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2024 DIGILAW 127 (HP)

Om Prakash v. Curehealth Pharmaceutical Pvt. Ltd.

2024-02-26

RAKESH KAINTHLA

body2024
JUDGMENT : R a k e s h K a i n t h l a , J. The present petition is directed against the order dated 18.02.2022, passed by learned Civil Judge, Court No.1, Solan, District Solan, H.P., vide which the application under Order 6 Rule 17 of CPC read with Section 151 of CPC for the amendment of the plaint filed by the respondents (plaintiffs before the learned Trial Court) was allowed. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience). 2. Briefly stated, the plaintiffs filed a Civil Suit before the learned Trial Court for seeking a declaration that the cancellation of Lease Deed No. 2582 /2018 dated 03.12.2018, by Akash, defendant No.2 is illegal, Exchange Deed dated 07.01.2019 executed on the strength of the Cancellation Deed No. 60/2019 is wrong, illegal, null and void and not binding upon the rights of the plaintiffs. A consequential decree for permanent prohibitory injunction was also sought. 3. Subsequently, an application under Order 6 Rule 17 of CPC was filed by the plaintiffs, pleading that as per the written statement filed by the defendants, the plaintiffs got the registered Lease Deed No. 761 of 2017 dated 24.04.2017. Lease Deed No. 2144 of 2013 dated 11.11.2013, Rectification Deed No. 1792/2014 dated 25.08.2014 and Lease Deed No. 2275/2015 dated 10.09.2015 cancelled and revoked without the consent and knowledge of the plaintiffs. The Sub-Registrar was not competent to cancel the registered Lease Deed. Such a Deed can only be cancelled by a Civil Court. The Lease Deed was executed by defendant No.2, who is the son of the Sub-Registrar, Solan. Hence a prayer was made that Lease Deed No. 2275/2015, dated 10.09.2015 executed by Om Prakash be declared null and void. 4. The application was opposed by filing a reply taking preliminary objections regarding lack of maintainability, locus standi and cause of action and the proposed amendment being barred by limitation. It was asserted that plaintiffs have failed to provide any explanation as to why the amendment could not be sought earlier despite the exercise of due diligence. No amendment can be allowed after the commencement of the trial unless the party shows that such an amendment could not have been sought despite the exercise of due diligence. It was asserted that plaintiffs have failed to provide any explanation as to why the amendment could not be sought earlier despite the exercise of due diligence. No amendment can be allowed after the commencement of the trial unless the party shows that such an amendment could not have been sought despite the exercise of due diligence. The Lease Deed was executed on 10.09.2015 and the suit was filed in February 2019. A notice was served by defendants No. 3 and 4 upon the plaintiffs on 27.03.2019, which was received by the plaintiffs on 30.03.2019. The Cancellation Deed No. 2075/2015 was mentioned in it. Defendants No. 3 and, 4 filed a Civil Suit under Section 106 of the Transfer of Property Act against the plaintiffs, which is pending adjudication. Many cases are pending between the parties and Lease Deed No. 2075/2015 was mentioned in every litigation. The proposed amendment is barred by limitation and cannot be allowed; therefore, it was prayed that the application be dismissed. 5. Learned Trial Court held that the amendment in the pleadings of the parties is to be allowed liberally. The present amendment will not cause any prejudice to the defendants. The procedural law is only a handmaid of justice and not its mistress. The amendment will be helpful in determining the real controversy between the parties. Therefore, the application was allowed. 6. Feeling aggrieved and dissatisfied with the order passed by the learned Trial Court, the present petition has been filed asserting that the application under Order 6 Rule 17 of CPC does not contain any verification and no affidavit was filed in support of the same. The proposed amendment was barred by limitation. The written statement was filed in March 2019. The Cancellation Deed was executed on 10.09.2015 and the application for amendment was filed beyond the period of limitation. The plaintiffs had no locus standi to challenge the document executed and registered on 10.09.2015. Therefore, it was prayed that the present petition be allowed and the order passed by the learned Trial Court be set aside. 7. The petition is opposed by respondents No.1 to 3 by filing a reply making a preliminary submission regarding lack of maintainability. The contents of the petition were denied on merits. It was asserted that the application was rightly allowed. The suit is at the initial stage and the trial has not commenced. 7. The petition is opposed by respondents No.1 to 3 by filing a reply making a preliminary submission regarding lack of maintainability. The contents of the petition were denied on merits. It was asserted that the application was rightly allowed. The suit is at the initial stage and the trial has not commenced. There is no infirmity in the order passed by the learned Trial Court. The plaintiffs came to know about the execution of the Lease Deed after filing the written statement. Therefore, it was prayed that the present petition be dismissed. 8. A rejoinder denying the contents of the reply and affirming those of the petition was filed. 9. I have heard Mr B.P.Sharma, learned Senior Counsel assisted by Mr Arun Kumar, learned counsel for the petitioners and Mr R.K. Bawa, learned Senior Counsel assisted by Mr. Ajay Kumar Sharma, learned counsel for respondents No.1 to 3. 10. Mr. B.P. Sharma, learned Senior Counsel for the petitioners submitted that the application for amendment of the plaint was barred by limitation. The proposed amendment was meant to challenge a Lease Deed executed in the year 2015 by filing an application in the year 2021 beyond the period of limitation. He relied upon the judgment of the Hon’ble Supreme Court in LIC v. Sanjeev Builders (P) Ltd., 2022 SCC OnLine SC 1128,in support of his submissions. 11. Mr R.K. Bawa, learned Senior Counsel for respondents No. 1 to 3 submitted that the period of limitation will start running from the date of the knowledge. The plaintiffs came to know of the deed after the filing of the written statement. The application is within limitation and the learned Trial Court had rightly allowed the same. Hence, he prayed that the present petition be dismissed. 12. I have given considerable thought to the submissions at the bar and have gone through the records carefully. 13. It is undisputed that the Lease Deed No. 2275/2015 dated 10.09.2015 is a registered Deed. 14. It was laid down by the Hon’ble Supreme Court in Dilboo versus Dhanraji Devi, 2000 (7) SCC 702 , that the registration of the deed amounts to deemed knowledge and a party cannot be allowed to extend the period of limitation by saying that it had no knowledge. It was observed:- “Whenever a document is registered the date of registration becomes the date of dee med knowledge. It was observed:- “Whenever a document is registered the date of registration becomes the date of dee med knowledge. In other cases where a fact could be discovered by due diligence then deemed knowledge would be attributed to the plaintiff because a party cannot be allowed to extend the period of limitation by m erely claiming that he had no knowledge. 15. Therefore, the date of registration will be the date of deemed knowledge and it cannot be extended by claiming that the plaintiffs did not know the same. Thus, the period of limitation will start running from 10.09.2015. 16. It was laid down by Hon’ble Supreme Court in C. Hanumanthappa v. H.B. Shivakumar , ( 2 0 1 6 ) 1 S C C 3 3 2 , that an application for amendment cannot be allowed when the same is barred by limitation. It was held: - “ 1 3 . We have heard the learned counsel for the parties. It is not disputed that Article 58 of the Limitation Act would apply to the amended plaint inasmuch as it sought to add the relief of declaration of title to the already existing relief for the grant of permanent injunction. In Khatri Hotels (P) Ltd . v . Union of India [(2011) 9 SCC 126 : (2011) 4 SCC (Civ) 484], this Court while construing Article 58 of the Limitation Act held as follows: (SCC pp. 138-39, paras 25-30) “25. Article 58 of the Schedule to the 1963 Act, which has a bearing on the decision of this appeal, reads as under: ‘ T H E S C H E D U L E PERIOD OF LIMITATION [See Sections 2(j) and 3] First Division—Suits Description of suit Period of limitation Time from which of suit period begins to run PART III — Suits Relating to Declarations * * * 8. To obtain any other declaration Three years When the right to sue first accrues.’ 26. Article 120 of the Schedule to the Limitation Act, 1908 (for short ‘the 1908 Act’) which was interpreted in the judgment relied upon by Shri Rohatgi reads as under: ‘Description of suit Period of limitation Time from which period begins to run * * * * 120. Suit for which no period of limitation is provided elsewhere in this Schedule. Six years When the right to sue accrues 27. Suit for which no period of limitation is provided elsewhere in this Schedule. Six years When the right to sue accrues 27. The differences which are discernible from the language of the above reproduced two articles are: (i) The period of limitation prescribed under Article 120 of the 1908 Act was six years whereas the period of limitation prescribed under the 1963 Act is three years, and (ii) Under Article 120 of the 1908 Act, the period of limitation commenced when the right to sue accrues. As against this, the period prescribed under Article 58 begins to run when the right to sue first accrues. 28. Article 120 of the 1908 Act was interpreted by the Judicial Committee in Bolo v. Koklan [(1929-30) 57 IA 325: AIR 1930 PC 270 : (1930) 32 LW 338] and it was held: (IA p. 331) ‘There can be no “right to sue” until there is an accrual of the right asserted in the suit and its infringement, or at least a clear and unequivocal threat to infringe that right, by the defendant against whom the suit is instituted.’ The same view was reiterated in Annamalai Chettiar v. A.M.K.C.T. MuthukaruppanChettiar [ILR (1930) 8 Rang 645 : (1930-31) 58 IA 1 : (1931) 33 LW 30] and Gobinda Narayan Singh v. Sham Lal Singh [(1930-31) 58 IA 125 : (1931) 33 LW 707]. 29. In Rukhmabai v. Lala Laxminarayan [ AIR 1960 SC 335 : (1960) 2 SCR 253 ], the three-judge Bench noticed the earlier judgments and summed up the legal position in the following words: (AIR p. 349, para 33) ‘33. … The right to sue under Article 120 of the [1908 Act] accrues when the defendant has clearly or unequivocally threatened to infringe the right asserted by the plaintiff in the suit. Every threat by a party to such a right, however ineffective and innocuous it may be, cannot be considered to be a clear and unequivocal threat so as to compel him to file a suit. Whether a particular threat gives rise to a compulsory cause of action depends upon the question whether that threat effectively invades or jeopardizes the said right.’ 30. While enacting Article 58 of the 1963 Act, the legislature has designedly made a departure from the language of Article 120 of the 1908 Act. The word ‘first’ has been used between the words ‘sue’ and ‘accrued’. While enacting Article 58 of the 1963 Act, the legislature has designedly made a departure from the language of Article 120 of the 1908 Act. The word ‘first’ has been used between the words ‘sue’ and ‘accrued’. This would mean that if a suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues. To put it differently, successive violation of the right will not give rise to fresh cause and the suit will be liable to be dismissed if it is beyond the period of limitation counted from the day when the right to sue first accrued.” 14. Given this statement of the law, it is clear that the present amendment of the plaint is indeed time-barred in that the right to sue for declaration of title first arose on 16-5-1990 when in the very first written statement the defendant had pleaded, in Para 13 in particular, that the suit for injunction simpliciter is not maintainable in that the plaintiff had failed to establish title with possession over the suit property. The only question that remains to be answered is in relation to the doctrine of relation back insofar as it applies to amendments made under Order 6 Rule 17 of the Code of Civil Procedure. 29. Applying the law thus laid down by this Court to the facts of this case, two things become clear. First, in the original written statement itself dated 16-5-1990, the defendant had clearly put the plaintiff on notice that it had denied the plaintiff's title to the suit property. A reading of an isolated paragraph in the written statement, namely, Para 2 by the trial court on the facts of this case has been correctly commented upon adversely by the High Court in the judgment under appeal. The original written statement read as a whole unmistakably indicates that the defendant had not accepted the plaintiff's title. Secondly, while allowing the amendment, the High Court in its earlier judgment dated 28-3-2002 [L.C. Hanumanthappa v. H.B. Shivakumar, RFA No. 415 of 1999, decided on 28-3-2002 (KAR)] had expressly remanded the matter to the trial court, allowing the defendant to raise the plea of limitation. Secondly, while allowing the amendment, the High Court in its earlier judgment dated 28-3-2002 [L.C. Hanumanthappa v. H.B. Shivakumar, RFA No. 415 of 1999, decided on 28-3-2002 (KAR)] had expressly remanded the matter to the trial court, allowing the defendant to raise the plea of limitation. There can be no doubt that on an application of Khatri Hotels (P) Ltd. [ (2011) 9 SCC 126 : (2011) 4 SCC (Civ) 484], the right to sue for declaration of title first arose on the facts of the present case on 16-5-1990 when the original written statement clearly denied the plaintiff's title. By 16- 5-1993 therefore a suit based on declaration of title would have become time-barred. It is clear that the doctrine of relation back would not apply to the facts of this case for the reason that the court which allowed the amendment expressly allowed it subject to the plea of limitation, indicating thereby that there are no special or extraordinary circumstances in the present case to warrant the doctrine of relation back applying so that a legal right that had accrued in favour of the defendant should be taken away. This being so, we find no infirmity in the impugned judgment [H.B. Shivakumar v. L.C. Hanumanthappa, 2015 SCC OnLine Kar 3860] of the High Court. The present appeal is accordingly dismissed.” 17. Similarly, it was held in LIC v. Sanjeev Builders (P) Ltd., 2022 SCC OnLine SC 1128, that the Court can allow the amendment in an exercise of its discretion. When the amendment was barred by limitation it will be declined as a general rule. It was observed:- 2 9 . In Pankaja v . Yellappa (dead) by LRs . , ( 2 004) 6 SCC 415, this Court held that it was in the discretion of the court to allow an application under Order VI Rule 17 of the CPC seeking amendment of the plaint even where the relief sought to be added by amendment was allegedly barred by limitation. The Court noticed that there was no absolute rule that the amendment in such a case should not be allowed. It was pointed out that the court's discretion in this regard depends on the facts and circumstances of the case and has to be exercised on a judicial evaluation thereof. It would be apposite to notice the observations of this Court in this pronouncement in extenso. It was pointed out that the court's discretion in this regard depends on the facts and circumstances of the case and has to be exercised on a judicial evaluation thereof. It would be apposite to notice the observations of this Court in this pronouncement in extenso. The principles were laid down by this Court thus: “12. So far as the court's jurisdiction to allow an amendment of pleadings is concerned, there can be no two opinions that the same is wide enough to permit amendments even in cases where there has been substantial delay in filing such amendment applications. This Court in numerous cases has held that the dominant purpose of allowing the amendment is to minimise the litigation, therefore, if the facts of the case so permit, it is always open to the court to allow applications in spite of the delay and laches in moving such amendment application. 13. But the question for our consideration is whether in cases where the delay has extinguished the right of the party by virtue of the expiry of the period of limitation prescribed in law, can the court in the exercise of its discretion take away the right accrued to another party by allowing such belated amendments. 14. The law in this regard is also 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 on a judicious evaluation of the facts and circumstances in which the amendment is sought. If the granting of an amendment really subserves the ultimate cause of justice and avoids further litigation the same should be allowed. There can be no straitjacket formula for allowing or disallowing an amendment of pleadings. Each case depends on the factual background of that case. xxxxxxxxx 16. This view of this Court has, since, been followed by a three-Judge Bench of this Court in the case of T.N. Alloy Foundry Co. Ltd. v. T.N. Electricity Board [ (2004) 3 SCC 392 ]. Each case depends on the factual background of that case. xxxxxxxxx 16. This view of this Court has, since, been followed by a three-Judge Bench of this Court in the case of T.N. Alloy Foundry Co. Ltd. v. T.N. Electricity Board [ (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, the 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. xxxxxxxxx 18. We think that the course adopted by this Court in Ragu Thilak D. John case [ (2001) 2 SCC 472 ] applies appropriately to the facts of this case. The courts below have proceeded on an assumption that the amendment sought for by the appellants is ipso facto barred by the law of limitation and amounts to the introduction of different relief than what the plaintiff had asked for in the original plaint. We do not agree with the courts below that the amendment sought for by the plaintiff introduces a different relief so as to bar the grant of prayer for amendment, necessary factual basis has already been laid down in the plaint in regard to the title which, of course, was denied by the respondent in his written statement which will be an issue to be decided in a trial. Therefore, in the facts of this case, it will be incorrect to come to the conclusion that by the amendment the plaintiff will be introducing a different relief.” 3 0 . From the above, therefore, one of the cardinal principles of law in allowing or rejecting an application for amendment of the pleading is that the courts generally, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of filing of the application. But that would be a factor to be taken into account in the exercise of the discretion as to whether the amendment should be ordered, and does not affect the power of the court to order it if that is required in the interest of justice. 3 1 . In Ragu Thilak D . John v . S . But that would be a factor to be taken into account in the exercise of the discretion as to whether the amendment should be ordered, and does not affect the power of the court to order it if that is required in the interest of justice. 3 1 . In Ragu Thilak D . John v . S . Rayappan, (2001) 2 SCC 472, this Court also observed that where the amendment was barred by time or not, was a disputed question of fact and, therefore, that prayer for amendment could not be rejected and in that circumstances the issue of limitation can be made an issue in the suit itself like the one made by the High Court in the case on hand. 3 2 . In a decision in Vishwambhar v . Laxminarayan (Dead) through Lrs., (2001) 6 SCC 163 , this Court held that the amendment though properly made cannot relate back to the date of filing of the suit, but to the date of filing of the application. 3 3 . Again, in Vineet Kumar v . Mangal SainWadhera, (1984) 3 SCC 352 : AIR 1985 SC 817 , this Court held that if a prayer for amendment merely adds to the facts already on record, the amendment would be allowed even after the statutory period of limitation. 1 8 . The conclusions were summed up as under:- 7 0 . Our final conclusions may be summed up thus: (i) Order II Rule 2 CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. The plea of the amendment being barred under Order II Rule 2 CPC is, thus, misconceived and hence negatived. (ii) All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word “shall”, in the latter part of Order VI Rule 17 of the CPC. (ii) All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word “shall”, in the latter part of Order VI Rule 17 of the CPC. (iii) The prayer for amendment is to be allowed (i) if the amendment is required for effective and proper adjudication of the controversy between the parties, and (ii) to avoid multiplicity of proceedings, provided (a) the amendment does not result in injustice to the other side, (b) by the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side and (c) the amendment does not raise a time- barred claim, resulting in the divesting of the other side of a valuable accrued right (in certain situations). (iv) A prayer for amendment is generally required to be allowed unless (i) by the amendment, a time-barred claim is sought to be introduced, in which case the fact that the claim would be time-barred becomes a relevant factor for consideration, (ii) the amendment changes the nature of the suit, (iii) the prayer for amendment is malafide, or (iv) by the amendment, the other side loses a valid defence. (v) In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach and is ordinarily required to be liberal especially where the opposite party can be compensated by costs. (vi) Where the amendment would enable the court to pinpointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed. (vii) Where the amendment merely sought to introduce an additional or a new approach without introducing a time-barred cause of action, the amendment is liable to be allowed even after the expiry of limitation. (viii) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint. (ix) Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision. (viii) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint. (ix) Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision. (x) Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed. (xi) Where the amendment is sought before the commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a ch ance to meet the case set up in the amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed . (See Vijay Gupta v . Gagninder Kr. Gandhi, 2022 SCC OnLine Del 1897) 19. Therefore, it is apparent from the judgments of the Hon’ble Supreme Court that an amendment cannot be allowed when the same is barred by limitation on the date of the amendment. In the present case, the amendment was barred by limitation and cannot be allowed. 20. The learned Trial Court did not advert to this aspect of the case and was influenced by the fact that amendment is to be liberally allowed. When it has been specifically held that amendment will not be generally allowed when the proposed amendment is barred by limitation, the application could not have been allowed in ignorance of the settled proposition of law and the learned Trial Court erred in allowing the application. 21. When it has been specifically held that amendment will not be generally allowed when the proposed amendment is barred by limitation, the application could not have been allowed in ignorance of the settled proposition of law and the learned Trial Court erred in allowing the application. 21. In view of the above, the present petition is allowed and the order dated 18.02.2022, passed by the learned Trial Court is set aside. Consequently, the application for seeking amendment is ordered to be dismissed. Pending miscellaneous applications, if any, also stand disposed of. Record of the learned Trial Court be transmitted forthwith. The parties through their learned Counsel are directed to appear before the learned Trial Court on 20.03.2024 . 22. The observation made hereinabove shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.