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2017 DIGILAW 396 (MP)

RADHESHYAM MEENA v. MUNEER RAZA

2017-03-22

ANJULI PALO

body2017
ORDER : Anjuli Palo, J. This writ petition has been filed under Article 227 of the Constitution of India against the order dated 04-03-2016 passed by Fifth Civil Judge Class-II, Bhopal in Civil Suit No. 126A/2011 whereby the trial Court has rejected the application under Order 6, Rule 17 of Civil Procedure Code. 2. Learned counsel for the petitioner submits that in a most arbitrary and mechanical manner the learned trial Court rejected the application for amendment on the basis of subsequent events. The petitioner came to know that the previous land owners of the suit property had executed a will dated 02-06-1993 in favour of Shri Dinesh, who subsequently by way of registered sale deeds dated 13-03-2003, sold the suit land bearing Khasra No. 334/2 area 4.75 acre, Khasra No. 338 area 0.89 acre total area 5.64 acres, to respondent No. 1 and land bearing Khasra No. 334/1/2 area 5.28 acre, Khasra No. 332/1 area 1.80 acres, Khasra No. 332/1 area 1.81 acres total area 6.86 acres, to respondent No. 2. 3. The same land purchased by the respondents No. 1 and 2 which has been sold out by way of registered sale deeds dated 13-03-2003 to 21-03-2011. Aforesaid transaction are not binding on the petitioner, therefore, the petitioner proposed the amendment in his plaint. 4. Learned counsel for the respondents No. 2 and 4 vehemently opposed the contentions of the learned counsel for the petitioner. Learned counsel for the respondents contended that the proposed amendments arc time barred, hence, in the light of Article 54 of Limitation Act, the proposed amendment should not be allowed. 5. Learned trial Court has held that the petitioner has not been stated about the fact that how and when he came to know about the execution of sale deeds and the "Will". Earlier he claimed of declaration of title on the basis of adverse possession. By the proposed amendment, the petitioner wants to change the nature of the suit. Application has been filed with inordinate delay. Therefore, the learned trial Court rejected the application filed under Order 6, Rule 17 of Civil Procedure Code. Apparently, the petitioner proposed the amendment regarding the execution of "Will" dated 02-06-1993 and sale deeds dated 13-3-2003. Suit was instituted in the year 2011, as shows in Annexure P/3. On that account, the proposed amendment is clearly/time barred. 6. Therefore, the learned trial Court rejected the application filed under Order 6, Rule 17 of Civil Procedure Code. Apparently, the petitioner proposed the amendment regarding the execution of "Will" dated 02-06-1993 and sale deeds dated 13-3-2003. Suit was instituted in the year 2011, as shows in Annexure P/3. On that account, the proposed amendment is clearly/time barred. 6. It is true that in allowing the proposed amendment instead of hyper technical, liberal approach has to be adopted. In the case law cited by the learned counsel for the petitioner Ramesh Kumar Agrawal v. Rajmala Exports Private Limited, (2012) 5 SCC 337 , proposed amendment was immediately filed, after filing of suit and before commencement of trial. The present situation is different. The petitioner wants to challenge the execution of sale deeds dated 13-03-2003 by amendment in the year 2016. 7. As per Article 54 of Limitation Act, time limit of suit is for three years. In the case of Pushpa Arora v. Anita Arora, 2012 (1) M.P.L.J. 710 which is cited by learned counsel for the petitioner himself, it is laid down that the application for amendment should not be rejected merely on the ground of delay alone and held that amendment which is barred by the limitation should not be allowed. 8. In the case of L.C. Hanumanthappa v. H.B. Shivakumar, 2016 (3) M.P.L.J. 281 it is held that amendment of plaint sought long after, three years not maintainable. 9. In the case of Muni Lal v. Oriental Fire and General Insurance Co. Ltd. and another, (1996) 1 SCC 90 , it is held that if the pleadings of proposed amendment was barred by limitation, it would not permissible. 10. In the present case, the petitioner did not explain the delay caused in filing the proposed amendment in the year 2016. In the case of Dashrath and mother v. Raju Bai, 2015 (1) M.P.L.J. 92 , it is held that if there is nothing in the application indicating that, in spite of the due diligence the respondent could not take step for making proposed amendment in his pleadings, the party cannot raise matter before commencement of trial, no application for amendment be allowed after commencement of the trial. 11. In the light of the aforesaid cases, proposed amendment is time barred, hence, the petition is dismissed.