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2018 DIGILAW 2953 (MAD)

A. T. M. Veeraraghavan v. V. Poonguzhali

2018-09-14

P.T.ASHA

body2018
JUDGMENT : P.T. Asha, J. The above Civil Revision Petition is filed challenging the order dated 08.06.2008 in I.A.No.14573 of 2007 in O.S.No.2911 of 2000 of the VI Assistant City Court, Chennai in and by which the learned Judge has allowed an amendment application filed by the first respondent herein. 2. The facts necessary for disposing of the revision petition is that the first respondent herein had filed suit in O.S.No.2911 of 2000 for the following relief. a. Declaring that the 3rd defendant should execute the sale deed in respect of 450 sq.ft area only in favour of the plaintiff in view of the proceedings dated 01.07.1996 and consequently b. Restraining the defendants 1 & 2, their men, agents, servants etc. from in any manner trepassing into the plaint schedule property having an extent of 450 sq.ft. And putting up any construction nor dealing with the same. 3. It was her case that the 2nd respondent had accepted her offer to purchase the suit schedule property and that the revision petitioners herein who are the owners of the adjoining plot namely C-18 had encroached into the suit property and were attempting to put up construction. It was her case that the 2nd respondent herein had invited bids for the suit schedule property and had said that the same would be sold to the highest bidder but, though they had agreed to sell the suit property to the 1st respondent. They had accepted the offer of the revision petitioner. Since the revision petitioner were attempting to put up the constructions and had encroached into the suit property, the first respondent has come forward with this suit. 4. The first petitioner herein had filed a detail written statement in and by which they had clearly stated that the suit as filed is not maintainable since the only relief that is available to the first respondent is to file a suit for specific performance and in order to circumvent the issue of limitation, the suit for declaration and injunction had been filed. The first petitioner had contended that the 2nd respondent herein had offered the suit land to him and after an exchange of letters, the 2nd respondent by its dated 16.08.1994 had agreed to sell the property to the first petitioner which was accepted by the first petitioner vide its letter dated 25.07.1995. The first petitioner had contended that the 2nd respondent herein had offered the suit land to him and after an exchange of letters, the 2nd respondent by its dated 16.08.1994 had agreed to sell the property to the first petitioner which was accepted by the first petitioner vide its letter dated 25.07.1995. Since the 2nd respondent had not come forward to execute the sale deed, the first petitioner had filed a suit in O.S.No.9134 of 1996 on the file of 6th Assistant City Civil Court, Chennai for a mandatory injunction directing the 2nd respondent herein to convey the suit property as per the guideline value. The first petitioner had contended that the respondent herein were colluding to deprive the revision petitioner of the property. Besides other averments were also made denying the statement made by the first respondent herein. This written statement was filed on 19.07.2002. The 2nd respondent had also filed a written statement in which they had contended that they had agreed to sell the property to the vendor of the first respondent herein who was the successful bidder and that they did not intend to selling the property to the revision petitioners herein. 5. On 28.08.2007, the first respondent herein came forward with an application seeking to amend the plaint by including one more relief namely; the relief of mandatory injunction directing the 2nd respondent herein to execute a sale deed in her favour in respect of the suit schedule property. In the affidavit filed in support of the petition the first respondent had stated that in view of the undertaking given in the letter dated 01.07.1996 and the subsequent development in the form of suit in O.S.No.9134 of 1996 it had become imperative to file the amendment. 6. The first petitioner herein for himself and on behalf of the 2nd petitioner had filed a counter in which they have stated that the amendment was barred by limitation and the respondent ought to have taken out this relief in the suit which was filed in the year 2000. The first petitioner also contended that the amendment application has been filed by the first respondent after a delay and was only an afterthought. In the paragraph 7 of the Counter affidavit, he had narrated the various dates on which the proceedings were being adjourned prior to filing of this application. 7. The first petitioner also contended that the amendment application has been filed by the first respondent after a delay and was only an afterthought. In the paragraph 7 of the Counter affidavit, he had narrated the various dates on which the proceedings were being adjourned prior to filing of this application. 7. The learned VI Assistant City Civil Court, Chennai allowed the application on cost. The learned Judge has allowed the application on the ground that the first respondent was only seeking to include the relief which had been left out in the original suit and that no prejudice could be caused. Aggrieved by the same the revision petitioners have filed the present revision petition. 8. Heard Mr. D. Madhusana Reddy for Mr. A.M. Loganathan appearing on behalf of the petitioner and the respondents 1 and 2 not entering appearance despite being served with notice. 9. The learned counsel would argue that even as early as in the year 2002, the revision petitioners had taken the defence that the suit as filed, without seeking the relief of specific performance, was barred by limitation and the suit has been filed was only to circumvent the law of limitation. The revision petitioner would further argue that the first respondent has not taken steps after the filing of this written statement to amend the plaint and on the contrary they had been moving one application after the other from the time the suit was posted for arguments and therefore the only attempt on the part of the 1st respondent was to protract the proceedings. 10. The learned counsel has also cited the judgment Revajeetu Builders and Developers Vs. Narayanaswamy and sons and others, (2009) 10 SCC 84 wherein the Hon'ble Supreme Court in paragraph 63 of the judgment had laid down the basic principles which have to be taken into consideration while allowing or rejecting the application for amendment and one of the principle was that the Court should decline the amendments if the fresh suit in respect of such amended claims would be barred by limitation on the date of the application. The learned counsel would therefore argue that even according to the first respondent, the 2nd respondent had offered to sell the suit property to the first respondent by the proceedings dated 01.07.1996 and the amendment petition for mandatory injunction is filed only in the year 2007, nearly 11 years after the said offer. 11. Heard the counsel and perused the records. It is seen that the first petitioner had in the written statement filed by them on 19.07.2002 stated as follows: This defendant submits that the plaintiff has sought the relief of Declaration that the third defendant should execute the Sale Deed in respect of 450 sq.ft in her favour, in view of the proceedings dated 01.07.1996. The relief sought for tantamous to specific performance of the agreement of sale. As such the proper suit should have been suit for specific performance and not for suit for declaration. The plaintiff has filed the above suit to circumvent the Law of Limitation. The suit is barred by Law of Limitation and is liable to be dismissed. 12. It is seen that the evidence was concluded on 17.07.2006 and thereafter the matter was adjourned for arguments to 20.07.2006, 24.07.2006 and 26.07.2006. In fact after the evidence was over the first respondent had filed an application for reopening and recalling PW.1 evidence and to implead the 2nd respondent as the 3rd defendant. This application was disposed of on 19.07.2007 and thereafter the matter was posted for argument on 20.07.2007, 08.08.2007, 16.08.2007. On 29.08.2007 when the matter was posted as last chance for arguments, an adjournment petition was filed and thereafter the impugned petition came to be filed. This would clearly show the conduct of the first respondent. Further, the cause of action for filing the suit is the offer letter dated 01.07.1996 of the 2nd respondent herein. Even on the date of filing of the suit in the year 2000, the suit was barred by limitation, nearly 7 years later the application for amendment has been moved. This would clearly show the conduct of the first respondent. Further, the cause of action for filing the suit is the offer letter dated 01.07.1996 of the 2nd respondent herein. Even on the date of filing of the suit in the year 2000, the suit was barred by limitation, nearly 7 years later the application for amendment has been moved. The Hon'ble Supreme Court in the judgment cited by the counsel for the petitioner has clearly stated that one of the Principle that should borne in the mind by the Court while dealing with an amendment application is to consider the fact that if a fresh suit is filed for the very same relief on the lines of the amended claims, if the suit would be barred by limitation, then the same relief cannot be granted by way of amendment. 13. The learned VI Assistant City Civil Judge, Chennai has totally overlooked this legal issue and proceeded to order to allow the application on the ground that no prejudice would be caused to the revision petitioners totally overlooking the fact that by granting the amendment, the learned Judge was giving fresh life to a relief that was otherwise hopelessly barred by limitation. 14. In the result, the Civil Revision Petition is allowed. The order of the learned VI Assistant City Civil Court, Chennai in I.A.No.14573 in O.S.No.2911 of 2000 is perverse and liable to the set aside. Consequently, connected miscellaneous petition is also closed.