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2026 DIGILAW 462 (MAD)

Sankarlal v. Selvaraj

2026-02-06

N.SENTHILKUMAR

body2026
ORDER : 1. The present Civil Revision Petition has been filed challenging the order, dated 14.10.2022 passed in I.A.No.8 of 2022 in O.S.No.21 of 2015 on the file of the learned Principal District Munsif Court, Kuzhithurai, whereby the amendment application filed by the revision petitioner/plaintiff was dismissed. 2. Originally, the suit in O.S.No.21 of 2015 was filed for bare injunction. Subsequently, the revision petitioner filed an application seeking amendment of the plaint for the relief of declaration. 3. The learned counsel appearing for the revision petitioner submitted that the trial Court had erroneously applied Section 58 of the Limitation Act and held that the limitation period for seeking declaration is three years from the date of cause of action. He would contend that the trial Court failed to consider the applicability of Section 65 of the Limitation Act, which prescribes a limitation period of twelve years in cases relating to possession of immovable property based on title. 4. In support of his contention, the learned counsel for the revision petitioner relied upon the judgment of this Court reported in S. Saravanan and others Vs. M. Dhanalakshmi and others , 2021 (6) CTC 821 the relevant paragraphs are extracted below: 16. It is settled position of law that a suit for declaration and for recovery of possession or for recovery of possession alone, Article 65 of the Limitation Act is applicable and as such, the suit is to be instituted within 12 years from the date, when the possession of the defendant becomes adverse to the plaintiff. But the dispute is what will be the period of limitation, if a suit is filed for declaration of title to the property and for consequential permanent injunction restraining alienation or encumbering the property or restraining the interference with the peaceful possession and enjoyment of the property. 17. As already pointed out, according to the revision petitioners/defendants, Article 58 alone is applicable to the declaration and injunction, now claimed in the present suit and that since the same has been filed after the lapse of three years, the suit is barred by time. 17. As already pointed out, according to the revision petitioners/defendants, Article 58 alone is applicable to the declaration and injunction, now claimed in the present suit and that since the same has been filed after the lapse of three years, the suit is barred by time. Even logically speaking, if a person, who is out of possession files a suit for declaring his title and to recover the possession, he will have 12 years period of limitation as per Article 65 of the Limitation Act, but at the same time, if a person who is in continuous possession of the property files a suit to declare his title to the property and for permanent injunction restraining interference or restraining the alienation, can it be said that he will have only 3 years, invoking Article 58 of the Limitation Act. 18. It is pertinent to note that, as already pointed out, Part III of the first division deals with declaratory suits and the 1st two Articles in Part III are with respect to the forged instruments and adoption and that the remaining third Article i.e., 58 is a residuary and relates to any other declaration. But Part V of the first division specifically contemplates the period of limitation for suits relating to immovable property. It is necessary to refer the judgment of Division Bench of this Court in Muniammal And Ors. vs Venkitammal And Others, reported in 1992(2) MLJ 425 . “9. We must give credit to the learned Counsel for the respondents that he realised in the course of the arguments that Article 58 of the Limitation Act shall have no application on the facts of this case. The error which the trial court committed in applying Article 59 of the Limitation Act, which is applied to suits relating to decrees and instruments was no doubt rectified by the court below, but the error committed in applying Article 58 is obvious. Article 58 falls in Part III of the Schedule to the Limitation Act. This part deals with suits relating to declaration. Part V deals with suits relating to immovable property. Article 65 thereof reads that for possession of immovable property or any interest therein based on title, the period of limitation is twelve years. The instant suit based upon Ex.A-1 is undoubtedly a suit for interest based on title in immovable property. This part deals with suits relating to declaration. Part V deals with suits relating to immovable property. Article 65 thereof reads that for possession of immovable property or any interest therein based on title, the period of limitation is twelve years. The instant suit based upon Ex.A-1 is undoubtedly a suit for interest based on title in immovable property. The period of limitation in such a situation will be 12 years and not three years. 5. The learned Single Judge, taking note of the judgment of the Division Bench of this Court in Muniammal and others vs. Venkitammal and others , 1992 (2) MLJ 425 , observed that in cases relating to limitation, where a person in possession of the property has originally filed a suit for bare injunction, he is entitled to seek amendment of the plaint to include the relief of declaration. It was further held therein that if the plaintiff is able to demonstrate that he is in possession of the property and produces material to show that he is in occupation of the same, the applicable period of limitation would be twelve years and not three years. 6. Further, he relied upon the judgment of this Court in M. Mohan Vs. G. Janarthanan , 2025 (6) CTC 29 and the relevant portion is extracted hereunder: 7. The suit is one for bare injunction and in the written statement there is a categorical denial of the title of the plaintiff. No doubt, the written statement was filed in January 2019 and there has been considerable delay in seeking amendment to include the relief of declaration of title. The Hon’ble Supreme Court in Ragu Thilak D.John’s case (referred herein above), held that even if there was change in nature of the suit originally filed, the dominant purpose of under Order VI Rule 17 CPC being only to minimize litigations, even if such amendment would be barred by law of limitation, should be considered liberally. 8. In Pankaja's case, (referred herein supra), the Hon’ble Supreme court held that if the amendment subserves the ultimate cause of justice and avoids further litigation, then amendment should be allowed, even though there has been delay. The Patna High Court in Gul Hasan Miyan's case, (referred herein supra), following the ratio laid down by the Hon’bel Supreme Court Life Insurance Corporation of India Vs. The Patna High Court in Gul Hasan Miyan's case, (referred herein supra), following the ratio laid down by the Hon’bel Supreme Court Life Insurance Corporation of India Vs. Sanjeev Builders, reported in (2022) SCC online SC 1128, held that though permitting the amendment at the stage of evidence would cause further delay, considering that the plaintiff would be the sufferer having come to the Court, held that no prejudice would be caused to the defendant, if the amendment is ordered, finding that the contesting respondent would have ample opportunities to rebut or controvert the plaint of the plaintiff, which is sought to be brought through amendment, by filing an additional written statement. 9. The ratio laid down in these cases, would squarely apply to the facts of the present case as well. The only ground on which, the Trial Court has refused the amendment is that there has been inordinate delay considering the fact that the written statement was filed even as early as in January 2019. However, as held by the Hon’ble Supreme Court in the above referred cases and also followed by Patna High Court, even if the original character of the suit gets altered, from the relief of permanent injunction to the relief of declaration of title, when parties are at issue with regard to the very same subject property, by permitting amendment, it would minimize litigation as well, the amendment would certainly subserve the cause of justice. The mere fact that there has been a delay should not be put against the plaintiff. In fact, the defendant can always be compensated for the prejudice caused, if any, on account of delay, leave alone the opportunity to meet the amended portions of the plaint by filing an additional written statement. 10. In the light of the above, I am inclined to set aside the order of the Trial Court in I.A. No.4 of 2023 in O.S. No.92 of 2018 dated 18.01.2024. Application for amendment shall be allowed, subject to payment of costs of Rs.5,000/- (Rupees Five Thousand only) by the revision petitioner to the respondent, within a period of two weeks from the date of receipt of the copy of the order. Compliance of the conditional order directing payment of Rs.5,000/- shall be reported before the Trial Court and subject to the compliance, the plaintiff shall be permitted to carry out necessary amendments in the plaint. Compliance of the conditional order directing payment of Rs.5,000/- shall be reported before the Trial Court and subject to the compliance, the plaintiff shall be permitted to carry out necessary amendments in the plaint. The defendants shall be given three weeks (3) time to file the additional written statement and the Trial Court shall frame additional issues within a period of two (2) weeks thereafter and P.W.1 shall be permitted to be re-examined in respect of the amended claims and thereafter, the respondent shall have an opportunity to cross examine the plaintiff as well. The Trial Court shall endeavor to dispose of the suit within a period of nine (9) months from the date of receipt of the copy of the order. 7. Per contra, the learned counsel appearing for the respondents submitted that Order VI Rule 17 of CPC mandates that, while seeking amendment of pleadings, the applicant must demonstrate due diligence and explain the reasons for not raising the proposed plea at an earlier stage. In the present case, the revision petitioner has failed to establish such due diligence or provide any satisfactory explanation for filing the amendment application at a belated stage. In the absence of any material to show due diligence on the part of the revision petitioner, the amendment cannot be permitted. In support of his contention, the learned counsel relied upon the judgment of this Court reported in M. Revanna vs. Anjamma (Dead) by Legal Representatives and others, (2019) 4 SCC 332 and relevant paragraphs are extracted hereunder: 7. Leave to amend may be refused if it introduces a totally different, new and inconsistent case, or challenges the fundamental character of the suit. The proviso to Order VI Rule 17 of the CPC virtually prevents an application for amendment of pleadings from being allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of the trial. The proviso, to an extent, curtails absolute discretion to allow amendment at any stage. Therefore, the burden is on the person who seeks an amendment after commencement of the trial to show that in spite of due diligence, such an amendment could not have been sought earlier. There cannot be any dispute that an amendment cannot be claimed as a matter of right, and under all circumstances. Therefore, the burden is on the person who seeks an amendment after commencement of the trial to show that in spite of due diligence, such an amendment could not have been sought earlier. There cannot be any dispute that an amendment cannot be claimed as a matter of right, and under all circumstances. Though normally amendments are allowed in the pleadings to avoid multiplicity of litigation, the Court needs to take into consideration whether the application for amendment is bona fide or mala fide and whether the amendment causes such prejudice to the other side which cannot be compensated adequately in terms of money. 9. Having regard to the totality of the facts and circumstances of the case, we are of the considered opinion that the application for amendment of the plaint is not only belated but also not bona fide, and if allowed, would change the nature and character of the suit. If the application for amendment is allowed, the same would lead to a travesty of justice, inasmuch as the Court would be allowing Plaintiff Nos. 1 to 5 to withdraw their admission made in the plaint that the partition had not taken place earlier. Hence, to grant permission for amendment of the plaint at this stage would cause serious prejudice to Plaintiff No. 6/Respondent No. 1 herein. 8. It is the further contention of the learned counsel for the respondents that the revision petitioner has suppressed several material facts in the plaint and has filed the present application without any basis. In the absence of any document or material to substantiate his alleged right over the suit property, the revision petitioner cannot now seek to convert the suit from one for bare injunction into a suit for declaration. Such an amendment, if allowed, would cause serious prejudice to the respondents and would only serve to protract the proceedings. The application has been filed with the sole intention to claim right over the property by way of amendment. Therefore, permitting the amendment would result in serious prejudice to the respondents. 9. The point that arises for consideration is whether the revision petitioner has shown due diligence in filing the application for amendment as required under Order VI Rule 17 of CPC. 10. Therefore, permitting the amendment would result in serious prejudice to the respondents. 9. The point that arises for consideration is whether the revision petitioner has shown due diligence in filing the application for amendment as required under Order VI Rule 17 of CPC. 10. The learned counsel appearing for the revision petitioner fairly submitted that the revision petitioner ought to have been more cautious while filing the application before the trial Court. However, he contended that the right of the revision petitioner to seek amendment of the plaint should not be taken away on that ground alone. 11. The primary question as to whether the case falls under Section 58 or Section 65 of the Limitation Act is a matter to be decided by the trial Court, in the light of the principles laid down by the Division Bench of this Court. In cases, where the suit was originally filed for bare injunction and there is material to show that the revision petitioner is in possession of the property, an amendment seeking declaration can also be considered. Such a question relating to limitation and entitlement is a matter for trial. 12. The trial Court shall examine the respective rights of the parties based on the pleadings and the evidence produced on either side and pass appropriate orders in accordance with law. 13. In view of the same, this Civil Revision Petition is allowed with cost of Rs.10,000/-. The said amount shall be paid to the learned counsel appearing for the revision petitioner within a period of two weeks. Consequently, connected Miscellaneous Petition is closed. No costs. 14. Post the matter on 23.02.2026 for compliance.