Mariyamma John, W/o. John v. Annamma George, W/o. Georgekutty
2025-09-12
MURALI PURUSHOTHAMAN
body2025
DigiLaw.ai
JUDGMENT : MURALI PURUSHOTHAMAN, J. This original petition is filed against Ext. P7 order dated 03.11.2020 in I.A. No.2 of 2020 in O.S. No.926 of 2008 on the files of the Principal Munsiff Court, Neyyattinkara. 2. The petitioner herein is the defendant and the respondent is the plaintiff, in the suit. 3. The respondent sold 6.14 Ares of property along with building thereon to the petitioner as per sale deed No.850 of 2008 of SRO, Vellarada. Thereafter, the respondent filed the aforesaid suit against the petitioner to declare the said sale deed as void, for the reason that the same is tainted and vitiated by coercion and duress. According to the respondent, the petitioner and her relatives had coerced her to execute the aforesaid deed and she did not receive any consideration for the same. Ext. P1 is the copy of the plaint. 4. The respondent entered appearance and filed Ext. P2 written statement traversing the averments in the plaint. 5. On 02.07.2009, the respondent filed Ext. P3 amendment application to delete the prayer for declaring the sale deed as null and void. Ext. P3 application was dismissed by the trial court by Ext. P4 order dated 16.07.2009 stating that the application has been made only to avoid payment of court fee as per Section 40 of the Kerala Court Fees and Suit Valuation Act ,1959. 6. Later, on 30.09.2020, the respondent filed Ext. P5 amendment application in Ext. P1 suit to incorporate the prayer for setting aside sale deed No.850 of 2008 and payment of court fee for the same. 7. The petitioner filed Ext. P6 counter affidavit to Ext. P5 application wherein it is contended that the respondent is trying to introduce a prayer which is apparently barred by law of limitation. It was also contended that if the amendment application is allowed, the same would take away the valuable right accrued on the petitioner and introduction of new relief would be inconsistent with the original relief. 8. The learned Munsiff, by Ext. P7 order, allowed Ext. P5 application on terms. The learned Munsiff found that the respondent being the executant of the deed and wants to challenge the same, she has to sue for its cancellation and has to pay court fee for that relief and it is for the said purpose the amendment is sought.
8. The learned Munsiff, by Ext. P7 order, allowed Ext. P5 application on terms. The learned Munsiff found that the respondent being the executant of the deed and wants to challenge the same, she has to sue for its cancellation and has to pay court fee for that relief and it is for the said purpose the amendment is sought. It was also observed that the factual matrix as regards the relief of cancellation of the deed is already on record and the same is the issue between the parties. The learned Munsiff also held that the amendment proposed does not alter the nature of the suit and it only supplements the present case and does not supplant or introduces any new factual or forensic factor. It was also found that the proposed amendment is necessary for resolving the real question in controversy between the parties to the suit. Thus, the amendment application was allowed on payment of cost of Rs.750/- to compensate the petitioner for the delay in filing the application. 9. Ext. P7 order is impugned in this original petition contending that Ext. P5 application is per se barred by law of limitation. It is also contended that the finding of the learned Munsiff that the proposed amendment will not alter the nature of the suit is erroneous. Another contention is that the learned Munsiff erred in finding that the proposed amendment is necessary for resolving the real question in controversy between the parties to the suit. It is contended that by allowing Ext. P5 application, the trial court acted in derogation to the mandate under Order 6 Rule 17 and Order 7 Rule 11(d) of the Code of Civil Procedure . According to the petitioner, Ext. P5 application is mala fide and an abuse of process of law. 10. Heard Sri. Arun V.G, the learned counsel for the petitioner and Sri. Ajai John, the learned counsel for the respondent. 11. Sri. Arun would contend that the suit is of the year 2008 and Ext. P5 application for amendment has been filed in 2020. Ext. P3 application for amendment filed in the year 2009 was dismissed by the trial court. It is contended that no reason is stated in Ext. P5 for not incorporating the new plea at the time of filing the suit. Further, no reason is stated in Ext.
P5 application for amendment has been filed in 2020. Ext. P3 application for amendment filed in the year 2009 was dismissed by the trial court. It is contended that no reason is stated in Ext. P5 for not incorporating the new plea at the time of filing the suit. Further, no reason is stated in Ext. P5 for the delay in seeking the amendment. According to Sri. Arun, by allowing the amendment, the right of the petitioner to seek rejection of plaint under Order 7 Rule 11 (d) has been taken away. Relying on the decisions of the Hon’ble Supreme Court in Hanumanthappa L.C. v . H.B. Shivakumar [2015 KHC 4569] and Life Insurance Corporation of India v . Sanjeev Builders Private Ltd. and Another [ AIR 2022 SC 4256 ] , it is contended that the right of the petitioner to argue on the aspect of delay at the stage of trial ought not to have been foreclosed by the learned Munsiff. It is submitted that the question whether the amendment will relate back to the date of filing of the suit or not ought to have been left open to be decided along with the suit. The learned counsel placed reliance on the decision in Revajeetu Builders and Developers v Narayanaswamy and Sons and Others [2009 KHC 5102] and contended that since a fresh suit on the amended claim is barred by limitation on the date of application, the trial court ought to have declined the amendment. 12. Sri. Ajai John, on the other hand, would submit that the suit was dismissed for default on 17.09.2009 and the respondent filed IA No. 4464/2012 to set aside the order of dismissal and to restore the suit, along with IA No. 4465/2012 to condone delay. The learned Munsiff dismissed the interlocutory applications by common order against which CMA No. 8/2013 was preferred by the respondent. The CMA was dismissed by the learned Sub Judge, Neyyattinkara by order dated 31.03.2016. The respondent preferred CRP No. 370/2016 against the same and the revision petition was allowed by this Court by order dated 02.08.2019 setting aside the impugned orders and remanding the matter to the trial court for fresh consideration of IA Nos. 4464/2012 and 4465/2012 in the light of the observations in the order. The interlocutory applications were allowed on payment of costs. The suit was restored on 08.06.2020 and Ext.
4464/2012 and 4465/2012 in the light of the observations in the order. The interlocutory applications were allowed on payment of costs. The suit was restored on 08.06.2020 and Ext. P5 application for amendment could be filed only thereafter, i.e. on 30.09.2020. It is contended that necessary factual basis for the amendment sought for in Ext. P5 is available in the plaint. He also contends that the doctrine of relation back applies since the basic structure of the suit is not altered by the proposed amendment. It is also contended that the question as to whether the amendment will relate back to the date of filing of the suit or not was not raised by the petitioner before the trial court. It is further contended that there is no absolute rule that in every case where a relief is barred because of limitation, an amendment should not be allowed. Sri. Ajai relied on the decisions in A.K. Gupta and Sons Ltd. v . Damodar Valley Corporation [ AIR 1967 SC 96 ] , Sampath Kumar v Ayyakannu [ (2002) 7 SCC 559 ], Pankaja v . Yellappa [2004 KHC 1297] , SEPC Limited (M/S.) (Formerly Shiram EPC Limited) v . V.S. Sunilkumar [2024 KHC OnLine 172] and Belwin Raj v . Muttayyan (died) [2025 KHC 350], in support of his contentions. 13. In A.K. Gupta (supra), the Hon’ble Supreme Court held that an amendment sought to introduce a claim based on the same cause of action and introduces no new case or facts ought to be allowed, though the claim was barred when the amendment was sought for. The Court held as follows: “7...... The general rule, no doubt, is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit on the new case or cause of action is barred: Weldon v. Neale. (1887) 19 Q.B.D. 394.
The Court held as follows: “7...... The general rule, no doubt, is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit on the new case or cause of action is barred: Weldon v. Neale. (1887) 19 Q.B.D. 394. 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: see Charan Das v. Amir Khan 47 Ind App 255 : ( AIR 1921 PC 50 ) and L. J. Leach and Company Ltd. v. Jardine Skinner and Co. [1957] SCR 438:( AIR 1957 SC 357 ). 8. The Principal reasons that have led to the rule last mentioned are, first, that the object of Courts and rules of procedure is to decide the rights of the parties and not to punish them for their mistakes [Cropper v. Smith, (1884) 26 Ch D 700 (710-711)) and secondly, that 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 (Kisandas Rupchand v. Rachappa Vithoba, (1909) ILR 33 Bom 644 at p.651, approved in Pirgonda Hongonda Patil v. Kalgonda Shidgonda, 1957 SCR 595 (603): ( AIR 1957 SC 363 at p.366)) 9. The expression “cause of action” in the present context does not mean “every fact which it is material to be proved to entitle the plaintiff to succeed” as was said in Cooke v. Gill (1873) 8 CP 107 (116), in a different context, for if it were so, no material fact could ever be amended or added and, of course, no one would want to change or add an immaterial allegation by amendment. That expression for the present purpose only means, a new claim made on a new basis constituted by new facts. Such a view was taken in Robinson v. Unicos Property corporation Ltd., 1962-2 AII ER 24, and it seems to us to be the only possible view to take. Any other view would make the rule futile.
That expression for the present purpose only means, a new claim made on a new basis constituted by new facts. Such a view was taken in Robinson v. Unicos Property corporation Ltd., 1962-2 AII ER 24, and it seems to us to be the only possible view to take. Any other view would make the rule futile. The words “new case” have been under stood to mean “new set of ideas” : Dornan v. J. W. Ellis and Co. Ltd., 1962-1 AII ER 303. This also seems to us to be a reasonable view to take. No amendment will be allowed to introduce a new set of ideas to the prejudice of any right acquired by any party by lapse of time.” In Sampath Kumar (supra), the Hon’ble Supreme Court held that pre-trial amendments should normally be allowed more liberally than those which are sought to be made after the commencement of the trial or after conclusion thereof and delay itself shall not be a ground for rejecting the application for amendment. The Court held thus: "7. 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. x x x 9. O.6 R.17 of the 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.
O.6 R.17 of the 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 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 amendment. 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 strait-jacket formula can be laid down. The fact remains that a mere delay cannot be a ground for refusing a prayer for amendment.” In Pankaja (supra), the Hon’ble Supreme Court held that there is no absolute rule that in every case where a relief is barred because of limitation, an amendment should not be allowed. The court held that the amendment has to be allowed or disallowed, exercising the discretion based on evaluation of facts and circumstances in which the amendment is sought. The Court further observed that if the granting of an amendment really subserves the ultimate cause of justice and avoids further litigation, the same should be allowed. Paragraphs 13 and 14 of the said judgment read thus: “13. But the question for our consideration is whether in cases where the delay has extinguished the right of the party by virtue of expiry of the period 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.
But the question for our consideration is whether in cases where the delay has extinguished the right of the party by virtue of expiry of the period 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 in 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 straight jacket formula for allowing or disallowing an amendment of pleadings. Each case depends on the factual background of that case.” In Revajeetu Builders and Developers (supra), the Hon’ble Supreme Court laid down the factors to be taken into consideration while dealing with applications for amendments under Order 6 Rule 17. Paragraph 68 of the said judgment reads as follows: “68. FACTORS TO BE TAKEN INTO CONSIDERATION WHILE DEALING WITH APPLICATIONS FOR AMENDMENTS: On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment. (1) Whether the amendment sought is imperative for proper and effective adjudication of the case? (2) Whether the application for amendment is bona fide or mala fide? (3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (4) Refusing amendment would in fact lead to injustice or lead to multiple litigation; (5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? And (6) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.” In Life Insurance Corporation of India (supra), the Hon’ble Supreme Court enumerated the cardinal principles regarding amendment of plaints and written statements.
And (6) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.” In Life Insurance Corporation of India (supra), the Hon’ble Supreme Court enumerated the cardinal principles regarding amendment of plaints and written statements. In paragraph 70 of the decision, the Court held as follows: “70. Our final conclusions may be summed up thus: (i) Order II R.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 amendment being barred under Order II R.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 R.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 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.
(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 pin – pointedly 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 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. (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 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 chance to meet the case set up in 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 & Others., 2022 SCC OnLine Del 1897).
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 & Others., 2022 SCC OnLine Del 1897). In SEPC Limited (M/S.) (supra), this Court, after a survey of the various decisions of the Apex Court, held that if the amendment sought for ultimately serves the cause of justice and avoids further litigation, the same should be allowed. 14. The respondent filed the suit seeking declaration that the sale deed was ab initio void and it did not bind the plaint schedule property. The proposed amendment is to incorporate a relief to cancel the sale deed and consequential relief for payment of court fee for the same. The respondent was the executant of the sale deed and she wants to challenge the same. The prayer to cancel the sale deed is therefore necessary for determination of the controversies in the suit. The learned Munsiff has rightly held that the proposed amendment is necessary for the proper resolution of the real controversies between the parties. 15. The next question to be considered is whether the proposed amendment would alter the nature of the suit. The learned Munsiff found that the proposed prayer for cancellation of the deed is in tune with the present pleadings and prayers which are all rooted in the allegation in the plaint that the deed is void. Accordingly, the learned Munsiff held that the proposed amendment is not intended to introduce an altogether distinct new relief, any new factual or forensic factor and does not supplant the present case, but only supplements it, and does not alter the nature of the suit. Since the foundational facts required for the relief claimed are available in the plaint, the nature and character of the suit will not be changed by the proposed amendment. I find no reason to interfere with the finding of the learned Munsiff that the amendment proposed does not alter the nature of the suit. 16. No doubt, the proposed amended relief is barred by the law of limitation as on the date of presentation of the amendment application. The suit is of the year 2008 and Ext. P5 application for amendment is dated 30.09.2020.
16. No doubt, the proposed amended relief is barred by the law of limitation as on the date of presentation of the amendment application. The suit is of the year 2008 and Ext. P5 application for amendment is dated 30.09.2020. It is submitted by the respondent that the suit was dismissed for default on 17.09.2009 and was restored on 08.06.2020 and the amendment application could be filed only thereafter. Whatever be the reason for the delay in filing the application for amendment, the proposed amended relief is barred by limitation. Order 6 Rule 17 of the CPC 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 for the purpose of determining the real questions in controversies between the parties. The application for amendment is not liable to be dismissed merely for the reason that the proposed amended relief stands time barred. As held by the Hon’ble Supreme Court in Pankaja (supra), there is no absolute rule that in every case where a relief is barred because of limitation, an amendment should not be allowed. It is well within the discretion of the court to decide whether in spite of the bar of limitation, the proposed amendment is to be allowed or not. If the amendment sought for ultimately serves the cause of justice and avoids further litigation, the same should be allowed. In Sampath Kumar (supra), the Hon’ble Supreme Court held that mere delay cannot be a ground for refusing a prayer for amendment. Thus, it is trite law that an application for amendment of the pleadings is not to be disallowed on the ground that the same is barred by limitation. In Ext. P5, the amendment is sought not to introduce a new case or a new cause of action. In A.K. Gupta (supra), the Hon’ble Supreme Court held that an amendment sought to introduce a claim based on the same cause of action and introduces no new case or facts ought to be allowed, though the claim was barred when the amendment was sought for. The learned Munisff has rightly exercised the discretion and allowed the amendment. I do not find any reason to interfere with Ext. P7 order. 17.
The learned Munisff has rightly exercised the discretion and allowed the amendment. I do not find any reason to interfere with Ext. P7 order. 17. The doctrine of relation back treats an amendment as having been made on the date of the original filing of the suit, rather than on the date the amendment application is filed. Regarding the application of the doctrine of relation back, the Hon’ble Supreme Court in Sampath Kumar (supra), held as follows: “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.” In Hanumanthappa L.C. (supra), the Hon’ble Supreme Court held that doctrine of relation back would not apply in case the amendment was allowed subject to the plea of limitation which could be taken up when the trial proceeds. The Court held thus: “29......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.” In Belwin Raj (supra), this Court held that when the basic structure of the suit/counter claim is not altered by the proposed amendment and only the nature of relief is sought to be changed, allowing the amendment with a view to curtail multiplicity of legal proceedings, the doctrine of relation back would apply. This Court further held that the normal rule is that the amendment relates back to the date of the original filing, unless the court excludes the application of the doctrine.
This Court further held that the normal rule is that the amendment relates back to the date of the original filing, unless the court excludes the application of the doctrine. In Sampath Kumar (supra), the Supreme Court held that 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 to direct that the amendment permitted by it shall not relate back to the date of the suit even though the amendment sought would be barred by limitation. Thus, in appropriate cases, the Court can allow the amendment even if the amendment sought is barred by limitation, and the plea of limitation can be left open as subject matter of the issue. The learned Munsiff has not excluded the application of the doctrine of relation back. Therefore, the amendment will have to be treated as one which relates back to the date of the suit. I do not find any reason to exclude the application of the doctrine. 18. The learned Munsiff found that the petitioner shall be compensated with cost of Rs.750/- for the delay in filing the amendment application and the application was allowed on condition of the respondent paying Rs.750/- to the petitioner towards costs. Order 6 Rule 17 of the CPC 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. It is trite that the proposed amendment should not cause prejudice to the other side which cannot be compensated by means of costs. The delay in filing the application for amendment of the pleadings should be properly compensated by costs. Allowing the amendment which was filed belatedly on payment of cost of Rs.750/- cannot be said to be on terms as may be just, or a proper compensation. Therefore, to meet the ends of justice, the application for amendment is allowed on condition that the respondent pays cost of Rs.7,500/- to the petitioner within one month from today. On payment of the said cost, the respondent is entitled to leave to amend the plaint as sought for. With the said modification in the impugned order, the original petition is disposed of.