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2005 DIGILAW 1648 (MAD)

V. Jagadeesan v. M. Sobana Gopal & Others

2005-10-03

S.SARDAR ZACKRIA HUSSAIN

body2005
Judgment :- (Civil Revision Petition filed under Section 115 of the Code of Civil Procedure, against the order and decretal order dated 28.3.2003 and made in I.A.No.3760 of 2002 in O.S.No.2229 of 1997 on the file of the III Assistant City Civil Court, Madras.) This Revision Petition is directed against the dismissal of I.A.No.3760 of 2002 in O.S.No.2229 of 1997 on the file of the III Assistant Judge, City Civil Court, Madras. I.A.No.3760 of 2002 was filed to amend the plaint by impleading a relief of declaration as "declaring that the sale deed dated 23.6.1995 bearing document No.759 of 1995 registered in the office of the Sub-Registrar, Sowcarpet, executed by the 1st defendant in favour of the defendants 5 to 8 is null and void and not binding on the plaintiff". 2. The revision petitioner/plaintiff filed the suit O.S.No.2229 of 1997 on 4.3.1997 for specific performance of agreement of sale in favour of the plaintiff in respect of half share in the suit property, namely, a portion in the first floor and a Sangam in the ground floor in premises bearing Door No.13, Venkatesa Naicken Street, Chennai, after receiving the balance sale consideration of Rs.1,18,000/-. 3. According to the plaintiff, the suit property originally belonged to one Alam Pushpammal, and the plaintiff became the tenant under her in respect of a portion in the first floor consisting of two rooms, one hall, one kitchen and separate toilet and bathroom in the suit premises from 1972. He was also in possession of a room in the ground floor, front side portion, measuring 10 x 10 feet, to run a Sangam and the rent is Rs.150/- per month, as fixed from the time of commencement of the tenancy. On the death of Alam Pushpammal, her two grandsons, viz., Gopal and Srinivas inherited the property as her legal heirs and both of them were not on talking terms. Gopal got married and was living in the suit premises along with his wife, the first defendant and children, the defendants 2 to 4. Srinivas was unmarried and was living separately. On the death of Alam Pushpammal, her two grandsons, viz., Gopal and Srinivas inherited the property as her legal heirs and both of them were not on talking terms. Gopal got married and was living in the suit premises along with his wife, the first defendant and children, the defendants 2 to 4. Srinivas was unmarried and was living separately. During their life time Gopal and Srinivas orally had arrangement to collect rents from the tenants and Gopal was allotted the ground floor and Srinivas was allotted the first floor, i.e., the portion under the occupation of the plaintiff and also by another tenant, G.Rathinakumar, occupying the backside portion of the first floor, and Srinivas had been collecting rent from them. Srinivas, received a sum of Rs.1,500/- from the plaintiff as further advance, besides the sum of Rs.18,500/- collected on 25.1.1983, as security deposit, under receipt. The said Srinivas was unmarried and was suffering from serious disease. Since Srinivas was in need of money, he received a sum of Rs.27,000/- from the plaintiff's wife Kanaga on 5.2.1986 to satisfy a decree claim in O.S.No.1049 of 1974. Srinivas further received a sum of Rs.25,000/- on 29.1.1986 to satisfy the said decree claim. He did not repay the loan amount to the plaintiff's wife Kanaga. According to the plaintiff, the said Srinivas, offered to sell his undivided half share in the suit property by adjusting all the dues payable to the plaintiff's wife and the sale agreement was entered into between him and the said Srinivas on 1.2.1992. According to the plaintiff, a further sum of Rs.10,000/- was paid by him in cash at the time of agreement. It was agreed to pay the balance sale consideration of Rs.1,18,000/- at the time of registration of the sale. Srinivas died on 17.10.1993, even before partition of the suit property between him and his brother Gopal. The said Gopal refused to execute the sale deed after receiving balance sale consideration in respect of the half share of his deceased brother Srinivas and he also died on 20.5.1995, leaving the defendants 1 to 4 as his legal heirs and that of his deceased brother Srinivas. The defendants 1 to 4 suppressing all these facts, sold the suit property to one Velayutham and others. The plaintiff caused lawyer's notice to the defendants on 24.7.1995, which was replied on 29.7.1995. 4. The defendants 1 to 4 suppressing all these facts, sold the suit property to one Velayutham and others. The plaintiff caused lawyer's notice to the defendants on 24.7.1995, which was replied on 29.7.1995. 4. The defendants 1 to 4 filed written statement on 2.7.1997 raising various allegations that the suit is barred by time and it is bad for non-joinder of necessary parties, namely, the purchasers K.Velayudham, Rajeswari, K.Srinivasan and K.Padmanaban, who purchased the suit property along with other property bearing Door No.13, Venkatesa Naicken Street, Chennai-1 from the defendants 1 to 4, as the sale deed is in their favour also. It is further stated in the written statement that on receipt of the reply notice of the defendants 1 to 4 dated 29.7.1995, the plaintiff filed a suit in O.S.No.6017 of 1995 for permanent injunction, restraining the purchasers of the suit property, not to interfere with his peaceful possession and enjoyment of the suit property except by due process of law. The said suit, after contest, was dismissed on 30.10.1996. In the said suit, the sale agreement said to have been entered into by the plaintiff and the deceased Srinivas, has not been stated. In that suit, it was admitted by the plaintiff in his cross-examination that he became a tenant under the purchasers of the suit property. 5. Thereafter, the plaintiff filed I.A.No.3760 of 2002 for amendment of the plaint by adding the prayer for declaration that the sale deed dated 23.6.1995 in favour of K.Velayudham and three others is null and void, subject matter of this revision and also another petition I.A.No.3761 of 2002 in O.S.No.2229 of 1997 to implead the purchasers K. Velayudham, Rajeswari, K.Srinivasan and K.Padmanabhan as defendants 5 to 8 in the suit. 6. Both the above applications were resisted in the counters filed by the defendants 1 to 4 and the proposed defendants 5 to 8 stating that in the written statement filed by the defendants 1 to 4 on 2.7.1997, it is averred that the suit property was sold to the proposed defendants 5 to 8 by the defendants 1 to 4 and as such, the amendment sought for by adding the prayer for declaration that the sale deed dated 23.6.1995 as null and void, is barred by time and that the proper course will be to set aside the said sale deed, by paying proper court fee. 7. 7. The trial Court accepting the case put-forth by the defendants, dismissed the amendment petition I.A.No.3760 of 2002, subject matter of this revision petition. The trial Court allowed the impleading petition I.A.No.3761 of 2002, wherein the defendants 5 to 8 sought to be impleaded. The order of dismissal dated 28.3.2003 passed in I.A.No.3760 of 2002 is under challenge in this Revision Petition. 8. Learned counsel for the revision petitioner/plaintiff submitted that inasmuch as the respondents 5 to 8 have been added as defendants 5 to 8 in the suit O.S.No.2229 of 1997 as per order in I.A.No.3761 of 2002 in view of the purchase of the suit property from the defendants 1 to 4 as per the sale deed dated 23.6.1995, the dismissal of the amendment petition I.A.No.3760 of 2002, to amend the plaint by impleading a relief of declaration declaring that the sale deed dated 23.6.1995 in favour of the defendants 5 to 8 as null and void, is improper. In this regard, learned counsel also submitted that the sale agreement was executed on 1.2.1992 and the sale deed was executed in favour of the defendants 5 to 8 on 23.6.1995 and on the strength of the sale agreement, the suit O.S.No.2229 of 1997 was filed on 4.3.1997. Defendants 5 to 8, namely, the respondents 5 to 8 herein were added as necessary parties only with a view to join them in the execution of the sale deed in the event of the suit being decreed for specific performance, along with the defendants 1 to 4. 9. Learned counsel for the revision petitioner/plaintiff also relied on the following decisions:- (1) Durga Prasad - vs. - Deep Chand reported in A.I.R. 1954 S.C. 75, in which the Hon'ble Supreme Court in paragraph 42 has held thus:- "(42) In our opinion, the proper form of decree is to direct specific performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff. He does not join in any special covenants made between the plaintiff and his vendor; all he does is to pass on his title to the plaintiff. This was the course followed by the Calcutta High Court in - 'Kafiladdin v. Samiraddin', A.I.R. 1931 Cal 67(C) and appears to be the English practice. He does not join in any special covenants made between the plaintiff and his vendor; all he does is to pass on his title to the plaintiff. This was the course followed by the Calcutta High Court in - 'Kafiladdin v. Samiraddin', A.I.R. 1931 Cal 67(C) and appears to be the English practice. See Fry on Specific Performance, 6th Edn. Page 90, paragraph 207; also – 'Potter v. Sanders', (1846) 67 ER 1057 (D). We direct accordingly.". (2) Mohammed Isak, U. - vs. - Natarajan & 2 others, 2001-1-L.W. 392, in which this Court in paragraph 7 has held thus:- "7. Order 6, Rule 17, of the Civil Procedure Code reads as under: "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 question in controversy between the parties." The Rule can be split into three parts viz., (1) at any stage of the proceedings, either parties to the proceedings may be permitted to amend the pleadings (2) the said amendment may be in such manner and on such terms as may be just (3) amendments shall be made as may be necessary for the purposes of determining the real question in controversy. Here, the suit was laid for bare injunction. As per the averments in the affidavit, the plaintiff came to know that the first defendant obtained Patta during the pendency of the suit. The plaintiff therefore thought fit to pray for declaration, as otherwise, the suit for bare injunction would not serve the purpose. Now, the question of title to the property has got to be determined. The amendment therefore become necessary for the purpose of determining the real question in controversy between the parties. The amendment sought for by the plaintiff falls under the third part of the rule as shown above. Further, the trial of the suit has not been commenced and hence, it would not prejudice either the plaintiff or the defendant. The prayer to amend the pleadings is wide and can be exercised at any stage of the proceedings in the interest of justice. Further, the trial of the suit has not been commenced and hence, it would not prejudice either the plaintiff or the defendant. The prayer to amend the pleadings is wide and can be exercised at any stage of the proceedings in the interest of justice. But, at the same time, we are conscious of the fact that the amendment cannot be claimed as a matter of right and under all circumstances. But, at the same time, the Court should not adopt a hypertechnical approach in the matter of deciding the petition for amendment. In fact, the Courts should not be wooden in approaching this kind of petition. Liberal approach should be the general rule, particularly in cases where the other side can be compensated with costs. Technicalities of law should not be permitted to hamper the Courts in the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled for multiplicity of litigation." (3) Pankaja - vs. - Yellappa (2004)6 SCC 415 in which the Hon'ble Supreme Court in paragraphs 12 to 17 held thus:- "12. So far as the court's jurisdiction to allow an amendment of pleadings is concerned, there can be no two opinions that the same is wide enough to permit amendments even incases where there has been substantial delay in filing such amendment applications. This Court in numerous cases has held that the dominant purpose of allowing the amendment is to minimise the litigation, therefore, if the facts of the case so permit, it is always open to the court to allow applications in spite of the delay and laches in moving such amendment application. 13. But the question for our consideration is whether in cases where the delay has extinguished the right of the party by virtue of expiry of the period of limitation prescribed in law, can the court in the exercise of its discretion take away the right accrued to another party by allowing such belated amendments. 14. 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. 14. 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. 15. This Court in the case of L.J. Leach and Co. Ltd. v. Jardine Skinner and Co. reported in AIR 1957 SC 357 has held: (AIR) p.362, para 16) "16. It is no doubt true that courts would, as a rule, decline to allow amendments, if a fresh suit osn the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the court to order it, if that is required in the interests of justice." 16. This view of this Court has, since, been followed by a three-Judge Bench of this Court in the case of T.N. Alloy Foundry Co. Ltd. v. T.N. Electricity Board reported in (2004)3 SCC 392 . Therefore, an application for amendment of the pleading should not be disallowed merely because it is opposed on the ground that the same is barred by limitation, on the contrary, application will have to be considered bearing in mind the discretion that is vested with the court in allowing or disallowing such amendment in the interest of justice. 17. Factually in this case, in regard to the stand of the defendants that the declaration sought by the appellants is barred by limitation, there is dispute and it is not an admitted fact. 17. Factually in this case, in regard to the stand of the defendants that the declaration sought by the appellants is barred by limitation, there is dispute and it is not an admitted fact. While the learned counsel for the defendant-respondents pleaded that under Entry 58 of the Schedule to the Limitation Act, the declaration sought for by the appellants in this case ought to have been done within 3 years when the right to sue first accrued, the appellant-plaintiff contends that the same does not fall under the said entry but falls under Entry 64 or 65 of the said Schedule of the Limitation Act which provides for a limitation of 12 years, therefore, according to them the prayer for declaration of title is not barred by limitation, therefore, both the courts below have seriously erred in not considering this question before rejecting the prayer for amendment. In such a situation where there is a dispute as to the bar of limitation this Court in the case of Ragu Thilak D. John v. S.Rayappan (2001)2 SCC 472 has held: (SCC p.472) "The amendment sought could not be declined. The dominant purpose of allowing the amendment is to minimise 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." 10. The dominant purpose of allowing the amendment is to minimise 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." 10. Learned counsel for the respondents 5 to 8 submitted that inasmuch as the suit O.S.No.6017 of 1995 filed by the revision petitioner as plaintiff against the purchasers, namely, the respondents 5 to 8/defendants 5 to 8, for permanent injunction, was dismissed on 30.10.1996, after contest, and the revision petitioner/plaintiff was fully aware of the fact of the sale of the suit property to the respondents 5 to 8/defendants 5 to 8 by the respondents 1 to 4/defendants 1 to 4, even at the time of filing of the suit O.S.No.2229 of 1997 on 4.3.1997, the amendment sought for in I.A.No.3760 of 2002 praying to add a relief of declaration declaring that the sale of the suit property as per the sale deed dated 23.6.1995 by the defendants 1 to 4 to the defendants 5 to 8 as null and void, is very much belated and barred by time under Article 58 of the Limitation Act and as such, the Revision Petitioner/plaintiff cannot seek to amend the plaint, incorporating such prayer. 11. Learned counsel for the respondents 5 to 8 relied on the decision in B.T.Sakku vs. Commissioner, Bangalore Development Authority, reported in A.I.R. 1995 Kanataka 192, in which it is held that the suit for declaration that acquisition of suit property is null and void, is covered by Article 58 of the Limitation Act and the subsequent suit filed by the plaintiff after more than three years, withdrawing the earlier suit, is barred by limitation. Limitation once started, would not get arrested by withdrawal of earlier suit with permission to file fresh suit. 12. Limitation once started, would not get arrested by withdrawal of earlier suit with permission to file fresh suit. 12. The revision petitioner/plaintiff filed the suit O.S.No.2229 of 1997 on 4.3.1997 for specific performance of agreement of sale in respect of half share in the suit property, which belonged to his vendor Srinivas, who died unmarried and who is one of the two grandsons of Alam Pushpammal to whom originally the suit property belonged to and on her death inherited by the said Srinivas along with his brother Gopal, the husband of the first defendant and father of the defendants 2 to 4. It is also claimed that the said Srinivas died unmarried on 17.10.1993 without any division of the properties. The said Gopal also died on 20.5.1995. To the lawyer notice dated 24.7.1995 caused by the plaintiff, the defendants 1 to 4 replied on 29.7.1995 that they sold the property to the respondents 5 to 8/defendants 5 to 8. 13. On receipt of the reply notice dated 29.7.1995, the plaintiff filed O.S.No.6017 of 1995 for permanent injunction restraining the purchasers, viz., the respondents 5 to 8/defendants 5 to 8 not to interfere with his possession and enjoyment of the suit property and ultimately after contest, the suit O.S.No.6017 of 1995 was dismissed on 30.10.1996. 14. Therefore, the plaintiff filed two petitions I.A.Nos.3760 and 3761 of 2002 in O.S.No.2229 of 1997 praying to amend the plaint by adding the relief of declaration that the sale deed dated 23.6.1995 bearing document No.759 of 1995 registered in the office of the Sub Registrar, Sowcarpet, Chennai, by the first defendant/first respondent in favour of the respondents 5 to 8 as null and void and not binding on the plaintiff and to implead the respondents 5 to 8 as defendants 5 to 8 in the suit O.S.No.2229 of 1997. 15. 15. The trial Court by common order dated 28.3.2003 allowed the petition I.A.No.3761 of 2002 to implead the respondents 5 to 8 as the defendants 5 to 8 in the suit O.S.No.2229 of 1997 and dismissed the petition I.A.No.3761 of 2002 for amendment of the plaint, in view of the fact, under Article 58 of the Limitation Act, such declaration is to be within three years from the right to sue first accrues, viz., according to the respondents 1 to 4/defendants 1 to 4, from 30.10.1996 on which date the suit O.S.No.6017 of 1995 filed by the plaintiff against the respondents 5 to 8/defendants 5 to 8 was dismissed after contest. As such, according to the respondents 1 to 4/defendants 1 to 4, the amendment petition sought for seeking the relief of declaration that the sale by the respondents 1 to 4/defendants 1 to 4 in favour of the respondents 5 to 8/ defendants 5 to 8 as null and void, ought to have been filed on or before 30.10.1999 and in view of the fact the petition was filed only on 28.2.2002 being barred by time, such relief cannot be granted to the plaintiff. 16. It is the definite case of the plaintiff that half share in the suit property belonged to his vendor Srinivas, who died unmarried and the other half share belonged to Gopal, the husband of the first defendant/first respondent and father of the respondents 2 to 4/defendants 2 to 4 and brother of the said Srinivas and inasmuch as the defendants 1 to 4, who have no title in respect of the half share in the suit property, which belonged to the vendor of the plaintiff Srinivas, sold the entire property to the defendants 5 to 8, the sale of the entire suit property to the defendants 5 to 8 by the defendants 1 to 4 being null and void, such declaration is to be obtained by the plaintiff in the event of his success in the suit. Hence, necessarily, the amendment has to be sought for declaration that the sale by the defendants 1 to 4 in favour of the defendants 5 to 8 in respect of the half share of Srinivas, as null and void to which specific performance is sought for. 17. Hence, necessarily, the amendment has to be sought for declaration that the sale by the defendants 1 to 4 in favour of the defendants 5 to 8 in respect of the half share of Srinivas, as null and void to which specific performance is sought for. 17. No doubt, such an amendment ought to have been filed at least within 3 years from the date of dismissal of the suit O.S.No.6017 of 1995 on 30.10.1996, viz., on or before 30.10.1999, but the amendment petition, subject matter of this revision has been filed only on 28.2.2002. Though it may be, such an amendment can be allowed in view of the fact, ultimately, if the suit is decreed in favour of the plaintiff, he may not get the fruits of the decree, unless such an amendment is made. Considering that the dominant purpose of allowing such amendment is to minimise the litigation as held by the Hon’ble Supreme Court in (2004)3 SCC 392 (cited supra), the amendment petition is allowed on payment of costs and also by allowing the plea of limitation to be raised in the suit O.S.No.2229 of 1997. 18. In the result, the order of the trial Court dated 28.3.2003 made in I.A.No.3760 of 2002 in O.S.No.2229 of 1997 is set aside on condition the revision petitioner/plaintiff deposits a sum of Rs.5,000/- (Rupees Five thousand only) towards costs to the respondents 1 to 4/defendants 1 to 4 and to the credit of the suit O.S.No.2229 of 1997 in the III Assistant City Civil Court, Madras within two weeks from the date of receipt of a copy of this order. On deposit of such costs, the petition I.A.No.3760 of 2002 will be allowed and if the costs is not deposited, the order dated 28.3.2003 made in I.A.No.3760 of 2002 in O.S.No.2229 of 1997 on the file of the III Assistant City Civil Court, Madras stands confirmed. This Civil Revision petition is ordered accordingly. It is made clear that the plea of limitation in respect of the amendment sought can be decided by framing necessary issue in the suit in accordance with law.