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2000 DIGILAW 422 (DEL)

NILAM GUPTA v. SHEELA DEVI

2000-05-15

B.K.RAMAMOORTHY

body2000
K. Ramamoorthy ( 1 ) THE petitioner in this revision petition was impleaded as the second defendant in the suit by virtue of order passed by this Court on the 3rd of April, 1995 in C. R. 82/93. The respondents 1 and 2 (plaintiffs 1 and 2) thereafter, on the 22nd of September, 1995, presented an application for amendment of the plaint seeking to challenge the sale in favour of the petitioner. That amendment application was allowed and the petitioner has challenged this in this revision petition. ( 2 ) A few facts necessary for the appreciation of the question involved in the revision petition have to be stated. ( 3 ) ON the 24th of December, 1991, the petitioner purchased the Shop No. 143/ 2b from the third respondent who was the sole defendant in the suit when it was originally instituted. The sale deed was duly registered on the 7th of January, 1992. On the 14th of July, 1992, the petitioner entered into an agreement with the third respondent for the purchase of Shop No. 143/2b and the consideration of Rs. 1. 00 lakh was paid. According to the petitioner, respondents 1 and 2 are the tenants in the premises. Earlier both the shops were one and later on they were divided into two shops. . ( 4 ) ON the 10th of July, 1992, respondents 1 and 2 presented the plaint in the lower Court for the following reliefs: "in view of the above submissions, it is respectfully prayed that this Hon ble Court be pleased: (a) to pass a decree of specific performance of agreement to sell property/ Shop No. 143 /2, Gadodia Market, Khari Baoli in favour of the plaintiffs and against the defendant and defendant be directed to execute the sale deed of the suit property/shop in favour of the plaintiffs and in the event of its failing to do so a Commissioner may kindly be appointed under the provisions of Order 21, Rule 32, Civil Procedure Code to execute the sale deed in favour of the plaintiffs in respect of property bearing No. 143/2, Gadodia Market, Khari Baoli, Delhi in terms of the agreement to sell dated 18. 4. 4. 1992 and get the sale deed registered in the office of the Sub- Registrar, Delhi; (b) to pass a decree of prepetual injunction in favour of the plaintiffs and against the defendant restraining the defendant, from transferring, alienating, entering into agreement of sale, disturbing the peaceful possession of the plaintiffs of the suit property/shop No. 143/2, Gadodia Market, Khari Baoli, Delhi. " ( 5 ) ACCORDING to the respondents 1 and 2, they had entered into an agreement for sale with the third respondent on the 18th of February, 1992. On the 23rd of July, 1992, the third respondent, as the sole defendant, filed his written statement, wherein he stated: "the plaintiffs are guilty of suppression of material facts from this Hon ble Court. The plaintiffs have suppressed from the Hon ble Court a fact that they had sublet the tenancy premises to two different tenants by partitioning the premises into two portions. The plaintiffs have also suppressed from this Hon ble Court that one of the portions, i. e. No. 143/2a, Gadodia Market, Khari Baoli, Delhi has been sub-let out to M/s. Sudhir Trading Co. while the other one, i. e. No. 143/2b, Gadodia Market, Khari Baoli, Delhi has been sub let to M/s. Kirpa Ram Kedar Nath. The plaintiffs have also suppressed a fact from this Hon ble Court that the defendants have already sold one portion of the property in question, i. e. the property No. 143/2a, Gadodia Market, Khari Baoli, Delhi to Smt. Neelam Gupta w/o Shri Sanjay Gupta on 24. 12. 1991 vide sale deed duly registered Sl. No. 139 Book No. 1, Vol. 5628 pages 86 to 93 dated 7. 1. 1992 for a sum of Rs. 1,00,000. 00 (Rupees one lac) after obtaining permission from the Competent Authority under the Urban Land Ceiling Act. All these facts are fully in the knowledge of the plaintiffs. It is submitted that the plaintiffs have deliberately suppressed these facts from this Hon ble Court with a view to mislead this Hon ble Court. It is submitted that the plaintiffs have devised a novel way of preventing the defendant to dispose of their property so that the plaintiffs continue to drive unlawful gains from the subtenants. " ( 6 ) ON the 12th of August, 1992, the petitioner filed an application in the lower Court to implead herself as a party/defendant in the case. It is submitted that the plaintiffs have devised a novel way of preventing the defendant to dispose of their property so that the plaintiffs continue to drive unlawful gains from the subtenants. " ( 6 ) ON the 12th of August, 1992, the petitioner filed an application in the lower Court to implead herself as a party/defendant in the case. In paragraph 2 of the application, it was stated: "that the applicant has already purchased one portion of the property in question, i. e. property No. 143/2a, Gadodia Market, Khari Baoli, Delhi from the defendant videszde deed dated 24. 12. 1991 which was duly registered in the office of the Sub-Registrar at Delhi vide Serial No. 139 Addl. Book No. I, Volume No. 5626 at pages 86 to 93 dated 7. 1. 1992 for a sum of Rs. 1,00,000. 00 As such, the plaintiffs and the defendant have no concern whatsoever with the said property already purchased by the applicant from the defendant and no suit of specific performance is maintainable under law in respect of the said property. "the petitioner has clearly mentioned about the registration of the sale deed in respect of Shop No. 143/2a on the 7th of January, 1992. With reference to the other portion 143/2b, the petitioner stated in the amended petition: "that further more the applicant entered into an agreement dated 4. 7. 1992 with the defendant for the purchase of the property of other portion of the property in question, i. e. portion No. 143/2b, Gadodia Market, Khari Baoli, Delhi and the applicant paid full consideration amount of Rs. 1,00,000. 00 to the defendant by means of crossed cheque dated 1. 7. 1992. However, the applica- tion for permission to sell the said portion of the property has been pending before the Competent Authority under the Urban Land Ceiling Act. As such, the plaintiff and the defendant have no concern whatsoever with the said portion of the property for which agreement to sell has been executed between the applicant and the defendant and the consideration amount has already been paid by the applicant to the defendant and only sale deed has to be executed by the defendant in favour of the applicant after getting the permission from the said Competent Authority. " ( 7 ) THE respondents 1 and 2 opposed the application filed by the petitioner for impleading herself as a party/defendant. " ( 7 ) THE respondents 1 and 2 opposed the application filed by the petitioner for impleading herself as a party/defendant. The third respondent (sole defendant) consented to the application being allowed. ( 8 ) ON the 8th of September, 1992 the learned Additional District Judge passed an order dismissing the application. The learned Additional District Judge observed : "this suit has been filed by the plaintiff for specific performance of agreement to sell, alleged to have been executed by the defendant in favour of the plaintiff in respect of property No. 143/2, Gadodia Market, Khari Baoli, Delhi. In the application under Order 1, Rule 10, Civil Procedure Code, it has nowhere been pleaded that properties Nos. l43/2 A and l43/2b are the same properties, i. e. property No. 143/2 as pleaded by the plaintiff in the plaint. Prima facie, alleged document, on the basis of which the applicant claims to be impleaded to not appearing to be in respect of the property involved in the present suit. Counsel for the plaintiff has also drawn my attention to the copy of eviction petition filed by the defendant against the present plaintiffs wherein it has been shown that the property in occupation of the plaintiff as a tenant was bearing No. 143/ 2, Gadodia Market, Khari Baoli, Delhi. In view of the above, applicant has failed to establish any right or interest to be impleaded either as necessary or as a proper party to the present suit. Application is dismissed. "the learned Additional District Judge accepted the case of the respondents 1 and 2. ( 9 ) RESPONDENTS 1 and 2, by opposing the application for impleadment, effectively prevented the petitioner from taking part in the proceedings. The petitioner preferred the revision petition being C. R. 82/93, which was allowed by this Court on the 13 th of May, 1995 and the order reads as under: "this revision petition is filed against the order dated 8th September, 1992, whereby the petitioner s application under Order I, Rule 10, Civil Procedure Code was dismissed by the Trial Court. I have heard learned Counsel for the parties. In the peculiar facts and circumstances of this case, the petitioner is impleaded as defendant in the suit. The revision petition is accordingly allowed and disposed of. Parties be directed to appear before the Trial Court on 17th April, 1995. I have heard learned Counsel for the parties. In the peculiar facts and circumstances of this case, the petitioner is impleaded as defendant in the suit. The revision petition is accordingly allowed and disposed of. Parties be directed to appear before the Trial Court on 17th April, 1995. " ( 10 ) ON the 22nd of September, 1995, as noticed above, respondents 1 and 2 filed an application under Order VI, Rule 17 for the amendment of the plaint seeking to add paragraphs 13 (a) and 13 (b) in the plaint and seeking amendment in the relief portion of the plaint. The proposed paragraphs 13 (a) and 13 (b) would read as under: "that alleged sale deed dated 24. 12. 1991 registered in the office of Sub-Registrar at Delhi vide document Sl. No. 139 Addl. Book No. 1, Volume No. 5636 on pages 86 to 93 dated 7. 1. 1992 is null and void and is the result of conspiracy in between the defendants. So much so, the defendant No. 1 in the Eviction Petition No. E-20/89 filed against the plaintiff and also against M/s. Sudhir Trading Corporation of which family members of the defendant No. 2 have been partners which came up for hearing before the learned Additional Rent Controller Delhi on 2. 4. 1992, the present defendant No. 1 (petitioner in Eviction Case No. E-20/89) had admitted to be the owner of suit property No. 143/2, Gadodia Market, Khari Baoli, Delhi. M/s. Sudhir Trading Corporation, namely firm of defendant No. 2 to be a tenant in a portion of the suit property. From the judicial order dated 2. 4. 1992 passed in Eviction Case No. 20/89, in between the parties to the present proceedings, it is evident that defendant No. 1 admittedly the defendant No. 2 (her family members partnership business) was a tenant in the suit property, therefore, the alleged sale deed dated 24. 12. 1991 is the result of collusion and conspiracy in between the defendants. The relationship in between the defendant, inter se stand resjudicata under the order dated 2. 4. 1992 passed in Eviction Case No. 20/89 and the defendant No. 2 cannot claim any interest or right to the suit property prior to the said dated of 2. 4. 1992 and, therefore, the agreement of sale dated 18. 4. 1992 arrived in between the plaintiff and defendant No. 1 is enforceable in law. 4. 1992 passed in Eviction Case No. 20/89 and the defendant No. 2 cannot claim any interest or right to the suit property prior to the said dated of 2. 4. 1992 and, therefore, the agreement of sale dated 18. 4. 1992 arrived in between the plaintiff and defendant No. 1 is enforceable in law. " ( 11 ) THE petitioner filed her reply to the application for amendment on the 18th of October, 1995. It was submitted, inter alia, that the plaintiffs filed application on the 22nd of September, 1995 and the relief asked for by the plaintiffs on the date of the application was barred by limitation, and therefore, the plaintiffs cannot ask for the amendment. ( 12 ) ON the 20th of November, 1995, the learned Additional District Judge allowed the application. The learned Additional District Judge said : "in the present case, original suit was filed on 14. 7. 1992 for specific performance against the defendant No. 1 and the defendant No. 1 filed the WS on 23. 7. 1992 in which it was specifically mentioned that one of the portion, i. e. No. 143/2, Gadodia Market, Khari Baoli, Delhi was sold to Neelam Gupta w/o Sanjay Gupta on 24. 12. 1991 by the sale deed duly registered at No. 1 Vol. No. 5628, pages 86 to 93 dated 7. 1. 1992 for a sum of Rs. 1. 00 lac after obtaining the permission from the Competent Authority under Land Ceiling Act. It came to the knowledge of the plaintiff on 23. 7. 1992. Present application has been filed on 16. 5. 1995. It has been argued by the Counsel for plaintiff that the defendants were not allowed to become party by the Trial Court the then ADJ. They were permitted to become party by the Hon ble High Court in revision on 4. 5. 1994 and the cause of action arose to the plaintiff for the present amendment even from the date of impleading of defendant No. 2 in the present suit. "the learned Additional District Judge assumed that the application for amendment was presented on the 16th of May, 1995. It was further observed by the learned Additional District Judge: "it is pertinent to mention that the defendant No. 2 moved an application for " impleading him as defendant No. 2 as part of the suit property was sold to defendant No. 2. It was further observed by the learned Additional District Judge: "it is pertinent to mention that the defendant No. 2 moved an application for " impleading him as defendant No. 2 as part of the suit property was sold to defendant No. 2. So under the circumstances, it is necessary to give a chance to plaintiff to challenge the sale deed executed in favour of defendant No. 2 as it was the only basis for permitting the defendant No. 2 to implead in the present suit. Secondly, the case of plaintiff is that it was only on 23. 7. 1992 with regard to sale of part of suit property. "the learned Additional District Judge thought that the application having been presented on the 16th of May, 1995, was within three years from 23. 7. 1992 and it was in time. ( 13 ) THE petitioner on the 6th of December, 1995 filed an application for review of the order dated 20. 11. 1999. The basis of the review petition was when the plaintiff instituted the suit on the 10th of July, 1992, the plaintiffs in the review application had referred to the sale deed and the defendant (third respondent herein) had mentioned in his written statement dated 23. 7. 1992 about the sale and the applica- tion for amendment was presented only on the 22nd of September, 1995 and respondents 1 and 2 (plaintiffs) had mislead the Court into thinking that the application for amendment was\presented on the 16th of May, 1995 and therefore, the order was liable to be reviewed. ( 14 ) ON the 5th of March,1997, the plaintiffs (respondents 1and 2)filed the reply to the review application filed by the petitioner stating: - "that the present application is also hit by the provision of Article 56 of the Limitation Act which provide a period of three years for filing the suit for declaration of the forgery of an instrument from the date when the execution or registration known to the plaintiff. As admitted by defendant No. 2/ applicant that for the first time the defendant No. 1 in the written statement filed on 23. 7. 1992, the defendant No. 1 disclosed that he had sold the portion of the suit property in favour of defendant No. 2 by a registered document, therefore, it came to the knowledge of the plaintiff for the first time on 23. 7. 7. 1992, the defendant No. 1 disclosed that he had sold the portion of the suit property in favour of defendant No. 2 by a registered document, therefore, it came to the knowledge of the plaintiff for the first time on 23. 7. 1992 of the registration of the documents by defendant No. 1 in favour of defendant No. 2 in respect of which declaration is sought in the present suit and such application for amendment of seeking declaration that the said registered document is forged document and is null and void was moved by the plaintiff on 16. 5. 1995, i. e. within a period of three years from the date of knowledge, therefore, the application for amendment is rightly allowed as observed by the Hon ble Court in para No. 5 of the order under review. "the plaintiffs deliberately referred to only the date 23. 7. 1992 when the third respondent filed the written statement without making any reference to the statement in the plaint which was instituted on the 10th of July, 1992. It was further stated in the reply to the application: "as submitted above, in terms of Article 56 of the Limitation Act a suit for declaration can be filed within three years to get a document declared null and void from the date when execution or registration becomes known to the plaintiff and since for the first time it was on 23. 7. 1992 that execution of the sale deed came to the knowledge of the plaintiff, therefore, the application dated 16. 5. 1995 for seeking a declaration and amendment of the plaint was within the prescribed period of limitation in terms of Article 56 of the Limitation Act. The defendant No. 2 has mis-construed the provision of law and the present application is an abuse of the judicial process. "it was further stated: "it is not disputed that the plaintiff moved an application under Order VI, Rule 17, Civil Procedure Code, for the amendment of plaint incorporating the relief of declaration and such application undisputedly was moved on 16. 5. 1995 within the period of three years from the date of knowledge of the forgery of the document executed by defendant No. 1 in favour of defendant No. 2 and the Hon ble Court has rightly allowed the application of the plaintiff. 5. 1995 within the period of three years from the date of knowledge of the forgery of the document executed by defendant No. 1 in favour of defendant No. 2 and the Hon ble Court has rightly allowed the application of the plaintiff. "it was asserted by the plaintiffs that the application for amendment was instituted on the 16th of May, 1995, which is not a correct statement. The respondents 1 and 2 submitted that no case had been made out of review of the order dated 20. 11. 1995. ( 15 ) ON the 5th of April, 1997, the learned Additional District Judge allowed the application for review filed by the petitioner. In that order, the learned Additional District Judge said: "i have heard learned Counsel for parties and have gone through the order. As per order, in para 5 it has been held that it came to the knowledge to the plaintiff on 23. 7. 1992 and present application was filed on 16. 5. 1995. 1 have perused the file. Evidently the application bears the date of 16. 5. 1995 but it was filed in the Court on 22. 5. 1995 as per the record. The stamp put on the application bears the date 22. 9. 1995 althoughthe affidavit is of 16th May, 1995. This error apparent on the face of follower which was one of the ground for allowing the application and holding the application within limitation. Thus, keeping in view the judgment relied by the defendant above the order deserves to be reviewed as there is error apparent on the face of it. The judgment mentioned by the Counsel for plaintiff are not applicable to the facts of the case as in the present case there is error application of law nor there is mere error of act and the order is contrary to the dates available on the file. Keeping in view the application is allowed and order dated 20. 11. 1995 is recalled. " ( 16 ) THE petitioner filed the C. R. 460/97 and respondents 1 and 2 filed C. R. 794/ 97. This Court, by order dated 14. 9. 1999, disposed of the revision petitions directing the lower Court to consider the application for amendment on the merits. 11. 1995 is recalled. " ( 16 ) THE petitioner filed the C. R. 460/97 and respondents 1 and 2 filed C. R. 794/ 97. This Court, by order dated 14. 9. 1999, disposed of the revision petitions directing the lower Court to consider the application for amendment on the merits. ( 17 ) SUBSEQUENTLY, on the 13th of October, 1999, respondents 1 and 2 an application purporting to be under Section 5 of the Limitation Act, 1963 praying for the following reliefs: "it is, therefore, respectfully prayed that the delay, if any, in moving the application under Order VI, Rule 17, Civil Procedure Code dated 16. 5. 1995 may kindly be condoned in the interest of justice. "even now the respondents 1 and 2 maintained that the application for amendment was presented on the 16th of May, 1995. What is stated in paragraph 3 of the application is: "that the plaintiff got their application under Order VI, Rule 17, Civil Procedure Code supported by a duly attested affidavit dated 16. 5. 1995 along with the amended plaint. However, the proceedings of the above suit stood stayed for 11. 2. 1993 to 17. 4. 1995 and by that time the file had been transferred to the Court of Sub Judge, Delhi under mistaken view of law and it came up for hearing before Sub Judge on 17. 4. 1995, on which date case was adjourned to 18. 5. 1995, on which the learned Sub Judge has found that it had no jurisdiction to entertain the matter and, therefore, the learned Sub Judge who had earlier on 17. 4. 1995 had directed to file an amended plaint, did not accept the amended plaint and application on the ground that it has no jurisdiction and adjourned the matter for further proceedings on 3. 7. 1995 on which date the case was placed before the learned District Judge, Delhi, and on the same date the file of the suit came up before the learned predecessor of this Court at2 p. m. on 18. 7. 1995 and since none of the parties were present, the case was adjourned to 20. 7. 1995 and it was directed that the notice be sent for 4. 8. 1995 and again on 4. 8. 1995 it was directed that the notice be sent for 22. 9. 7. 1995 and since none of the parties were present, the case was adjourned to 20. 7. 1995 and it was directed that the notice be sent for 4. 8. 1995 and again on 4. 8. 1995 it was directed that the notice be sent for 22. 9. 1995, on which date the application for amendment of the plaint duly attested by the Oath Commissioner on 16. 5. 1995 was filed which was the first hearing on the suit after transfer and there was no delay in moving the application for amendment. " ( 18 ) ON the 26th of October, 1999, the petitioner filed her reply. ( 19 ) ON the 13th of October, 1999, the learned Additional District Judge allowed the application for condoning the delay and also the application for amendment. That is challenged by the petitioner in this revision petition. ( 20 ) THE learned Counsel for the petitioner, Mr. R. M. Bagai, submitted that the learned Additional District Judge had completely ignored the principles applicable to the consideration of application for amendment of the pleadings. The learned Counsel submitted that on the 10th of July, 1992, when the suit was instituted, in paragraph 9 of the plaint, it is stated : "that in terms of the agreement dated 18. 4. 1992, the defendant was to execute the sale deed in favour of the plaintiffs on or before 3. 7. 1992. However, the defendant did not execute the sale deed by stipulated period, therefore/the attorney of the plaintiffs called upon Shri Tej Pal Gadodia, Director of the defendant company on 30. 6. 1992 and requested for the execution of the sale deed in terms of the agreement dated 18. 4. 1992. He assured the attorney of the plaintiffs that steps for the execution of the sale deed are being taken and the sale deed would be got executed in favour of the plaintiffs by middle of July, 1992. That while the plaintiffs were eagerly awaiting for the execution of the sale deed in their favour, as assured by the Director of the defendant company, to their shock and surprise when they were informed on 9. 7. That while the plaintiffs were eagerly awaiting for the execution of the sale deed in their favour, as assured by the Director of the defendant company, to their shock and surprise when they were informed on 9. 7. 1992 by Shri Gauri Shanker that the defendant had applied for permission for the sale of the part of the suit property/shop No. 143/2, Gadodia Market, Khari Baoli, Delhi in favour of Smt. Neelam Gupta before the Competent Authority under the Urban Land and Ceiling Act. "therefore, the plaintiffs were well aware of the sale in favour of the petitioner. If the respondents 1 and 2 wanted to challenge the sale deed by seeking a declaration they should have done it within three years from that date, namely, 10. 7. 1992, and the application for amendment was presented on the 22nd of September, 1995, and, therefore, the relief prayed for by the plaintiffs was barred by virtue of the provisions in the Limitation Act, 1963, and therefore, the plaintiffs cannot seek for a declaration which they seek for in paragraphs 13 (a), 13 (b) of the application for amendment and also in the relief portion of the proposed amended plaint. The learned Counsel submitted that the plaintiffs deliberately projected a false case that the application for amendment was presented on the 16th of May, 1995 and it is quite ununderstandable as to how the plaintiffs could pray for condonation of delay in filing the suit, as it were, by seeking the relief of condonation of delay in filing the application for amendment, and how the plaintiff could file an application on the 13th of October, 1999. The learned Counsel submitted that the learned Additional District Judge had not had the hang of the facts or the principles involved and had erroneously ordered the application for condonation of delay and allowed the application for amendment. ( 21 ) THE learned Senior Counsel for the respondents 1 and 2, Mr. J. K. Seth, submitted that the learned Additional District Judge was correct in passing the order in condoning the delay and allowing the amendment. The learned Senior Counsel submitted that the application for amendment was dated 16. 5. 1995 and the proceedings in the suit stood stayed between 17. 11. 1994 to 7. 2. J. K. Seth, submitted that the learned Additional District Judge was correct in passing the order in condoning the delay and allowing the amendment. The learned Senior Counsel submitted that the application for amendment was dated 16. 5. 1995 and the proceedings in the suit stood stayed between 17. 11. 1994 to 7. 2. 1995 and they came up before the Court on the 7th of April, 1995, and it was further adjourned to 18th of May, 1995 and the learned Subordinate Judge found that he had no jurisdiction to entertain the matter and on the 17th of April, 1995 did not accept the amended plaint. ( 22 ) CURIOUS reasoning is given in the application for condonation of delay filed on the 13th of October, 1999, which is not mentioned anywhere and the plaintiffs still maintained that the application for amendment was presented on the 16th of May,1995. ( 23 ) THE learned Senior Counsel for the respondents, Mr. J. K. Seth, referred to the judgment of the Supreme Court in Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon, AIR 1969 SC 1267 , for the proposition that if there are no mala fides in the application for amendment or condoning the delay, the Court has to exercise his discretion judiciously and has to allow the same. The facts culminating in the filing of the appeal before the Supreme Court are: "on March 11,1950, Manohar Lal s/o Jai Jai Ram commenced an action in the Court of the Subordinate Judge, Nainital, for a decree for Rs. 10,139. 12 being the value of timber supplied to the defendant-the National Building Material Supply, Gurgaon. The action was instituted in the name of "jai Jai Ram Manohar Lal" which was the name in which the business was carried on. The plaintiff Manohar Lal subscribed his signature at the foot of the plaint as "jai Jai Ram Manohar Lal, by the pen of Manohar Lal", and the plaint was also similarly verified. The defendant by its written statement contended that the plaintiff was an unregistered firm and on that account incompetent to sue. On July 18,1952, the plaintiff applied for leave to amend the plaint. Manohar Lal stated that "the business name of the plaintiff is Jai Jai Ram Manohar Lal and therein Manohar Lal the owner and proprietor is clearly shown and named. On July 18,1952, the plaintiff applied for leave to amend the plaint. Manohar Lal stated that "the business name of the plaintiff is Jai Jai Ram Manohar Lal and therein Manohar Lal the owner and proprietor is clearly shown and named. It is a joint Hindu family business and the defendant and all knew it that Manohar Lal whose name is there alongwith the father s name is the proprietor of it. The name is not an assumed or fictitious one". The plaintiff on those averments applied for leave to describe himself in the cause title as. "manohar Lal proprietor of Jai Jai Ram Manohar Lal" and in paragraph 1 to state that he carried on the business in timber in the name of Jai Jai Ram Manohar Lal. Apparently no reply was filed to this application by the defendant. The Subordinate Judge granted leave to amend the plaint. He observed that there was no doubt that the real plaintiff was Manohar Lal himself, that it was Manohar Lal who intended to file and did in fact file the action, and that the "amendment was intended to bring what in effect had been done in conformity with what in fact should have been done". The defendant then filed a supplementary written statement raising two additional contentions (1) that Manohar Law was not the sole owner of the business and that his other brothers were also the owners of the business, and (2) that in any event the amendment became effective from July 18,1952, and on that account the suit was barred by the law of limitation. The Trial Judge decreed the claim for Rs. 6,568. 63. Against that decree an appeal was preferred to the High Court of Allahabad. The High Court being of the view that the action was instituted in the name of a "non-existing person" and Manohar Lal having failed to aver in the application for amend- ment that the action was instituted in the name of "jai Jai Ram Manohar Lal" on account of some bonafide mistake or omission, the Subordinate Judge was incompetent to grant leave to amend the plaint. The High Court after making an extensive quotation from the judgment of this Court in Purushottam Umedblvi and Co. The High Court after making an extensive quotation from the judgment of this Court in Purushottam Umedblvi and Co. v. Messrs Manila and Sons, 1961 (1) SCR982= air 1961 SC 325 , observed that the action could not be instituted by the plaintiff in the business name; it should have been instituted in the name of the Karta of the Hindu undivided family in his representative capacity or else all the members of the joint family must join as plaintiffs. The Court then observed: the suit instituted by the joint Hindu family business in the name of an assumed business title was a suit by a person, who did not exist and was, therefore, a nullity. Hence there could be no amendment of the description of such a plaintiff who did not exist in the eye of law. The Court below was in obvious error in thinking otherwise and allowing the name of Manohar Lal to be added as proprietor of the original plaintiff Jai Jai Ram Manohar Lal, which was neither a legal entity nor an existing person who could have validly instituted the suit. the High Court was also of the opinion that the substitution of the name of ManoharLal as a plaintiff during the pendency of the action took effect from July 18,1952, and the action must be deemed to be instituted on that date; the amendment could not take effect retrospectively and on the date of the amendment the action was barred by the law of limitation. The plaintiff has appeared to this Court with special leave. " The Supreme Court observed: "rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Court always gives leave to amend the pleading of a party, unless it is satisfied , that the party applying was acting malafide, or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs. However, negligent or careless may have been the first omission, and, however, late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side. However, negligent or careless may have been the first omission, and, however, late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side. "the Supreme Court said : "since the name in which the action was instituted was merely a misdescription of the original plaintiff, no question of limitation arises; the plaint must be deemed on amendment to have been instituted in the name of the real plaintiff on the date on which it was originally instituted. In our view, the order passed by the Trial Court in granting the amendment was clearly right, and the High Court was in error in dismissing the suit on a technicality wholly unrelated to the merits of the dispute. "i fail to see how this is of any help to the plaintiffs. ( 24 ) THE learned Senior Counsel referred to the judgment in Jawaharlal Mamtani v. Bhagchand Motumal Mamtani and Another, ILR 1981 Delhi 1, wherein a Division Bench of this Court had to decide the following question referred to it for its decision: "whether the Court while allowing an amendment under Order 6, Rule 17 of the Code of Civil Procedure, order that the amendment shall take effect from the date of the application for amendment and not from the date of the institution of the suit ?"the learned Acting Chief Justice said: "i am in entire agreement with the learned Counsel for the respondents that the Court in considering an application for amendment is not allowed to act in the vacuum and must exercise its power by adopting all the rules of judicial discretion. The power, however, cannot be restricted to only a power to award costs. In appropriate cases keeping the plea of limitation in view or other similar aspects in view, the Court may well put the plaintiff or the defendant, whoever is seeking amendment, to such terms as may be just including laying down that the amendment will be effective only from a particular date. To take any other view would amount to restricting the language and importing into it a meaning which the legislature did not intend to give. To take any other view would amount to restricting the language and importing into it a meaning which the legislature did not intend to give. "s. Ranganathan, J. (as his Lordship then was), concurring with the view taken by the Acting Chief Justice, said : "but it seems to me that the mere fact that the general and normal rule has been followed in most of the cases is not sufficient to draw the inference that the Court can direct an amendment only on those terms or not at all. My Lord has referred to an early Calcutta decision which indicates to the contrary and there are more explicit recent rulings. That apart, the powers of the Court in this regard are derived from the language of Order 6, Rule 17. The complexities of cases arid the circumstances in which amendments are sought are so varied that it may not be advisable to restrict the scope of the above provision which has been expressed in very wide language to enable the Court to pass an order of amendment on such terms as it thinks just in the circumstances of a case. It is not possible to conceive of the various circumstances in which it will be equitable or necessary to impose a term that the amendment would be effective only from the date of application. The fact that the claim sought to be put in by way of amendment has since become barred by time may not, by itself, be considered sufficient to make the amendment prospective and if that be the solitary ground, the Court perhaps may, as has been done during the past several years, either decline the amendment or allow it to have the normal effect. But the Court, in my opinion, has and should have the power to look at all the circumstances and the nature of the amendment sought for and then pass an appropriate order. I do not think it can be laid down as a matter of principle and invariable rule that an amendment, once ordered, should relate back to the date of the original pleadings and that the Court lacks the power, even in appropriate cases, to restrict the scope of the amendment sought for. "i am unable to appreciate how the ratio could help the plaintiffs. ( 25 ) THE learned Senior Counsel for respondents, Mr. "i am unable to appreciate how the ratio could help the plaintiffs. ( 25 ) THE learned Senior Counsel for respondents, Mr. J. K. Seth, referred to the judgment ina. K. Gupta and Sons Ltd. v. Damodar Valley Corporation, AIR 1967 SC 96 , and submitted that even though on the 22nd of September, 1995, the claim of the plaintiffs was barred on the date of the application for amendment, the case cannot be refused on the facts and circumstances of this case. The facts in the case before the Supreme Court, as noticed by the Supreme Court, are : "the appellant had done work for the respondent under a contract which only specified the rates for different categories of work. The contract contained the following clause: this quotation is based on prevailing labour rate of Rs. 1. 00-4. 00-0. 00 per cooly but if there is increase of labour rate of month, the proportionate increase in rate will be charged . Subsequent to the making of the contract there was an increase in the labour rate per cooly by 20 per cent. The appellant claimed that under the clause it was entitled to the whole amount of the increase while the respondent contended that it was entitled to a part of it only. , This was the only dispute between the parties in respect of the contract. There was quantity or quality of the work done or otherwise howsoever. The appellant filed a suit against the respondent only claiming a declaration that on a proper interpretation of the clause it was entitled to an enhancement of 20 per cent over the tendered rates as the sole difference between the parties was about the interpretation. The plaint stated that work had been done under the contract and that the value of the suit for purposes of jurisdiction was Rs. 65,000. 00, but as it was a suit for a declaration only Court-fees on that basis had been paid. The respondent in its written statement challenged the appellant s interpretation of the clause but did not dispute any material fact or that the only dispute was about the interpretation. The written statement concluded by saying that the respondent was ever ready and willing and is still ready and will to pay the legitimate due to the plaintiff. The respondent in its written statement challenged the appellant s interpretation of the clause but did not dispute any material fact or that the only dispute was about the interpretation. The written statement concluded by saying that the respondent was ever ready and willing and is still ready and will to pay the legitimate due to the plaintiff. Before the learned Trial Judge several issues were raised but it is necessary to mention only two. One issue was as to the maintainability of the suit in the form in which it had been framed and the other issue was as to the proper interpretation of the clause. The first of the issues was not pressed at the hearing. The other issue having been decided by the Trial Court in favour of the appellant, the suit was decreed. The other issues which had been raised, had also not been pressed. The respondent then went up in appeal to the High Court at Patna. There the issue as to the maintainability of the suit was resuscitated and pressed and it was decided in the respondent s favour because of the terms of the proviso to Section 42 of the Specific Relief Act, 1877. The correctness of this view is not challenged in this Court. In the result the High Court dismissed the suit. Now, the appellant had in view of the High Court s decision as to the maintainability of the suit, sought its leave to amend the plaint by adding an extra relief in the following words : That a decree for Rs. 65,000. 00or such other amount which may be found due on proper account being taken may be passed in favour of the plaintiff against the defendant . The amendment having been refused the present appeal has been preferred. " ( 26 ) IT was not disputed before the Supreme Court that date of the application for amendment of suit for a money claim under the contract was barred. But the Supreme Court clearly had indicated the difference between the amendment of a claim when there are necessary averments already in the pleadings and making a claim by way of amendment, for the first time, of which date the claim is barred under the statute of limitation. But the Supreme Court clearly had indicated the difference between the amendment of a claim when there are necessary averments already in the pleadings and making a claim by way of amendment, for the first time, of which date the claim is barred under the statute of limitation. ( 27 ) SARKAR, J. , speaking for the majority, held : "the general rule, no doubt, is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit on new case or cause of action is barred. Weldcn v. Neale, (1887) 19 QBD 394. But it is also well- recognised that where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts to no more than a different or additional approach to the same facts, the amendment will be allowed even after the expiry of the statutory period of limitation: See Charon Das v. Amir Khan, 47 Ind. App. 255=air 1921 PC 50, and L. J. Leach and Co. Ltd. v. Jardine Skinner and Co. , 1957 SCR 438 = air 1957 SC 357 . " ( 28 ) THE learned Judge laid down the object behind the principle. The same is as under: "the principal reasons that have led to the rule last mentioned are, first, that the object of Courts and rules of procedure is to decide the rights of the parties and not to punish them for their mistakes [cropper v. Smith, (1884) 26 Ch. D. 700 (710-711)] and secondly, that a party is strictly not entitled to rely on the statute of limitation when what is sought to be brought in by the amendment can be said in substance to be already in the pleading sought to be amended [kisandas Rupchand v. Rachappa Vithoba, (1909) ILR 33 Bom. 644 at p. 651, approved in Pirgonda Hongonda Patil v. Kalgonda Shidgonda, 1957 SCR 595 (603)= air 1957 SC 363 at p. 366]. " ( 29 ) THE learned Judge ultimately held: "the amendment sought is. necessary for a decision of the real dispute between the parties which is, what are their rights under the contract? That dispute was clearly involved in the plaint as originally framed. All the necessary basic facts had been stated. " ( 29 ) THE learned Judge ultimately held: "the amendment sought is. necessary for a decision of the real dispute between the parties which is, what are their rights under the contract? That dispute was clearly involved in the plaint as originally framed. All the necessary basic facts had been stated. Only through a misconception a relief which could be asked on those facts had not been asked. It would not have been necessary to ask for it unless the plaintiff had at a late stage taken the point that the suit should fail without more in the absence of that relief. We find the present case indistinguishable from Charan Das s case, 47 Ind. App. 255=air 1921 PC 59. " ( 30 ) THE learned Judge, elaborating the principle involved, said : "this, therefore, seems to us to be pre-eminently a case for allowing the amendment. The authorities also lead us to the same view. In L. J. Leach and Co. s case, 1957 SCR 438 = air 1957 SC 357 , a suit for damages for conversion was by amendment allowed to be converted into a suit for damages for breach of contract after that claim had become barred, the necessary facts, as in the case in hand, being already in the plaint. In Charan Das s case, 47 Ind. App. 255=air 1921 PC 50, and amendment adding a claim for possession after a suit for such claim had become barred was allowed in a suit which originally had only claimed a declaration of a right to pre-empt. In the last mentioned case, the plaintiff had in spite of warning at the earliest stage refused to make the amendment which he later sought and got. It was, therefore, a case where the plaintiff had initially deliberately refused to make a claim and an amend- ment being allowed later permitting that claim to be raised after it had become barred. It was in a sense a stronger case than the present one where the plaintiff had omitted to make the claim initially on a wrong notion and a wrong legal advice. Punishing of mistakes is, of course, not administration of jusce. " ( 31 ) THE case in hand is totally different from the facts of the case before the Supreme Court. Punishing of mistakes is, of course, not administration of jusce. " ( 31 ) THE case in hand is totally different from the facts of the case before the Supreme Court. I had already extracted the averments in the plaint and the facts culminating the filing of the application for amendment. There is not inexorable rule that whenever on the date of the application for amendment, the claim is barred and the amendment cannot be allowed. It would depend upon the nature of the amendment sought for. In some cases, the amendment may be relating to making of a claim when all basic necessary averments have been made by the party in the pleading for adjudication. The point to be decided is whether, for the first time, after the period of limitation is over the party seeking amendment is trying to introduce his claim. The dictum laid down by the Supreme Court is very much pronounced and marked and the distinction has to be maintained. The plaintiffs, though were fully alive of their claims on the date of the plaint, had deliberately chosen not to seek the relief. It is too late in the day for the plaintiffs on the facts and circumstances of this case to seek an amendment. ( 32 ) THE learned Senior Counsel for the respondents, Mr. J. K. Seth, submitted that the petitioner is trying to be very technical. If the application for amendment is not allowed, the plaintiffs would have the right to file replication to the written statement to be filed by the petitioner as the second defendant in the suit. In the replication to be filed, it would be open to the plaintiffs to challenge the sale in favour of the petitioner and take the pleas referred to in paragraphs 13a and 13b of the proposed amendment, and when that is the position, the petitioner cannot seek to oppose the application for amendment of the plaint and the view taken by the lower Court cannot be said to be wrong. ( 33 ) THE argument advanced by the learned Senior Counsel for the respondent, at the first blush, may appear to be formidable, but the submission is without any substance. For, the plaintiffs had not acted bona fide in filing the application for amendment. ( 33 ) THE argument advanced by the learned Senior Counsel for the respondent, at the first blush, may appear to be formidable, but the submission is without any substance. For, the plaintiffs had not acted bona fide in filing the application for amendment. On the date when they instituted the suit on the 10th of July, 1992, they were fully aware of the transaction of sale in favour of the petitioner. They could have challenged the same. They did not do so. They vehemently opposed the application filed by the petitioner on the 12th of August, 1992 to implead herself as a party. It took three years for that point to be decided. It is quite ununderstandable as to why the plaintiffs opposed the application for impleadment. Even after the order was passed by this Court in C. R. 82/93 on the 3. 4. 1995, it was only on the 22nd of September, 1995, the application for amendment was filed. The reliefs prayed for in the proposed amended plaint stood clearly barred on the date of the application. Therefore, the plaintiffs cannot seek the amendment of the plaint in the form it is prayed for by the plaintiffs. The learned Additional District Judge took the view that an application under Section 5 of the Limitation Act, 1963 for filing an application under Order VI, Rule 17, Civil Procedure Code was competent on the facts and circumstances of this case. Thelearned Additional District Judge had completely failed to appreciate the situation. There is no limitation prescribed for filing an application under Order VI, Rule 17, Civil Procedure Code. What the plaintiffs were trying to do was to get the relief introduced by seeking to get the application under Section 5 of the Limitation Act, 1963 for condoning the delay in filing the application for amendment allowed. The learned District Judge said: "hence in view of the above authorities and discussions, I allow the application of plaintiff/applicant under Section 5 of Limitation Act and condoned the delay, if any, in filing the present application under Order 6, Rule 17, Civil Procedure Code. The learned District Judge said: "hence in view of the above authorities and discussions, I allow the application of plaintiff/applicant under Section 5 of Limitation Act and condoned the delay, if any, in filing the present application under Order 6, Rule 17, Civil Procedure Code. The application of the plaintiff/applicant under Order 6, Rule 17, Civil Procedure Code is also allowed as the amendment sought by the plaintiff/ applicant are necessary for the just decision of the controversy between the parties and it is on the same cause of action and has not set up any new case and the amendments are bona fide. However, the opposite party be compensated with costs of Rs. 1,000. 00 for each application which shall be paid by the plaintiffs/applicants. " ( 34 ) THE plaintiffs cannot seek the amendment prayed for in the application for amendment. The argument of learned Senior Counsel for the respondents, Mr. J. K. Seth that the plaintiffs could urge this point in the replication to the written statement to be filed by the petitioner is also not tenable. The plaintiffs can urge such points which are available to them in law as against the written statement to be filed by the defendant. They cannot seek to pray for the reliefs which they have prayed forn the proposed amendment in paragraphs 13 (a) and 13 (b) in the application for amendment. Accordingly, the order dated 30. 10. 1999 passed by the learned Additional District Judge is set aside. The application for amendment is dismissed. ( 35 ) THE revision petition stands disposed of. ( 36 ) THERE shall be no order as to costs.