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2011 DIGILAW 4052 (MAD)

P. Mallika v. D. K. Sriramulu

2011-09-21

K.VENKATARAMAN

body2011
Judgment :- 1. The plaintiffs in O.S.No.255 of 2002 before the learned District Munsif, Thiruvallur, aggrieved over the order of the said Court in dismissing their application for amendment of the pleadings, have come up with the present civil revision petition. 2. The said suit has been filed by the petitioners herein against the deceased one D.K.Sriramulu and others for permanent injunction restraining them from interfering with their peaceful possession and enjoyment over the suit property. Since the first defendant D.K.Sriramulu died, his legal representatives have been brought on record as D.2, D.3, D.9 and D.10. In the said suit, the petitioners have filed an application in I.A.No.786 of 2009 for amendment of the plaint under Order 6 Rule 17 C.P.C. The amendment that has been sought for by the petitioners was "directing the defendants 1 to 3 to pay to the plaintiffs unpaid purchase money of Rs.5-1/2 lakhs together with interest at 12% per annum from 26.8.2002 till the date of realisation" or in the alternative "to direct the sale of the suit property through Court". 3. It is the case of the petitioners that they have borrowed money from the deceased first defendant D.K.Sriramulu on two occasions. As per his request, they have executed a simple mortgage in favour of his son, the third defendant. Due to pressure exercised by the deceased first defendant, a sale deed was executed on 26.8.2002. The deceased first defendant though promised to pay the balance consideration, has not honoured the same. Hence, a lawyer's notice dated 3.9.2002 was sent demanding the balance sale consideration. Later, defendants 1 to 3 attempted to take possession of the suit property and hence, the said suit has been filed. Pending suit, on 11.3.2008, an application for amendment has been filed by them incorporating the prayer referred to above. 4. In the said application for amendment, respondents 2 and 3 have raised various grounds by filing a counter affidavit. They totally denied that the balance consideration has to be payable. 5. On considering the rival submissions, the application filed by the petitioners for amendment seeking incorporation of the prayer for refund of the money or alternatively sale of the property to them was dismissed. The present civil revision petition is directed against the said order. 6. I have heard the learned counsel appearing for the petitioners as well as the learned counsel appearing for the respondents. 7. The present civil revision petition is directed against the said order. 6. I have heard the learned counsel appearing for the petitioners as well as the learned counsel appearing for the respondents. 7. Learned counsel appearing for the petitioners put forth the following contentions viz., (i) Pre-trial amendment, as in the present case, has to be allowed liberally, as held by the Hon'ble Apex Court as well as by this Court. (ii) The petitioners have got right over the property under Section 55 (4) (b) of the Transfer of Property Act and therefore, amendment of prayer that has been sought for by them is governed under Article 62 of the Limitation Act, 1963 and not under Article 53 and 55 of the Act. (iii) Since the question of limitation is a mixed question of fact and law, the same has to be agitated only at the time of trial and cannot be determined at the time of deciding the application for amendment. 8. On the contrary, learned counsel appearing for the respondents contended that -- (a) Section 53 of the Limitation Act clearly contemplates that any suit filed by a vendor of an immovable property seeking recovery of unpaid purchase money should do so within a period of three years from the date of completion of sale. In the case on hand, since the sale deed was executed on 26.8.2002 itself by the petitioners, the application for amendment filed on 11.3.2008 claiming refund of money is clearly barred by limitation. (b) The amendment of prayer sought for by the petitioners cannot be brought within the purview of Article 62 of the Limitation Act thereby invoking the charge provided under Section 55 (4) (b) of Transfer of Property Act. Article 62 of Limitation Act envisages where any suit is filed for recovery of money secured by a mortgage or otherwise charged upon immovable property. Thus, the said Article governs the suits filed by a mortgagee to recover his loan amount from the mortgagor or any other charge which was created upon the immovable property for the purpose of creating security for the loan advanced by the borrower. Thus, the said Article governs the suits filed by a mortgagee to recover his loan amount from the mortgagor or any other charge which was created upon the immovable property for the purpose of creating security for the loan advanced by the borrower. (c) Since the claim by way of an amendment is hopelessly barred by limitation, the order of the learned trial Judge dismissing the application preferred by the petitioners for amendment of the pleadings seeking to incorporate the prayer for refund of the money, cannot be interfered with. 9. I have carefully considered the submissions made by the learned counsel appearing for the petitioners and the learned counsel appearing for the respondents. 10. As set out earlier, it is the case of the petitioners that they have borrowed money from the first defendant, the deceased D.K.Sriramulu and out of pressure, they have executed a sale deed pertaining to the suit property. Though the property was sold on 26.8.2002, the balance sale consideration was not paid and possession was also not handed over. The petitioners have originally laid the suit only for permanent injunction restraining the defendants thereon from interfering with their peaceful possession and enjoyment over the suit property. Admittedly, they have filed an application on 11.3.2008 for amendment of the pleadings seeking to incorporate the prayer for refund of money or the alternative relief. Article 53 of the Limitation Act, 1963 spells out that for recovery of unpaid purchase money by the vendor of the immovable property, the period of limitation is three years. The time begins when the time is fixed for completing the sale or where the title is accepted after the time fixed for completion, the date of acceptance.It is the case of the respondents that the petitioners ought to have filed the suit for recovery of unpaid purchase money on or before 26.8.2005 i.e., within three years from the date of execution of the sale deed. Since the application for amendment was filed on 11.3.2008, seeking to incorporate the prayer for refund of the money, the amendment sought for by the petitioners is hopelessly barred by limitation. 11. In this regard, the learned counsel appearing for the respondents relied on the decision reported in A.I.R. 1974 Rajasthan 704 – Kishan Singh and Ors v. Suraj Prakash and Ors. 11. In this regard, the learned counsel appearing for the respondents relied on the decision reported in A.I.R. 1974 Rajasthan 704 – Kishan Singh and Ors v. Suraj Prakash and Ors. In the said decision, it has been held that the Article which is applicable in case of payment of unpaid purchase money is Article 55 of the Limitation Act. 12. On the other hand, learned counsel appearing for the petitioners submitted that the amendment that has been sought for by them has to be brought within the purview of Article 62 of the Limitation Act, 1963 by invoking the charge provided under Section 55 (4) (b) of the Transfer of Property Act. Section 55 (4) of the Transfer of Property Act is usefully extracted hereunder:- "(4) The seller is entitled -- (a) to the rents and profits of the property till the ownership thereof passes to the buyer; (b) where the ownership of the property has passed to the buyer before payment of the whole of the purchase-money, to a charge upon the property in the hands of the buyer, any transferee without consideration or any transferee with notice of the non-payment for the amount of the purchase-money, or any part thereof remaining unpaid, and for interest on such amount or part from the date on which possession has been delivered." 13. Learned counsel appearing for the respondents however contended that Section 55 (4) (b) of the Transfer of Property Act cannot be applicable in the present case on hand since the said provision stipulates that in order to enforce the charge provided under that section, the seller should have delivered the possession of the property. Since it is pleaded by the petitioners that they are in absolute possession of the property, they cannot invoke Section 55 (4) of the Transfer of Property Act. Having filed a suit for bare injunction alleging that they are in possession, they cannot invoke Section 55 (4) of the Transfer of Property Act. 14. However, I am unable to accept the said contention of the learned counsel appearing for the respondents. Section 55 of the Transfer of Property Act envisages "where an ownership of the property has passed to the buyer before payment of the whole of the purchase money". 14. However, I am unable to accept the said contention of the learned counsel appearing for the respondents. Section 55 of the Transfer of Property Act envisages "where an ownership of the property has passed to the buyer before payment of the whole of the purchase money". In the case on hand, though it is pleaded by the petitioners that they have not delivered possession of the property, the ownership of the property undoubtedly has passed on to the respondents on execution of the sale deed by the petitioners. "Ownership" is one thing and "possession" is another thing. When Section 55 of the Transfer of Property Act speaks of "ownership", the learned counsel appearing for the respondents wants me to read it as "possession". When a provision of the Act is very clear and unambiguous, it cannot be interpreted by the Court. Interpretation will require only if the language in a provision is ambiguous. 15. In the unreported judgment made in W.P.(MD) No.4239 of 2010, in paragraph 9, I have held as follows:- "9. The learned counsel appearing for the petitioner in this connection relied on the decision reported in 2007 (2) L.W. 719 (National Insurance Co. Ltd., Vs. Laxmi Narain Dhut). The said judgment may not be of use to the petitioner since when there is an ambiguity in the provision the same can be interrupted by the Courts. But however if there is no ambiguity there need be no necessity to interrupt the statute." 16. In this connection, it would be useful to refer the decision of the Hon'ble Apex Court reported in AIR 1976 SC 263 – Govindlal v.P.M.Committee. A portion of paragraph 13 of the said judgment is usefully extracted here under:- "Crawford on Statutory Construction" (Edn.1940, Art.261 p.516) sets out the following passage from an American case approvingly: " ... One of the fundamental rules of interpretation is that if the words of a statute are themselves precise and unambiguous, no more is necessary than to expound those words in their natural and ordinary sense, the words themselves in such case best declaring the intention of the legislature." 17. The Courts are normally bound to give effect to the plain meaning of the words used in the statute, unless and otherwise such an interpretation leads to some absurd or illogical consequence or is in variance with the intention of the legislature. The Courts are normally bound to give effect to the plain meaning of the words used in the statute, unless and otherwise such an interpretation leads to some absurd or illogical consequence or is in variance with the intention of the legislature. In this connection, the judgement reported in (2002) 1 SCC 633 , Commissioner of Income Tax, Mumbai Vs. Anjum H. Ghaswala and others, more so para 29 of the said judgement is usefully extracted hereunder:- "29. Nextly, the Commission has elaborately discussed the object of introduction of Chapter XIX-A in the Act, the history behind the introduction and schematic rationalisation of the provisons of Chapter XIX-A brought about through the Finance Act, 1987 to hold that in exercising its power under Chapter XIX-A it has almost an unbridled power to arrive at a settlement. This exercise of purposive interpretation by looking into the object and scheme of the Act and legislative intendment would arise, in our opinion, if the language of the statute is either ambiguous or conflicting or gives a meaning leading to absurdity. We do no find any such problem in the provisions of the Act to which we have already referred to...." 18. Though the said finding has been arrived at by me, it is only for the purpose of deciding the present application for amendment. The final decision in this matter could be arrived at by the learned trial Judge after considering the entire evidence both oral and documentary. 19. That apart, the period of limitation is a mixed question of fact and law, which could be arrived at by the trial Court at the time of trial, as stated already, after the entire evidence was over. 20. One more aspect that has to be considered is that it is not for the first time in the affidavit in support of the application, the petitioners have stated that the deceased first defendant / the legal representatives of the first defendant, has not paid the balance sale consideration. The entire burden of proof on the shoulders of the petitioners thrown out in their pleadings, is that the deceased first defendant has not paid the sale consideration. The petitioners by way of amendment are seeking only for refund of the balance sale consideration, which has not been paid to them. The entire burden of proof on the shoulders of the petitioners thrown out in their pleadings, is that the deceased first defendant has not paid the sale consideration. The petitioners by way of amendment are seeking only for refund of the balance sale consideration, which has not been paid to them. Had the petitioners not raised about the non-payment of the sale consideration, it may be justified on the part of the respondents to contend that the petitioners cannot at this stage file the application for amendment seeking for refund of the amount without making the same in the pleadings. 21. In this connection, it would be useful to refer the judgment of the Hon'ble Apex Court reported in 2004 (4) CTC 231 – Pankaja and another vs. Yellappa (D) L.Rs. & others. Paragraphs 12 to 16 are usefully extracted hereunder:- "12. 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. 13. This Court in the case of L.J. Leach and Co. Ltd. v. Jardine Skinner and Co. 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 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, if that is required in the interests of justice.” 14. 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. 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. 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. 15. 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. Rayappan1 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.” 22. In A.I.R. 2009 SUPREME COURT 1177 – South Konkan Distilleries & Anr. 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.” 22. In A.I.R. 2009 SUPREME COURT 1177 – South Konkan Distilleries & Anr. vs. Prabhakar Gajanan Naik & Ors., the Hon'ble Apex Court in paragraph 8, has held as follows:- "Before we deal with the orders of the courts below, as to whether the application for amendment of the written statement and the counterclaim was rightly rejected or not, let us consider the laws on the question of allowing or rejecting a prayer for amendment of the pleadings when the plea of limitation was taken up by one of the parties in the suit. It is well settled that the court must be extremely liberal in granting the prayer for amendment, if the court is of the view that if such amendment is not allowed, a party, who has prayed for such an amendment, shall suffer irreparable loss and injury. It is also equally well settled that there is no absolute rule that in every case where a relief is barred because of limitation, amendment should not be allowed. It is always open to the court to allow an amendment if it is of the view that allowing of an amendment shall really subserve the ultimate cause of justice and avoid further litigation. 12.In L.J. Leach & Co. Ltd. v. Jardine Skinner & Co.1 this Court at para 16 of the said decision observed as follows: (AIR p. 362) “16. 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 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.” 23. 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.” 23. In 2008 (2) CTC 224 – Puran Ram vs. Bhaguram & another, the Hon'ble Apex Court, in paragraph 15 has held as follows:- "Before parting with this judgment, we may deal with the submission of the learned counsel for the respondent that the application for amendment could not be allowed inasmuch as the same was barred by limitation. We are unable to accept this contention of the learned counsel for the respondents. In this regard, we may observe that the court may, in its discretion, allow an application for amendment of the plaint even where the relief sought to be added by amendment is allegedly barred by limitation. This view was also expressed by this Court in Pankaja v. Yellappa3. In that decision, it was held that there is no absolute rule that in such a case, the amendment should not be allowed and the discretion of the court in that regard depends on the facts and circumstances of the case and such discretion has to be exercised on a judicious evaluation thereof. It was further held in that decision that an amendment, which subserves the ultimate cause of justice and avoids further litigation, should be allowed. It is well settled by a catena of decisions of this Court that allowing and rejecting an application for amendment of a plaint is really the discretion of the court and amendment of the plaint also should not be refused on technical grounds. In this connection reliance can be placed on a decision of this Court in Jai Jai Ram Manohar Lal v. National Building Material Supply4. In para 8 of the said decision this Court observed that: (SCC p. 873) “8. In this connection reliance can be placed on a decision of this Court in Jai Jai Ram Manohar Lal v. National Building Material Supply4. In para 8 of the said decision this Court observed that: (SCC p. 873) “8. 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.” A reading of this observation would amply clear the position that no question of limitation shall arise when misdescription of the name of the original plaintiff or misdescription of the suit property arose in a particular case. Apart from that in the present case, although, the relief claimed before as well as after the amendment remained the same i.e. a decree for specific performance of the contract for sale, even then, in the facts and circumstances of the present case, as noted hereinearlier, we do not find why the High Court should have interfered with the discretion used by the trial court in allowing the application for amendment of the plaint." 24. In AIR 2007 CHHATTISGARH 1 – Minor Dipika & etc. C.G.State Electricity Board & Anr., relying on the decision of the Hon'ble Apex Court in the decision reported in 1970 (2) SCR 875 – State of Gujaraj v. Ramprakash P. Puri, the High Court of Chhattisgarh has held that procedure for the courts is only a hand-maid and it is intended only to subserve and facilitate the cause of justice. Paragraph 12 of the said judgment is usefully extracted here under:- "12. In the matter of State of Gujarat v. Ramprakash P. Puri reported in 1970 (2) SCR 875 , the Hon'ble Apex Court has held that: 'Procedure has been described to be a hand-maid and not a mistress of law, intended to subserve and facilitate the cause of justice and not to govern or obstruct it. Like all rules of procedure, this rule demands a construction which would promote this cause.' It is useful to quote the oft-quoted passage of Lord Penzance in 1879 (4) AC 504: 'Procedure is but the machinery of the law after all the channel and means whereby law is administered and justice reached. Like all rules of procedure, this rule demands a construction which would promote this cause.' It is useful to quote the oft-quoted passage of Lord Penzance in 1879 (4) AC 504: 'Procedure is but the machinery of the law after all the channel and means whereby law is administered and justice reached. It strongly departs from its office when in place of facilitating, it is permitted to obstruct and even extinguish legal rights, and is thus made to govern when it ought to subserve'. It is also useful to reproduce the passage of judgment in the case of Balwant Singh Bhagwansingh v. Firm Raj Singh Baldev Kishen reported in AIR 1969 Punjab & Haryana 197. 'Promptitude and dispatch in the dispensation of justice is a desirable thing but not at the cost of justice. All rules of procedure are nothing but handmaids of justice. They cannot be construed in a manner, which would hamper justice. As a general rule, evidence should never be shut out. The fullest opportunity should always be given to the parties to give evidence if the justice of the case requires it. It is immaterial if the original omission to give evidence or to deposit process fee arises from negligence or carelessness." 25. In A.I.R. 1957 SC 363 – Pirgonda Hongonda Patil vs. Kalgonda Shidgonda Patil and others, the Hon'ble Apex Court has held that if the amendment takes away the right accrued to a party by lapse of time, it cannot be denied. 26. Considering the above facts and circumstances and considering the fact that since the petitioners would be loosing a valuable right, if not the prayer for amendment is allowed, they cannot be prevented from getting the relief for no fault of them. Undoubtedly, the petitioners would not have requested the counsel only to file a suit for permanent injunction. After all, it is hand-maid of the counsel, who appeared for them, praying for such relief only. Though it has been pleaded that the part of the sale consideration has not been paid, the relief has not been sought for regarding the same. The Higher Courts always have to see the interest of justice more, rather than the procedural aspect. 27. Considering the above facts and circumstances, I am of the considered view that the order under revision is liable to be set aside. 28. The Higher Courts always have to see the interest of justice more, rather than the procedural aspect. 27. Considering the above facts and circumstances, I am of the considered view that the order under revision is liable to be set aside. 28. In fine, the order of the learned District Munsif, Thiruvallur dated 2.8.2010 made in I.A.No.786 of 2009 in O.S.No.255 of 2002 is set aside and the civil revision petition stands allowed. However, the learned Trial Judge is directed to dispose of the suit uninfluenced by the orders of this Court. Consequently, connected miscellaneous petition is closed. No costs.