'
ITEM NO.4 COURT NO.3 SECTION IVB
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Civil) No(s).15272/2008
(From the judgement and order dated 25/02/2008 in RSA No.1469/1983 of The
HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH)
PRITHI PAL SINGH & ANR. Petitioner(s)
VERSUS
AMRIK SINGH & ORS. Respondent(s)
(With appln(s) for permission to file additional affidavit and prayer for
interim relief and office report )
(for final disposal)
Date: 13/02/2013 This Petition was called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE G.S. SINGHVI
HON'BLE MR. JUSTICE H.L. GOKHALE
For Petitioner(s) Mr. P.S.Patwalia,Sr.Adv.
Mr. Jagjit Singh Chhabra,Adv.
Mr. Tushar Bakshi,Adv.
Mr. Ajay Singh,Adv.
Mr. Rajat Singh,Adv.
For Respondent(s) Mr. Narender Hooda,Sr.Adv.
Mr. Ankit Swarup,Adv.
Ms. Neha Kedia,Adv.
Mr. Ajay Kumar,Adv.
UPON hearing counsel the Court made the following
O R D E R
This petition is directed against judgment dated 25.2.2008
of the learned Single Judge of the Punjab and Haryana High Court
whereby he dismissed the second appeal filed by the petitioners
and upheld the judgment and decree passed by the lower appellate
Court, which had approved the decree passed by the trial Court in
favour of respondent No.2 - Bakshish Singh, who is now
represented by his legal representatives.
Amrik Singh (brother of respondent No.2) executed sale deed
dated 21.5.1979 in favour of the petitioners and respondent No.1
in respect of 27 kanals 4 marlas land for a consideration of
Rs.37,500/-. The sale deed was registered on 23.5.1979.
Respondent No.2 challenged the sale deed in Civil Suit
No.353/1981 and claimed pre-emption under Section 15(1)(a) of the Punjab Pre-emption Act, 1913 (for short, 'the Act').
The petitioners and respondent No.1 contested the suit on
various grounds.
They pleaded that the suit for pre-emption is
not maintainable and, in any case, the same is barred by time.
On the pleadings of the parties, the trial Court framed the
following issues:
"1. Whether the plaintiff has got a superior right of
pre-emption over the suit land? OPP
2. Whether the sale consideration was fixed in good
faith and was actually paid by the defendants? OPD
3. If issue. No. 2 is not proved, what was the market
value of the suit land at the time of the impugned
sale? OPP
4. Whether the plaintiff has got no locus standi to
file and maintain the present suit? OPD
5. Whether the zare-panjam has been deposited within
time? OPP
6. Whether the suit is bad for partial pre-emption? OPD
7. Whether the suit property is co-parcenery and joint
Hindu family property qua the plaintiff and vendor?
OPD
8. Whether the plaintiff is estopped by his own act and
conduct to file and maintain the present suit? OPD
9. Whether the present suit is benami and for the
benefit of vendor? OPD
10. Whether the suit is within time? OPP
11. Whether the suit is not properly valued for the
purposes of court fee and jurisdiction? OPD
12. Whether the defendants have effected any improvement
over the suit land. If so to what amount? OPD
13. Whether the defendants are entitled to recover
stamps and registration charges in the eventuality of
the suit being decreed. If so to what amount? OPD.
14. Relief."
Subsequently, the petitioners and respondent No.1 sought and
were granted leave to amend the written statement leading to the
framing of the following additional issue:
"Whether suit land is not pre-emptible in view of Section
17A of the Punjab Security of Land Tenure Act."
After considering the pleadings and evidence of the parties
the trial Court decided issue Nos. 1, 4 to 13 in favour of
respondent No.2. The additional issue was also decided in his
favour. As a sequel to this, the trial Court decreed the suit in
favour of respondent No.2.
The appeal filed by the petitioners and respondent No.1 was
dismissed by the lower appellate Court vide judgment dated
30.5.1983, a reading whereof reveals that the petitioners and
respondent No.1 had filed another application for amendment of
the written statement, which was rejected by the lower appellateCourt. On merits, no serious argument appears to have been
advanced on behalf of the petitioners and this is the reason why
the lower appellate Court did not independently deal with the
findings recorded by the trial Court on various issues including
the one relating to limitation.
During the pendency of the second appeal filed by the
petitioners, respondent No.2 applied for amendment of the plaint
and claimed that he was entitled to relief as co-sharer of thesuit property. The learned Single Judge vide his judgment dated
22.5.1986 allowed the second appeal and rejected the application
made by respondent No.2 for amendment of the plaint.
This Court reversed the judgment of the learned Single
Judge, granted leave to respondent No.2 to amend the plaint and
remanded the matter to the High Court for fresh disposal of the
second appeal - Bakshish Singh v. Prithi Pal Singh 1995 Supp. (3)
SCC 577.
After remand the learned Single Judge reconsidered the
second appeal and dismissed the same. The learned Single Judge
extensively dealt with the question whether the amendment made in
the plaint would relate back to the date of institution of the
suit or the same will be treated as effective from the date of
this Court's order and held:
"The admitted facts now stand that the plaintiff
and vendor are the co-sharers. The fate of the present
appeal hinges upon the question "whether the amendment
allowed by the Apex Court vide its judgment dated
10.11.1994 will operate from the date of the order or is
deemed to have been incorporated as a part of the plaint
from the date of the institution of the suit. If the
amendment is considered to be part of the plaint from the
date of institution of the suit, the plaintiff is bound to
succeed, otherwise the suit shall fail if the amendment is
found to become operative from the date of the order of the
Apex Court allowing amendment. It is settled principle of
law that at that time of consideration of the plea of
amendment, the court is not required to go into the
question of merits of the amendment sought. A party seeking
the amendment may ultimately succeed or fail on the basis
of the amendment is not the relevant consideration at the
time the plea of amendment is to be considered. Only
consideration at the time is whether such an amendment is
necessary, relevant and relate to the controversy involved
in the lis. Hon'ble Supreme Court by allowing the amendment
of the plaint vide its order dated 10.11.1994 observed that
the amendment should have been allowed, on the basis of the
admitted facts. Whether the suit is barred by limitation or
is within limitation, all depends upon the effective date
of amendment. Mr. Goel, learned Counsel for the appellants
has referred to the judgment passed in the case of Tarlok
Singh vs Vijay Kumar Sabharwal 1996 PLJ 237. In this case,
the parties had entered into an agreement to sell. A suit
for perpetual injunction was instituted on 23.12.1987.
During the pendency of the suit, an application under Order
6 Rule 17 CPC came to be filed on 17.7.1989 for converting
the suit for injunction into the one for specific
performance of agreement dated 18.8.1984. The amendment was
allowed on 25.8.1989. A plea was raised that the suit for
specific performance is barred by limitation. This plea was
considered by the Apex Court wherein following observations
have been made:
"6. Shri Prem Malhotra, learned Counsel for the
respondents contended that since the respondent had
refused performance the suit must be deemed to have been
filed on December 23, 1987 and, therefore, when the
amendment was allowed, it would relate back to the date
of filing the suit which was filed within three years
from the date of the refusal. Accordingly, the suit is
not barred by limitation. Shri U.R. Lalit, learned
senior counsel for the appellant, contended that in view
of the liberty given by the High Court the appellant is
entitled to raise the plea of limitation. The suit filed
after expiry of 3 years from 1986 is barred by
limitation. The question is as to when the limitation
began to run? In view of the admitted position that the
contract was to be performed within 15 days after the
injunction was vacated, the limitation began to run on
April 6, 1986. In view of the position that the suit for
perpetual injunction was converted into one for specific
performance by order dated August 25, 1989, the suit
must be deemed to have been instituted on August 25,
1989 and the suit was clearly barred by limitation. We
find force in the stand of the appellant. We think that
parties had, by agreement, determined the date for
performance of the contract. Thereby limitation began to
run from April 6, 1986. Suit merely for injunction laid
on December 23, 1987 would not be of any avail nor the
limitation began to run from that date. Suit for
perpetual injunction is different from suit for specific
performance. The suit for specific performance in fact
was claimed by way of amendment application filed under
Order 6 Rule 17 CPC on September 12, 1979. It will
operate only on the application being ordered. Since the
amendment was ordered on August 25, 1989 the crucial
date would be the date on which the amendment was
ordered, by which date, admittedly, the suit is barred
by limitation. The courts below, therefore, were not
right in decreeing the suit."
In the case of Sampath Kumar vs Ayyakannu and Anr.,
2002 (3) Civil Court Cases 364 (S.C.) initially, a suit for
prohibitory injunction was filed in the year 1988 claiming
possession of the suit property. Later in the year 1989, an
application under Order VI Rule 17 CPC was made for
conversion of the suit into one for declaration of title of
the suit property and consequential relief of delivery of
possession alleging that during the pendency of the suit,
defendant dispossessed the plaintiff in January 1989. The
amendment was refused. However, in appeal before the
Hon'ble Apex Court, the conditional amendment was allowed.
The Hon'ble Apex Court observed as under:
"11. 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,
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.
xxx xxx xxx xxx
13. The prayer for declaration of title and recovery of
possession shall be deemed to have been made on the date
on which the application for amendment was filed."
From the ratio of the aforesaid judgments, following points
emerge:
(a) 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;
(b) The dominant purpose of the amendment is to
minimize the litigation;
(c) The amendment once allowed and incorporated relates
back to the date of the initial institution of the
suit;
(d) The Court, however, in appropriate case may
restrict the application of doctrine of relation
back and permit the application of the amendment
from the date the amendment is allowed.
This principle has been enunciated by the Hon'ble
Apex Court in the case of Siddalingamma and another Vs
Mamtha Shenoy (2001) 8 Supreme Court Cases 561, wherein the
Court observed:
"10. On the doctrine of relation back, which generally
governs amendment of pleadings unless for reasons the
court excludes the applicability of the doctrine in a
given case, the petition for eviction as amended could
be deemed to have been filed originally as such and the
evidence shall have to be appreciated in the light ofthe averments made in the amended petition." (Emphasis
supplied)
Mr. C.B. Goel, learned Counsel has strenuously
argued that the amendment in the present case should be
treated to have effected only from 10.11.1994 and the suit
for pre-emption is deemed to have been instituted on the
said date on the ground of the plaintiff being co-sharer.
His precise contention is that the suit for pre-emption
filed in the year 1994 under Clause "fourthly" Section
15(1)(b) is barred by time having been filed beyond one
year from the date of the sale in question. The appreciate
this contention, the sole question is whether a new relief
has been introduced way of amendment. In the case of Tarlok
Singh (supra), initially, the suit was for permanent
prohibitory injunction. However, by way of amendment, a new
relief of specific performance was introduced which was
held to be barred by time as the cause of action for the
relief of specific performance had accrued to the plaintiff
in the said case from the date of the execution of the
agreement to sell dated 21.12.1984. Relief of specific
performance was introduced in the year 1989 which was
admittedly beyond three years from the date cause of action
accrued. I have already extracted the relevant observations
of the Hon'ble Supreme Court in regard to the amendment.
Applying the test to the fact of the present case, the plea
of Mr. Goel is not sustainable. In the instant case, it was
a suit for pre-emption from the initial day. Initially, the
ground for seeking relief was that the plaintiff is the
brother of the vendor-defendant. This was one of the
grounds available under law by virtue of Clause "secondly"
of Section 15(1) of the Act. This provision has, however,
come to be struck down by the Supreme Court in the case of
Atam Parkash (supra). The plaintiff by asking for amendment
sought to introduce an additional ground on the plea that
besides being the brother, he is also a co-sharer in the
suit land. As observed by the Hon'ble Supreme Court, and is
evident from the judgment impugned as also the report of
the trial Court dated 7.3.2006, there is sufficient
material/evidence already on record i.e. prior to the
introduction of the amendment to establish that the
plaintiff is the co-sharer with the defendant-vendor.
Through the amendment only, a new ground has been
incorporated and not the new relief. Since the suit seeking
the relief of pre-emption was instituted with the time, by
introduction of a new ground to support the relief, thesuit cannot become time barred. In the present case, the
doctrine of relation back of the amendment has to apply as
no new or fresh relief has been incorporated. Apart from
above, there is another reason to decline the prayer of the
appellants.
It is settled law as is evident from the ratio
of the judgment in the case of Siddalingamma (supra), that
the court in appropriate case while allowing the amendment,
may restrict the application of doctrine of relation back
and permit the amendment from the date of the amendment. In
the present case, the order of the Apex Court dated
10.11.1994 is clear and unambiguous in its terms. No such
restriction has been imposed. To the contrary, the
amendment rejected by this Court has been allowed primarily
on the ground that the amendment is based upon admitted
facts on record. I am of the considered view that the
intention of the Apex Court in allowing the amendment
was/is to apply the amendment without excluding the
doctrine or relation back which normally and generally
governs the amendment of pleadings."
(underlining is ours)
(reproduced from the SLP paper book)
Shri P.S. Patwalia, learned senior counsel appearing for thepetitioners argued that even though this Court granted leave to
respondents No.2 to amend the plaint, the learned Single Judge
should have dismissed the second appeal as barred by time because
the amendment was filed much after expiry of the limitation. He
further argued that while dismissing the second appeal, the
learned Single Judge did not consider the amendment made in
Section 15 of the Act by Haryana Amendment Act No.10 of 1995 and
on this ground alone the impugned judgment is liable to be set
aside.
In our opinion, there is no merit in the submissions of thelearned counsel. A reading of the order passed by this Court
shows that the application for amendment filed by respondent No.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.
The argument of the learned counsel that the suit could not
be decreed in view of the Haryana Amendment Act No.10 of 1995
does not require consideration because no such plea was argued
before the High Court and we do not find any valid ground to
allow the petitioners to raise such plea for the first time.
With the above observations, the special leave petition is
dismissed.
[SUMAN WADHWA] [PHOOLAN WATI ARORA]
COURT MASTER COURT MASTER
ITEM NO.4 COURT NO.3 SECTION IVB
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Civil) No(s).15272/2008
(From the judgement and order dated 25/02/2008 in RSA No.1469/1983 of The
HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH)
PRITHI PAL SINGH & ANR. Petitioner(s)
VERSUS
AMRIK SINGH & ORS. Respondent(s)
(With appln(s) for permission to file additional affidavit and prayer for
interim relief and office report )
(for final disposal)
Date: 13/02/2013 This Petition was called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE G.S. SINGHVI
HON'BLE MR. JUSTICE H.L. GOKHALE
For Petitioner(s) Mr. P.S.Patwalia,Sr.Adv.
Mr. Jagjit Singh Chhabra,Adv.
Mr. Tushar Bakshi,Adv.
Mr. Ajay Singh,Adv.
Mr. Rajat Singh,Adv.
For Respondent(s) Mr. Narender Hooda,Sr.Adv.
Mr. Ankit Swarup,Adv.
Ms. Neha Kedia,Adv.
Mr. Ajay Kumar,Adv.
UPON hearing counsel the Court made the following
O R D E R
This petition is directed against judgment dated 25.2.2008
of the learned Single Judge of the Punjab and Haryana High Court
whereby he dismissed the second appeal filed by the petitioners
and upheld the judgment and decree passed by the lower appellate
Court, which had approved the decree passed by the trial Court in
favour of respondent No.2 - Bakshish Singh, who is now
represented by his legal representatives.
Amrik Singh (brother of respondent No.2) executed sale deed
dated 21.5.1979 in favour of the petitioners and respondent No.1
in respect of 27 kanals 4 marlas land for a consideration of
Rs.37,500/-. The sale deed was registered on 23.5.1979.
Respondent No.2 challenged the sale deed in Civil Suit
No.353/1981 and claimed pre-emption under Section 15(1)(a) of the Punjab Pre-emption Act, 1913 (for short, 'the Act').
The petitioners and respondent No.1 contested the suit on
various grounds.
They pleaded that the suit for pre-emption is
not maintainable and, in any case, the same is barred by time.
On the pleadings of the parties, the trial Court framed the
following issues:
"1. Whether the plaintiff has got a superior right of
pre-emption over the suit land? OPP
2. Whether the sale consideration was fixed in good
faith and was actually paid by the defendants? OPD
3. If issue. No. 2 is not proved, what was the market
value of the suit land at the time of the impugned
sale? OPP
4. Whether the plaintiff has got no locus standi to
file and maintain the present suit? OPD
5. Whether the zare-panjam has been deposited within
time? OPP
6. Whether the suit is bad for partial pre-emption? OPD
7. Whether the suit property is co-parcenery and joint
Hindu family property qua the plaintiff and vendor?
OPD
8. Whether the plaintiff is estopped by his own act and
conduct to file and maintain the present suit? OPD
9. Whether the present suit is benami and for the
benefit of vendor? OPD
10. Whether the suit is within time? OPP
11. Whether the suit is not properly valued for the
purposes of court fee and jurisdiction? OPD
12. Whether the defendants have effected any improvement
over the suit land. If so to what amount? OPD
13. Whether the defendants are entitled to recover
stamps and registration charges in the eventuality of
the suit being decreed. If so to what amount? OPD.
14. Relief."
Subsequently, the petitioners and respondent No.1 sought and
were granted leave to amend the written statement leading to the
framing of the following additional issue:
"Whether suit land is not pre-emptible in view of Section
17A of the Punjab Security of Land Tenure Act."
After considering the pleadings and evidence of the parties
the trial Court decided issue Nos. 1, 4 to 13 in favour of
respondent No.2. The additional issue was also decided in his
favour. As a sequel to this, the trial Court decreed the suit in
favour of respondent No.2.
The appeal filed by the petitioners and respondent No.1 was
dismissed by the lower appellate Court vide judgment dated
30.5.1983, a reading whereof reveals that the petitioners and
respondent No.1 had filed another application for amendment of
the written statement, which was rejected by the lower appellateCourt. On merits, no serious argument appears to have been
advanced on behalf of the petitioners and this is the reason why
the lower appellate Court did not independently deal with the
findings recorded by the trial Court on various issues including
the one relating to limitation.
During the pendency of the second appeal filed by the
petitioners, respondent No.2 applied for amendment of the plaint
and claimed that he was entitled to relief as co-sharer of thesuit property. The learned Single Judge vide his judgment dated
22.5.1986 allowed the second appeal and rejected the application
made by respondent No.2 for amendment of the plaint.
This Court reversed the judgment of the learned Single
Judge, granted leave to respondent No.2 to amend the plaint and
remanded the matter to the High Court for fresh disposal of the
second appeal - Bakshish Singh v. Prithi Pal Singh 1995 Supp. (3)
SCC 577.
After remand the learned Single Judge reconsidered the
second appeal and dismissed the same. The learned Single Judge
extensively dealt with the question whether the amendment made in
the plaint would relate back to the date of institution of the
suit or the same will be treated as effective from the date of
this Court's order and held:
"The admitted facts now stand that the plaintiff
and vendor are the co-sharers. The fate of the present
appeal hinges upon the question "whether the amendment
allowed by the Apex Court vide its judgment dated
10.11.1994 will operate from the date of the order or is
deemed to have been incorporated as a part of the plaint
from the date of the institution of the suit. If the
amendment is considered to be part of the plaint from the
date of institution of the suit, the plaintiff is bound to
succeed, otherwise the suit shall fail if the amendment is
found to become operative from the date of the order of the
Apex Court allowing amendment. It is settled principle of
law that at that time of consideration of the plea of
amendment, the court is not required to go into the
question of merits of the amendment sought. A party seeking
the amendment may ultimately succeed or fail on the basis
of the amendment is not the relevant consideration at the
time the plea of amendment is to be considered. Only
consideration at the time is whether such an amendment is
necessary, relevant and relate to the controversy involved
in the lis. Hon'ble Supreme Court by allowing the amendment
of the plaint vide its order dated 10.11.1994 observed that
the amendment should have been allowed, on the basis of the
admitted facts. Whether the suit is barred by limitation or
is within limitation, all depends upon the effective date
of amendment. Mr. Goel, learned Counsel for the appellants
has referred to the judgment passed in the case of Tarlok
Singh vs Vijay Kumar Sabharwal 1996 PLJ 237. In this case,
the parties had entered into an agreement to sell. A suit
for perpetual injunction was instituted on 23.12.1987.
During the pendency of the suit, an application under Order
6 Rule 17 CPC came to be filed on 17.7.1989 for converting
the suit for injunction into the one for specific
performance of agreement dated 18.8.1984. The amendment was
allowed on 25.8.1989. A plea was raised that the suit for
specific performance is barred by limitation. This plea was
considered by the Apex Court wherein following observations
have been made:
"6. Shri Prem Malhotra, learned Counsel for the
respondents contended that since the respondent had
refused performance the suit must be deemed to have been
filed on December 23, 1987 and, therefore, when the
amendment was allowed, it would relate back to the date
of filing the suit which was filed within three years
from the date of the refusal. Accordingly, the suit is
not barred by limitation. Shri U.R. Lalit, learned
senior counsel for the appellant, contended that in view
of the liberty given by the High Court the appellant is
entitled to raise the plea of limitation. The suit filed
after expiry of 3 years from 1986 is barred by
limitation. The question is as to when the limitation
began to run? In view of the admitted position that the
contract was to be performed within 15 days after the
injunction was vacated, the limitation began to run on
April 6, 1986. In view of the position that the suit for
perpetual injunction was converted into one for specific
performance by order dated August 25, 1989, the suit
must be deemed to have been instituted on August 25,
1989 and the suit was clearly barred by limitation. We
find force in the stand of the appellant. We think that
parties had, by agreement, determined the date for
performance of the contract. Thereby limitation began to
run from April 6, 1986. Suit merely for injunction laid
on December 23, 1987 would not be of any avail nor the
limitation began to run from that date. Suit for
perpetual injunction is different from suit for specific
performance. The suit for specific performance in fact
was claimed by way of amendment application filed under
Order 6 Rule 17 CPC on September 12, 1979. It will
operate only on the application being ordered. Since the
amendment was ordered on August 25, 1989 the crucial
date would be the date on which the amendment was
ordered, by which date, admittedly, the suit is barred
by limitation. The courts below, therefore, were not
right in decreeing the suit."
In the case of Sampath Kumar vs Ayyakannu and Anr.,
2002 (3) Civil Court Cases 364 (S.C.) initially, a suit for
prohibitory injunction was filed in the year 1988 claiming
possession of the suit property. Later in the year 1989, an
application under Order VI Rule 17 CPC was made for
conversion of the suit into one for declaration of title of
the suit property and consequential relief of delivery of
possession alleging that during the pendency of the suit,
defendant dispossessed the plaintiff in January 1989. The
amendment was refused. However, in appeal before the
Hon'ble Apex Court, the conditional amendment was allowed.
The Hon'ble Apex Court observed as under:
"11. 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,
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.
xxx xxx xxx xxx
13. The prayer for declaration of title and recovery of
possession shall be deemed to have been made on the date
on which the application for amendment was filed."
From the ratio of the aforesaid judgments, following points
emerge:
(a) 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;
(b) The dominant purpose of the amendment is to
minimize the litigation;
(c) The amendment once allowed and incorporated relates
back to the date of the initial institution of the
suit;
(d) The Court, however, in appropriate case may
restrict the application of doctrine of relation
back and permit the application of the amendment
from the date the amendment is allowed.
This principle has been enunciated by the Hon'ble
Apex Court in the case of Siddalingamma and another Vs
Mamtha Shenoy (2001) 8 Supreme Court Cases 561, wherein the
Court observed:
"10. On the doctrine of relation back, which generally
governs amendment of pleadings unless for reasons the
court excludes the applicability of the doctrine in a
given case, the petition for eviction as amended could
be deemed to have been filed originally as such and the
evidence shall have to be appreciated in the light ofthe averments made in the amended petition." (Emphasis
supplied)
Mr. C.B. Goel, learned Counsel has strenuously
argued that the amendment in the present case should be
treated to have effected only from 10.11.1994 and the suit
for pre-emption is deemed to have been instituted on the
said date on the ground of the plaintiff being co-sharer.
His precise contention is that the suit for pre-emption
filed in the year 1994 under Clause "fourthly" Section
15(1)(b) is barred by time having been filed beyond one
year from the date of the sale in question. The appreciate
this contention, the sole question is whether a new relief
has been introduced way of amendment. In the case of Tarlok
Singh (supra), initially, the suit was for permanent
prohibitory injunction. However, by way of amendment, a new
relief of specific performance was introduced which was
held to be barred by time as the cause of action for the
relief of specific performance had accrued to the plaintiff
in the said case from the date of the execution of the
agreement to sell dated 21.12.1984. Relief of specific
performance was introduced in the year 1989 which was
admittedly beyond three years from the date cause of action
accrued. I have already extracted the relevant observations
of the Hon'ble Supreme Court in regard to the amendment.
Applying the test to the fact of the present case, the plea
of Mr. Goel is not sustainable. In the instant case, it was
a suit for pre-emption from the initial day. Initially, the
ground for seeking relief was that the plaintiff is the
brother of the vendor-defendant. This was one of the
grounds available under law by virtue of Clause "secondly"
of Section 15(1) of the Act. This provision has, however,
come to be struck down by the Supreme Court in the case of
Atam Parkash (supra). The plaintiff by asking for amendment
sought to introduce an additional ground on the plea that
besides being the brother, he is also a co-sharer in the
suit land. As observed by the Hon'ble Supreme Court, and is
evident from the judgment impugned as also the report of
the trial Court dated 7.3.2006, there is sufficient
material/evidence already on record i.e. prior to the
introduction of the amendment to establish that the
plaintiff is the co-sharer with the defendant-vendor.
Through the amendment only, a new ground has been
incorporated and not the new relief. Since the suit seeking
the relief of pre-emption was instituted with the time, by
introduction of a new ground to support the relief, thesuit cannot become time barred. In the present case, the
doctrine of relation back of the amendment has to apply as
no new or fresh relief has been incorporated. Apart from
above, there is another reason to decline the prayer of the
appellants.
It is settled law as is evident from the ratio
of the judgment in the case of Siddalingamma (supra), that
the court in appropriate case while allowing the amendment,
may restrict the application of doctrine of relation back
and permit the amendment from the date of the amendment. In
the present case, the order of the Apex Court dated
10.11.1994 is clear and unambiguous in its terms. No such
restriction has been imposed. To the contrary, the
amendment rejected by this Court has been allowed primarily
on the ground that the amendment is based upon admitted
facts on record. I am of the considered view that the
intention of the Apex Court in allowing the amendment
was/is to apply the amendment without excluding the
doctrine or relation back which normally and generally
governs the amendment of pleadings."
(underlining is ours)
(reproduced from the SLP paper book)
Shri P.S. Patwalia, learned senior counsel appearing for thepetitioners argued that even though this Court granted leave to
respondents No.2 to amend the plaint, the learned Single Judge
should have dismissed the second appeal as barred by time because
the amendment was filed much after expiry of the limitation. He
further argued that while dismissing the second appeal, the
learned Single Judge did not consider the amendment made in
Section 15 of the Act by Haryana Amendment Act No.10 of 1995 and
on this ground alone the impugned judgment is liable to be set
aside.
In our opinion, there is no merit in the submissions of thelearned counsel. A reading of the order passed by this Court
shows that the application for amendment filed by respondent No.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.
The argument of the learned counsel that the suit could not
be decreed in view of the Haryana Amendment Act No.10 of 1995
does not require consideration because no such plea was argued
before the High Court and we do not find any valid ground to
allow the petitioners to raise such plea for the first time.
With the above observations, the special leave petition is
dismissed.
[SUMAN WADHWA] [PHOOLAN WATI ARORA]
COURT MASTER COURT MASTER
