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TMI Blog2015 (8) TMI 1435X X X X Extracts X X X X X X X X Extracts X X X X ..... e filing of this suit, the defendant in the first suit filed a suit being suit number O.S. 1650 of 1990 in the City Civil Court at Bangalore against one L.C. Ramaiah and the said Shri Hanumanthappa stating that the defendants had attempted to trespass into the suit schedule property about 15 days prior to the suit being filed, and asked for a permanent injunction against the said defendants restraining them from interfering with the peaceful possession and enjoyment of the suit schedule property. The plaintiff also claimed to be the owner in possession of the suit schedule property. 4. In the written statement to O.S. No. 1386 of 1990 dated 16th May, 1990, the defendant not only referred to his own suit which had by then already been filed, but specifically stated as follows:- "4. The boundaries furnished by the plaintiff to old survey site No.13, in the plaint schedule is totally false and that has nothing to do with the boundaries mentioned in his document. 5. The Plaintiff has failed to established any relationship between old site No.13 and Corporation No.12/2, as claimed by him in the plaint. 6. The allegations that at the time of the purchase of the schedule property by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present application is filed for declaration of his title. The respondent has resisted the application, contending that the relief sought for by the appellant is barred by limitation and that relief sought by way of limitation. However, such a plea can be raised by the respondents by filing additional written statement. Considering the fact that the dispute in respect of an immovable property and question of identification of two properties have been involved, as the defendant is also not disputing the sale deed of the appellant, this court to allow the application filed by the appellant for amendment of plaint seeking additional evidence. 11. Accordingly, R.F.A. No. 415/99 is allowed. The judgment and decree passed in O.S. No. 1386/90, is set aside. The matter is remanded to the Trial Court to hold fresh enquiry after giving reasonable opportunities for both the parties. The defendant is entitled to file additional written statement and also entitled to raise the question of limitation. The Trial Court shall dispose of the suit within six (6) months from to-day in accordance with law. The judgment and decree passed in O.S. 1650/90, which is the subject matter of RFA 415/99 is co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... August, 2002 was title denied for the first time after the amendment of the plaint was moved, the relief of declaration claimed by the plaintiff would be within the period of limitation. 10. In R.F.A. No. 796 of 2009, by the impugned judgment dated 5th March, 2015, the High Court reversed the said judgment on limitation stating that the original written statement filed on 16th May, 1990 had clearly stated that the plaintiff did not have the necessary title to the suit schedule property, and as the amendment of the plaint was moved long after three years from 16th May, 1990, it was clear that it was time-barred. O.S. No. 1386 of 1990 was thus dismissed on limitation alone. The High Court also turned down the plea with reference to Section 22 of the Limitation Act, 1963 stating that on the facts of the present case limitation could not be extended because the wrong in the present case was not a continuing wrong. 11. Learned counsel for the appellant has argued that once an amendment to the plaint is allowed, it necessarily relates back to the date on which the plaint was originally filed, and since the amendment was allowed in the present case by the judgment dated 28th March, 2002 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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] 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.Muthukaruppan Chettiar [ILR (1930) 8 Rang 645] andGobinda Narayan Singh v. Sham Lal Singh [(1930- 31) 58 IA 125]. 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 followi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... derstand it, is that amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. It is merely a particular case of this general rule that where a plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused; to allow it would be to cause the defendant an injury which could not be compensated in costs by depriving him of a good defence to the claim. The ultimate test therefore still remains the same: can the amendment be allowed without injustice to the other side, or can it not?" * [at p. 655] 16. This statement of the law was expressly approved by a three Judge Bench of this Court in Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil, 1957 SCR 595, at pages 603 to 604. 17. Twenty years later, the Privy Council in Charan Das v. Amir Khan, 47 IA 255 (1920), stated the law as follows:- "That there was full power to make the amendment cannot be disputed, and though such a power should not a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be added at all, and only an alternative prayer in law had necessarily to be made in view of the original plea in law being discarded. 21. Similar is the case with Pirgonda Hongonda Patil, reported in 1957 SCR 595. Here again it was held that the amendment did not really introduce a new fact at all, nor did the defendant have to meet a new claim set up for the first time after the expiry of the period of limitation. 22. In K. Raheja Constructions Ltd. & Anr. v. Alliance Ministries & Ors., 1995 Supp. (3) SCC 17, this Court was seized with a belated application to amend a plaint filed for permanent injunction. Seven years after it was filed, an amendment application was moved seeking to amend the plaint to one for specific performance of contract. In turning down such amendment on the ground that it was time-barred, this Court held:- "It is seen that the permission for alienation is not a condition precedent to file the suit for specific performance. The decree of specific performance will always be subject to the condition to the grant of the permission by the competent authority. The petitioners having expressly admitted that the respondents have refused to abide by the term ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e scope for doubt that the alienations made by Laxmibai which are under challenge in the suit were voidable at the instance of the plaintiffs and the plaintiffs were required to get the alienations set aside if they wanted to avoid the transfers and regain the properties from the purchasers. As noted earlier in the plaint as it stood before the amendment the prayer for setting aside the sale deeds was not there, such a prayer appears to have been introduced by amendment during hearing of the suit and the trial court considered the amended prayer and decided the suit on that basis. If in law the plaintiffs were required to have the sale deeds set aside before making any claim in respect of the properties sold, then a suit without such a prayer was of no avail to the plaintiffs. In all probability, realising this difficulty the plaintiffs filed the application for amendment of the plaint seeking to introduce the prayer for setting aside the sale deeds. Unfortunately, the realisation came too late. Concededly, Plaintiff 2 Digamber attained majority on 5-8- 1975 and Vishwambhar, Plaintiff 1 attained majority on 20-7-1978. Though the suit was filed on 30-11-1980 the prayer seeking setti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and not earlier than that." [at paras 9 and 10] 24. In Siddalingamma and Anr v. Mamtha Shenoy, (2001) 8 SCC 561, this Court held while allowing an amendment of the plaint in a case of bona fide requirement of the landlord that the doctrine of relation back would apply to all amendments made under Order VI Rule 17 of the Code of Civil Procedure, which generally governs amendment of pleadings, unless the court gives reasons to exclude the applicability of such doctrine in a given case. No question of limitation was argued on the facts in that case which would therefore be in the category of cases which would follow the line of judgments which state that costs can usually compensate for an amendment that is made belatedly but within the period of limitation, it not being an exceptional case such as those contained in the two judgments L.J. Leach & Co. Ltd. and Pirgonda Hongonda Patil cited above. 25. In Sampath Kumar v. Ayyakannu and Anr., (2002) 7 SCC 559, this Court was faced with an application for amendment made 11 years after the date of the institution of the suit to convert through amendment a suit for permanent prohibitory injunction into a suit for declaration of title and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (See observations in Siddalingamma v. Mamtha Shenoy [(2001) 8 SCC 561] .) In the present case the amendment is being sought for almost 11 years after the date of the institution of the suit. The plaintiff is not debarred from instituting a new suit seeking relief of declaration of title and recovery of possession on the same basic facts as are pleaded in the plaint seeking relief of issuance of permanent prohibitory injunction and which is pending. In order to avoid multiplicity of suits it would be a sound exercise of discretion to permit the relief of declaration of title and recovery of possession being sought for in the pending suit. The plaintiff has alleged the cause of action for the reliefs now sought to be added as having arisen to him during the pendency of the suit. The merits of the averments sought to be incorporated by way of amendment are not to be judged at the stage of allowing prayer for amendment. However, the defendant is right in submitting that if he has already perfected his title by way of adverse possession t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filing of the suit, and the same was allowed after 12 years of the filing of the suit, such an amendment in the facts of the case cannot relate back to the date of filing of the original plaint, in view of the clear bar under Article 54 of the Limitation Act. Here in this case, the inclusion of the plea of specific performance by way of amendment virtually alters the character of the suit, and its pecuniary jurisdiction had gone up and the plaint had to be transferred to a different court. This Court held in Vishwambhar v. Laxminarayan [(2001) 6 SCC 163] , if as a result of allowing the amendment, the basis of the suit is changed, such amendment even though allowed, cannot relate back to the date of filing the suit to cure the defect of limitation (SCC at pp. 168-69, para 9). Those principles are applicable to the present case." [at paras 24, 25 and 32] 28. In Prithi Pal Singh and Anr. v. Amrik Singh and Ors., (2013) 9 SCC 576, this Court was concerned with a suit claiming pre-emption under the Punjab Pre-emption Act, 1913. An amendment was sought to the plaint claiming that the plaintiff was entitled to relief as a co-sharer of the suit property. This Court after considering som ..... X X X X Extracts X X X X X X X X Extracts X X X X
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