
Hotels Private Limited & Anr.  v. Union of India & Anr.,  (2011) 9 SCC  126,
this Court while construing  Article  58  of  the  Limitation  Act  held  as
follows:-





“Article 58 of the Schedule to the 1963 Act, which  has  a  bearing  on  the
decision of this appeal, reads as under:

                                “THE SCHEDULE

                            Period of Limitation
                          [See Section 2(j) and 3]
                            First Division-Suits
  Description of suit         Period of              Time from which  period

                                                                  limitation
begins to run


        *                    *               *
                   Part III- Suits Relating To Declarations
            *                              *             *
  58. To obtain any other     Three Years   When  the  right  to  sue  first
accrues.
         declaration.

 Article 120 of the Schedule to the Limitation Act,  1908  (for  short  “the
1908 Act”) which was  interpreted  in  the  judgment  relied  upon  by  Shri
Rohatgi reads as under:

  “Description of suit    Period of    Time from which period begins to run
                       limitation

            *                                    *                         *
                                120.  Suit  for  which  no  period       Six
years   When the right to sue accrues.”
        of limitation is provided
        elsewhere in this Schedule.


The differences which  are  discernible  from  the  language  of  the  above
reproduced two articles are:
(i) The period of limitation prescribed under Article 120 of  the  1908  Act
was six years whereas the period of limitation  prescribed  under  the  1963
Act is three years and,
(ii) Under Article 120 of the 1908 Act, the period of  limitation  commenced
when the right to sue accrues. As against this, the period prescribed  under
Article 58 begins to run when the right to sue first accrues.

Article 120 of the 1908 Act was interpreted by  the  Judicial  Committee  in
Bolo v. Koklan [(1929-30) 57 IA 325 : AIR 1930 PC 270] and it was held:  (IA
p. 331)
“There can be no ‘right to sue’ until there  is  an  accrual  of  the  right
asserted in the  suit  and  its  infringement,  or  at  least  a  clear  and
unequivocal threat to infringe that right, by  the  defendant  against  whom
the suit is instituted.”

The same view was reiterated in Annamalai Chettiar v.Muthukaruppan  Chettiar
[ILR (1930) 8 Rang 645] andGobinda Narayan Singh v. Sham Lal  Singh  [(1930-
31) 58 IA 125].

In Rukhmabai v. Lala Laxminarayan [AIR 1960 SC 335 : (1960)  2  SCR  253]  ,
the three-Judge Bench noticed the earlier judgments and summed up the  legal
position in the following words: (Rukhmabai case [AIR 1960 SC 335  :  (1960)
2 SCR 253] , AIR p. 349, para 33)

“33. … The right to sue under Article 120 of the  [1908  Act]  accrues  when
the defendant has clearly or unequivocally threatened to infringe the  right
asserted by the plaintiff in the suit. Every threat by a  party  to  such  a
right, however ineffective and innocuous it may be, cannot be considered  to
be a clear and unequivocal threat so as  to  compel  him  to  file  a  suit.
Whether a particular threat gives rise  to  a  compulsory  cause  of  action
depends upon  the  question  whether  that  threat  effectively  invades  or
jeopardizes the said right.”

While enacting Article 58 of the 1963 Act, the  legislature  has  designedly
made a departure from the language of Article 120 of the 1908 Act. The  word
“first” has been used between the words  “sue”  and  “accrued”.  This  would
mean that if a suit is based on multiple causes of  action,  the  period  of
limitation will begin to run from the date  when  the  right  to  sue  first
accrues. To put it differently, successive violation of the right  will  not
give rise to fresh cause and the suit will be liable to be dismissed  if  it
is beyond the period of limitation counted from the day when  the  right  to
sue first accrued.” [at paras 25 – 30]


14.   Given this statement  of  the  law,  it  is  clear  that  the  present
amendment of the plaint is indeed time-barred in that the right to  sue  for
declaration of title first arose on 16th May, 1990 when in  the  very  first
written statement the defendant had pleaded, in para 13 in particular,  that
the suit  for  injunction  simpliciter  is  not  maintainable  in  that  the
plaintiff had failed to establish   title  with  possession  over  the  suit
property. The only question that remains to be answered is  in  relation  to
the doctrine of relation back insofar  as  it  applies  to  amendments  made
under Order VI Rule 17 of the Code of Civil Procedure.



15.   As early as in the year  1900,  the  Bombay  High  Court  in  Kisandas
Rupchand v. Rachappa Vithoba,  ILR 33 Bom 644 (1900),  held as follows:-

“ ... All amendments ought to be allowed which satisfy  the  two  conditions
(a) of not working injustice to the other side, and (b) of  being  necessary
for the purpose of determining the real  questions  in  controversy  between
the parties ... but I refrain from citing further  authorities,  as,  in  my
opinion, they all lay down precisely the same doctrine. That doctrine, as  I
understand it, is that amendments should be refused  only  where  the  other
party cannot be placed in the same position as  if  the  pleading  had  been
originally correct, but the amendment would cause him an injury which  could
not be compensated in costs. It is merely a particular case of this  general
rule that where a plaintiff seeks to amend by setting up a  fresh  claim  in
respect of a cause of action which since the institution  of  the  suit  had
become barred by limitation, the amendment must  be  refused;  to  allow  it
would be to cause the defendant an injury which could not be compensated  in
costs by depriving him of a good defence to the  claim.  The  ultimate  test
therefore still remains the same:  can  the  amendment  be  allowed  without
injustice to the other side, or can it not?” [at p. 655]



16.   This statement of the law was expressly  approved  by  a  three  Judge
Bench of this Court in Pirgonda Hongonda Patil v. Kalgonda Shidgonda  Patil,
1957 SCR 595, at pages 603 to 604.

17.   Twenty years later, the Privy Council in Charan Das v. Amir  Khan,  47
IA 255 (1920), stated the law as follows:-

“That there was full power to make the amendment  cannot  be  disputed,  and
though such a power should not as a rule be exercised where  the  effect  is
to take away from a defendant a legal right which  has  accrued  to  him  by
lapse of time, yet there  are  cases  where  such  considerations  are  out-
weighed by the special circumstances of the case.”





18.   This statement of the law was cited with approval  in   L.J.  Leach  &
Co. Ltd. v. Jardine Skinner & Co., 1957 SCR 438, at pages 450 to 451.



19.   The facts in the aforesaid case were that the plaintiffs had,  on  the
basis of the material facts stated in the plaint,  claimed  damages  on  the
basis of the tort of conversion. It had been held by the courts  below  that
on the pleading and on the evidence such claim must fail.  At the  stage  of
arguments in the Supreme Court, the plaintiff applied to the  Supreme  Court
for amendment of the plaint by raising an alternative plea on the  same  set
of facts, namely, a claim for  damages  for  breach  of  contract  for  non-
delivery of the goods.  The respondents in that case resisted the said  plea
for amendment, stating that a suit based on this new cause of  action  would
be barred by limitation.  This Court, while  allowing  the  said  amendment,
stated that no change needs to be made in the material facts pleaded  before
the court all of which were there in support of the amended prayer.  In  any
case, the prayer in the plaint as it originally  stood  was  itself  general
and merely claimed damages. Thus, all the allegations which  were  necessary
for sustaining a claim of damages for breach of contract were already  there
in the plaint.  The only thing that was lacking was the allegation that  the
plaintiffs were in the alternative entitled to claim damages for  breach  of
contract.  In the facts of the said case, this Court held:-



“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.”  [at page 415]



20.   It is clear that this case belonged to an exceptional class  of  cases
where despite the fact that a legal right had accrued to  the  defendant  by
lapse of  time,  yet  this  consideration  was  outweighed  by  the  special
circumstances of the case, namely, that no new material fact  needed  to  be
added at all, and only an alternative prayer in law had  necessarily  to  be
made in view of the original plea in law being discarded.



21.   Similar is the case with Pirgonda Hongonda  Patil,  reported  in  1957
SCR 595. Here again it was held that the amendment did not really  introduce
a new fact at all, nor did the defendant have to meet a  new  claim  set  up
for the first time after the expiry of the period of limitation.



22.   In K. Raheja Constructions Ltd. & Anr. v. Alliance Ministries &  Ors.,
1995  Supp. (3) SCC 17, this Court was seized with a belated application  to
amend a plaint filed for permanent injunction.  Seven  years  after  it  was
filed, an amendment application was moved seeking to  amend  the  plaint  to
one for specific performance of contract.  In turning  down  such  amendment
on the ground that it was time-barred, this Court held:-

“It is seen that the permission for alienation is not a condition  precedent
to  file  the  suit  for  specific  performance.  The  decree  of   specific
performance will always be subject to the condition  to  the  grant  of  the
permission by the competent  authority.  The  petitioners  having  expressly
admitted that the respondents have refused to abide  by  the  terms  of  the
contract, they should have asked for the relief for specific performance  in
the original suit itself. Having  allowed  the  period  of  seven  years  to
elapse from the date of filing of the suit, and  the  period  of  limitation
being three years under Article 54 of the Schedule to  the  Limitation  Act,
1963, any amendment on the grounds set out, would defeat the valuable  right
of limitation accruing to the respondent.” [at para 4]



23.   Similarly,  in Vishwambhar & Ors. v. Laxminarayan (Dead)  through  LRs
& Anr.,  (2001) 6 SCC 163, in  a  suit  originally  filed  for  recovery  of
possession, an amendment was sought to be made after the  limitation  period
had expired, for a prayer of declaration that  certain  sale  deeds  be  set
aside.  This was repelled by this Court as follows:-

“On a fair reading of the plaint, it is  clear  that  the  main  fulcrum  on
which the case of the plaintiffs was balanced was that the alienations  made
by their mother-guardian Laxmibai were void  and  therefore,  liable  to  be
ignored since they  were  not  supported  by  legal  necessity  and  without
permission of the competent court. On that basis, the claim  was  made  that
the alienations did not affect the interest of the plaintiffs  in  the  suit
property. The prayers in the plaint were inter alia to set  aside  the  sale
deeds dated 14-11-1967 and 24-10-1974, recover possession of the  properties
sold from the respective purchasers, partition  of  the  properties  carving
out separate possession of  the  share  from  the  suit  properties  of  the
plaintiffs and deliver the same to them. As noted earlier, the  trial  court
as well as the first appellate court accepted the  case  of  the  plaintiffs
that the alienations in dispute were not supported by legal necessity.  They
also held that no prior permission of the  court  was  taken  for  the  said
alienations. The question is, in such  circumstances,  are  the  alienations
void or voidable? In Section 8(2) of the  Hindu  Minority  and  Guardianship
Act, 1956, it is laid down, inter alia,  that  the  natural  guardian  shall
not, without previous permission of the court, transfer by sale any part  of
the immoveable property of  the  minor.  In  sub-section  (3)  of  the  said
section, it  is  specifically  provided  that  any  disposal  of  immoveable
property by a natural guardian,  in  contravention  of  sub-section  (2)  is
voidable at the instance of the minor or  any  person  claiming  under  him.
There is, therefore, little scope for doubt that  the  alienations  made  by
Laxmibai which are  under  challenge  in  the  suit  were  voidable  at  the
instance of the plaintiffs and the  plaintiffs  were  required  to  get  the
alienations set aside if they wanted to avoid the transfers and  regain  the
properties from the purchasers. As noted earlier in the plaint as  it  stood
before the amendment the prayer for setting aside the  sale  deeds  was  not
there, such a prayer appears to have been  introduced  by  amendment  during
hearing of the suit and the trial court considered the  amended  prayer  and
decided the suit on that basis. If in law the plaintiffs  were  required  to
have the sale deeds set aside before making any  claim  in  respect  of  the
properties sold, then a suit without such a prayer was of no  avail  to  the
plaintiffs. In all probability, realising  this  difficulty  the  plaintiffs
filed the application for amendment of the plaint seeking to  introduce  the
prayer for setting aside the  sale  deeds.  Unfortunately,  the  realisation
came too late. Concededly, Plaintiff 2 Digamber attained  majority  on  5-8-
1975 and Vishwambhar, Plaintiff 1 attained  majority  on  20-7-1978.  Though
the suit was filed on 30-11-1980 the prayer seeking  setting  aside  of  the
sale deeds was made in December 1985.  Article  60  of  the  Limitation  Act
prescribes a period of three years for setting aside a transfer of  property
made by the guardian of a ward, by the ward who has  attained  majority  and
the period is to be computed from the date when the ward  attains  majority.
Since the limitation started running from  the  dates  when  the  plaintiffs
attained  majority  the  prescribed  period  had  elapsed  by  the  date  of
presentation of the plaint so far as Digamber is concerned.  Therefore,  the
trial court rightly dismissed the suit filed by Digamber.  The  judgment  of
the trial court  dismissing  the  suit  was  not  challenged  by  him.  Even
assuming that as the suit filed by one of the  plaintiffs  was  within  time
the entire suit could not be dismissed on the ground of limitation,  in  the
absence of challenge against the dismissal of the  suit  filed  by  Digamber
the first appellate court could not have interfered with that  part  of  the
decision of the trial court. Regarding the suit  filed  by  Vishwambhar,  it
was filed within the prescribed period of limitation but without the  prayer
for  setting  aside  the  sale  deeds.  Since  the  claim  for  recovery  of
possession of the properties alienated could  not  have  been  made  without
setting  aside  the  sale  deeds  the  suit  as  initially  filed  was   not
maintainable. By the date  the  defect  was  rectified  (December  1985)  by
introducing such a prayer by amendment of the plaint the  prescribed  period
of limitation for seeking such a relief had elapsed. In  the  circumstances,
the amendment of the plaint could not come to the rescue of the plaintiff.



From the averments of the plaint, it cannot be said that all  the  necessary
averments for setting  aside  the  sale  deeds  executed  by  Laxmibai  were
contained in the plaint and adding specific prayer  for  setting  aside  the
sale deeds was a mere formality. As noted earlier, the basis of the suit  as
it stood before the amendment of the plaint was that the  sale  transactions
made by Laxmibai as  guardian  of  the  minors  were  ab  initio  void  and,
therefore, liable to be ignored.  By  introducing  the  prayer  for  setting
aside the sale deeds the basis of  the  suit  was  changed  to  one  seeking
setting aside the alienations of the  property  by  the  guardian.  In  such
circumstance, the suit for setting aside the transfers  could  be  taken  to
have been filed on the date the amendment of the plaint was allowed and  not
earlier than that.” [at paras 9 and 10]



24.   In Siddalingamma and Anr v. Mamtha Shenoy,  (2001)  8  SCC  561,  this
Court held while allowing an amendment of the plaint in a case of bona  fide
requirement of the landlord that the doctrine of relation back  would  apply
to all amendments made  under  Order  VI  Rule  17  of  the  Code  of  Civil
Procedure, which generally governs amendment of pleadings, unless the  court
gives reasons to exclude the applicability  of  such  doctrine  in  a  given
case. No question of limitation was argued on the facts in that  case  which
would therefore be in the category of cases which would follow the  line  of
judgments which state that costs can usually  compensate  for  an  amendment
that is made belatedly but within the period of limitation, it not being  an
exceptional case such as those contained in the two judgments L.J.  Leach  &
Co. Ltd. and Pirgonda Hongonda Patil cited above.

25.   In Sampath Kumar v. Ayyakannu and Anr., (2002) 7 SCC 559,  this  Court
was faced with an application for amendment made 11 years after the date  of
the institution of  the  suit  to  convert  through  amendment  a  suit  for
permanent prohibitory injunction into a suit for declaration  of  title  and
recovery of possession. This Court held:-

“In our opinion, 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 was  open
to the plaintiff to file a fresh suit and that is one of the  reasons  which
has prevailed with the trial court and with the High Court in  refusing  the
prayer for amendment and also in dismissing  the  plaintiff's  revision.  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.  In  the
facts and circumstances of the present case, allowing  the  amendment  would
curtail multiplicity of legal proceedings.

Order 6 Rule 17 CPC 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. Such amendments as are directed towards putting  forth
and seeking determination of the real questions in controversy  between  the
parties shall be permitted to be made. The question of delay  in  moving  an
application for amendment should be decided not by  calculating  the  period
from the date of institution of the suit  alone  but  by  reference  to  the
stage to which the hearing in the suit has proceeded.  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  the  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. No straitjacket formula can  be  laid
down. The fact remains that a mere delay cannot be a ground for  refusing  a
prayer for amendment.

An amendment once incorporated  relates  back  to  the  date  of  the  suit.
However, the doctrine of  relation-back  in  the  context  of  amendment  of
pleadings is not one of universal application and in appropriate  cases  the
court is  competent  while  permitting  an  amendment  to  direct  that  the
amendment permitted by it shall not relate back to the date of the suit  and
to the extent permitted by it shall be deemed to have  been  brought  before
the court on the date on which the application  seeking  the  amendment  was
filed. (See observations in Siddalingamma v. Mamtha  Shenoy  [(2001)  8  SCC
561] .)

In the present case the amendment is being sought for almost 11 years  after
the date of the institution of the suit. The plaintiff is not debarred  from
instituting a new suit seeking relief of declaration of title  and  recovery
of possession on the same basic facts as are pleaded in the  plaint  seeking
relief  of  issuance  of  permanent  prohibitory  injunction  and  which  is
pending. In order to avoid  multiplicity  of  suits  it  would  be  a  sound
exercise of discretion to permit the relief  of  declaration  of  title  and
recovery of possession being sought for in the pending suit.  The  plaintiff
has alleged the cause of action for the reliefs now sought to  be  added  as
having arisen to him during the pendency of the  suit.  The  merits  of  the
averments sought to be incorporated by  way  of  amendment  are  not  to  be
judged  at  the  stage  of  allowing  prayer  for  amendment.  However,  the
defendant is right in submitting that if he has already perfected his  title
by way of adverse possession  then  the  right  so  accrued  should  not  be
allowed to be defeated by permitting an amendment and seeking a  new  relief
which would relate back to the date of the suit and  thereby  depriving  the
defendant of the advantage accrued to him by lapse of time, by  excluding  a
period of about 11 years in calculating the  period  of  prescriptive  title
claimed to have been earned by the defendant. The interest of the  defendant
can be protected by directing that so far as the reliefs of  declaration  of
title and recovery of possession, now sought for, are concerned  the  prayer
in that regard shall be deemed to have been made on the date  on  which  the
application for amendment has been filed.” [at paras 7, 9, 10 and 11]

26.   It is clear that on the facts in the  above  case  the  amendment  was
allowed subject to the plea of limitation which could be  taken  up  by  the
defendant when the trial in the case proceeds.

27.   In  Van  Vibhag  Karamchari  Griha  Nirman  Sahkari  Sanstha  Maryadit
(Registered) v. Ramesh Chander and Ors.,  (2010)  14  SCC  596,  this  Court
considered a suit which was originally filed for  declaration  of  ownership
of land and for permanent injunction.  The  suit  had  been  filed  on  11th
February, 1991. An amendment application was moved under Order  VI  Rule  17
of the Code of Civil Procedure on 16th December, 2002 for inclusion  of  the
relief of specific performance of  contract.  This  Court  in  no  uncertain
terms refused the midstream change made in the suit, and held:-
“In the present case, the factual situation is  totally  different  and  the
appellants have not filed any suit  for  specific  performance  against  the
first respondent within the period  of  limitation.  In  this  context,  the
provision of Article 54 of the Limitation Act is very relevant.  The  period
of limitation prescribed in Article  54  for  filing  a  suit  for  specific
performance is three years from the date fixed for the  performance,  or  if
no such date is fixed, when the plaintiff has  notice  that  performance  is
refused.

Here admittedly, no date has been fixed for  performance  in  the  agreement
for sale entered between the parties in 1976. But definitely by  its  notice
dated 3-2-1991, the first respondent has clearly made its  intentions  clear
about  refusing  the  performance  of  the  agreement  and   cancelled   the
agreement.

Even though the prayer for amendment  to  include  the  relief  of  specific
performance was made about 11 years after the filing of the  suit,  and  the
same was allowed after  12  years  of  the  filing  of  the  suit,  such  an
amendment in the facts of the case cannot relate back to the date of  filing
of the original plaint, in view of the clear bar under  Article  54  of  the
Limitation Act. Here in this case, the inclusion of  the  plea  of  specific
performance by way of amendment virtually alters the character of the  suit,
and its pecuniary jurisdiction  had  gone  up  and  the  plaint  had  to  be
transferred to  a  different  court.  This  Court  held  in  Vishwambhar  v.
Laxminarayan [(2001) 6 SCC 163] , if as a result of allowing the  amendment,
the basis of the suit  is  changed,  such  amendment  even  though  allowed,
cannot relate back to the date of filing the suit  to  cure  the  defect  of
limitation (SCC at pp. 168-69, para 9). Those principles are  applicable  to
the present case.” [at paras 24, 25 and 32]

28.   In Prithi Pal Singh and Anr. v. Amrik Singh and  Ors.,  (2013)  9  SCC
576, this Court was concerned with a suit  claiming  pre-emption  under  the
Punjab Pre-emption Act,  1913.   An  amendment  was  sought  to  the  plaint
claiming that the plaintiff was entitled to relief as  a  co-sharer  of  the
suit property. This Court after considering some of  its  earlier  judgments
held:-

“In our opinion, there is  no  merit  in  the  submissions  of  the  learned
counsel. A reading of  the  order  passed  by  this  Court  shows  that  the
application for amendment filed by Respondent  2  was  allowed  without  any
rider/condition. Therefore, it is reasonable to presume that this Court  was
of the view that the amendment in the plaint would relate back to  the  date
of filing the suit. That apart, the learned Single Judge  has  independently
considered the issue of limitation and rightly concluded  that  the  amended
suit was not barred by time.” [at para 11]





29.   Applying the law thus laid down by this Court to  the  facts  of  this
case, two things become clear. First,  in  the  original  written  statement
itself dated 16th May, 1990, the defendant had clearly put the plaintiff  on
notice that it had denied the plaintiff’s title to  the  suit  property.   A
reading of an isolated para in the written statement, namely, para 2 by  the
trial court on the facts of this case  has  been  correctly  commented  upon
adversely by the High Court in  the  judgment  under  appeal.  The  original
written statement read as a whole unmistakably indicates that the  defendant
had not  accepted  the  plaintiff’s  title.  Secondly,  while  allowing  the
amendment, the High Court in its earlier judgment  dated  28th  March,  2002
had  expressly  remanded  the  matter  to  the  trial  court,  allowing  the
defendant to raise the plea of limitation.  There can be no  doubt  that  on
an application of  Khatri Hotels Private Limited (supra),  the right to  sue
for declaration of title first arose on the facts of  the  present  case  on
16th May, 1990 when  the  original  written  statement  clearly  denied  the
plaintiff’s title.  By 16th May, 1993 therefore a suit based on  declaration
of title would have become time-barred.   It is clear that the  doctrine  of
relation back would not apply to the facts of this case for the reason  that
the court which allowed the amendment expressly allowed it  subject  to  the
plea of  limitation,  indicating  thereby  that  there  are  no  special  or
extraordinary circumstances in the present case to warrant the  doctrine  of
relation back applying so that a legal right that had accrued in  favour  of
the defendant should be taken away. This being so, we find no  infirmity  in
the impugned judgment of the High Court.  The present appeal is  accordingly
dismissed.



                                        ……………………J.

                                        (A.K. Sikri)





                                        ……………………J.

                                        (R.F. Nariman)

New Delhi;

August  26, 2015.



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