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2017 (8) TMI 1650 - HC - Indian LawsValidity of claim added by way of amendment was barred by Order II Rule 2 of the Code of Civil Procedure, 1908 (CPC) - whether the claim sought to be added by way of amendment was barred by time? - HELD THAT - The dismissal of the separate suit filed for the relief which was sought to be added by way of amendment in the pending suit, on the ground of being barred by Order II Rule 2 of the CPC, would not bar the amendment in the pending suit, to claim the same relief. Dismissal of the separate suit filed for damages on the ground of Order II Rule 2 of the CPC in my view would not constitute res judicata within the meaning of Section 11 of the CPC, to bar the respondent / plaintiff from claiming by way of amendment the relief which was held to be barred by Order II Rule 2 of the CPC - Dismissal of a suit as barred by Order II Rule 2 of the CPC would not amount to claim of damages having been heard and finally decided by the Court. There is no merit in the plea of the order allowing amendment to be bad for the reason of the claim sought to be made by amendment being barred by Order II Rule 2 of the CPC. Time Limitation - HELD THAT - The senior counsel for the petitioner / defendant contends that there is a difference in a claim for damages in a suit for specific performance of an Agreement of Sale and damages for defamation for which a special period of limitation has been provided - it is clear that the question of limitation is not such, which can be said to be apparent for the amendment to be denied. Petition dismissed as withdrawn.
Issues:
1. Amendment of plaint barred by Order II Rule 2 of the CPC 2. Claim sought to be added by way of amendment barred by time 3. Application of Section 40 of the Specific Relief Act, 1963 Analysis: 1. The petition challenged the order allowing the respondent/plaintiff to amend the plaint, with the petitioner/defendant arguing that the claim added by amendment was barred by Order II Rule 2 of the CPC and by time limitation. The Civil Judge held that Order II Rule 2 does not apply to amendments in pending suits and that the limitation issue did not arise due to Section 40 of the Specific Relief Act, 1963. The Court found that the dismissal of a separate suit for damages on Order II Rule 2 grounds did not prevent amendment in the pending suit to claim the same relief. It was held that such dismissal did not constitute res judicata under Section 11 of the CPC. 2. The respondent/plaintiff sought to add a claim for damages for defamation through the amendment, in addition to the injunction relief already sought. The petitioner/defendant argued that a separate suit for the same damages was rejected as per Order II Rule 2, making the amendment impermissible. However, the Court held that the rejection of a separate suit did not bar the amendment in the pending suit. The Court also noted that under Order VII Rule 13 of the CPC, rejection of a plaint does not preclude presenting a fresh plaint, but the limitation issue was left for further consideration. 3. The Court considered the aspect of limitation raised by the petitioner/defendant, who argued that the claim for defamation damages was time-barred. The senior counsel contended that while the merits of an amendment are not usually assessed at that stage, if a claim sought to be added is time-barred, the amendment should not be allowed. However, the Court referred to Section 40 of the Specific Relief Act, 1963, which allows for the addition of damages to an injunction claim at any time, subject to the plaintiff claiming such relief in the plaint. The Court cited precedents supporting the view that even if a claim by amendment is time-barred, the Court should allow the amendment. Ultimately, the petitioner/defendant withdrew the petition with liberty to address the limitation issue later in the suit.
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