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2012 DIGILAW 407 (BOM)

Atul Avinash Shelke v. Ashwini Atul Shelke

2012-02-23

MRIDULA BHATKAR

body2012
Judgment : Rule. 2. Rule made returnable forthwith and heard finally with the consent of both the parties. Learned counsel Mr. Arjunwadkar waives service on behalf of the respondent. 3. The petitioner challenges the order dated 9/12/2011 passed by the Judge, Family Court No.3, Mumbai, whereby the learned Judge has allowed the application for amendment in the petition for divorce. The respondent/wife has filed petition for divorce in October, 2005. Thereafter she filed an application for injunction in respect of flat no.504,A wing, Akruti Elegance, Mulund East (hereinafter referred to as said flat). In July, 2007 she filed Application no.172/2007 which was allowed in favour of the wife holding that the husband should not create any third party interest in which the husband gave undertaking regarding payment of maintenance of the flat regularly. Thereafter she filed application in April, 2011 under Order VI Rule 17 of the Code of Civil Procedure, 1908. The husband filed reply opposing the said application for amendment as the amendment application is filed at late stage and it is malafide. 4. Learned counsel Ms.Gokhale challenged the order mainly on two grounds, firstly the point of limitation; and secondly that the person cannot claim any right under any benami transaction. 5. Learned counsel for the petitioner/husband submitted that the respondent/wife has no right or interest in this flat. Said flat was purchased by the petitioner alone by spending his money. The respondent-wife has made incorrect statements in the amendment application that the said flat is jointly owned and she is the guarantor of the said flat. The respondent owns another flat. The learned counsel further submitted that the Family Court has erred in not considering these points while deciding the bonafides of the amendment. Ms.Gokhale relied on Article-58 of the Limitation Act by which a suit for declaration and injunction is to be filed within three years from the date of cause of action. Learned counsel submitted that the cause of action to demand the right in the said flat arose in October, 2005 when she filed petition for divorce. Thereafter it arose in July, 2007 when she filed Application 172/2007 for injunction in respect of the said flat. Learned counsel submitted that the cause of action to demand the right in the said flat arose in October, 2005 when she filed petition for divorce. Thereafter it arose in July, 2007 when she filed Application 172/2007 for injunction in respect of the said flat. Learned counsel submits that in all fairness at the most the cause of action should be stretched to October,2007 and, therefore, the relief can be sought in respect of the said flat is only up to July, 2010. The rules of limitation are to be strictly adhered not only by the parties but by the Court also. Under any circumstances no limitation can be extended by the order of the Court. The amendment is time barred and the Family Court Judge has committed an error in allowing such amendment. 6. Per contra learned counsel for the respondent-wife Mr. Arjunwadkar argued that the order passed by the Family Court Judge is legal and not to be set aside. He submitted that the petitioner did not point out certain documents filed by the respondent-wife. He argued that the parties have purchased the said flat in joint names. He submitted that there is a letter given by Akruti Nirman on 23/9/2004 which discloses that the agreement was executed by the parties jointly. He pointed out a letter of Canara Bank where the flat is shown in the name of both the parties. 7. Heard the learned counsel for the petitioner extensively. On the point of limitation learned counsel relied on the following rulings. 1) Vishwambhar and others Vs. Laxminarayana (Dead) through L.Rs. and another, reported in AIR 2001 Supreme Court 2607. In this suit, there was a sale of land by guardian without prior permission of the Court. The minor plaintiff after attaining the age of majority made prayer for setting aside sale deeds, which was not allowed by the Supreme Court. It was held by the Supreme Court that the basis of the suit was changed due to such prayer and so the amendment was not allowed.) 2) Muni Lal Vs. The Oriental Fire and General Insurance Company Ltd. and Anr. Reported in AIR 1996 Supreme Court 642. In this case a permission was sought in appeal to amend plaint to include unsought relief. The Supreme Court held that it was time barred at that stage and the appellant cannot be permitted to amend plaint. The Oriental Fire and General Insurance Company Ltd. and Anr. Reported in AIR 1996 Supreme Court 642. In this case a permission was sought in appeal to amend plaint to include unsought relief. The Supreme Court held that it was time barred at that stage and the appellant cannot be permitted to amend plaint. 3) T.L. Muddukrishana and another Vs. Smt. Lalitha Ramchandra Rao, reported in AIR 1997 Supreme Court 772. It was a suit filed under the Specific Relief Act. It was held that the application under Order 6, Rule 17 during the pendency of suit of specific performance of contract after expiry of three years from the date fixed by the parties under contract is barred by limitation. 4) Shiv Gopal Sah alias Shiv Gopal Sahu Vs. Sita Ram Saraugi and others, reported in (2007) 14 Supreme Court Cases 120. In the suit for eviction the amendment of replying the stand taken by the defendant that he is not tenant but owner of the property at late stage, considered time barred and not allowed). 5) Kannankara Kuria-Kosa Thomas Vs. Shriram Saw Mills and others, reported in AIR 1998 Orissa 68. It is observed that in the suit of specific performance though the plaintiff has sought amendment of declaration of title on very same cause of action the said was held as not maintainable by Orissa High Court as it was time barred. 8. Learned counsel argued that while applying the principle of limitation required consideration is not allowed. For this submission, she placed reliance on the following rulings. 1) Antonysami V. Arulanandam Pillai (D) by L.R. and Anr., AIR 2001 Supreme Court 2967. It was a suit for specific performance of contract of sale. While dealing with the issue under section 3 of the Limitation Act, the Supreme Court has held that in construing the provisions of the Limitation Act, equitable considerations are out of place and the strict grammatical meaning of the words is the only safe guide. 2) Pushpa Jivatram Mihani Vs. State of Maharashtra and others, reported in 2007 (5) Mh.L.J. 754 . While hearing said appeal the Division Bench of this Court was dealing with the condonation of delay under section 5 of the Limitation Act in the Appeal under section 137 of the Bombay Prohibition Act, 1949. 2) Pushpa Jivatram Mihani Vs. State of Maharashtra and others, reported in 2007 (5) Mh.L.J. 754 . While hearing said appeal the Division Bench of this Court was dealing with the condonation of delay under section 5 of the Limitation Act in the Appeal under section 137 of the Bombay Prohibition Act, 1949. It is held that for ousting the applicability of the Limitation Act it is necessary to show that these provisions are expressly excluded by the special or local law, or excluded by necessary implication. 3) Food Corporation of India and Others Vs. Babulal Agrawal, (2004) 2 Supreme Court Cases, 712. It was held that the suit filed beyond limitation is liable to be dismissed even though the defence of limitation is not set up. 4) Radhika Devi V. Bajrangi Singh and others AIR 1996 Supreme Court 2358. It was a suit for partition. Amendment to plaint was not allowed as it was beyond period of limitation. It was held that if the amendment is allowed, would defeat right accrued in favour of defendant. 5) Ashok Daga Patil Vs. Daga Yadav Patil and Ors. 2003 (1) Mh.L.J. 686 Single Bench of this Court has held that the application for amendment if not filed within three years from the date of knowledge, is barred by limitation. 6) Ram Singh and others Vs. Panchayati Adalat and others, A.I.R. 1954 ALL. 252 Single Bench of Allahabad High Court has held that the High Court has not been vested with any power to make rules touching the Limitation Act. Hence merely on the ground of justice and equity, the period of limitation cannot be extended by excluding time which is not required to be excluded). 7) M/s Craft Centre and others Vs. The Koncherry Coir Factories, reported in AIR 1991 Kerala 83. Provisions of the Limitation Act are Mandatory and absolute. When the suit was barred by time on face of it, the Court is duty bound to dismiss the same even at appellate stage though issue of limitation not raised. 8) Maganlal Harilal Doshi and others Vs. Sarvadaman Mansukhlal Doshi and others, reported in 2002 (1) Mh.L.J. 390 . Though generally a time barred amendment would not be allowed, it is not a rule of law; it is a rule of practice which court applies while considering whether it should or shouldn't allow an amendment. 8) Maganlal Harilal Doshi and others Vs. Sarvadaman Mansukhlal Doshi and others, reported in 2002 (1) Mh.L.J. 390 . Though generally a time barred amendment would not be allowed, it is not a rule of law; it is a rule of practice which court applies while considering whether it should or shouldn't allow an amendment. The Court would not generally exercise the discretion in allowing an amendment which is clearly barred by limitation. However, when the facts are disputed and the Court is required to go into details to ascertain whether a particular claim would or would not be time barred, the Court may exercise a discretion in allowing the amendment, leaving the matter of limitation to be decided at an appropriate stage of trial. 9. I have considered all these rulings. The ratio in Maganlal (supra), on the contrary is helpful to the respondents as it is held that when the facts are disputed and the Court is required to go into details to ascertain whether a particular claim would or would not be time barred, the Court may exercise a discretion and allow the amendment. However, the case in hand is totally different on facts. The cause of action accrues today also as the flat is jointly owned by both the parties. Thus, there is no issue of limitation and hence section 5 of the Limitation Act is not attracted. 10. By way of amendment, the wife wants to claim her right and title in the suit flat. Whether she is entitled to that relief or not is a matter of evidence. While allowing the amendment application, the Court has to consider first, whether the amendment is within limitation or not and similarly whether it is relevant and such facts are averred in the main petition or not. 11. This is a matrimonial matter. In the petition, the wife has pleaded that she has given a cheque of Rs.25,000/-towards price of the flat to the builder. Moreover in the reply given to the maintenance application under section 24, the husband has acknowledged that flat is purchased in the joint name in Akruti Elegance. In the written statement also the fact of booking flat in the joint names is reiterated. In the letter dated 23/9/2004 written by Akruti Nirman Builders, the names of the respondent and petitioner are mentioned as joint owners. In the written statement also the fact of booking flat in the joint names is reiterated. In the letter dated 23/9/2004 written by Akruti Nirman Builders, the names of the respondent and petitioner are mentioned as joint owners. The learned counsel for the wife has rightly pointed out that in the letter sent by Canara Bank dated 9/10/2004 in respect of consent of release of mortgage of the flat the names of the petitioner and respondent are jointly shown as purchasers. In the absence of contrary to this fact as on today the wife is shown as joint owner of the said flat and therefore, the amendment cannot be said is without averments or creating totally different ground. So far as the impugned flat is shown in the name of husband and wife jointly today also, the submissions of learned counsel for the petitioner-husband that cause of action arose lastly in July, 2007 is not correct and not at all acceptable. 12. Learned counsel for the petitioner has challenged this order on another ground i.e. no claim can be made under benami transaction. She relied on sections 2, 3 and 4 of the Benami Transactions Act. In support of her submissions she relied on Baburao Laxman Honde Vs. Namdeo Laxman Honde, reported in 2002 (5) Mh.L.J. 343 . (In the suit for declaration of ownership and possession filed by the plaintiff the defendant wanted to amend the written statement by taking a plea of benami transaction and independent ownership of suit premises by the defendant. Such an application for amendment was not allowed.) 13. It is true that nobody can claim by way of benami transaction, however, explanation of section 3 is, a defence available to the husband against the wife and he may lead evidence and make submissions on that basis in the main petition. The rulings cited by the learned counsel for the petitioner-husband are distinguishable and not applicable, considering the facts of this case. The order passed by the Family Court does not warrant any interference. 14. It is to be noted that though amendment is allowed respondent-wife may fail to establish her right and title in the suit flat for want of sufficient evidence, as it is a matter of evidence. However, considering the nature of the amendment and the relationship of the parties, amendment is rightly allowed by the Family Court. The petition is dismissed.