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2016 DIGILAW 343 (KAR)

B. S. Prakash v. T. Gnaneshwar Rao

2016-04-11

ARAVIND KUMAR

body2016
ORDER : Aravind Kumar, J. 1. Heard Sri Aravind Babu, learned Advocate appearing on behalf of Sri A.Y.N. Gupta for petitioner in W.P. No. 5484/2016, Sri V.B. Shivakumar, learned Advocate appearing for petitioners in W.P. No. 5938/2016 and Sri S.R. Srinivasa Murthy, learned Advocate appearing for respondent-1 in W.P. No. 5484/2016 and for respondents-1 to 3 in W.P. No. 5938/2016. Parties are referred to as per their rank in trial Court. 2. Petitioner in W.P. No. 5484/2016 is the defendant No. 6, petitioners in W.P. No. 5938/2016 are defendants Nos. 1(a) to 1(d), 1(f), 2 and 5 and respondents-1 to 3 in both petitions are plaintiffs. Plaintiffs filed a suit in O.S. No. 2725/1990 seeking for declaration that they are absolute owners of the suit schedule property and for a direction to 6th defendant to pay a sum of Rs. 36,000/- and for a further direction to pay Rs. 1,500/- per month for damages for use and occupation of the suit schedule property and for perpetual injunction to restrain the defendants from interfering with plaintiffs possession and enjoyment of suit schedule property. When the matter was set down for final arguments, plaintiffs filed an application under Order 6, Rule 17 CPC seeking amendment of plaint as per Annexure-F. Proposed amendment reads as under: "Delete (a) and insert the prayer as a(1) as: Pass a judgment and decree, declaring that the registered sale deed of the 6th defendant executed by the defendant No. 2 to 5 at Chennai dated: 26-07-1988, which is at Annexure-'F' is not binding on the plaintiff and unenforceable in the eye of law. Insert the prayer as b(1) as: Direct the 6th defendant to hand over the vacant possession of the suit schedule property to the plaintiffs by way of Mandatory Injunction. Delete (d) and insert the prayer as d(1) as: Pass a judgment and decree, restraining all the defendants by way of permanent injunction not to interfere with the suit schedule property of the plaintiffs' possession and enjoyment pursuant to the order of this Court. Delete (d) and insert the prayer as d(1) as: Pass a judgment and decree, restraining all the defendants by way of permanent injunction not to interfere with the suit schedule property of the plaintiffs' possession and enjoyment pursuant to the order of this Court. Plaintiffs by the proposed amendment, sought for deletion of prayer (a) and incorporating a plea of declaring that registered sale deed of 6th defendant executed by defendants-2 to 5 dated 26.07.1988 is not binding on the plaintiffs and unenforceable and for a direction to the 6th defendant to hand over vacant possession of plaint schedule property by way of mandatory injunction and for perpetual injunction against defendants. 3. Said application was resisted to by defendants-1 to 4 and 6 by filing detailed statement of objections and after considering rival contentions, trial Court by impugned order dated 18.01.2016 has allowed the application on the ground that proposed amendment would not change the nature of claim made in the suit and it does not introduce new facts and plaintiffs are not seeking for new relief and proposed prayer is not contrary to their pleadings. It has also been held that there is a bonafide error or mistake in the plaint and since prayer requires to be moulded in accordance with pleadings, amendment deserves to be allowed. Said order is impugned in the present writ petition. 4. It is the contention of Sri Aravind Babu and Sri V.B. Shivakumar, learned Advocates appearing for petitioners that trial Court committed a serious error in al lowing the prayer of declaration that is sought for by plaintiffs under proposed amendment and same is barred by law of limitation under Article 59 of the Limitation Act, 1963. 4. It is the contention of Sri Aravind Babu and Sri V.B. Shivakumar, learned Advocates appearing for petitioners that trial Court committed a serious error in al lowing the prayer of declaration that is sought for by plaintiffs under proposed amendment and same is barred by law of limitation under Article 59 of the Limitation Act, 1963. It is also contended that plaintiffs having admitted in paragraph 10 of the plaint with regard to execution of sale deed dated 28.07.1988 namely, sale deed executed by defendants-2 to 5 in favour of 6th defendant, relief of declaration which is now sought to be incorporated by way of amendment ought to have been sought for in the first instance itself and as such, Section 9 of the Limitation Act indicates that limitation would begin to run from the date of knowledge and plaintiffs having knowledge of said sale deed way back in the year 1990 i.e., as on the day of presenting the plaint, they cannot plead ignorance or contend that claim is not barred by limitation as on date of filing the application for amendment. They would also contend that claim of plaintiffs being barred by limitation, application in question ought not to have been allowed by the trial Court. Hence, they pray for rejection of said application by allowing these writ petitions. 5. Per contra, Sri Srinivasa Murthy, learned Advocate appearing for respondents-plaintiffs-1 to 3 would support the impugned order and prays for dismissal of these writ petitions. He would rely upon following judgments in support of his prayer: "(1) AIR 2008 SC 2234 Chander Kanta Bansal Vs. Rajinder Singh Anand (2) (1990) 1 SCC 166 Gaja Nan Jaikishan Joshi Vs. Prabhakar Mohanlal Kalwar (3) (1996)2 SCC 25 G Nagamma and Another Vs. Siromanamma and Another." 6. Having heard the learned Advocates appearing for parties and after bestowing my careful consideration to the rival contentions raised at the bar, this Court is of the considered view that following point would arise for consideration in this writ petition: "Whether trial Court was justified in allowing the application for amendment of plaint by impugned order dated 18.02.2016?" 7. Having heard the learned Advocates appearing for parties and after bestowing my careful consideration to the rival contentions raised at the bar, this Court is of the considered view that following point would arise for consideration in this writ petition: "Whether trial Court was justified in allowing the application for amendment of plaint by impugned order dated 18.02.2016?" 7. Original prayer sought for by the plaintiffs as can be seen from the plaint - Annexure-B (in W.P. No. 5938/2016) reads as under: "(a) Pass a Judgment and decree of declaration declaring that the plaintiffs are the absolute owners of the suit schedule property against the defendants 1 to 6 and also against others who claim through them and; (b) Pass a Judgment and decree directing the 6th defendant to pay a sum of Rs. 36,000/- and further direct the defendant to pay Rs. 1,500/- per mensem for damages for use and occupation of the schedule property from the date of the suit till possession of the schedule property is delivered to the plaintiffs and (d) Pass a Judgment and decree of permanent injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the suit schedule property, after the delivery of possession to the plaintiffs in the interest of equity, justice and law." Averments made in the plaint have been denied by defendants and on the basis of pleadings of the parties, issues have been framed and parties have gone for trial. When the matter was set down for final arguments, plaintiffs have filed the application in question i.e., Annexure-D (in W.P. No. 5938/2016) whereunder he has sought for deletion and substitution of prayer (a) and (d) and insertion of prayer b(1) as under: "Delete (a) and insert the prayer as a(1) as: Pass a judgment and decree, declaring that the registered sale deed of the 6th defendant executed by the defendant No. 2 to 5 at Chennai dated: 26-07-1988, which is at Annexure-'F' is not binding on the plaintiff and unenforceable in the eye of law. Insert the prayer as a b(1) as: Direct the 6th defendant to hand over the vacant possession of the suit schedule property to the plaintiffs by way of Mandatory Injunction. Insert the prayer as a b(1) as: Direct the 6th defendant to hand over the vacant possession of the suit schedule property to the plaintiffs by way of Mandatory Injunction. Delete (d) and insert the prayer as d(1) as: Pass a judgment and decree, restraining all the defendants by way of permanent injunction not to interfere with the suit schedule property of the plaintiffs' possession and enjoyment pursuant to the order of this Court." 8. In the plaint at paragraph 10, plaintiffs have pleaded that cause of action for the suit in question had arisen at the first instance on the date of sale deed i.e., 22.04.1988 and again on 28.07.1988, when defendants-2 to 5 executed a sale deed in favour of 6th defendant and again on 20.03.1990. Thus, plaintiffs had knowledge of sale deed executed by defendants 2 to 5 in favour of 6th defendant even as on the date of filing of the suit in question which was in the year 1990. Yet, plaintiffs did not choose to seek declaration of the said sale deed as not binding on them. Article 59 of the Limitation Act, 1963 would indicate the period of limitation for seeking cancellation or setting aside an instrument or decree or for rescission of a contract is three years and it begins to run from the date of knowledge. Thus, date of commencement of 3 years period would begin to run from the date when plaintiff had knowledge of such deed or instrument having been executed and it enables them to seek for declaration of such instrument or decree being null and void. In the instant case, at paragraph 10 of the plaint, plaintiffs themselves have admitted that they had knowledge of the sale deed dated 22.04.1988 and again on 28.07.1988 and also on the date of presenting the plaint i.e., in the year 1990. Three years limitation prescribed if computed to have commenced on the date of presentation of plaint i.e., in the year 1990, application for amendment of the plaint filed in the year 2015 was definitely not maintainable or in other words, claim of the plaintiffs insofar as such declaratory relief had become time barred. 9. Hon'ble Apex Court in the case of Reuajeetu Builders and Developers Vs. 9. Hon'ble Apex Court in the case of Reuajeetu Builders and Developers Vs. Narayanaswamy and Sons and Others reported in (2009)10 SCC 84 after having extensively considered catena of judgments, has laid down the contours or factors which should be taken into consideration while dealing with an application for amendment namely, either for allowing or rejecting the application for amendment of pleadings which reads as under: "Factors to be taken into consideration while dealing with applications for amendments "63. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment: (1) whether the amendment sought is imperative for proper and effective adjudication of the case; (2) whether the application for amendment is bona fide or mala fide; (3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (4) refusing amendment would in fact lead to injustice or lead to multiple litigation; (5) whether the proposed amendment constitutionally or fundamentally changes the nature-and character of the case; and (6) as a general rule, the Court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. These are some of the important factors which may be kept in mind while dealing with application filed under Order 6, Rule 17. These are only illustrative and not exhaustive." 10. As noticed herein above, factors explained by Apex Court though being illustrative in nature and not exhaustive, same would be squarely applicable to the facts on hand, inasmuch as, it is a general principle that where amendment sought for is expressly time barred as on date of raising such plea, such amendment should not be allowed. In other words, while the claim which is sought to be put forward through proposed amendment by raising new claim if it had become time barred namely if a fresh suit is brought for said relief is barred by limitation as on the said date, such claim through amendment came to be allowed. In the instant case, as noticed herein above, amendment sought for is for declaration of sale deed dated 26.07.1988 as null and void and not binding on plaintiffs and this fact was well within knowledge of plaintiff way back in the year 1990 itself. In the instant case, as noticed herein above, amendment sought for is for declaration of sale deed dated 26.07.1988 as null and void and not binding on plaintiffs and this fact was well within knowledge of plaintiff way back in the year 1990 itself. As such, trial Court had committed a serious error in arriving at a conclusion that proposed amendment would not change nature of the claim and valuable right which had accrued to the defendants by virtue of such lapse of time cannot be taken away inasmuch as, amendment of plaint if allowed, it would relate back to the date of presentation of the plaint and claim which plaintiffs are seeking to put forward through amendment which has become time barred as on the date of filing claim in question would stand revived or in other words, dead claim will become alive. In that view of the matter, trial Court was not justified in allowing the application for amendment. For the reasons indicated herein above, I proceed to pass the following: "ORDER (1) Writ petitions are hereby allowed. (2) Order dated 18.01.2016 passed on the application filed under Order 6, Rule 17 CPC read with Section 151 CPC in O.S. No. 2725/1990 by XV Addl. City Civil & Sessions Judge, Bengaluru City vide Annexure-F (in W.P. No. 5484/2016) and Annexure-A (in W.P. No. 5938/2016) is hereby quashed. (3) I.A. filed by plaintiffs under Order 6, Rule 17 CPC read with Section 151 CPC as per Annexures-C & D in the respective petitions stands dismissed." Ordered accordingly.