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Saturday, August 29, 2015

"A Court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. Thus the strict parameters governing an interim injunction do not have full play in matters of custody." The contention of the appellant in this respect is also supported by the decision in Bal Krishna Pandey's case (supra). But as we are not dealing with the question of guardianship, but only with the issue of interim custody, we see no reason why the preference of the elder child shall be overlooked. It may be noted that the Family Court had considered fact that the younger child had instinctively approached his father while he met him in the Court premises while vacating the interim order of injunction. The second child who is just 4 years old cannot form an intelligent opinion as to who would be the right person to look after him and, hence, we must give weight to the preference that Athiya had expressed.We find it fit, however, to modify the visitation rights granted to the appellant. He shall be allowed to visit the children on Saturdays as well between 9 am and 5 pm. The order of the High court is modified to the extent indicated above, and the order of the Family Court dated 11th of June, 2007 vacating its injunction order is set aside. The Family Court is hereby directed to dispose of the case relating to the guardianship of the two children after adducing evidence by both the parties (both oral and documentary) at an early date, preferably within six months from the date of supply of a copy of this order to it. We, however, make it clear that the observations made in the order of the High Court as well as by this Court, if there be any, shall not be taken to be final while deciding the original application filed under Sections 7, 9 and 17 of the Act and the Family Court shall be at liberty to proceed with the disposal of the said proceeding independently of any of the observations made by this Court in this judgment.

                                             REPORTABLE

               IN THE SUPREME COURT OF INDIA
                CIVIL APPELLATE JURISDICTION

                 CIVIL APPEAL NO.11 OF 2010
             (Arising out of SLP ) No. 24148 of 2007)

Athar Hussain.                                 -----Appellant

                              Versus

Syed Siraj Ahmed & Ors.                      ----Respondents

                          JUDGMENT

TARUN CHATTERJEE, J.

1.   Leave granted.

2.   This appeal is directed against the judgment and order

dated 8th of October, 2007 passed by the High Court of

Karnataka at Bangalore by which the High Court had set aside

the order dated 11th of June, 2007 of the Family Court,

Bangalore vacating its order of injunction dated 21st of April,

2007 passed against the appellant in G.W.C. No. 64 of 2007

preventing him from interfering with the custody of his

children with the respondents.

3.   The appellant is the father of the minor children in whose

respect interim custody and guardianship have been sought


                                                                1
for. The respondent No.1 is the maternal grandfather of the

two minor children of the appellant and respondent Nos. 2, 3

and 4 are their maternal aunt and uncles.

4.   The appellant married one Umme Asma, daughter of

respondent No. 1, in accordance with Islamic rites and

customs on 31st of March, 1993. Two children were born out of

the wedlock, Athiya Ali, aged about 13 years and Aayan Ali ,

aged about 5 years. Their mother Umme Asma died on 16th of

June, 2006. Subsequent to the death of Umme Asma, the

mother of two minor children, the appellant again married to

one Jawahar Sultana on 25th of March, 2007 who in the

pending proceeding had filed an application before the Family

Court for her impleadment in the same.

5.   A proceeding was initiated on 21st of April, 2007 at the

instance of the respondents under Sections 7, 9 and 17 of the

Guardian and Wards Act, 1890 (hereinafter referred to as `the

Act') in the Court of the Principal Family Judge, Bangalore

which came to be registered as G.W.C.No.64 of 2007. In the

aforesaid pending proceeding under the Act, an application

was filed under Section 12 of the Act read with Order 39 Rule


                                                           2
1 and 2 of the Code of Civil Procedure (in short `the Code') in

which interim protection was prayed for of the persons and

properties of the minor children and also for an order of

injunction   restraining   the   appellant   from   interfering   or

disturbing the custody of two children till the disposal of the

application filed under Sections 7, 9 and 17 of the Act. The

case that was made out by the respondents in the affidavit

accompanying their application for injunction filed under

Section 12 of the Act read with Order 39 Rule 1 and 2 of the

Code was a follows :-

6.   On the same day on which the respondents filed the

applications for being appointed as guardians and for interim

injunction against the appellant, i.e. on 21st of April, 2007, the

Family Court disposed of the application under section 12

read with Order 39 Rule 1 and 2 of the CPC, and passed an ex

parte interim order restraining the appellant from interfering

with the custody of the two children of the appellant.

7.   Feeling aggrieved, the appellant filed an application

against the order of the family court under Order 39 Rule 4 of

the Code praying for vacation of interim order of injunction


                                                                  3
passed against him. In the Counter Affidavit accompanying

the application filed on 28th of April, 2007 to vacate the interim

order of injunction, he denied all averments made in the

application    filed   by    the   respondents   as   incorrect    and

fabricated. It is not in dispute that the appellant is the father

and natural guardian of the children. While respondent no.1 is

aged about 72 years and is retired and hence is in no position

to look after his children, respondent no.2 is living separately

after his marriage; respondent nos. 3 and 4 are nearing the

age of marriage and would go ahead with their own lives once

married. Further respondent no.1 has another son whose wife

divorced him on account of harassment for dowry and another

daughter      who      was    mentally   retarded.    These       heavy

responsibilities which already lie on the respondent make him

unfit as a guardian of his children. The only motive of the

respondents is to gain the property that the appellant had

purchased in favour of Umme Asme.

8.   Pursuant to a telephonic request made by respondent

no.3, he dropped his children at their place on 21st of April,

2007. When he went back to collect them on 22nd of April,


                                                                     4
2007, he was informed that they would be back only at night.

On 23rd of April, 2007, he was told that the children had gone

to Ooty and would return after a few days. Since the appellant

had reasons to suspect the bonafide of the respondents, he

lodged a complaint before the Inspector of Police, J.C. Nagar,

Bangalore on 23rd of April, 2007. The respondents who were

summoned to the police station gave an undertaking to the

effect that the children would be back on 24th of April, 2007. It

is alleged that though the respondents had procured the

interim order of injunction on 21st of April, 2007 itself, they did

not inform either the appellant or the Police authorities until

25th of April, 2007 on which day they produced the copy of the

interim order to the appellant.

9.    Appellant further alleged that his daughter had been

missing     classes   as   she   was   unduly   retained   by   the

respondents, who had no concern whatsoever with respect to

the same.

10.   The death certificate clearly showed leukemia as the sole

cause of death of Umme Asma, contrary to the allegations of

the respondents. He had deeply loved his wife and as a token


                                                                 5
of his love, had purchased a property in her name on which he

constructed house entirely in accordance with her wishes.

Contrary to what the respondents had alleged, all the

expenses for the treatment of his wife and the education of the

children were borne by the appellant. His relationship with his

deceased wife and the children were indeed cordial. In order to

secure education of high quality for his daughter, he got her

admitted into a good school and had borne all related

expenses, as proved from the receipts issued by the school

authorities. He had also obtained an insurance policy in the

name of his daughter.

11.   It is for the vengeance of the appellant's refusal to marry

respondent no.3 who wished to marry him after the death of

her sister, that they had filed the application claiming custody

and guardianship of the children. The photographs produced

before the Court were taken when the appellant himself took

the respondents on an excursion along with his family in his

own car. The mark sheets produced by the respondents bore

forged signatures of the appellant whereas the documents

bearing his own signature were not produced.


                                                               6
12.   In short, the appellant submitted that in view of

suppression and concealment of material facts on part of the

respondents, they were not entitled to the equitable relief of

injunction. Moreover, he had a prima facie case and the

balance of convenience stood in his favour. Irreparable injury

would be caused to him as the father of the minor children

who would not be safe in the hands of the respondents.

13.   The family court by its order dated 11th of June, 2007

vacated the interim order of injunction granted on 21st of April

2007. The Court found that the respondents had neither

prima facie case nor balance of convenience in their favour,

nor   vacating   the   ex   parte   interim   order   would   cause

irreparable injury to them. It was also the finding of the family

court that the respondents did not approach the Court with

clean hands. The Court found that in support of their

contention that Umme Asma died due to the assault cast upon

by the appellant, the respondents had not been able to

produce any material evidence; nor was any case filed against

the appellant. This appears in contrast to their contention that

after the death of Umme Asma, her relatives had enquired


                                                                 7
about the marks on her face which occurred when the

appellant had hit her. If this was the case, the respondents

would have initiated an enquiry much before, not when almost

ten months had expired after the death of Umme Asma. This

prolonged silence, according to the trial court, renders the

version of the appellant probable that it is to wreck vengeance

towards him who refused to marry the respondent no.3 that

the entire proceedings had been launched. The death report

produced by the appellant, on the other hand, supports the

version of the appellant of bone cancer being the cause of his

wife's death. The fact that he bore with all medical expenses is

also supported by evidence. The appellant has also been able

to produce the sale deed of the property which he claims to

have purchased in his wife's name out of his love and affection

for her.

14.   The undertaking given by the respondents before Police

Authorities with respect to the complaint filed against them by

the appellant also strengthens the version of the appellant that

as a matter of course, the children stayed with the appellant

and that it was the respondents who took them away without


                                                              8
his sanction. It is pertinent to note that the respondents did

not produce the temporary order of injunction at the time they

were asked to file the said undertaking to the Police

Authorities. The various receipts produced by the appellant as

evincing the expenses he incurred for his wife and children

were also considered. Thus it was found that the respondents

had no prima facie case.

15.    The Family Court found the balance of convenience also

leaning in favour of the appellant, who is admittedly the

natural guardian of the children. The photographs produced

by both the parties were considered as indicating the bond the

children shared with both. It was found that they were also

happy in the company of their step mother. Though Athiya

had stated that she was not willing to go with her father, the

Family Court felt that it could be no consequence as she was

not old enough to form a mature opinion and was susceptible

to tutoring. The fact that the son went to the appellant when

he saw him in the Court premises indicated that the children

were    close   to   the   appellant.   Accordingly,   balance   of

convenience was found tilting in favour of the appellant.


                                                                 9
16.   Irreparable injury will be caused to the father if he is

denied interim custody as he is the natural guardian of the

children, the care and concern for whom he had established in

various ways. Keeping in view the fact that welfare of the

children is the paramount consideration, it was noted that the

respondent nos. 2 and 3 would get married and start living

separately while respondent no.1 is an aged person. Therefore,

the appellant was more competent and fit than all to take care

of the children. In order not to deprive the children of the love

and affection of their maternal relatives, the appellant had

agreed to leave the children at the respondents' place on every

alternate Saturday and for five days at the beginning of the

summer     vacation   which   shows    his   magnanimity     and

generosity.

17.   The contentions of the respondents were not supported

by documentary evidence and, therefore, the Family Court was

of the opinion that they had not approached the Court with

clean hands. Hence, the equitable remedy of injunction could

not be granted to them.




                                                               10
18.   Therefore, by its order dated 11th of June, 2007, the

Family Court vacated the ad-interim order of temporary

injunction restraining the appellant from interfering with the

custody of the children with the respondents.

19.   Aggrieved by this order, the respondents filed a Writ

Petition which came to be numbered as W.P. No. 9177 of 2007

before the High Court of Karnataka at Bangalore. Before the

High Court, the respondents contended that the parties would

be governed by Mohammaden Law which dictates that in the

absence of the mother, maternal grand parents shall be the

guardian of minor children. It was further contended that the

second marriage of the appellant disentitles him to the

custody of children. Further, when the children are capable of

forming their opinion, they should be allowed to exercise their

option with respect to which of the parties they would go with.

The well being of the children which is the paramount

consideration in matters of custody was not taken into

account by the Family Court whose order is liable to be set

aside on this count alone.




                                                             11
20.   The   appellant,   in   response   to   these    submissions,

contended that the High Court could not interfere with the

findings of the Family Court unless serious infirmity is proven.

The decisions cited by the respondents were distinguished on

the ground that these decisions concerned findings that were

recorded after a full fledged trial and not an order passed as

an ad-interim relief granting custody to one of the parties.

21.   On consideration of these arguments, the High Court by

its order dated 8th of October 2007 had set aside the order of

the Family Court by which it had vacated the interim order of

injunction and passed the following directions:

        a. The impugned order is quashed.

        b. The respondent father will have visiting rights and

            shall visit his two children on every Sunday between

            9 a.m. and 5 p.m. The father is permitted to take

            out the children to any place of his and children's

            choice and    shall bring    back    the   children   to

            petitioner's house. This arrangement shall continue

            pending disposal of the proceedings before the

            learned Family Judge.


                                                                  12
       c. Having regard to the sensitive issue involved i.e. as

          to the guardianship of the minor children, the

          learned Family Judge is directed to conclude the

          proceedings within six months from the date of

          receipt of the copy of this order.

        d. Any observation made during the course of this

          order is only for the purpose of considering as to

          where the children should stay during the pendency

          of the proceedings. It shall not be treated as a

          finding on the merits of the case. The learned

          Family Judge shall not be swayed by any of the

          observations made during the course of this order.

22.   The High Court in its impugned judgment had held that

while appointing the guardian or deciding the matter of

custody of the minor children during the pendency of

guardianship proceedings, the first and foremost consideration

for the Court is the welfare of the children. The factors that

must be kept in mind while determining the question of

guardianship will apply with equal force to the question of

interim custody. It was observed that the Family Court should


                                                               13
have delved a little deeper into the matter and ascertained

where the interest of the children lay, instead of recording

abstract findings on questions of prima facie case, balance of

convenience and irreparable injury.

23.   The terms on which the appellant and his deceased wife

were, the manner in which the respondents obtained the

custody of the children are questions that should be

determined during the course of trial.

24.   Though when the children's father is not unfit otherwise

he shall be the natural guardian, a child cannot be forced to

stay with his/her father. According to the High Court, merely

because the father has love and affection for his children and

is not otherwise shown unfit to take care of the children, it

cannot be necessarily concluded that welfare of the children

will be taken care of once their custody is given to him. The

girl had expressed a marked reluctance to stay with her father.

The High Court was of the opinion that the children had

developed long standing affection towards their maternal

grandfather, aunt and uncles. It will take a while before they

develop the same towards their step mother. The sex of the


                                                             14
minor girl who would soon face the difficulties of attaining

adolescence is an important consideration, though not a

conclusive one. She will benefit from the guidance of her

maternal aunt, if custody is given to the respondents, which

the appellant will be in no position to provide. Further, there is

a special bonding between the children and it is desirable that

they stay together with their maternal grandfather, uncles and

aunt.

25.   In case of custody of the minor children, the Family Law,

i.e. the Mohammedan Law would apply in place of the Act.

Considering   the   provisions   under    Section   353    of   the

Mohammedan Law, the High Court had held that the

preferential rights regarding the custody of the minor children

rests with the maternal grandparents. After making a doubtful

proposition that in case of a conflict between personal law and

welfare of the children the former shall prevail, the High Court

held that in the case at hand there is no such conflict.

26.   For the reasons aforementioned, the High Court by its

impugned order set aside the order of the Family Court,




                                                                 15
Bangalore which vacated the interim order of injunction

issued against the appellant.

27.   It is this order of the High Court, which is challenged

before us by way of special leave petition which on grant of

leave has been heard by us in the presence of the learned

counsel appearing on behalf of the parties.

28.   It was the contention of the appellant before us that the

Act will apply to the present case because there is a conflict

between the preferential guardian in Mohammedan Law and

the Act. It was pointed out that while deciding the custody of

the minor children, the welfare of the children had to be taken

into consideration and that it was guaranteed by the Act. They

have placed their reliance on the case of Rafiq v. Bashiran

and ors, [AIR 1963 Rajasthan 239]. The Rajasthan High Court

in the cited case held that where the provisions of the personal

law are in conflict with the provisions of the Guardians and

Wards Act the latter shall prevail over the former.

29.   Relying on the case of B.N.Ganguly v. C.H.Sarkar, [AIR

1961 MP 173] it was contended by the learned counsel for the




                                                              16
appellant that there is a presumption that parents will be able

to exercise good care in the welfare of their children.

30.     It was argued by the learned counsel on behalf of

respondents     that   the   impugned     order    warrants   no

interference. Before passing the impugned order, the learned

Judge had spent over one hour with the children to ascertain

their preferences. The children have been living with the

respondents since their mother's death in June, 2006 as the

High Court had stayed the order of the Family Court vacating

the injunction order. While the respondents had been

complying with the visitation rights granted to the appellant,

the children were not happy with the treatment meted out to

them during the time they spent with their father and

stepmother. In contrast, respondent no. 3, contrary to the

apprehensions expressed by the appellant has stated on

record that she had no intention to marry and would devote

her life towards the welfare of the children. Respondents

further asserted that the cases of Rafiq v. Bashir (supra) and

B.N. Ganguly (supra) are not applicable to the facts of this

case.


                                                              17
31.   We have heard the learned counsel for both the parties

and examined the impugned order of the High Court and also

the orders passed by the Family Court. After considering the

materials on record and the impugned order, we are of the

view that at this stage the respondents should be given interim

custody of the minor children till the disposal of the

proceedings filed under Sections 7, 9 and 17 of the Act.

Reasons are as follows:

32.   Section 12 of the Act empowers courts to "make such

order for the temporary custody and protection of the person

or property of the minor as it thinks proper." In matters of

custody, as well settled by judicial precedents, welfare of the

children is the sole and single yardstick by which the Court

shall assess the comparative merit of the parties contesting for

custody. Therefore, while deciding the question of interim

custody, we must be guided by the welfare of the children

since Section 12 empowers the Court to make any order as it

deems proper.

33.   We are mindful of the fact that, as far as the matter of

guardianship is concerned, the prima facie case lies in favour


                                                              18
of the father as under Section 19 of the GWC Act, unless the

father is not fit to be a guardian, the Court has no jurisdiction

to appoint another guardian. It is also true that the

respondents,   despite   the   voluminous   allegations   leveled

against the appellant have not been able to prove that he is

not fit to take care of the minor children, nor has the Family

Court or the High Court found him so. However, the question

of custody is different from the question of guardianship.

Father can continue to be the natural guardian of the

children; however, the considerations pertaining to the welfare

of the child may indicate lawful custody with another friend or

relative as serving his/her interest better. In the case of Rosy

Jacob v. Jacob A. Chakramakkal, [(1973) 3 S.C.R. 918],

keeping in mind the distinction between right to be appointed

as a Guardian and the right to     claim custody of the minor

child, this Court held so in the following oft-quoted words:

      "Merely because the father loves his children and is
     not shown to be otherwise undesirable cannot
     necessarily lead to the conclusion that the welfare of
     the children would be better promoted by granting
     their custody to him as against the wife who may
     also be equally affectionate towards her children and
     otherwise equally free from blemish, and, who, in


                                                               19
     addition, because of her profession and financial
      resources, may be in a position to guarantee better
      health, education and maintenance for them."


34.   In the case of Mt. Siddiqunnisa Bibi v. Nizamuddin

Khan and Ors., [AIR 1932 All 215], which was a case

concerning the right to custody under Mohammaden Law, the

Court held:

      "A question has been raised before us whether the
      right under the Mahomedan law of the female
      relation of a minor girl under the age of puberty to
      the custody of the person of the girl is identical with
      the guardianship of the person of the minor or
      whether it is something different and distinct. The
      right to the custody of such a minor vested in her
      female relations, is absolute and is subject to several
      conditions including the absence of residing at a
      distance from the father's place of residence and
      want of taking proper care of the child. It is also clear
      that the supervision of the child by the father
      continues in spite of the fact that she is under the
      care of her female relation, as the burden of
      providing maintenance for the child rests exclusively
      on the father."

35.   Thus the question of guardianship can be independent of

and distinct from that of custody in facts and circumstances of

each case.




                                                                  20
36.   Keeping in mind the paramount consideration of welfare

of the children, we are not inclined to disturb their custody

which currently rests with their maternal relatives as the

scope of this order is limited to determining with which of the

contesting parties the minors should stay till the disposal of

the application for guardianship.

37.   The appellant placed reliance on the case of R.V.

Srinath Prasad v. Nandamuri Jayakrishna [AIR 2001 SC

1056]. This Court had observed in this decision that custody

orders by their nature can never be final; however, before a

change is made it must be proved to be in the paramount

interest of the children. In that decision, while granting interim

custody to the father as against the maternal grandparents,

this Court held:

      "The Division Bench appears to have lost sight of
      the factual position that the time of death of their
      mother the children were left in custody of their
      paternal grand parents with whom their father is
      staying and the attempt of the respondent no.1 was
      to alter that position before the application filed by
      them is considered by the Family Court. For this
      purpose it was very relevant to consider whether
      leaving the minor children in custody of their father
      till the Family Court decides the matter would be so
      detrimental to the interest of the minors that their


                                                                21
     custody should be changed forthwith. The
      observations that the father is facing a criminal
      case, that he mostly resides in USA and that it is
      alleged that he is having an affair with another
      lady are, in our view, not sufficient to come to the
      conclusion that custody of the minors should be
      changed immediately."


      What is important for us to note from these observations

is that the Court shall determine whether, in proceedings

relating to interim custody, there are sufficient and compelling

reasons to persuade the Court to change the custody of the

minor children with immediate effect.

38.   Stability and consistency in the affairs and routines of

children is also an important consideration as was held by this

Court in another decision cited by the learned counsel for the

appellant in the case of Mausami Moitra Ganguli v. Jayant

Ganguli, [AIR 2008 SC 2262]. This Court held:

             "We are convinced that the dislocation of
      Satyajeet, at this stage, from Allahabad, where he
      has grown up in sufficiently good surroundings,
      would not only impede his schooling, it may also
      cause emotional strain and depression on him."

39.   After taking note of the marked reluctance on part of the

boy to live with his mother, the Court further observed:



                                                              22
         "Under these circumstances and bearing in mind
      the paramount consideration of the welfare of the
      child, we are convinced that child's interest and
      welfare will be best served if he continues to be in
      the custody of the father. In our opinion, for the
      present, it is not desirable to disturb the custody of
      Master Satyajeet and, therefore, the order of the
      High Court giving his exclusive custody to the father
      with visitation rights to the mother deserves to be
      maintained."


40.   The children have been in the lawful custody of the

respondents from October, 2007. In the case of Gaurav Nagpal

v. Sumedha Nagpal, [(2009) 1 SCC 42], it was argued before

this Court by the father of the minor child that the child had

been in his custody for a long time and that a sudden change

in custody would traumatize the child. This Court did not find

favour with this argument. This Court observed that the father

of the minor child who retained the custody of the child with

him by flouting Court orders, even leading to institution of

contempt proceedings against him, could not be allowed to

take advantage of his own wrong. The case before us stands

on a different footing. The custody of the minor children with

the respondents is lawful and has the sanction of the order of

the High Court granting interim custody of the children in


                                                               23
their favour. Hence, the consideration that the custody of the

children should not undergo an immediate change prevails.

The question with whom they remained during the period from

the death of their mother till the institution of present

proceedings is a matter of dispute between the parties and we

are not in a position to reach a conclusion on the same

without going into the merits of the matter. At any rate, the

children are happy and are presumably taken care of with love

and affection by the respondents, judging from the reluctance

on part of the girl child to go with her father. She might attain

puberty at any time. As the High Court has rightly observed, it

may not be in the interests of the children to separate them

from each other. Hence, at this juncture, we are not inclined

to disturb the status quo, as we are only concerned with the

question of interim custody at this stage.

41.   The learned counsel for the appellant has placed reliance

on the case of Rafiq v. Smt. Bashiran and Another [supra].

In this case, the High Court had set aside the order of the Civil

Judge granting the custody of the child to her mother's

paternal aunt, while the father was not proven to be unfit.


                                                               24
Quoting from Tyabji's Mahomedan Law, Third Edition, Section

236 (p. 275) the Court observed:

      "The following persons have a preferential right over the

      father to the custody of (sic)minor girl before she attains

      the age of puberty.

      1. Mother's mother

      2. Father's mother

      3. Mother's grandmother howsoever high

      4. Father's grandmother howsoever high

      5. Full sister

      6. Uterine sister

      7. Daughter of full sister, howsoever low.

      8. Dauther of uterine sister, howsoever low.

      9. Full maternal aunt, howsoever high.

      10.Uterine maternal aunt, howsoever high.

      11.Full paternal aunt, howsoever high.



42.   However, the High Court of Rajasthan held that in the

light of Section 19 which bars the Court from appointing a

guardian when the father of the minor is alive and not unfit,


                                                               25
the Court could not appoint any maternal relative as a

guardian, even though the personal law of the minor might

give preferential custody in her favour.

43.   As is evident, the aforementioned decision concerned

appointment of a guardian. No doubt, unless the father is

proven to be unfit, the application for guardianship filed by

another person cannot be entertained. However, we have

already seen that the question of custody was distinct from

that of guardianship. As far as matters of custody are

concerned, the Court is not bound by the bar envisaged under

Section 19 of the Act. In our opinion, as far as the question of

custody is concerned, in the light of the aforementioned

decisions, the personal law governing the minor girl dictates

her maternal relatives, especially her maternal aunt, shall be

given preference. To the extent that we are concerned with the

question of interim custody, we see no reason to override this

rule of Mohammedan Law and, hence, a prima facie case is

found in favour of the respondents.

44.   Further, the balance of convenience lies in favour of

granting custody to the maternal grandfather, aunt and uncle.


                                                              26
A plethora of decisions of this Court endorse the proposition

that in matters of custody of children, their welfare shall be

the focal point. Once we shift the focus from the rights of the

contesting relatives to the welfare of the minor children, the

considerations in determining the question of balance of

convenience also differ. We take note of the fact that

respondent no.3, on record, has stated that she has no

intention to get married and her plea that she had resigned

from her job as a technical writer to take care of the children

remains uncontroverted. We are, hence, convinced that the

respondents will be in a position to provide sufficient love and

care for the children until the disposal of the guardianship

application. The second marriage of the appellant, though a

factor that cannot disentitle him to the custody of the

children, yet is an important factor to be taken into account. It

may not be appropriate on our part to place the children in a

predicament where they have to adjust with their step-mother,

with whom admittedly they had not spent much time as the

marriage took place only in March, 2007, when the ultimate

outcome of the guardianship proceedings is still uncertain.


                                                               27
The learned counsel for the appellant placed reliance on the

case of Bal Krishna Pandey v. Sanjeev Bajpayee [AIR 2004

UTR 1] wherein the maternal grandfather of the minor

contested with the father of the minor for custody of a girl

aged about 12 years. The Uttranchal High court in that case

gave the custody of minor to the father rejecting the

contention   of   grandfather   (appellant)   that   the   father

(respondent) after his remarriage will not be in a position to

give fair treatment to the minor. However, in that case, the

second wife of the father had been medically proven as unable

to conceive. Hence, the question of a possible conflict between

her affection for the children whose custody was in dispute

and the children she might bear from the father did not arise.

In the case before us, the situation is not the same and the

possibility of such conflict does have a bearing upon the

welfare of the children.

45.   As this is a matter of interim custody till the final

disposal of the application GWC No. 64 of 2007, we are of the

opinion that the interests of the children will be duly served if

their current residence is not disturbed and a sudden


                                                               28
separation from their maternal relatives does not come on

their way. Irreparable injury will be caused to the children if

they, against their will, are uprooted from their present

settings.

46.   The learned counsel for the appellant placed strong

reliance in the case of Hassan Bhatt v. Ghulam Mohamad

Bhat [AIR 1961 J & K 5] which held that the words "subject

to the provisions of this section" in sub-section 1 of Section 17

of the Act clearly indicates that the consideration of the

welfare of the minor should be the paramount factor and

cannot be subordinated to the personal law of the minor. The

view expressed by the High Court is clearly correct. As far as

the question of interim custody is concerned, we are of the

view that there is no conflict between the welfare of the

children and the course of action suggested by the personal

law to which they are subject.

47.   At this juncture, we may mention the following factors to

which the learned counsel for the appellant invites our

attention. In the present case, respondent no. 1 is an old

person aged about 72 years and      respondent no. 2 is already


                                                               29
married, living with his wife and children. Respondent no. 3

and 4 are unmarried and are of marriageable age. Respondent

no. 3, the maternal aunt of the children, will go to live with her

husband after marriage. Respondent No. 4 after his marriage

may or may not live with his father.       There is nothing on

record to show that the appellant mistreated the deceased

mother of minor children. We cannot express our views on the

correctness of these averments. These are the matters that

must be gone into when the Family Court disposes of the

application for guardianship filed by the Respondents, and not

at this stage.


48.   According to the appellant, from the fact that the

respondents raised the issue of death of his wife 10 months

after her death and one month after he refused the marriage

offer of Respondent No. 3, it must be inferred that the

respondents have raised this issue merely to obtain the

custody of children and that the respondents did not come to

court with clean hands. As far as the question of denying the

respondents the interim custody of children on the ground



                                                                30
that they had not approached the Court with clean hands, we

are constrained to say that we are not in a position to

conclusively infer the same. The alleged refusal on part of the

appellant to marry respondent no.3 which is said to have led

the respondents to file the application for guardianship, is

again question of fact which is yet to be proved. In Nil Ratan

Kundu and Anr. Vs. Abhijit Kundu, [(2008) 9 SCC 413] this

Court had enumerated certain principles while determining

the custody of a minor child. This Court under Paragraph 56

observed:


            "A Court while dealing with custody cases, is
      neither bound by statutes nor by strict rules of
      evidence or procedure nor by precedents. In selecting
      proper guardian of a minor, the paramount
      consideration should be the welfare and well-being
      of the child. Thus the strict parameters governing an
      interim injunction do not have full play in matters of
      custody."

49.   The learned counsel for the appellant again relied on a

decision of B.N.Ganguly (supra) in which case the High Court

of Madhya Pradesh had held that there is a presumption in

law that parents will be able to exercise good care in the

welfare of their children if they do not happen to be unsuitable


                                                               31
as guardians. The facts of that case are quite different from

the one at hand. The contesting guardians in that case where

contesting on the basis of an alleged adoption, against the

parents of the child. Both the parents had joined in making

the application and nothing had been said against their habits

or way of living. The case stands altogether on a different

footing.


50.   The High court had relied heavily on the preference made

by Athiya Ali who then was 10 to 11 years old. In the opinion

of High Court, she was capable of making intelligent

preference. It may be true that 11 years is a tender age and

her preference cannot be conclusive. The contention of the

appellant in this respect is also supported by the decision in

Bal Krishna Pandey's case (supra). But as we are not

dealing with the question of guardianship, but only with the

issue of interim custody, we see no reason why the preference

of the elder child shall be overlooked. It may be noted that the

Family Court had considered fact that the younger child had

instinctively approached his father while he met him in the



                                                              32
Court premises while vacating the interim order of injunction.

The second child who is just 4 years old cannot form an

intelligent opinion as to who would be the right person to look

after him and, hence, we must give weight to the preference

that Athiya had expressed.


51.   We find it fit, however, to modify the visitation rights

granted to the appellant. He shall be allowed to visit the

children on Saturdays as well between 9 am and 5 pm.


52.   The order of the High court is modified to the extent

indicated above, and the order of the Family Court dated 11th

of June, 2007 vacating its injunction order is set aside. The

Family Court is hereby directed to dispose of the case relating

to the guardianship of the two children after adducing

evidence by both the parties (both oral and documentary) at

an early date, preferably within six months from the date of

supply of a copy of this order to it.


53.   We, however, make it clear that the observations made in

the order of the High Court as well as by this Court, if there be



                                                               33
any, shall not be taken to be final while deciding the original

application filed under Sections 7, 9 and 17 of the Act and the

Family Court shall be at liberty to proceed with the disposal of

the said proceeding independently of any of the observations

made by this Court in this judgment.


54.   The appeal is thus dismissed. There will be no order as to

costs.


55.   In view of the above judgment, the application for

impleadment becomes infructuous and is dismissed as such.




                                          .............................J.
                                          [Tarun Chatterjee]



New Delhi;                                ............................J.
January 05, 2010.                         [V.S.Sirpurkar]




                                                                     34



35

Thursday, August 27, 2015

The primary conditions for grant of disability pension are mentioned under Regulation 173 of the Pension Regulations for the Army 1961. Regulation 173 reads as under:- “Unless otherwise specifically provided a disability pension consisting of service element and disability element may be granted to an individual who is invalidated out of service on account of disability which is attributable to or aggravated by military service in non-battle casualty or is assessed at 20% or over.”=The above contention does not merit acceptance. By perusal of record issued by Medical Board AFMSF- 16/17, it is seen that the assessment by the Board is recommendatory in nature and is subject to acceptance by the Pension Sanctioning Authority. It is also mentioned in the Medical Abstract Records as:- “1. Though the disablement has been mentioned in percentage in para 6 of Part V, this does not mean eligibility for disability pension since the Invalidating Disabilities is/are neither attributable to nor aggravated by service.”= When the opinion of the assessment by the Board is recommendatory in nature and is subject to acceptance by the Pension Sanctioning Authority, the opinion of the Medical Board by itself cannot confer right upon the respondent to claim disability pension. = The respondent went for six weeks sick leave and reported back for review and invalidated from service with effect from 28.2.2006. After the accident when the respondent was not actually performing military service, the opinion of the Medical Board “aggravated due to stress and strain of military service” does not appear to be in proper perspective. After the accident, when the respondent was not actually performing his duties and therefore disability cannot be attributed to military service nor can it be said to have been aggravated due to stress and strain of military service. In the light of the above discussion, it is clear that the injury suffered by the respondent has no causal connection with the military service. The tribunal failed to appreciate that the accident resulting in injury to the respondent was not even remotely connected to his military duty and it falls in the domain of an entirely private act and therefore the impugned orders cannot be sustained.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.6583  OF 2015
                    (Arising out of CAD No.13923 of 2014)


UNION OF INDIA & ORS.                                    ..Appellants

                                   Versus

3989606 P, EX-NAIK VIJAY KUMAR                      ..Respondent



                               J U D G M E N T


R. BANUMATHI, J.

            Delay condoned.
2.          This appeal is filed  against  the  order  dated  13.07.2011  in
Original  Application  No.248  of  2011  and  order  dated   31.10.2012   in
M.A.Nos.795 and 796 of 2012 passed by the Armed  Forces  Tribunal,  Regional
Bench, Chandigarh (for short ‘the tribunal’) whereby  the  tribunal  allowed
the application filed by the respondent observing  that  the  respondent  is
entitled to get disability pension for 75% disability from the date  of  his
invalidation.
3.          Brief facts which led to  the  filing  of  this  appeal  are  as
under:- On 25.02.1989, the respondent  was  enrolled  in  Indian  Army  from
Branch  Recruiting  Office  Palampur  and  after  completion  of  his  basic
Military Training at Dogra Regiment, the respondent was posted to  12  Dogra
on 05.01.1990. The respondent was granted  thirty  days  annual  leave  from
14.05.2005 to 12.06.2005. However, during the leave  period,  on  19.05.2005
the respondent went from Himachal  Pradesh  to  Jalandhar  Cantt  where  his
sister resides for making purchase of ornaments  and  clothes  and  articles
for marriage of his younger brother. On  the  same  day,  on  19.05.2005  in
Jalandhar at the house of his sister which was  on  second  floor  at  about
8.00 p.m., while the respondent was climbing stairs to go  to  the  roof  of
the quarter for smoking and  at  that  time  lights  went  off  and  due  to
darkness  he  slipped  accidentally  and  fell  down  from  the  stairs  and
sustained multiple  injuries.  The  respondent  was  initially  admitted  to
Christian Hospital, Maqsuda where he was given first  aid  treatment  for  a
night and next day on 20.05.2005, he was transferred to  Military  Hospital,
Jalandhar for treatment of his multiple injuries. The  respondent  underwent
four operations, he was treated in  military  hospital  for  three  to  four
months. However, the respondent was placed in Low Medical Category   A3  (T)
for 6/12 years. The respondent was sent for six  weeks  sick  leave  and  he
reported back for review. The respondent  was  brought  before  the  Release
Medical Board, wherein the RMB opined that  respondent  should  be  released
from military  service  in  Permanent  Low  Medical  Category  A-3  for  six
disabilities he sustained. The Release Board assessed  the  disabilities  at
Military Hospital Faizabad and composite assessment  was  assessed  at  60%.
After due procedure,  the  respondent  was  invalidated  from  service  with
effect from 28.02.2006 after completion of seventeen years of service.
4.          The respondent was paid monetary benefits  due  and  payable  to
him  and  also  other  pensionary  benefits.  The  respondent’s  claim   for
disability pension was however rejected by the competent  authority  stating
that respondent’s disabilities are neither attributable  to  nor  aggravated
due to military service.  Aggrieved by the order, the  respondent  filed  an
appeal  dated  09.05.2007  before  the  appellate  authority  for  grant  of
disability pension. The  respondent  also  sent  two  representations  dated
01.10.2007 and December 2007. After due inquiry, appeal was rejected by  the
Appellate Committee vide order dated 13.04.2007 holding that respondent  was
not entitled to disability pension in terms of Rule 12 of  Entitlement  Rule
for Casualty Pensionary Award.
5.          Aggrieved by the order, respondent filed  O.A.No.  248  of  2011
before the tribunal.  The tribunal  vide  impugned  order  dated  13.07.2011
allowed the application of the respondent holding  that  the  respondent  is
entitled to disability pension for 75% disability for  life  by  giving  the
benefit of rounding off from the date of invalidation. This  appeal  assails
the correctness of the impugned order.
6.           Mr.  P.S.  Patwalia,  learned  Additional   Solicitor   General
appearing for the appellants contended that under Regulation 173  disability
pension is granted to an individual who is invalidated  out  of  service  on
account of disability  which is either  attributable  to  or  aggravated  by
military service. It was submitted that in the facts of the  case,  the  act
of the respondent was not even remotely connected to his military  duty  and
while so, the tribunal erred in directing grant  of  disability  pension  to
the respondent.
7.          Per contra, learned counsel for the  respondent  submitted  that
the  Medical  Board  opined  that  the  disability  of  the  respondent   is
aggravated “due to stress and strain  of  military  service”  and  once  the
Medical Board gives its finding to the advantage of  the  disabled  soldier,
it cannot be changed by any other authority  and  hence  the  respondent  is
entitled for grant of  disability  pension  and  tribunal  rightly  directed
payment of disability pension to the respondent.
8.          We have heard learned counsel for  the  parties  and  have  gone
through the orders passed  by  the  tribunal  and  the  material  placed  on
record.
9.          The primary conditions  for  grant  of  disability  pension  are
mentioned under Regulation 173 of  the  Pension  Regulations  for  the  Army
1961.  Regulation 173 reads as under:-
“Unless otherwise  specifically  provided a  disability  pension  consisting
of service element and disability element may be granted  to  an  individual
who is invalidated  out of  service  on  account  of  disability   which  is
attributable to or aggravated  by military service  in  non-battle  casualty
or is assessed at 20% or over.”

10.         In terms of Rule  12  of  the  Entitlement  Rules  for  Casualty
Pensionary Awards 1982, a person subject to the  disciplinary  note  of  the
armed forces is treated on duty while performing  anyone  of  the  functions
mentioned in paragraphs (a), (b) and (c) of the Pension Regulations.   Notes
(1) and (2) of the Entitlement Rules elaborate the scope and purport of  the
term ‘duty’. Para (b) to Note (2) deals with accident which occurs when  the
armed forces personnel is not strictly “on duty”  as  defined  in  Rule  12.
For such situations, the expression “on duty” is given an  extended  meaning
inasmuch as an accident which  occurs  when  the  person  concerned  is  not
strictly “on duty” is also deemed to be on duty.  We  may  usefully  extract
Rule 12 of Entitlement Rules and para (a) to (f) of  Notes  (1)  &   (2)  as
under:-
“Rule 12: Duty:- The Entitlement Rules 1982

A person subject to the disciplinary code of the Armed Forces is on duty:-

When performing an official task or  a  task,  failure  to  do  which  would
constitute an offence triable under  the  disciplinary  code  applicable  to
him;

When moving from one place of duty to another place of duty irrespective  of
the mode of movement;

During the period of participation in recreation and other  unit  activities
organized or permitted by service  authorities  and  during  the  period  of
travelling in a body or singly by a prescribed or organized route.

Note 1:     xx         xx         xx         xx

xx          xx         xx         xx

Note 2: (d) Personnel while  travelling  between  place  of  duty  to  leave
station and vice versa to be treated on duty irrespective  of  whether  they
are in physical possession of railway  warrant/concession  vouchers/cash  TA
etc or not. An  individual  on  authorized  leave  would  be  deemed  to  be
entitled to travel at public expense.

The time of occurrence of injury should fall within the time  an  individual
would normally take in reaching the leave station from duty station or  vice
versa using the commonly authorized mode(s) of  transport.  However,  injury
beyond this time period during the leave would not be covered.

An accident which occurs when a man is not strictly  ‘on  duty’  as  defined
may also be attributable to service, provided that it  involved  risk  which
was definitely enhanced  in  kind  or  degree  by  the  nature,  conditions,
obligations or incidents of his service and that the same  was  not  a  risk
common to human existence in modern conditions in India.”



11.         This Court in Sukhwant Singh vs. Union  of  India   through  the
Secretary, Ministry of Defence And Ors., (2012) 12 SCC 228  after  referring
to the judgment of the tribunal affirmed the legal position as summed up  by
the tribunal and the same reads as under:-
“To sum up in our view  the  following  principles  should  be  the  guiding
factors for deciding the question of attributability or  aggravation,  where
the disability or fatality occurs during  the  time  the  individual  is  on
authorized leave of any kind:
(a) The mere fact of a person being on ‘duty’ or otherwise, at the place  of
posting or on leave, is not the sole criteria for  deciding  attributability
of disability/death. There has  to  be  a  relevant  and  reasonable  causal
connection,  howsoever  remote,  between  the  incident  resulting  in  such
disability/death and military  service  for  it  to  be  attributable.  This
conditionality applies even when a person  is  posted  and  present  in  his
unit. It should similarly apply when he is on  leave;  notwithstanding  both
being considered as ‘duty’.
(b) If the injury suffered by the member of the armed force  is  the  result
of an act alien to the sphere of military service or is in no way  connected
to his being on duty as understood in the sense contemplated by Rule  12  of
the Entitlement Rules, 1982, it would neither be the  legislative  intention
nor to our mind would it be  the  permissible  approach  to  generalise  the
statement that every injury suffered  during  such  period  of  leave  would
necessarily be attributable.
(c) The act, omission or commission  of  which  results  in  injury  to  the
member of the force and consequent disability or  fatality  must  relate  to
military service in some manner or the other, in other words, the  act  must
flow as a matter of necessity from military service.
(d) A person doing some act at home,  which  even  remotely  does  not  fall
within the scope of his duties and functions as a member of the  force,  nor
is remotely connected with the functions  of  military  service,  cannot  be
termed  as  injury  or  disability  attributable  to  military  service.  An
accident or injury suffered by a member of the armed force  must  have  some
causal connection with military service and at least should arise from  such
activity of the member of the force as he is expected to maintain or  do  in
his day-to-day life as a member of the force.
(e) The hazards of army  service  cannot  be  stretched  to  the  extent  of
unlawful and entirely unconnected acts or  omissions  on  the  part  of  the
member of the force even when he is on leave. A  fine  line  of  distinction
has to be drawn between the matters connected,  aggravated  or  attributable
to military service, and the matter entirely alien  to  such  service.  What
falls ex facie in the domain of an entirely private act  cannot  be  treated
as a legitimate basis for claiming the relief  under  these  provisions.  At
best, the member of the force can claim disability  pension  if  he  suffers
disability from an injury while on casual leave even if it arises from  some
negligence or misconduct on the part of the member of the force, so  far  it
has some connection and nexus to the nature of the force.  At  least  remote
attributability to service would be the condition precedent to  claim  under
Rule 173. The act of omission and commission on the part of  the  member  of
the force must satisfy the test of  prudence,  reasonableness  and  expected
standards of behaviour.
(f) The disability should not be the result of an accident  which  could  be
attributed to risk common to human existence in modern conditions in  India,
unless such risk is enhanced  in  kind  or  degree  by  nature,  conditions,
obligations or incidents of military service.”


The principles enunciated  in  the  above  judgment  were  referred  to  and
reiterated by this Court in Union of India And Anr.  vs.  Ex  Naik  Surendra
Pandey, 2015 (2) SCALE 361 to which both of us were parties.
12.         Entitlement Rules for the Casualty Pensionary  Awards  1982  are
beneficial in nature and ought to be liberally construed. In terms  of  Rule
12, the disability sustained during  the course of an accident which  occurs
when the personnel of the armed forces  is not strictly on duty may also  be
attributable to service on  fulfilling  of  certain  conditions   enumerated
therein. But there has to be a  reasonable  causal  connection  between  the
injuries resulting in disability and the military service.
13.         Applying the ratio of various cases in  Secretary,  Ministry  of
Defence & Ors. vs. Ajit Singh,  (2009)  7  SCC  328  and  relying  upon  the
principles laid down in Union of India & Ors. vs. Keshar  Singh,  (2007)  12
SCC 675 and Union of India & Ors. vs. Surinder Singh Rathore, (2008)  5  SCC
747, this Court rejected the claim of the respondent for disability  pension
on account of electric shock sustained by him while he was on casual leave.
14.         In Union of India And Ors. vs. Jujhar Singh (2011)  7  SCC  735,
this Court was dealing with the question whether the respondent who had  met
with  an  accident  in  his  native  place  and  sustained  grievous  injury
resulting in permanent disability was entitled to disability  pension.   The
respondent in that case had upon recovery from injury continued in  military
service and superannuated with normal service pension.  In  the  said  case,
this Court held that the member of armed forces who is  claiming  disability
pension must be able to show a reasonable nexus between  the  act,  omission
or commission resulting in an injury to the person and the  normal  expected
standard of duties and a way  of  life  expected  from  a  member  of  armed
forces.
15.         In yet another case, Union  of  India  And  Anr.  vs.  Talwinder
Singh, (2012)  5  SCC  480,  the  disability  pension  was  claimed  by  the
individual enrolled in the army who was on annual leave   for  a  period  of
two months in his home town, got injured during the leave period by a  small
wooden piece  “Gulli” while playing with children  which  seriously  damaged
his left eye.  This Court in para (12) observed thus:-
“12. A person claiming disability pension must be able to show a  reasonable
nexus between the act, omission or commission resulting in an injury to  the
person and the normal expected standard of duties and way of  life  expected
from such person. As the military personnel  sustained  disability  when  he
was on an annual leave that too at his home town  in  a  road  accident,  it
could not be held that the injuries could be attributable to  or  aggravated
by military service. Such a person  would  not  be  entitled  to  disability
pension. This view stands fully fortified by the earlier  judgment  of  this
Court in Ministry of Defence v. Ajit Singh, (2009) 7 SCC 328.”


16.         Applying these principles and Rule 12 and mandate of  Regulation
173, admittedly in the instant case as mentioned in the  proceedings  before
the Board Officer that during the annual leave respondent went to  Jalandhar
on 19.05.2005 from Himachal Pradesh to purchase ornaments  and  clothes  for
his brother’s marriage.  He was staying at his sister’s  place  and  in  the
night at about 8.00 p.m. while he was climbing the  stairs  to  get  to  the
roof for smoking and at that time the lights went  off  and  due  to  sudden
darkness he lost his balance and fell down  and  lost  his  senses.  He  was
admitted in civil  hospital  in  Jalandhar  and  after  first  aid,  he  was
transferred to military hospital Jalandhar for multiple  fracture  injuries.
It is apparent that the injury sustained by Vijay Kumar  was  accidental  in
nature and nobody can be blamed for the same.   Respondent’s  act  of  going
towards the roof for smoking at his sister’s house and falling  down  at  no
stretch of imagination can be attributed to military service.
17.         Learned counsel for the respondent heavily placed reliance  upon
the judgment of this Court in Union of India & Anr.  vs.  Ex  Naik  Surendra
Pandey, (2015) 2 SCALE 361, in which the respondent  went  on  annual  leave
and was travelling from the place of his duty to the place where his  family
was residing (Sewan).  The respondent boarded the bus from Hajipur to  reach
Patna to join his family and at that time, he met  with  an  accident  which
resulted in disability assessed at 20% by the Medical  Board.  In  the  said
case, it  was  the  specific  case  of  the  respondent  that  although  the
respondent’s hometown is Gopalganj, his family was residing at Patna and  it
was for that reason he claimed to be travelling by train beyond  Sewan  upto
Hajipur by train to  catch  a  bus  to  reach  Patna  to  join  his  family.
Considering  the  facts  and  circumstances  of  the  said  case  and   that
respondent’s family was residing at Patna, this Court held that there was  a
reasonable nexus and  causal  connection  between  the  disability  and  the
military service of respondent at the relevant time.  In para (12),  it  was
held that “…..The case  may  have  been  different  if  the  respondent  had
reached the destination engaged in  some  activity,  unrelated  to  military
service and in the course of such activity met with  an  accident  resulting
in  a  disability….”.   Thus,  Ex  Naik  Surendra  Pandey  case  is  clearly
distinguishable on facts.
18.         Learned counsel for the respondent contended that the  composite
assessment for the respondent’s  disability  was  assessed  at  60%  by  the
Medical Board and the same was found to be attributable and aggravated  “due
to stress and strain of military  service”  and  as  per  settled  law  once
medical board gives its finding to the advantage of  the  disabled  soldier,
findings of the Medical Board cannot be changed.  The above contention  does
not merit acceptance.  By perusal of record issued by Medical  Board  AFMSF-
16/17, it is seen that the assessment by  the  Board  is  recommendatory  in
nature and is subject to acceptance by the  Pension  Sanctioning  Authority.
It is also mentioned in the Medical Abstract Records as:-
“1. Though the disablement has been mentioned in percentage  in  para  6  of
Part V, this does not mean eligibility  for  disability  pension  since  the
Invalidating Disabilities is/are neither attributable to nor  aggravated  by
service.”


When the opinion of the assessment by the Board is recommendatory in  nature
and is subject to acceptance  by  the  Pension  Sanctioning  Authority,  the
opinion of the  Medical  Board  by  itself  cannot  confer  right  upon  the
respondent  to  claim  disability  pension.  Further,  after  accident   the
respondent was treated in the military hospital for  three  to  four  months
and he was placed in low medical category.   The  respondent  went  for  six
weeks sick leave and reported back for review and invalidated  from  service
with effect from 28.2.2006.  After the accident when the respondent was  not
actually performing military service,  the  opinion  of  the  Medical  Board
“aggravated due to stress and strain of military service”  does  not  appear
to be in proper perspective.   After the accident, when the  respondent  was
not actually performing  his  duties  and  therefore  disability  cannot  be
attributed to military service nor can it be said to  have  been  aggravated
due to stress and strain of military service.
19.         In the light of the above  discussion,  it  is  clear  that  the
injury suffered  by  the  respondent  has  no  causal  connection  with  the
military service.  The tribunal  failed  to  appreciate  that  the  accident
resulting in injury to the respondent was not  even  remotely  connected  to
his military duty and it falls in the domain of an entirely private act  and
therefore the impugned orders cannot be sustained.
20.         In the result, the impugned order of the tribunal is  set  aside
and the appeal is allowed. In the facts and circumstances of  the  case,  we
make no order as to costs.


                                              ….……………………J.
                                    (T.S. THAKUR)



                                …..……………………J.
                                     (R. BANUMATHI))

New Delhi;
August 26, 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.