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2020 DIGILAW 911 (KER)

Abraham S/o Paulose v. Mathai S/o Paulose

2020-11-02

R.NARAYANA PISHARADI

body2020
JUDGMENT : R. NARAYANA PISHARADI, J. 1. The petitioner is the plaintiff and the respondents are the defendants in the suit O.S. No. 205/2011 on the file of the Munsiff's Court, Muvattupuzha. 2. The suit is instituted for granting a decree of declaration that the plaintiff has got right to get lateral support to the plaint B schedule way from the adjoining plaint D schedule property owned by the defendants. The plaintiff has also prayed for granting a decree of prohibitory injunction restraining the defendants from committing any act in the plaint D schedule property which would destroy the lateral support to the plaint B schedule way and also restraining the defendants from trespassing into the plaint E schedule property and constructing any way through that property. 3. The defendants filed written statement in the suit, raising also a counter claim. They contended that the plaintiff has got no right over the plaint B schedule way. By way of counter claim, they sought a decree of declaration that they have got right of easement by necessity over the property shown as item No. 2 in the schedule of the counter claim and also for granting a decree of mandatory injunction directing the plaintiff to remove the obstructions made by him in that property. 4. On 21.10.2015, the plaintiff filed an application as I.A No. 2761/2015 (Ext.P4) under Order VI Rule 17 of the Code of Civil Procedure, 1908 (for short ‘the Code’) for amendment of the plaint. By the proposed amendment of plaint, the plaintiff sought a decree of mandatory injunction directing the defendants to construct a wall in the plaint D schedule property for providing lateral support to the plaint B schedule way. 5. The defendants did not file any written objection to Ext.P4 application but contended before the court below that the relief of mandatory injunction sought by the plaintiff by the amendment of the plaint is barred by limitation. 6. As per Ext.P5 order, the trial court dismissed Ext.P4 application on the ground that, the relief of mandatory injunction claimed by the plaintiff by the proposed amendment of plaint, is barred by limitation. 7. The plaintiff has filed this original petition under Article 227 of the Constitution of India, challenging the legality and propriety of Ext.P5 order. 8. Heard learned counsel for the petitioner and also the respondents. 9. 7. The plaintiff has filed this original petition under Article 227 of the Constitution of India, challenging the legality and propriety of Ext.P5 order. 8. Heard learned counsel for the petitioner and also the respondents. 9. Learned counsel for the petitioner contended that it was an inadvertent omission on the part of the plaintiff to seek the relief of mandatory injunction and that the amendment of the plaint, if allowed, will cause no prejudice to the defendants. Learned counsel further contended that the proposed amendment will not change the nature and character of the suit. 10. Per contra, learned counsel for the respondents contended that the cause of action for seeking a decree of mandatory injunction had arisen before the institution of the suit and the amendment of the plaint, seeking a relief which is barred by limitation, cannot be allowed. 11. The suit was instituted on 05.04.2011. The application for amendment of the plaint was filed on 21.10.2015. As per the averments in the affidavit filed in support of the application for amendment, the cause of action for seeking the relief of mandatory injunction arose on 28.03.2011, when the defendants allegedly removed the soil from the plaint D schedule property thereby causing loss of lateral support to the plaint B schedule way. 12. Learned counsel for the respondents would contend that, as per Article 113 of the Limitation Act, the period of limitation for filing a suit for which no period of limitation is specifically provided, is three years from the date on which the right to sue accrues and therefore, the relief of mandatory injunction sought by the plaintiff is barred by limitation. Prima facie, in view of Article 113 of the Limitation Act, the relief of mandatory injunction claimed by the plaintiff by the proposed amendment of plaint is barred by limitation. However, one cannot ignore the fact that the allegation is that the lateral support to a property was removed. Then it is an arguable question whether the cause of action for the relief of mandatory injunction, that is, the loss of lateral support to the property, is a recurring or continuing one for seeking that relief. 13. However, one cannot ignore the fact that the allegation is that the lateral support to a property was removed. Then it is an arguable question whether the cause of action for the relief of mandatory injunction, that is, the loss of lateral support to the property, is a recurring or continuing one for seeking that relief. 13. Order VI Rule 17 of the Code provides that, the Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. The proviso to this rule states that, no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of trial. 14. 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. (H.J. Leach and Company vs. M/s Jardine Skinner and Company, AIR 1957 SC 357 ) 15. The general rule, no doubt, is that a party shall not be allowed by amendment to set up a new case or a new cause of action particularly when a suit on new case or cause of action is barred. But it is also well recognised that where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts to no more than a different or additional approach to the same facts, the amendment will be allowed even after the expiry of the statutory period of limitation. A party is strictly not entitled to rely on the statute of limitation when what is sought to be brought in by the amendment can be said in substance to be already in the pleading sought to be amended. A party is strictly not entitled to rely on the statute of limitation when what is sought to be brought in by the amendment can be said in substance to be already in the pleading sought to be amended. (A.K. Gupta and Sons Limited vs. Damodar Valley Corporation, AIR 1967 SC 96 ) 16. Even if a party or his counsel is inefficient in setting out its case initially the shortcoming can certainly be removed generally by appropriate steps taken by a party which must no doubt pay costs for the inconvenience or expense caused to the other side from its omissions. The error is not incapable of being rectified so long as remedial steps do not unjustifiably injure rights accrued. Defective pleadings are generally curable if the cause of action sought to be brought out was not ab initio completely absent. Even very defective pleadings may be permitted to be cured, so as to constitute a cause of action where there was none, provided necessary conditions, such as payment of either any additional court fees, which may be payable, or, of costs of the other side are complied with. It is only if lapse of time has barred the remedy on a newly constituted cause of action that the Courts should, ordinarily, refuse prayers for amendment of pleadings. (M/s Ganesh Trading Company vs. Moji Ram, AIR 1978 SC 484 ) 17. Where the amendment does not constitute an addition of a new cause of action, or raise a new case, but amounts to no more than adding to the facts already on the record, the amendment would be allowed even after the statutory period of limitation. (Vineet Kumar vs. Mangal Sain, AIR 1985 SC 817 ) 18. In Kunheedu vs. Marakkar, 1989 (1) KLJ 92 , after a survey of the decisions on the point, this Court has held as follows: “From the above discussion it can be concluded that the position is well settled thus: Though it is the general rule that the amendment for incorporating new cause of action or a new relief, if it would be barred by limitation on the filing of a fresh suit, does not merit acceptance, court can still permit the amendment if it is necessary in the interest of justice or to decide the real controversy between the parties. One of the guidelines which can be gathered from the decisions discussed above is to check up whether the party has already laid factual foundation in his pleadings for such contentions, then the courts should not lightly dismiss the prayer, for amendments, especially when the amendment is to introduce something which is only of a formal character.” 19. Where, an averment in the plaint is not made on account of some oversight or mistake of the lawyer who drafted the plaint and when no fresh cause of action is sought to be introduced by the amendment, the application can be allowed. (Gajanan Jaikishan vs. Prabhakar Mohanlal, (1990) 1 SCC 166 ) 20. There is no absolute rule that in every case where a relief is barred because of limitation an amendment shall not be allowed. (Pankaja vs. Yellappa, AIR 2004 SC 4102 ) 21. In the instant case, there is no dispute with regard to the fact that the application for amendment of the plaint was filed before the commencement of the trial of the suit. Therefore, the proviso to Order VI Rule 17 of the Code has no application here. 22. The main relief claimed in the suit is a decree of declaration that the plaintiff has got right to get lateral support to the plaint B schedule way from the plaint D schedule property owned by the defendants. The plaint already contains averments to the effect that, on 28.03.2011, the defendants came to the plaint D schedule property with a JCB machine for excavation of soil from there. The omission on the part of the plaintiff was to specifically state in the plaint that the defendants actually removed soil or excavated earth in the plaint D schedule property causing loss of lateral support to the plaint B schedule way. 23. In the aforesaid circumstances, though the averments in the plaint are incomplete to seek a relief of mandatory injunction, it cannot be found that, by the proposed amendment, the plaintiff seeks to introduce a totally new and different cause of action in the suit. The proposed amendment will also not change the fundamental nature and character of the suit. 24. In the aforesaid circumstances, though the averments in the plaint are incomplete to seek a relief of mandatory injunction, it cannot be found that, by the proposed amendment, the plaintiff seeks to introduce a totally new and different cause of action in the suit. The proposed amendment will also not change the fundamental nature and character of the suit. 24. In Pankaja (supra), the Apex Court has observed as follows: “The law in this regard is quite clear and consistent that there is no absolute rule that in every case where a relief is barred because of limitation an amendment should not be allowed. Discretion in such cases depends on the facts and circumstances of the case. The jurisdiction to allow or not allow an amendment being discretionary the same will have to be exercised in a judicious evaluation of the facts and circumstances in which the amendment is sought. If the granting of an amendment really sub-serves the ultimate cause of justice and avoids further litigation the same should be allowed. There can be no straight jacket formula for allowing or disallowing an amendment of pleadings. Each case depends upon the factual background of that case.” 25. As noticed earlier, it is an arguable or debatable question whether the alleged removal of soil or excavation of earth in the plaint D schedule property, causing loss of lateral support to the plaint B schedule way, has provided a recurring or continuing cause of action to seek a relief of mandatory injunction. In Pankaja (supra), the Apex Court has held that, when there is an arguable question whether the new relief claimed by the plaintiff by way of amendment of plaint is barred by limitation, the application for amendment can be allowed after saving the question of limitation to be agitated and adjudicated in the trial of the case. This principle can be made applicable to the facts of the present case and the application for amendment of the plaint can be allowed, of course, subject to payment of costs by the plaintiff to the defendants to compensate the prejudice and hardship that would be caused to them by allowing the amendment. This principle can be made applicable to the facts of the present case and the application for amendment of the plaint can be allowed, of course, subject to payment of costs by the plaintiff to the defendants to compensate the prejudice and hardship that would be caused to them by allowing the amendment. Considering the facts and circumstances of the case and the delay that occurred on the part of the plaintiff in seeking a new relief by way of amendment, I find that the plaintiff has to pay an amount of Rs. 10,000/- as costs to the defendants as a condition for allowing the application for amendment of the plaint. 26. Consequently, the original petition is disposed of as follows. Ext.P5 order passed by the trial court is set aside. Ext.P4 application filed by the petitioner/plaintiff in the trial court shall stand allowed on the condition that the petitioner/plaintiff shall deposit an amount of Rs. 10,000/- (Rupees ten thousand only) in the trial court towards costs to be paid to the respondents/defendants. The parties shall appear before the trial court on 01.12.2020. The petitioner/plaintiff shall deposit the amount of Rs. 10,000/- (Rupees ten thousand only) in the trial court on or before that date. If the plaintiff fails to deposit the amount within that period, Ext.P4 application for amendment of plaint filed by him shall stand dismissed. It is made clear that, if the application for amendment is allowed on deposit of the amount of costs as above, the defendants would be entitled to file additional written statement and the question of limitation with regard to the new relief sought by the plaintiff by such amendment shall stand saved for adjudication in the trial of the suit. The trial court shall dispose of the suit as expeditiously as possible.