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2004 DIGILAW 339 (JK)

Prem Nath Malhotra & Ors v. Lokesh Malhotra

2004-12-06

S.N.JHA

body2004
This civil revision by the defendants is directed against an order by which the court below allowed amendment of the plaint and addition of party defendant. The plaintiff-respondent instituted civil suit No. 31 of 2002 seeking decree of partition with respect to his one-third share in the suit properties. In the written-statement which the petitioners filed, they, inter alia, took the stand that the house on plot No. 194-A/T, Gandhi Nagar, Jammu -- one of the items of suit property, exclusively belonged to petitioner No. 1 by virtue of alienation made by his father, and he had gifted it to his wife, Smt. Santosh Malhotra, under a gift deed executed and registered on 12th November, 1998, but no relief had been sought with respect to it in the suit. In view of the stand taken by the petitioners, the respondent filed application seeking amendment of the plaint to the effect that the gift deed was null and void and ineffective, and impleadment of Smt. Santosh Malhotra as a party defendant. The court below took the view that the amendment does not introduce any new cause of action. The plea taken by the defendants regarding transfer of the property by defendant No. 1 in favour of his wife had rendered it necessary for the plaintiff to amend the plaint. Further, the court held that in order to avoid multiplicity of proceedings it was desirable that the proposed amendment be allowed and Smt. Santosh Malhotra be added as a defendant. Accordingly, by the impugned order prayer for amendment was allowed and Smt. Santosh Malhotra was added defendant No. 3. The defendants have come in revision. Mr. A.V. Gupta, learned counsel for the petitioners, submitted that the court committed error of jurisdiction in allowing amendment as the relief with regard to the deed of gift had become barred by limitation and the court has no jurisdiction to incorporate a time barred relief by amendment. He submitted that transfer of property in favour of Smt. Santosh Malhotra being under a registered document, the respondent cannot contend that he was not aware of the transfer, for, registration of document is notice to every one claiming any right, title or interest in the property. In support of the submission, Shri Gupta placed reliance on Radhika Devi v. Bajrangi Singh, AIR 1996 SC 2358 and Raj Paul v Om Parkash, 1984 Kashmir Law Journal 123. In support of the submission, Shri Gupta placed reliance on Radhika Devi v. Bajrangi Singh, AIR 1996 SC 2358 and Raj Paul v Om Parkash, 1984 Kashmir Law Journal 123. On behalf of the respondent it was submitted that unless proposed amendment changes nature of the suit, it is invariably allowed. The occasion for amendment arose in view of the plea taken by the petitioners in the written-statement. The respondent was not aware of the gift deed and as soon as he came to know about it through the written-statement, he immediately filed application for amendment. Counsel referred to Article 62 of the Limitation Act. The prayer being bona fide, it was rightly allowed by the court below and any interference by this Court with the impugned order would result in non-adjudication of the real dispute. He pointed out that in terms of rule 17 of order VI of the Civil Procedure Code amendment should be allowed to decide the real controversy involved in the suit. In support of the submissions reliance was placed on Pankaja v. Yellappa, (2004) 5 Supreme 772 : (2004) 6 SCC 415. After hearing learned counsel for the parties, I find merit in the submissions of counsel for the respondent. Rule 17 of Order VI of Civil Procedure Code provides that the court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. Whether amendment seeking incorporation of relief which has allegedly become barred by limitation on the date of application can be allowed? Section 3 of the J&K Limitation Act provides that subject to provisions contained in sections 4 to 25 (inclusive) every suit instituted, appeal preferred and application made after the period of limitation prescribed therefore, shall be dismissed. On a plain reading it would appear, what the section bars is grant of relief ("shall be dismissed") and not entertaining of the suit, appeal etc, as the case may be. In other words, there is no bar to filing a time barred suit. It is another matter that relief cannot be granted and the suit may be dismissed on the ground of limitation. In other words, there is no bar to filing a time barred suit. It is another matter that relief cannot be granted and the suit may be dismissed on the ground of limitation. It is to be kept in mind that limitation in almost all cases is one of the issues in the suit. In most of the cases it is an ornamental issue, in some it is a contentious issue. The decision in Radhika Devi v Bajrangi Singh (supra) at first sight appears to lend support to the contention put forward on behalf of the petitioners. The facts of the case also appear to be similar to those of the present case. The defendant in the written-statement had pleaded about gift deed made in his favour whereafter application was made seeking declaration that the gift deed was illegal and fraudulent. In response to similar argument as in the instant case put forward on behalf of the plaintiff, that he had no knowledge of the execution of the gift deed, it was submitted on behalf of the defendant that the registration of document is a notice to every one claiming right, title or interest in the property. It was alternatively argued that "even otherwise, the respondents in the written-statement filed on June 15, 1988 had specifically pleaded about the gift. Despite that, the appellants had not taken any steps till November 1992, by which time even the suit for declaration within the limitation of three years from the date of knowledge had got time barred". The argument apparently carried with their Lordships. Facts of the present case are different as the application was filed soon after the knowledge through the written statement, and if that was so, Article 62 of the J&K Limitation Act may cover this case. In L.J. Leach & Co. Ltd. v. Jardine Skinner & Co, AIR 1957 SC 357, it was observed: "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 bared by limitation on the date of the application. In L.J. Leach & Co. Ltd. v. Jardine Skinner & Co, AIR 1957 SC 357, it was observed: "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 bared 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." In Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon, 1969 (1) SCC 869, it was observed that 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 the party, unless it is satisfied that the party applying was acting mala fide, 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. In Ragu Thilak D. John v S. Rayappan, (2001) 1 SCC 472, dealing with somewhat similar dispute as to bar of limitation, the Supreme Court held: "The amendment sought could not be declined. The dominant purpose of allowing the amendment is to minimize the litigation. The plea that the relief sought by way of amendment was barred by time is arguable in the circumstances of the case. The plea of limitation being disputed could be made a subject-matter of the issue after allowing the amendment prayed for." Recently, in T.N. Alloy Foundry Co. Ltd. v. T.N. Electricity Board, (2004) 3 SCC 392, again, a similar question arose for consideration. A suit for damages was filed sometime in March, 1973. By amendment the plaintiff sought to enhance the claim. The High Court on its original side allowed the prayer. The Division Bench upturned the order. The Supreme Court upheld the original order observing "The law as regards permitting amendment to the plaint, is well settled. In L.J. Leach and Co. A suit for damages was filed sometime in March, 1973. By amendment the plaintiff sought to enhance the claim. The High Court on its original side allowed the prayer. The Division Bench upturned the order. The Supreme Court upheld the original order observing "The law as regards permitting amendment to the plaint, is well settled. In L.J. Leach and Co. Ltd. v. Jardine Skinner and Co., it was held that the Court 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". The Supreme Court took similar view in Pankaja v. Yellappa, (2004) 5 Supreme 772 : (2004) 6 SCC 415, relied upon on behalf of the respondent. In that case the suit was filed for permanent injunction restraining the defendants from interfering with certain portions of the suit property, and for possession of other portions of the property. During pendency of the suit, the respondent encroached upon the suit property. In the circumstances, the appellants sought amendment to incorporate relief of possession of the encroached area. The appellants also made application for seeking declaration that they are owners of the particular portions of the suit property. Question arose as to whether the relief of declaration could be sought in view of bar of limitation. Rejecting the contentions put in that regard, the Court observed as under: "The law in this regard is also quite clear and consistent that there is no absolute rule that in every case where a relief is barred because of limitation an amendment should not be allowed. Discretion in such cases depends on the facts and circumstances of the case. The jurisdiction to allow or not allow an amendment being discretionary, the same will have to be exercised on a judicious evaluation of the facts and circumstances in which the amendment is sought. If the granting of an amendment really subserves the ultimate cause of justice and avoids further litigation the same should be allowed. There can be no straitjacket formula for allowing or disallowing an amendment of pleadings. Each case depends on the factual background of that case. ... ... ... ... ... If the granting of an amendment really subserves the ultimate cause of justice and avoids further litigation the same should be allowed. There can be no straitjacket formula for allowing or disallowing an amendment of pleadings. Each case depends on the factual background of that case. ... ... ... ... ... ... We think that the course adopted by this Court in Ragu Thilak D. John case applies appropriately to the facts of this case. The courts below have proceeded on an assumption that the amendment sought for by the appellants is ipso facto barred by the law of limitation and amounts to introduction of different relief than what the plaintiff had asked for in the original plaint. We do not agree with the courts below that the amendment sought for by the plaintiff introduces a different relief so as to bar the grant of prayer for amendment, necessary factual basis has already been laid down in the plaint in regard to the title which, of course, was denied by the respondent in his written statement which will be an issue to be decided in a trial...". From the aforementioned decisions of the Supreme Court it is clear that prayer for amendment should be considered taking into account facts and circumstances of the case, and the consequences refusal to grant amendment would give rise to. Where amendment is sought bona fide, and it would enable the court to completely and effectively adjudicate and determine the real controversy, the prayer should be allowed unless it causes injustice to the other side. It goes without saying that allowing amendment does not mean accepting the case of the party. It is subject to final decision on the issue on basis of evidence at the stage of trial. No argument to the contrary was made on behalf of the petitioners regarding addition of Smt. Santosh Malhotra. Nevertheless, it may be observed that under rule 10(2) of Order 1 of Civil Procedure Code the court is empowered at any stage of the proceedings, either upon or without application of either party to add any person who ought to have been joined -- whether as plaintiff or defendant -- or whose presence before the court may be necessary in order to enable the court to effectively and completely adjudicate the case and settle all issues involved in the suit. In the facts and circumstances, addition of Smt. Santosh Malhotra would appear to be covered by the above provision. In the above premises I am of the view that the court below correctly exercised its discretion and jurisdiction in allowing the prayer for amendment and impleadment in favour of the respondent, and the impugned order, therefore, does not warrant any interference. In the result the revision is dismissed without any order as to costs.