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2004 DIGILAW 908 (MAD)

Padmavathi Ammal & Others v. S. Muthiah & Others

2004-07-16

M.THANIKACHALAM

body2004
Judgment :- The petitioners/plaintiffs in I.A.No.19353/2003 are the revision petitioners. 2. The first petitioner/plaintiff is the wife of one Thangavelu Nadar. It appears, the deceased first defendant by name Mallammal @ Mariammal is the sister of the said Thangavelu Nadar. The revision petitioners/plaintiffs, who are the legal representatives of Thangavelu Nadar, have filed a suit for partition and separate possession of their alleged half share in the 'A' schedule property, elsewhere in the year 1987, on the file of the Ist Asst. City Civil Court, Chennai, which is numbered as O.S.No.6816/1988. Pending proceedings, Mallammal died. It appears, defendants 2 & 3 claim title to the suit property, in pursuance of a settlement deed executed by the deceased/first defendant. The plaintiffs, more or less, as seen from paragraph-7 of the plaint, admitting that the first defendant had settled some portion of the property, in favour of defendants 2 & 3, under a registered settlement deed dated 9.3.1985, have claimed division of the property, contending that the defendants 2 & 3 are claiming absolute right over the suit property. 3. When the suit was pending for trial, the plaintiffs have filed an amendment application i.e. after the death of the first defendant, to introduce certain new averments, contrary to the existing pleadings, as well as a new prayer "to declare that the alleged settlement deed as sham and nominal, illegal and void ab initio and therefore unenforceable". The said application was opposed by the contesting respondents on the ground, that the proposed amended filed, after the commencement of the trial, is not maintainable, that the proposed amendment is time barred, if allowed, it would certainly deprive the right of the contesting respondents, and that the amendment petition is filed highly belatedly, when the suit was in the part heard stage, and if allowed, that would cause much prejudice. 4. The learned trial Judge, after going through the averments in the affidavit, as well as the case of the plaintiffs' originally projected in the plaint, as well as the proposed claim under the amendment application, came to the conclusion, that the proposed claim or the proposed prayer is barred by limitation, that the amendment application filed after 15 years i.e. when the suit is pending as part heard, is not maintainable. In this view of the matter, the amendment application in I.A.No.19353/2003 came to be dismissed on 17.11.2003, which is under challenge in this revision. 5. Heard the learned counsel for the petitioners, Mr. N.F.J. Ponnudurai and the learned counsel for the respondents, Mr. P.V. Arulpalam Nee. 6. The learned counsel for the revision petitioners submits, that the settlement relied on by the contesting respondents, was not executed by the deceased first defendant, that it is a forged document, and it came to their knowledge only recently and immediately, a petition was filed for amendment, which cannot be termed as time barred one. The further submission of the learned counsel for the petitioners is, that despite the fact the trial of the suit has been commenced, no substantial progress has been made and it is only in the initial stage of examination of P.W.1 and in this view, proviso 2 to Order VI Rule 17 C.P.C. could not be an impediment, in allowing the amendment application, since Order VI Rule 17 C.P.C. gives wide discretion and power to the Court, to permit the parties, to amend the plaint, at any stage, in order to meet the ends of justice. 7. Opposing the above contentions, the learned counsel for the respondents submits, that in view of the stand taken by the plaintiffs in the original plaint, they cannot be allowed somersault, by introducing the proposed amendment, which aims to nullify the previous statements, which is an admission and in this view, it is the further submission of the learned counsel for the contesting respondents, that the petition deserves to be dismissed, as rightly did by the trial Court. The other ground to oppose the amendment application raised on behalf of the contesting respondents is, that after the trial of the suit is commenced, amendment is prohibited under the provisions of Order VI Rule 17 C.P.C. and in this view also, the order of the trial Court, in not entertaining the amendment application, is perfectly valid. 8. As far as the second ground of defence is concerned, I am of the view, because of Section 16 of Code of Civil Procedure (Amendment) Act, 2002 (Act 22 of 2002), the said defence may not be available. 8. As far as the second ground of defence is concerned, I am of the view, because of Section 16 of Code of Civil Procedure (Amendment) Act, 2002 (Act 22 of 2002), the said defence may not be available. Order VI Rule 17 C.P.C. reads: "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: Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence the party could not have raised the matter before the commencement of trial" 9. As seen from the report submitted by the trial Court, the case was opened on 8.3.2000 and P.W.1 was examined in part, thereby showing that already the trial has commenced. Because of the subsequent conduct of the parties, in filing number of applications including the amendment petition periodically, the case was adjourned and at present because of this revision, there is no progress. Be that as it may, the undisputed fact is, the trial has commenced. 10. In this case, the plaintiffs have filed the registration copy of the settlement deed along with the plaint and they have pleaded something about the settlement deed also. In fact, excluding the properties covered under the settlement deed, it appears, the plaintiffs have claimed division of the properties, thereby in a way accepting the settlement deed also. In the proposed amendment application, the plaintiffs want to give a go by to the original pleadings, introducing that the settlement deed is a forged document etc. In the affidavit also, there is no clear indication, at what point of time, the plaintiffs had come to know about the alleged forgery or the settlement deed was not executed out of free will or something like that. In this view, it was urged on behalf of the contesting respondents that the plaintiffs knew fully well about the settlement deed, its validity and they had opportunity also, to question the settlement deed at the first instance itself and no due diligence is also required, to raise the proposed amendment in the original plaint. In this view, it was urged on behalf of the contesting respondents that the plaintiffs knew fully well about the settlement deed, its validity and they had opportunity also, to question the settlement deed at the first instance itself and no due diligence is also required, to raise the proposed amendment in the original plaint. The position being so, according to the learned counsel for the contesting respondents, no application for amendment shall be allowed after the commencement of the trial, since the plaintiff had every opportunity to raise the matter before the commencement of the trial. This proposition is quite acceptable, if Order VI Rule 17 C.P.C. is made applicable to the pending proceedings and there could be no doubt. 11. Section 16 (b) of Code of Civil Procedure (Amendment) Act 2002 (Act 22 of 2002) reads: "(b) The provisions of rules 5, 15, 17 and 18 by Order VI of the First Schedule as omitted or, as the case may be, inserted or substituted by section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and by section 7 of this Act shall not apply to in respect of any pleading filed before the Commencement of section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and section 7 of this Act." 12. Order VI Rule 17 C.P.C. as amended came into force with effect from 1.7.2002. This case was filed in the year 1987 and therefore, in view of the specific provision quoted above, proviso 2 to Order 6 Rule 17 shall not apply in respect of the pleadings filed, before the commencement of Section 16 Code of Civil Procedure (Amendment) Act, 2002 (Act 22 of 2002). In this view of the matter, the submission made by the learned counsel for the contesting respondents, that there is a bar to introduce pleadings by way of amendment, after the commencement of the trial, is not legally sustainable and the same deserves rejection. 13. In the original plaint, in paragraph-7, the plaintiffs have not only admitted the execution of the settlement deed, but also in a way admitted its validity as well as its acting. 13. In the original plaint, in paragraph-7, the plaintiffs have not only admitted the execution of the settlement deed, but also in a way admitted its validity as well as its acting. The relevant portion in the plaint reads: "the plaintiff come to understand that the first defendant has settled some portion of the property in favour of them 2nd and 3rd the defendant by way of settlement dated 9.3.1985 registered as document No.940/85 and taking advantage of the settlement executed by the first defendant in favour of the second and third who are trying to establish that the entire property was transferred to them." 14. The above averments makes it abundantly clear that the plaintiffs have admitted the execution of the settlement deed, as well as its acceptance, but would contend that the defendants are taking advantage of the settlement deed only in order to claim excess property, thereby conceding that the defendants are entitled to the property covered under the settlement deed. The position being so, they cannot be permitted to say in the proposed amendment, that the document has no existence or it will not confer any power etc., that too after the death of the executant-Ist defendant. 15. In the proposed amendment, they want to say: "The alleged Settlement Deed No.940/1981 dated 13.03.1981 is also illegal as it is a forged and fraudulent document as it had not been executed by the First Defendant with her left thumb impression but executed and registered as such through impersonation and forgery and hence the alleged Settlement Deed is sham and nominal and therefore illegal and unenforceable." In pursuance of the said allegations, they want to have a declaration which reads: "to declare that the alleged Settlement Deed executed as Document No.940 of 1981 on 13.03.1981 as sham and nominal, illegal and void abinitio and therefore, unenforceable." 16. As rightly submitted by the learned counsel for the contesting respondents, the above averments are diametrically opposite to the original pleadings and inconsistent to the original stand taken by the plaintiffs which they are not entitled to take. If this kind of contradictory pleadings are to be carried out by the plaintiffs, without deleting the original admission, the defendants would be put to irreparable loss, since in view of the previous admission, the contesting defendants have acquired some right, which cannot be deprived of. 17. If this kind of contradictory pleadings are to be carried out by the plaintiffs, without deleting the original admission, the defendants would be put to irreparable loss, since in view of the previous admission, the contesting defendants have acquired some right, which cannot be deprived of. 17. The suit was filed originally, for partition of the plaintiffs' half share in the 'A' schedule property. If this prayer is read with paragraph-7 of the plaint, it would indicate excluding the properties covered under the settlement deed as if it represents « share, the plaintiffs have claimed partition in the original plaint. Now as aforementioned, they want a declaration ignoring the admission of the settlement deed. If this amendment is to be accepted, then the suit for partition may not be maintainable. In case, the settlement deed is accepted as forged and fraudulent document, then the contesting defendants may not have interest in the property and in that event, the plaintiffs alone would be entitled to inherit the entire properties, for that they have not claimed any relief, such as declaration of title to the suit property to the entire extent. Retaining the original prayer (b) for partition, they want to insert a prayer (a) as aforementioned, which is also inconsistent to the plaintiffs' case. In this view of the matter, the original plaint was valued under Section 37(2) of the Tamil Nadu Court Fees and Valuation Act, 1955, paying a fixed Court Fee of Rs.400/- as per the memo of valuation. Now a declaration prayer is sought for, in the sense, cancelling the settlement deed in effect. Therefore, the declaration should be valued separately and necessary court fee should be paid under the proper Section of the Court Fee Act and accordingly there is no proposed amendment also for valuation and payment of court fee. 18. As seen from the petition I.A.No.19353/2003, except two amendments; one relating to the allegations regarding the settlement deed and another relating to declaration, no other prayer is sought for. In this view also, the amendment petition is not maintainable. In the affidavit filed in respect of the proposed amendment, I find no specific averments, when the plaintiffs came to know about the alleged forgery or fraudulent document said to have been executed by the first defendant, registering the same through impersonation. In this view also, the amendment petition is not maintainable. In the affidavit filed in respect of the proposed amendment, I find no specific averments, when the plaintiffs came to know about the alleged forgery or fraudulent document said to have been executed by the first defendant, registering the same through impersonation. In the absence of specific pleadings, it is not possible to say, when the limitation started for seeking declaration. In the absence of any such allegations, it should be presumed that the plaintiffs knew about the forgery or the fraudulent document, even on the date of the filing of the plaint, since the settlement deed copy was filed along with the plaint, in addition to the judgment in O.S.No.2063/63, wherein the dispute had decided regarding the status of the parties. Having the above facts in mind, we have to see whether the proposed amendment is barred by limitation. If so, whether a time barred claim could be introduced by way amendment. 19. Article 56 of the Limitation Act prescribes the period of limitation, regarding the forged document which reads: To declare the forgery of an instrument issued or registered. Three years When the issue or registration becomes known to the plaintiff. In column 3, it is not said that the limitation begins to run from the date of knowledge of fraud or forgery, whereas it says "when the issue or registration becomes known to the plaintiff". 20. In view of the facts narrated above, it is clear that the registration becomes known to the plaintiffs, when the suit was filed in the year 1987 itself and the issue also known to the plaintiffs, since they have filed the suit referring the settlement also. As aforementioned in the affidavit filed in support of the amendment application, limitation is not pleaded from the date of knowledge, which is not the case under Article 56 of the Act also. Therefore, when the plaintiffs were fully aware of the fact about the registration of the document in the year 1987 itself, to declare the document as forged one or fraud, they ought to have filed the suit for the said relief within three years from the said date onwards viz., at least from the date of obtaining registration copy, which took place in the year 1987. Admittedly, the amendment application was filed in the year 2003 i.e. after 16 years. Admittedly, the amendment application was filed in the year 2003 i.e. after 16 years. Thus, as correctly held by the trial Court, the proposed amended should be held as time barred. 21. The learned counsel for the revision petitioners submits that the petitioners/plaintiffs, came to know about the fraud only recently and therefore, the claim cannot be described as barred by time, for which I find no materials. As per the pleadings, it should be presumed that the plaintiffs had knowledge about the settlement deed in the year 1987 itself. It is the trite law, that when a plaintiff seeks to amend by setting up a fresh claim in respect of cause of action, since institution of suit had become barred by limitation, the amendment must be refused to allow, since it would cause injury to the defendant, which could not be compensated in terms of money or otherwise. 22. As held by the Apex Court, in L.J. Leach and Co. Ltd. v. Jardine Skinner and Co. ( AIR 1957 SC 357 ) as a rule, the Court should decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of application. 23. In this case, since the proposed amendment is sought to be introduced after 16 years from the date of filing of the original plaint, certainly it should be held as barred by limitation, since no reason is alleged and no reason is also pleaded, to condone the delay taking it from the date of knowledge, which is also not contemplated under Article 56 of the Limitation Act. In this view of the matter, I am of the considered opinion that the claim sought to be introduced is barred by limitation. On this ground also, the proposed amendment cannot be introduced, as rightly rejected by the trial Court. 24. For the foregoing reasons, I conclude that the trial Court has properly appreciated the case and dismissed the amendment application, which deserves confirmation dismissing the C.R.P. In the result, C.R.P. is dismissed, with costs. C.M.P.No.21637 of 2003 is closed.