Research › Search › Judgment

Orissa High Court · body

2019 DIGILAW 489 (ORI)

Mumtaz Begum v. Surendra Kumar Sahoo

2019-07-29

A.K.RATH

body2019
JUDGMENT : A.K. Rath, J. This petition challenges the order dated 16.1.2017 passed by the learned 2nd Additional Civil Judge (Senior Division), Cuttack in C.S.No.300 of 2011, whereby and whereunder, learned trial court has allowed the application of the plaintiff under Order 6 Rule 17 CPC to amend the plaint. 2. The plaintiff-opposite party no.1 instituted the suit to set aside the registered sale deed dated 13.2.2009 executed by defendant nos. 1 to 7 in favour of defendant no.8, eviction and perpetual injunction stating that he had purchased Ac.0.240 dec. of land appertaining to hal plot no.21, khata no.198, Unit No.29, Chauliaganj of mouza-Cuttack Town from defendant no.9 by means of a registered sale deed no.2349 dated 8.5.2009. He is in possession of the same. When defendant no.8 forcibly constructed over a portion of the suit land, he instituted the suit. 3. Defendant no.8 filed a written statement denying the assertions made in the plaint. According to him, prior to execution of the sale deed by defendant no.9, he had purchased Ac.0.105 dec. of land form defendant nos.1 to 7 by means of a registered sale deed dated 13.2.2009. He is in possession of the same. Defendant nos. 1, 4 and 7 filed a joint written statement supporting the case of defendant no.8. While matter stood thus, the plaintiff filed an application under Order 6 Rule 17 CPC to amend the plaint. In the proposed amendment, the plaintiff sought relief for a money decree of Rs.26,82,179/- with P.I. and F.I. against defendant no.9, who sold away the entire suit land in his favour for a consideration. It is stated that after filing of written statement by defendant nos. 1, 4, 7 and 8, he came to know that defendant nos.1 to 7 had half share over Ac.0.240 dec. of land. They alienated the same in favour of defendant no.8 by means of a registered sale deed dated 13.2.2009. He purchased the entire area. His vendor, defendant no.9, had no right to alienate the same except Ac.0.120 dec. of land. Thus, defendant no.9 is obliged to return the consideration amount i.e., Rs.18.45,000/- with interest @9% from the date of filing of the written statement. Defendant no.9 filed objection stating therein that defendant nos. 1, 4, 7 and 8 filed their written statement on 14.11.2011. Thus the cause of action arose on that day. The claim is barred by limitation. Thus, defendant no.9 is obliged to return the consideration amount i.e., Rs.18.45,000/- with interest @9% from the date of filing of the written statement. Defendant no.9 filed objection stating therein that defendant nos. 1, 4, 7 and 8 filed their written statement on 14.11.2011. Thus the cause of action arose on that day. The claim is barred by limitation. The proposed amendment will change the nature and character of the suit. Learned trial court allowed the petition holding that the proposed amendment will not change the nature and character of the suit. It will prevent the multiplicity of proceeding. The plea of limitation shall be taken into consideration at the time of hearing of the suit. The trial of the suit has not commenced. 4. Heard Mr.P.R.Barik, learned Advocate for the petitioner, Mr.R.K.Mohanty, learned Senior Advocate along with Mr.S.K.Pattnaik, learned Advocate for opposite party no.1, Mr.D. Deo, learned Advocate for opposite party no.9 and Mr.G.C.Ray, learned Advocate for opposite party nos.2 to 8. 5. Mr.Barik, learned Advocate for the petitioner submitted that the proposed amendment will change the nature and character of the suit. In the plaint, it is stated that the cause of action for filing of the suit arose on 13.2.2009, 29.6.2009 and lastly on 1.4.2011 when defendant no.8 illegally occupied a portion of the suit land. It is not the case of the plaintiff that defendant no.9 had no title over the suit land i.e., Ac.0.240 dec. of land and that the sale deed executed by defendant no.9 is void one. The plaintiff asserted that he had purchased Ac.0.240 dec. of land from defendant no.9. The period of limitation for filing of the suit for recovery of money is three years. The proposed amendment is barred by limitation. The doctrine of relation back will not apply in the case since the suit for recovery of money is time barred. He placed reliance on a decision of the apex Court in the case of L.C.Hanumanthappa (since Dead) represented by his LRs. v. H.B.Shivakumar, (2015) AIR SC 3364. 6. Per contra, Mr.Mohanty, learned Senior Advocate assisted by Mr.Pattnaik, learned Advocate for opposite party no.1 submitted that Mirza Jallaluddin, vendor of defendant no.9, had executed a registered deed of exchange in favour of his brother Mirza Nazir Mohammed, predecessor in interest of defendant nos.1 to 7, whereafter Mirza Nazir got Ac.0.120 dec. of land from out of Ac.0.240 dec.. 6. Per contra, Mr.Mohanty, learned Senior Advocate assisted by Mr.Pattnaik, learned Advocate for opposite party no.1 submitted that Mirza Jallaluddin, vendor of defendant no.9, had executed a registered deed of exchange in favour of his brother Mirza Nazir Mohammed, predecessor in interest of defendant nos.1 to 7, whereafter Mirza Nazir got Ac.0.120 dec. of land from out of Ac.0.240 dec.. The vendor of defendant no.9 by suppressing the said fact sold the entire area of Ac.0.240 dec. in favour of defendant no.9. Thereafter, defendant no.9 sold the entire Ac.0.240 dec. of land to the plaintiff suppressing that she was the owner of Ac.0.120 dec. of land and not the entire area. Defendant nos.1, 4, 7 and 8 filed their written statement disclosing their acquisitions of area Ac.0.120 dec. of land from out of Ac.0.240 dec.. Defendant no.9 filed written statement supporting the stand of the plaintiff. She stated that she had absolute title over the entire disputed area of Ac.0.240 dec.. In view of the same, the proposed amendment was filed to abandon the claim against defendant nos. 1 to 8 in respect of Ac.0.120 dec. of land and limit the same to the residual of Ac.0.120 dec. against defendant no.9 and for recovery of money paid towards consideration with interest from her. The proposed amendment is formal in nature. He placed reliance on a decision of the apex Court in the case of Pankaja and another v. Yellappa (Dead) by L.Rs. and others, (2004) 6 SCC 415 . 7. Before adverting to the contentions raised by the learned counsel for the parties, it is apt to refer the decisions cited by the learned Advocates for the parties. 8. In Pankaja, the apex Court held : "15. This Court in the case of L.J. Leach and Co. Ltd. & another Vrs. Messrs. Jardine Skinner and Co., (1957) AIR SC 357 has held :- "16. It is no doubt true that Courts would, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the Court to order it, if that is required in the interests of justice." 16. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the Court to order it, if that is required in the interests of justice." 16. This view of this Court has, since, been followed by a 3 Judge Bench of this Court in the case of T.N. Alloy Foundry Co. Ltd. Vrs. T.N. Electricity Board & others, (2004) 3 SCC 392 . Therefore, an application for amendment of the pleading should not be disallowed merely because it is opposed on the ground that the same is barred by limitation, on the contrary, application will have to be considered bearing in mind the discretion that is vested with the Court in allowing or disallowing such amendment in the interest of justice." 9. In L.C.Hanumanthappa, the apex Court was faced with an application for amendment made eleven years after the date of the institution of the suit to convert the suit for perpetual injunction into a suit for declaration of title and recovery of possession. The apex Court held: "In our opinion, the basic structure of the suit is not altered by the proposed amendment. What is sought to be changed is the nature of relief sought for by the plaintiff. In the opinion of the trial court, it was open to the plaintiff to file a fresh suit and that is one of the reasons which has prevailed with the trial court and with the High Court in refusing the prayer for amendment and also in dismissing the plaintiff's revision. We fail to understand, if it is permissible for the plaintiff to file an independent suit, why the same relief which could be prayed for in a new suit cannot be permitted to be incorporated in the pending suit. In the facts and circumstances of the present case, allowing the amendment would curtail multiplicity of legal proceedings. XXX XXX XXX 9. Order 6 Rule 17, CPC confers jurisdiction on the court to allow either party to alter or amend his pleadings at any stage of the proceedings and on such terms as may be just. Such amendments as are directed towards putting forth and seeking determination of the real questions in controversy between the parties shall be permitted to be made. Order 6 Rule 17, CPC confers jurisdiction on the court to allow either party to alter or amend his pleadings at any stage of the proceedings and on such terms as may be just. Such amendments as are directed towards putting forth and seeking determination of the real questions in controversy between the parties shall be permitted to be made. The question of delay in moving an application for amendment should be decided not by calculating the period from the date of institution of the suit alone but by reference to the stage to which the hearing in the suit has proceeded. Pre-trial amendments are allowed more liberally than those which are sought to be made after the commencement of the trial or after conclusion thereof. In the former case generally it can be assumed that the defendant is not prejudiced because he will have full opportunity of meeting the case of the plaintiff as amended. In the latter cases the question of prejudice to the opposite party may arise and that shall have to be answered by reference to the facts and circumstances of each individual case. No straitjacket formula can be laid down. The fact remains that a mere delay cannot be a ground for refusing a prayer for amendment. 10. An amendment once incorporated relates back to the date of the suit. However, the doctrine of relation-back in the context of amendment of pleadings is not one of universal application and in appropriate cases the court is competent while permitting an amendment to direct that the amendment permitted by it shall not relate back to the date of the suit and to the extent permitted by it shall be deemed to have been brought before the court on the date on which the application seeking the amendment was filed." 10. Reverting to the facts of the case and keeping in view the law laid down by the apex Court in the decisions cited supra, the instant case may be examined. The basic structure of the suit is not altered by the proposed amendment. The amendment is necessary for determination of the real questions in controversy between the parties. The same is bona fide. The trial of the suit is not commenced. The basic structure of the suit is not altered by the proposed amendment. The amendment is necessary for determination of the real questions in controversy between the parties. The same is bona fide. The trial of the suit is not commenced. The plaintiff sought to change the nature of relief, but then, there are no special or extraordinary circumstances in the case to warrant the doctrine of relation back applying so that a legal right that had acquired in favour of the defendants should be taken away. The prayer of recovery of money shall be deemed to have been made on the date on which the application for amendment was filed. 11. The petition is disposed of with the aforesaid observations.