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2015 DIGILAW 1255 (KAR)

K. v. Sathyamurthy VS K. G. Srinivasa

2015-11-19

ARAVIND KUMAR

body2015
ORDER : This is plaintiffs writ petition assailing the order dated 07.10.2015 passed in O.S. No. 2650/2004 whereunder I.A. No. 26 filed by plaintiffs seeking amendment of the plaint, namely to insert Paragraph No. 8(a), addition of Paragraph No.9 and inclusion of additional prayers i.e., 2A and 2B as morefully pleaded in the interlocutory application Annexure-L came to be dismissed. 2. I have heard the arguments of Sriyuths Sri. Vivek Reddy, learned senior counsel appearing on behalf of writ petitioners-plaintiffs and Sri. H.S. Somnath, learned counsel appearing for respondent Nos. 3 to 15 and Sri. V.B. Shivakumar, learned counsel appearing for caveator/respondent No.17. 3. Since respondent Nos.1, 2 and 18 had not opposed the application I.A. No. 26, counsel for the petitioners has sought for dispensation of notice to these respondents by filing a memo. Said memo has been placed on record and notice to respondent No.1, 2 and 18 has been dispensed with at the risk of plaintiffs. 4. As noticed herein above application I.A. No. 26 for amendment of plaint came to be filed for introducing additional plea as well as additional prayers. After conclusion of trial and when matter was at the stage of cross examination of DWs.1 and 2, said applications came to be filed and it was resisted by defendant Nos.3 to 15 and 17 by filing detailed statement of objections as per Annexures L1 and L2. Trial Court after considering rival contentions, by impugned order has rejected said application vide order dated 07.10.2015 Annexure-A, on the ground that amendment sought for related to declaring the registered partition deed dated 01.01.1928 as not binding and there has been inordinate delay in filing said application. Trial Court after considering rival contentions, by impugned order has rejected said application vide order dated 07.10.2015 Annexure-A, on the ground that amendment sought for related to declaring the registered partition deed dated 01.01.1928 as not binding and there has been inordinate delay in filing said application. It is also held that plaintiffs though had opportunity to seek for amendment of the plaint in the year 2004 itself and also in the year 2011 when PW1 was cross examined by learned counsel appearing for defendant Nos.2 and 3 and certain suggestions having put to said witnesses with regard to the Partition Deed dated 01.01.1928 still they did not seek for incorporating said amendment; Section 47 of the Registration Act contemplates that a registered document shall operate from the time which it would have commenced to operate if no registration; thereof had been required or made, and not from the time of its registration and as such plaintiffs ought to have obtained certified copies when it came to their knowledge and there was no impediment for plaintiffs to obtain certified copies of those documents when it came to their knowledge and raise a plea in that regard and having not done so at earlier point of time, plea now sought to be put forward in the proposed amendment cannot be allowed on the ground of want of production of original document having not been produced by defendants or same having been produced in their evidence in 2014 is to be construed as plaintiffs having acquired knowledge. On these grounds Trial Court rejected I.A. No. 26. 5. It is the contention of Sri. On these grounds Trial Court rejected I.A. No. 26. 5. It is the contention of Sri. Vivek Reddy, learned Senior counsel appearing for petitioners that trial Court had not addressed itself to the issue of Section 17 of the Indian Limitation Act, 1963 (for short ‘Act’) whereunder it enables the plaintiffs or the applicants to putforth plea now sought to be purforth by plaintiffs when they have discovered fraud or mistake and he would contend that in the instant case the documents which have now sought to be pleaded is an out come of fraud namely Partition Deed dated 01.01.1928 and sale deed dated 09.12.1927 were produced on 31.07.2014 and they were got marked as Exs.P1 and P2 on 12.03.2015 and immediately thereafter i.e., on 25.03.2015 application for amendment had been filed and as such the embargo of limitation placed in Article 58 has to be read along with Section 17 of Limitation Act which itself provides for such suit to be instituted when such document is produced and which comes within the knowledge of the plaintiffs or plaintiffs acquiring such knowledge, or to put it differently such period of limitation would not begin to run until plaintiffs had discovered the fraud and only when these documents were produced and marked on 12.03.2015 plaintiffs had acquired knowledge of fraud having been perpetrated and as such said plea was sought to be placed on record by the proposed amendment and trial Court having not addressed these issues, he contends impugned order would be liable to be set aside and prays for setting aside the impugned order. In support of his submissions, he has relied upon following judgments:- (1) (1971)1 SCC 597 Syed Shah Ghulam Gouse Mohiuddin and Others Vs. Syed Shah Ahmed Modiuddin Kamisul Quadri (Died) by L.Rs and Others (2) AIR 1933 Cal 253 SM.Swarnamoyee Dasi Vs. Probodh Chandra Sarkar and Others 6. Per contra, Sri H.S. Somnath, learned Advocate appearing for respondents 3 to 15 and Sri V.B. Shivakumar, learned Advocate appearing for respondent No.17 would support the impugned order. Syed Shah Ahmed Modiuddin Kamisul Quadri (Died) by L.Rs and Others (2) AIR 1933 Cal 253 SM.Swarnamoyee Dasi Vs. Probodh Chandra Sarkar and Others 6. Per contra, Sri H.S. Somnath, learned Advocate appearing for respondents 3 to 15 and Sri V.B. Shivakumar, learned Advocate appearing for respondent No.17 would support the impugned order. They would contend that application for amendment filed by plaintiffs is not only belated but also barred by limitation inasmuch as, plea regarding partition deed dated 01.01.1928 as well as sale deed dated 09.12.1928 has been specifically raised by defendants 1 and 2 in their written statement as also in the written statement filed by defendant-17 way back in 2004 and factually defendant No.17 had appended these two deeds along with his written statement and as such plaintiffs cannot now contend that they had no knowledge about these documents and as such, they cannot rely upon Section 17 of the Limitation Act, 1973 to contend that they had no knowledge of these two documents. Further it is contended that similar application had been filed earlier in I.A. No. 16 and same was rejected on 04.09.2012 and same was affirmed by this Court in W.P. No. 37896/2012 by order dated 01.04.2014 and as such, there is no error committed by trial Court in rejecting said application. Hence, they pray for rejection of the writ petition. 7. Having heard learned Advocates appearing for parties and on perusal of application – I.A. No. 26 Annexure-L filed by plaintiffs seeking for amendment of plaint, this Court is of the considered view that only point that would arise for consideration would be :- “Whether amendment of plaint sought for by the plaintiffs was required to be allowed or order of rejection passed by the trial Court is to be sustained.” 8. In order to answer this point, it would be necessary to notice as to what was sought to be pleaded by plaintiffs by the proposed amendment, and same reads as under:- “Add the following as 8A para The alleged original documents produced by the Defendants herein do not contain the signatures of late Ambasa. It is further submitted that late Ambasa during his life time had never appeared before any Authority for execution or registration of any documents. The aforesaid alleged original partition deed dated 1.1.1928 and Sale Deed dated 9.12.1928 are a product of Fraud. It is further submitted that late Ambasa during his life time had never appeared before any Authority for execution or registration of any documents. The aforesaid alleged original partition deed dated 1.1.1928 and Sale Deed dated 9.12.1928 are a product of Fraud. Hence the same are void ab intio and nonest in the eye of law and consequently not binding on the plaintiffs herein. The suppression of the originals from 2004 the year of institution of suit till 31.7.2014 and 5.8.2014 when they were produced demonstrates the malicious and ill intentions to suppress the truth and defeat the rights of the plaintiffs herein. Add the following at the end of para 9 of the plaint These subsequent events bringing to light the fraud and which came to the knowledge of the plaintiffs herein when for the first time the Defendant No.8 and 17 herein filed the alleged original documents i.e., the partition deed dated 1.1.1928 and Sale Deed dated 9.12.1928 on 31.7.2014 and 5.8.2014 respectively before this Hon’ble Court, it further arose when the Hon’ble High Court permitted the defendants herein to produced the aforesaid alleged original documents vide order dated 3.2.2015 and it further arose on 12.3.2015 when the same were marked as exhibits. Add the following as 2A and 2B after the prayer No.2 in the prayer column to the plaint. To declare that the alleged Partition Deed dated 1.1.1928 bearing document No. 1259/1928-29, office of the Sub-Registrar of Bangalore City alleged to have been entered into between Sri. Ambasa and Grand Father of the Defendant No.1 to 15 herein Sri. Giddussa is null and void and not binding on the plaintiffs. To declare that the alleged Sale Deed dated 9.12.1928 bearing document No.1259/1928-29 alleged to have been executed by Sri. Ambasa and Sri. Giddussa in favour of Sri. Dhondusa the father of the Defendant No.17 herein is null and void and not binding on the plaintiffs.” 9. A bare reading of above amendment would clearly indicate that by proposed amendment, plaintiffs have sought to contend that partition deed dated 01.01.1928 and sale deed dated 09.12.1928 are product of fraud, void ab initio and non est in the eye of law and consequently, not binding on them. As such, they have sought to incorporate such plea. A bare reading of above amendment would clearly indicate that by proposed amendment, plaintiffs have sought to contend that partition deed dated 01.01.1928 and sale deed dated 09.12.1928 are product of fraud, void ab initio and non est in the eye of law and consequently, not binding on them. As such, they have sought to incorporate such plea. In support of said contention, they have sought to incorporate two prayers for declaring these two documents as null and void and not binding on them. 10. Apex Court in the catena of judgments has held that allowing of amendment pretrial is normal rule and even after commencement of trial, it can be allowed subject to the condition that such amendment is required for effectively adjudicating the dispute in question or if it does not take away the vested or accrued right of the opposite party or such claim is not barred by limitation as on the date of raising such plea. It is in this background, application for amendment sought for by plaintiff requires to be examined. 11. Undisputedly, plaintiffs are seeking for declaration of two documents referred to herein supra as not binding on them. Article 58 of the Limitation Act, 1963 prescribes the period for limitation for seeking such declaration would be three years when the right to sue first accrues. It reads as under. Description of suit Period of limitation Time from which period begins to run 58. To obtain any other declaration Three years When the right to sue first accrues 12. As already noticed herein above, thrust of the argument of Sri Vivek Reddy, learned Sr. It reads as under. Description of suit Period of limitation Time from which period begins to run 58. To obtain any other declaration Three years When the right to sue first accrues 12. As already noticed herein above, thrust of the argument of Sri Vivek Reddy, learned Sr. counsel appearing on behalf of plaintiffs is, ‘right-to-sue’ indicated in Article 58 is to be construed in the background of “knowledge” inasmuch as, documents which are sought to be declared as null and void by plaintiffs had never seen the light of the day till it was produced before Court below on 31.07.2014 and when it came to be marked on 12.03.2015 and immediately thereafter plaintiffs have noticed contents of it and found that said documents were outcome of fraud and as such plaintiffs acquired knowledge of these two documents only then and as such three (3) years time will have to be reckoned from date of plaintiffs becoming aware of it and three (3) years limitation prescribed under Article 58 would commence only from date of plaintiffs acquiring such knowledge and same has to be reckoned from either the date of production i.e., 31.07.2014 or date of marking i.e., 12.03.2015 as the case may be and in any event, if either of these two dates are construed according to learned Sr. counsel, claim of plaintiffs would not be barred by limitation since application in question was filed on 23.03.2015 which is well within three years from the date of production/marking. To buttress his argument, he has pressed into service Section 17 of the Limitation Act, 1963. It reads as under:- “17. Effect of fraud or mistake. counsel, claim of plaintiffs would not be barred by limitation since application in question was filed on 23.03.2015 which is well within three years from the date of production/marking. To buttress his argument, he has pressed into service Section 17 of the Limitation Act, 1963. It reads as under:- “17. Effect of fraud or mistake. (1) Where, in the case of any suit or application for which a period of limitation is prescribed by this Act, (a) the suit or application is based upon the fraud of the defendant or respondent or his agent; or (b) the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of any such person as aforesaid; or (c) the suit or application is for relief from the consequences of a mistake; or (d) where any document necessary to establish the right of the plaintiff or applicant has been fraudulently concealed from him, the period of limitation shall not begin to run until plaintiff or applicant has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it; or in the case of a concealed document, until the plaintiff or the applicant first had the means of producing the concealed document or compelling its production: Provided that nothing in this section shall enable any suit to be instituted or application to be made to recover or enforce any charge against, or set aside any transaction affecting, any property which - (i) in the case of fraud, has been purchased for valuable consideration by a person who was not a party to the fraud and did not at the time of the purchase know, or have reason to believe, that any fraud had been committed, or (ii) in the case of mistake, has been purchased for valuable consideration subsequently to the transaction in which the mistake was made, by a person who did not know, or have reasons to believe, that the mistake had been made, or (iii) in the case of a concealed document, has been purchased for valuable consideration by a person who was not a party to the concealment and, did not at the time of purchase know, or have reason to believe, that the document had been concealed. (2) Where a judgment-debtor has, by fraud or force, prevented the execution of a decree or order within the period of limitation, the court may, on the application of the judgment creditor made after the expiry of the said period extend the period of execution of the decree or order: Provided that such application is made within one year from the date of the discovery of the fraud or the cessation of force, as the case may be. 13. A bare reading of this Section would clearly indicate where suit or application is based upon fraud of the defendant or respondent or his agent; or where plaintiff or applicant has been denied knowledge of his right or title, on account of fraudulent concealment by such defendant respondent or his agent; or where suit or application is for the relief from the consequences of a mistake; or, where any document necessary to establish the right of the plaintiff or applicant has been fraudulently concealed from him, then in such an event period of limitation so prescribed under the Act would not begin to run until and unless plaintiff or the applicant as the case may be, has discovered the fraud or the mistake or he could not have discovered such fraud or mistake even with exercise of reasonable diligence. In the case of a concealed document, period will not run if such document necessary to establish the right of the plaintiff had been concealed from him fraudulently. However, if the plaintiff or applicant had means of producing such concealed document or could have compelled its production on such knowledge being acquired, then in such an event, plaintiff or applicant would not be entitled to take umbrage under Section 17 of Limitation Act, 1963 to contend period of limitation though prescribed under the Act will have to be excluded or limitation does not begin to run. 14. Section 17 of the Act is an enabling provision which postpones the starting point of limitation for suits and applications when plaintiff or applicant’s right to seek relief is, by means of fraud or mistake and such discovery is kept away from his knowledge. 14. Section 17 of the Act is an enabling provision which postpones the starting point of limitation for suits and applications when plaintiff or applicant’s right to seek relief is, by means of fraud or mistake and such discovery is kept away from his knowledge. The words used in Section 17 of the Act would clearly indicate that where plaintiff or applicant though had at first means of producing the concealed document or compelling its production, yet did not choose to produce it or compelled its production from custody of such person who possessed it, he cannot be heard to contend that still he would have protection of Section 17 to bring an action based on such document/s. Thus, under two contingencies Section 17 can be used as umbrage to postpone the period of limitation or to put it differently, it can be said that limitation prescribed would stop and would commence only after such knowledge being acquired by plaintiff or applicant as the case may be. In this background, it has to be seen from the pleadings as well as available evidence on record whether plaintiff had such knowledge or not and whether such knowledge can be construed as one being well within the knowledge of plaintiff so as to disentitle him from taking protection under Section 17 of the Act. 15. As can be seen from the pleadings namely, written statement of defendants 1 and 2 vide Annexure-C at paragraph 15 defendants have specifically pleaded with regard to execution of Partition Deed dated 01.01.1928. So also, defendant 17 in his written statement – Annexure-C3 filed on 25.05.2009 at paragraph 18 it has been specifically pleaded with regard to Partition Deed dated 01.01.1928 and sale deed dated 09.12.1928 and he has also appended those two documents as document Nos.D2 and D3 along with his written statement. Thus, it cannot be construed that plaintiffs had no knowledge about these two documents. However, incidental question that would arise for consideration in these proceedings is whether such production persewas itself is sufficient enough to attribute to the plaintiffs that they had knowledge as on that date, to seek for declaration of these two (2) deeds as null and void on the ground of fraud. In other words, question that would be whether plaintiffs had knowledge about such fraud which they want to allege by the proposed amendment or not? 16. In other words, question that would be whether plaintiffs had knowledge about such fraud which they want to allege by the proposed amendment or not? 16. There cannot be any issue or qualms with regard to the fact that plaintiffs were aware of these two documents way back in the year 2004 itself. In other words, plaintiffs were very much aware of the existence of these two documents as on 20.07.2004 and 25.05.2009 the date of written statements which came to be filed by defendants1 and 2 and defendant-17 respectively. Section 17 of the Act would enable the plaintiff or applicant to seek for postponement of limitation or to contend limitation would not begin to run only in the event of such plaintiff or applicant had means of producing concealed document or had sought for compelling its production. In other words, when said documents were available on record, plaintiffs could have called upon the defendants to produce the same either by issuing notice under Order 12 Rule 8 CPC or could have filed appropriate application seeking a direction to the defendants to produce these documents in original for inspection. However, despite their knowledge of such documents being in existence, plaintiffs did not choose to undertake said exercise. It is in this background, words found in Section 17 “compelling its production” would acquire significance. A person who had knowledge of such document being in existence and being aware of the fact that same is in custody of the opposite party, fails to seek for its production or compel its production through the process of Court and sleeps over his right, then in such an event, plaintiff or applicant cannot be heard to contend that still limitation would be available to him since production of said document was subsequent and as such, limitation would begin to run from the date of its production or its marking only. 17. At the cost of repetition, it requires to be noticed that in the instant case, defendants 1 and 2 and 17th defendant have specifically raised pleas in their respective written statements about these two (2) deeds and defendant No. 17 had also produced these two documents along with his written statement as document Nos.2 and 3 on 25.05.2009 itself. Thus, nothing prevented plaintiffs to compel 17th defendant or other defendants to cause its production by invoking Order 12 Rule 8 CPC. Thus, nothing prevented plaintiffs to compel 17th defendant or other defendants to cause its production by invoking Order 12 Rule 8 CPC. In view of plaintiffs having failed to undertake such an exercise, they cannot be heard to contend that Section 17 of the Act would be still available to them to contend that limitation would be applicable since these two (2) documents came to be marked on 12.03.2015 and as such, knowledge has to be reckoned from the date of its marking. 18. Apex Court judgment in the case of Syed Shah Ghulam Ghouse Mohiuddin and Others vs. Syed Shah Ahmed Mohiuddin Kamisul Quadri (Died) by L.Rs and Others reported in (1971)1 SCC 597 relied upon by learned Sr. counsel appearing for plaintiffs would not come to their rescue inasmuch as, it has been clearly held therein when a person having right to institute a suit has by means of a fraud had been kept in dark or not having knowledge of such right or of the title on which claim is founded, the time limit for instituting a suit against the person guilty of the fraud shall be computed from the time when the fraud first became known to the person affected thereby Videparagraph-19. In the instant case, at the first instance, defendants disclosed their defence in their written statements at paragraphs 15 and 18 as noticed herein above. In fact, 17th Defendant produced those two documents along with his written statement in the year 2009 i.e., on 25.05.2009 itself. Hence, even assuming for a moment that said date has to be construed as the date on which plaintiffs acquired knowledge of such documents and time limit has to be reckoned necessarily from the said date, inasmuch as, plaintiffs right to seek for compelling its production would commence from said date and as such, limitation also started ticking from said date i.e., 25.05.2009 and application for amendment having been filed on 25.03.2015 which was beyond 3 years from date of acquiring such knowledge, then, claim of plaintiffs was clearly barred by limitation. As such, this Court is of the considered view, above referred judgment relied upon by petitioners would be of no assistance to them but on the other hand, it would come to the rescue of defendants. 19. As such, this Court is of the considered view, above referred judgment relied upon by petitioners would be of no assistance to them but on the other hand, it would come to the rescue of defendants. 19. For afore-stated myriad reasons, this Court is of the considered view that there is no merit in this petition and accordingly, it stands dismissed. Costs made easy. Ordered accordingly.