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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 ..... - Held that: - 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. Appeal dismissed. - A.K. Sikri And Rohinton Fali Nariman, JJ. JUDGMENT R.F. Nariman,. Leave granted. 2. The present case arises out of cross suits filed by the parties. On 9th March, 1990, one L.C. Hanumanthappa filed a suit against one H.B. Shivakumar for permanent injunction restraining the defendants, his servants and agents from disturbing the peaceful possession and enjoyment of the suit schedule property. In this suit, namely, O.S. No. 1386 of 1990 filed before the City Civil Court, Bangalore, the plaintiff averred that he is the absolute owner, and in lawful possession and enjoyment of the suit property. He also averred in the said suit that the schedule property is clearly distinguishable and could be iden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and new No. 12/2, alleged to be assigned by Bangalore City Corporation or about 6-6-1989. 5. It can thus be seen that on 16th May, 1990 itself the plaintiff in O.S. No. 1386 of 1990 was put on notice that his suit for injunction was not maintainable as he had failed to establish title over the suit schedule property. 6. Both suits were tried together, and by a judgment dated 10th March, 1999, the Court of Additional City Civil Judge at Bangalore decreed O.S. No. 1650 of 1990 and dismissed O.S. No. 1386 of 1990. In the first appeals filed against the said judgment, the High Court of Karnataka by its judgment dated 28th March, 2002 allowed R.F.A. No. 415 of 1999, and dismissed R.F.A. No. 456 of 1999, and remanded the matter back to the trial court for fresh consideration. The High Court while remanding the matter observed as follows:- 10. The trial Court had also appointed the Commissioner. The Commissioner after inspecting the properties has given his report. The commissioner has also been examined as PW.2. From looking into the pleadings and the evidence adduced by the parties, it is crystal clear that the dispute is in respect of the identity of two properties and to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en sought to amend the plaint in terms of the said judgment by adding para 5A to the plaint in which the plaintiff stated:- 5A. The Plaintiff submit that the Defendant has no manner of right title and interest in the plaint Schedule Property. The Defendant has denied the title of the plaintiff in respect of the suit Schedule Property. Hence it is just and essential to declare that the plaintiff is absolute owner in possession of the Schedule property. If the declaration as sought is not granted the Plaintiff who is the absolute owner from 05/05/1956 and enjoying the property as absolute owner thereof, will be put great loss and prejudice. On the other hand no hardship or prejudice will be caused to the defendant if the declaration as sought is granted. 8. A decree for declaration of title to the suit schedule property was then added as a prayer to the amended plaint. On 1st August, 2002, the defendant filed an additional written statement in which the defendant stated that the said plea based on a new cause of action, namely, declaration of title, was time-barred. 9. After remand, by its judgment and decree dated 16th April, 2009, the City Civil Court at Bangalore decre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts and therefore any amendment made could not possibly relate back as such amendment would be clearly time-barred. 13. We have heard 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 grant of permanent injunction. In Khatri Hotels Private Limited Anr. v. Union of India Anr., (2011) 9 SCC 126, this Court while construing Article 58 of the Limitation Act held as follows:- Article 58 of the Schedule to the 1963 Act, which has a bearing on the decision of this appeal, reads as under: THE SCHEDULE Period of Limitation [See Section 2(j) and 3] First Division-Suits Description of suit Period of limitation Time from which period begins to run * * * Part III- Suits Relating To Declarations * * * 58. To obtain any other declaration. Three Years When the right to sue first ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffectively invades or jeopardizes the said right. 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. [at paras 25 30] 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 16th May, 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 doctrin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It had been held by the courts below that on the pleading and on the evidence such claim must fail. At the stage of arguments in the Supreme Court, the plaintiff applied to the Supreme Court for amendment of the plaint by raising an alternative plea on the same set of facts, namely, a claim for damages for breach of contract for non- delivery of the goods. The respondents in that case resisted the said plea for amendment, stating that a suit based on this new cause of action would be barred by limitation. This Court, while allowing the said amendment, stated that no change needs to be made in the material facts pleaded before the court all of which were there in support of the amended prayer. In any case, the prayer in the plaint as it originally stood was itself general and merely claimed damages. Thus, all the allegations which were necessary for sustaining a claim of damages for breach of contract were already there in the plaint. The only thing that was lacking was the allegation that the plaintiffs were in the alternative entitled to claim damages for breach of contract. In the facts of the said case, this Court held:- It is no doubt true that courts would, as a rule, de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it originally filed for recovery of possession, an amendment was sought to be made after the limitation period had expired, for a prayer of declaration that certain sale deeds be set aside. This was repelled by this Court as follows:- On a fair reading of the plaint, it is clear that the main fulcrum on which the case of the plaintiffs was balanced was that the alienations made by their mother-guardian Laxmibai were void and therefore, liable to be ignored since they were not supported by legal necessity and without permission of the competent court. On that basis, the claim was made that the alienations did not affect the interest of the plaintiffs in the suit property. The prayers in the plaint were inter alia to set aside the sale deeds dated 14-11-1967 and 24-10-1974, recover possession of the properties sold from the respective purchasers, partition of the properties carving out separate possession of the share from the suit properties of the plaintiffs and deliver the same to them. As noted earlier, the trial court as well as the first appellate court accepted the case of the plaintiffs that the alienations in dispute were not supported by legal necessity. They also held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rightly dismissed the suit filed by Digamber. The judgment of the trial court dismissing the suit was not challenged by him. Even assuming that as the suit filed by one of the plaintiffs was within time the entire suit could not be dismissed on the ground of limitation, in the absence of challenge against the dismissal of the suit filed by Digamber the first appellate court could not have interfered with that part of the decision of the trial court. Regarding the suit filed by Vishwambhar, it was filed within the prescribed period of limitation but without the prayer for setting aside the sale deeds. Since the claim for recovery of possession of the properties alienated could not have been made without setting aside the sale deeds the suit as initially filed was not maintainable. By the date the defect was rectified (December 1985) by introducing such a prayer by amendment of the plaint the prescribed period of limitation for seeking such a relief had elapsed. In the circumstances, the amendment of the plaint could not come to the rescue of the plaintiff. From the averments of the plaint, it cannot be said that all the necessary averments for setting aside the sale deeds execute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble 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. Order 6 Rule 17 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 the 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 amended. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sought for, are concerned the prayer in that regard shall be deemed to have been made on the date on which the application for amendment has been filed. [at paras 7, 9, 10 and 11] 26. It is clear that on the facts in the above case the amendment was allowed subject to the plea of limitation which could be taken up by the defendant when the trial in the case proceeds. 27. In Van Vibhag Karamchari Griha Nirman Sahkari Sanstha Maryadit (Registered) v. Ramesh Chander and Ors., (2010) 14 SCC 596, this Court considered a suit which was originally filed for declaration of ownership of land and for permanent injunction. The suit had been filed on 11th February, 1991. An amendment application was moved under Order VI Rule 17 of the Code of Civil Procedure on 16th December, 2002 for inclusion of the relief of specific performance of contract. This Court in no uncertain terms refused the midstream change made in the suit, and held:- In the present case, the factual situation is totally different and the appellants have not filed any suit for specific performance against the first respondent within the period of limitation. In this context, the provision of Article 54 of the Limita ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ightly concluded that the amended suit was not barred by time. [at para 11] 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 16th May, 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 para 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 28th March, 2002 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 Private Limited (supra), the right to sue for declaration of title first arose on the facts of the present case on 16th May, 1990 when the original written statement clearly denied the plaintiff s title. By 16th May, 199 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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