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2023 DIGILAW 1650 (AP)

Oggu Ananda Kumar v. Tammu Vijaya Lakshmi

2023-12-29

NYAPATHY VIJAY

body2023
JUDGMENT 1. The present Revision Petition is filed against the interlocutory order dtd. 3/2/2018 passed in I.A.No.943 of 2015 in O.S.No.1486 of 2012 on the file of the Court of the Learned III Additional Senior Civil Judge, Vijayawada, Krishna District. 2. The petitioners herein are the defendants in the main suit. Originally the suit was filed by the plaintiff seeking to declare the Sale Deed dtd. 3/10/2012 as null, void, unenforceable, liable to be set aside and for consequential relief of permanent injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the plaintiff over the suit schedule property. 3. The facts leading to the suit are that the plaintiff had approached the 1stdefendant for availing loan of Rs.25, 000.00 and in that context, the 1stdefendant contemplated a condition to execute General Power of Attorney (for short "G.P.A") with regard to the agricultural land in the name of the 1stdefendant. The plaintiff left without any alternative executed the G.P.A and the same was registered on 4/3/2010. The plaintiff agreed to pay the loan amount with interest @ 24% p.a. 4. It was further pleaded that the plaintiff was not allowed to go through the contents of the G.P.A and the plaintiff subsequently called upon the 1stdefendant to cancel the G.P.A and return the original Title Deed, as the plaintiff is ready to discharge the entire debt with interest. As the 1stdefendant disagreed, the plaintiff got issued a Notice dtd. 28/9/2012 calling upon the 1stdefendant to return the original Title Deed dtd. 22/1/2009, while canceling the G.P.A. Though the notice was received there was no response. Subsequently, the plaintiff came to know that the 1stdefendant with fraudulent motive prepared to sell away the plaint schedule property and had executed a registered Sale Deed, dtd. 3/10/2012 in favour of the 2nddefendant. It was also pleaded that all averments made in the G.P.A-cum-Agreement of Sale, dtd. 4/3/2010 are incorrect. Hence, the suit was filed. 5. The defendants filed a written statement denying the averments made in the plaint. While so, the plaintiff filed an application under Order 6. Rule 17 of C.P.C seeking to amend the plaint with regard to the relief claimed. By virtue of amendment, the plaintiff sought to add Para 11-A where under additional pleadings were urged with regard to the fraud played by the 1stdefendant in executing the Agreement of Sale- cum-General Power of Attorney, dtd. Rule 17 of C.P.C seeking to amend the plaint with regard to the relief claimed. By virtue of amendment, the plaintiff sought to add Para 11-A where under additional pleadings were urged with regard to the fraud played by the 1stdefendant in executing the Agreement of Sale- cum-General Power of Attorney, dtd. 4/3/2010 and that the plaintiff filed a complaint before the Commissioner of Police against the defendant Nos.1 & 2 and a Writ Petition was also filed before this Court for a direction against the Police authorities. In the prayer portion, the amendment to cancel the Agreement of Sale-cum-General Power of Attorney, dtd. 4/3/2010 was sought. 6. The defendants filed their counter opposing the same and the primary objection taken by the defendants was that the amendment is barred by limitation, as the Agreement of Sale-cum-General Power of Attorney, dtd. 4/3/2010, which was sought to be canceled by virtue of amendment dtd. 27/10/2015. 7. The Trial Court vide its order dtd. 3/2/2018 allowed the same and was of the opinion that the question of limitation can be made subject matter of issue after allowing the amendment. Hence, the Civil Revision Petition by the defendants. 8. Heard Mr.Keerthi Teja, Kondaveeti, Learned Counsel for the Petitioners and Sri V.S.R. Anjaneyulu, Learned Counsel for the Respondents. 9. The point for consideration is whether a claim barred by limitation could be sought by way of an amendment of plaint under Order VI Rule 17 of C.P.C. 10. A reading of the original plaint at Para 5 shows that the General Power of Attorney dtd. 4/3/2010 was obtained without allowing the plaintiff to go through the contents of the document and that the defendants in spite of plaintiff's offering to discharge the loan amount did not come forward to cancel the document. Apart from the fact that the plaintiff issued a Notice dtd. 28/9/2012 calling upon the 1stdefendant to return the original Title Deed, while cancelling the General Power of Attorney. It was further pleaded that the purpose of the G.P.A was only as a security for the loan taken by the plaintiffs and not for the purpose of the G.P.A indicates. These averments are indicative of mischief being played on the plaintiff and though the prayer was sought only to declare the consequential Sale Deed dtd. 3/10/2012 as nullity, there were basic pleadings to declare the G.P.A dtd. These averments are indicative of mischief being played on the plaintiff and though the prayer was sought only to declare the consequential Sale Deed dtd. 3/10/2012 as nullity, there were basic pleadings to declare the G.P.A dtd. 4/3/2010 as fraudulent though the prayer was not explicitly sought. The amendment that is sought now only elaborates the fraud perpetuated by the defendants in executing the disputed G.P.A dtd. 4/3/2010 and an explicit prayer with regard to the G.P.A. 11. The question of amendment of pleadings raising claims barred by law of limitation was a subject of numerous case laws and the most often quoted one is L.J. Leach And Company Ltd vs Jardine Skinner And Co., AIR 1957 SC 357 to the effect that Courts as a rule decline amendments that are barred by limitation on the date of application, but the issue of limitation is only a factor to be taken into consideration in exercise of discretion of the Court to permit or deny such an amendment. 12. The discretion given to Courts to permit amendment of time barred claims was fine tuned to the effect that those amendments which do not introduce a new claim for the first time after the expiry of the period of limitation could be allowed. 13. The observation of Hon'ble Supreme Court in Pirgonda Hongonda Patil Vs Kalgonda Shidgonda Patil and 2 others., AIR 1957 SC 363 after referring to case Law till that point of time opined at para 11 reads as under; 11. The same principles, we hold, should apply to the present case. The amendments do not really introduce a new case and the application filed by the appellant himself showed that he was not taken by surprise nor did he have to meet a new claim set up for the first time after the expiry of the period of limitation. 14. Similar views were taken in Vineet Kumar vs. Mangal Sain Wadhere., 1984 (3 ) SCC 3 84 at Para 16; in South Konkan Distilleries and Anr vs. Prabhakar Gajanan Naik and Ors., 2008 (14) SCC 632 at Para 15 and in Pankaja and Anr vs. Yellappa (D) By Lrs. and Ors., 2004 (6) SCC 415 at Para 18. 15. Similarly view was also expressed by the Hon'ble Supreme Court in LIC Vs Sanjeev Builders Pvt. Ltd., 2023 SCC Online 1128 The Para 26 thereof is extracted for ready reference. and Ors., 2004 (6) SCC 415 at Para 18. 15. Similarly view was also expressed by the Hon'ble Supreme Court in LIC Vs Sanjeev Builders Pvt. Ltd., 2023 SCC Online 1128 The Para 26 thereof is extracted for ready reference. "26. But undoubtedly, every case and every application for amendment has to be tested in the applicable facts and circumstances of the case. As the proposed amendment of the pleadings amounts to only a different or an additional approach to the same facts, this Court has repeatedly laid down the principle that such an amendment would be allowed even after the expiry of statutory period of limitation." 16. In the light of the principles in the above quoted case laws, the elaboration of pleadings and consequential prayer sought by way of amendment being only an extension of the original pleadings, this Court is of the opinion that amendment introducing claims, which are time barred, could be allowed, as there is factual basis in the original plaint and no new case is being set up by the plaintiff to the surprise of defendants. 17. The Civil Revision Petition is therefore devoid of merits and is liable to be dismissed. There shall be no order as to costs. As a sequel, pending applications, if any, shall stand closed.