Full Judgment Text
Neutral Citation Number : 2023/DHC/001197
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Order reserved on: 10 February 2023
Order pronounced on: 21 February 2023
+ CS(OS) 643/2019 & I.A. 315/2020, I.A. 319/2020
KOMAL NAGPAL ..... Plaintiff
Through: Mr. Sanjeev Sindhwani, Sr.
Adv. with Mr. Kartik
Nagarkatti and Mr. Krishna
Dev Yadav, Advs.
versus
SONIA BHANDARI & ANR. ..... Defendants
Through: Mr. Akhil Sibal, Sr. Adv. with
Mr. Avneesh Arputham, Ms.
Bahuli Sharma and Mr. Ankit
Sharma, Advs. for defendants.
CORAM:
HON'BLE MR. JUSTICE YASHWANT VARMA
O R D E R
I.A. 2002/2020
1. The instant application has been moved by the Plaintiff seeking
to introduce various amendments in the plaint which has been filed in
the original suit. The suit seeks a declaration that the sale deed dated
18 February 2001 conveying title upon Defendant No.1 with respect
to the first floor of property bearing No. B-217, Greater Kailash-I,
1
New Delhi-110048 is liable to be declared as being null and void.
2. The case as set forth in the plaint is that the father of the
Plaintiff purchased the suit property sometime in the year 1964 and
1
Suit Property
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constructed a house which stands thereon. The Plaintiff is alleged to
have shifted out of the suit property upon her marriage in 1976. It is
her case that in 1979 and upon the suit property being renovated, the
second Defendant moved to the first floor from the ground floor of the
suit property. It is averred that the Defendants continued to occupy the
first floor of the suit property before completely vacating the same and
shifting to the second floor sometime in January 2003.
3. It is asserted that in 1994 the Plaintiff along with her husband
and son moved into the suit property and began residing on the first
floor thereof. The plaint also alludes to a Will executed by the father
of the Plaintiff on 28 February 1999 and in terms of which the entire
first floor was bequeathed to the Plaintiff whereas the ground floor
including the garage and other associated structures as also the second
floor and terrace came to be willed in favor of the Defendant No.2.
4. The Plaintiff further asserts that her father came to be saddled
with various debts and in order to settle disputes with the Indian
Overseas Bank, it was agreed that he would sell the same and
liquidate the amounts payable to the bank from the proceeds thereof. It
was in the aforesaid backdrop that the Sale Deed dated 18 September
2001 is stated to have been executed in favor of Defendant No.1 who
had stepped in and agreed to purchase the property to the extent
specified above, namely the ground floor, second floor, terrace and
furnish consideration in connection therewith. It is the case of the
Plaintiff that she always believed that the sale deed of 18 September
2021 related to the ground floor, second floor and terrace of the suit
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property alone and that the father never intended to convey or sell any
part of the suit premises occupied by her.
5. It is then alleged that in light of various allegations of
corruption that came to be laid against Defendant No.2 and fearing
coercive action, he left the suit property in April 2016 and is currently
a fugitive from justice. According to the Plaintiff, it was in June 2019
2
when officials of the Central Bureau of Investigation visited the
suit property that she came to know of the various criminal cases
which had come to be registered against Defendant No.2. She asserts
that on or about July 2019, various brokers and real estate agents
started to visit the suit property and when she raised this issue with the
Defendants, she was apprised that the sale deed had conveyed to the
Defendant No.1 all rights in respect of the entire suit property
including the first floor.
6. It is thereafter that she is stated to have visited the office of the
Sub-Registrar on 11 September 2019 and obtained a certified copy of
the sale deed in question. The Plaintiff further alleges that she was
taken by shock and surprise when she realised that the sale deed in
question purports to create rights in favour of and confer rights upon
the first Defendant in respect of the entire property. It is in that
backdrop that she alleges that she along with her father had been
clearly deceived and misled by the Defendants, who had committed
fraud and misrepresented facts to lure her father to execute the sale
deed in question.
2
CBI
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7. Although a written statement has been filed by the Defendants,
applications under Order VII Rule 11 as well as Order XXXIX Rule 4
3
of the Code of Civil Procedure, 1908 have additionally been filed on
their behalf. Insofar as the amendment application is concerned, it is
the case of the plaintiff that recently and while going through the
website of this Court, she derived knowledge of an order of 08 July
1993 passed in CS(OS) 1439/1993 and in terms of which the father of
the Plaintiff as well as the second Defendant stood restrained from
creating any third party rights or hypothecating or selling the suit
property.
8. She also refers to the discovery of a judgment dated 29 June
2015 passed by the Court in Crl. M.C. No. 5798/2014 which had taken
note of the orders passed in the civil suit. It is further asserted that the
suit which had been instituted before this Court was ultimately
4
transferred to the Debts Recovery Tribunal and when the records
connected therewith were inspected on 29 January 2020, the existence
of the interim order came to light. It is in that backdrop that it is
asserted that the conveyance executed by the father being in violation
of the injunction dated 08 July 1993, is null and void.
9. The proposed amendments are opposed by the Defendants on
grounds which are noticed hereinafter. Mr. Sibal, learned Senior
Counsel appearing for the Defendants has submitted that the
amendments which are proposed to be introduced are mala fide and
are clearly designed to stall the consideration of the pending Order
3
CPC
4
DRT
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XXXIX Rule 4 and Order VII Rule 11 applications move on their
behalf. It was contended that the Plaintiff is admittedly a witness to
the sale deed in question and it is thus incomprehensible how she
could have instituted the suit seeking a declaration in respect of the
sale deed executed in 2001 in 2019. According to Mr. Sibal, this
significant fact is compelling evidence of the sheer falsity of the case
which has been set up by and on behalf of the Plaintiff. Mr. Sibal
further argued that the various assertions which are sought to be
introduced in light of the proposed amendment application clearly
amounts to the introduction of a completely new and distinct case and
consequently the said application is liable to be dismissed on this
score also.
10. Mr. Sibal placed reliance on the decision of the Supreme Court
5
in A.K. Gupta and Sons Ltd. v. Damodar Valley Corporation in
which the principles which must govern the exercise of power
conferred by Order VI Rule 17 were enunciated in the following
terms: -
| “7. It is not in dispute that at the date of the application for | |
|---|---|
| amendment, a suit for a money claim under the contract was | |
| barred. 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 [19 QBD 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 [LR 47 IA 255] and L.J. Leach & Company Ltd. v. Jardine | |
| Skinner and Co. [(1957) SCR 438]" |
5
(1966) 1 SCR 796
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| 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, 710-1] ) 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, 651] approved in Pirgonda Hongonda | |
| Patil v. Kalgonda Shidgonda Patil [(1957) SCR 595, 603] ). |
| 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) LR 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 All 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 understood to mean “new set of ideas” : Dornan v. J.W. Ellis | |
| & Co. Ltd. [(1962) 1 All 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. |
10. Now, how does the present case stand on these principles?
Does the amendment introduce a new cause of action or a new
case? We do not think it does. The suit was on the contract. It
sought the interpretation of a clause in the contract only for a
decision of the rights of the parties under it and for no other
purpose. It was the contract which formed the cause of action on
which the suit was based. The amendment seeks to introduce a
claim based on the same cause of action, that is, the same contract.
It introduces no new case or facts. Indeed the facts on which the
money claim sought to be added is based are not in dispute. Even
the amount of the claim now sought to be made by amendment,
was mentioned in the plaint in stating the valuation of the suit for
the purpose of jurisdiction. The respondent had notice of it. It is
quite clear that the interpretation of the clause was sought only for
quantifying the money claim. In the written statement the
respondent specifically expressed its willingness to pay the
appellant's legitimate dues which could only mean such amount as
might be due according to the rates applicable on a proper
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| interpretation of the clause. The respondent was fully aware that | |
| the ultimate object of the appellant in filing the suit was to obtain | |
| the payment of that amount. It was equally aware that the amount | |
| had not been specifically claimed in the suit because the | |
| respondent had led the appellant to believe that it would pay | |
| whatever the court legitimately found to be due. It in fact said so in | |
| the written statement. If there was any case where the respondent | |
| was not entitled to the benefit of the law of limitation, the present | |
| is that one. The respondent cannot legitimately claim that the | |
| amendment will prejudicially affect his right under that law for | |
| really he had no such right. It is a case in which the claim for | |
| money was in substance in the plaint from the beginning though it | |
| had not formally been made. |
| 11. This, therefore, seems to us to be pre-eminently a case for | |
|---|---|
| allowing the amendment. The authorities also lead us to the same | |
| view. In L.J. Leach & Co. case [(1957) SCR 438] a suit for | |
| damages for conversion was by amendment allowed to be | |
| converted into a suit for damages for breach of contract after that | |
| claim had become barred, the necessary facts, as in the case in | |
| hand, being already in the plaint. In Charan Das case [LR 47 IA | |
| 255] an amendment adding a claim for possession after a suit for | |
| such claim had become barred was allowed in a suit which | |
| originally had only claimed a declaration of a right to pre-empt. In | |
| the last mentioned case, the plaintiff had in spite of warning at the | |
| earliest stage refused to make the amendment which he later sought | |
| and got. It was, therefore, a case where the plaintiff had initially | |
| deliberately refused to make a claim and an amendment being | |
| allowed later permitting that claim to be raised after it had become | |
| barred. It was in a sense a stronger case than the present one where | |
| the plaintiff had omitted to make the claim initially on a wrong | |
| notion and a wrong legal advice. Punishing of mistakes is, of | |
| course, not administration of justice. |
12. It is true that the plaint does not set out the details of the work
done. But there never was any dispute about them. Indeed the
respondent had prepared a final bill of the appellant's dues for the
work done under the contract and the appellant had accepted that
bill as correct except on the question as to the proper rate
chargeable under the clause. Strictly the details of the work done
were not necessary in the plaint for it would be a waste of time of a
court to go into them, it not being unusual to direct an enquiry by a
commissioner or a subordinate officer about such details when, as
in the present case, the items of work done are innumerable. It
would be enough in such cases to file the details before the
authority making the enquiry. Besides, in Pirgonda Hongonda
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| Patil case [(1957) SCR 595, 603] in a suit for a declaration of title, | |
| this Court permitted an amendment setting out the detailed facts on | |
| which the title was claimed after the suit had become time barred. | |
| The absence of the details of the work does not furnish a legitimate | |
| ground for refusing the amendment. |
| 13. It may be that as a result of the amendment, if the respondent | |
|---|---|
| chooses to raise a controversy about the work done, that is, about | |
| the quantity, quality and other things concerning it, which it had | |
| never raised so long, the matter will have to be gone into. That | |
| again would not justify a refusal of leave to amend. It would not | |
| mean any waste of time or money, or any duplication of work. That | |
| investigation would now be made for the first time and nothing | |
| done so far would become futile. Such an enquiry was indeed | |
| directed in L.J. Leach & Co. case [(1957) SCR 438] . |
| 14. The amendment sought is necessary for a decision of the real | |
|---|---|
| dispute between the parties which is, what are their rights under the | |
| contract? That dispute was clearly involved in the plaint as | |
| originally framed. All the necessary basic facts had been stated. | |
| Only through a misconception a relief which could be asked on | |
| those facts had not been asked. It would not have been necessary to | |
| ask for it unless the plaintiff had at a late stage taken the point that | |
| the suit should fail without more in the absence of that relief. We | |
| find the present case indistinguishable from Charan Das case [LR | |
| 47 IA 255].” |
11. Mr. Sibal also heavily relied upon the judgment of the Supreme
Court in Revajeetu Builders & Developers v. Narayanaswamy &
6
Sons and drew the attention of the Court to the salient principles
which were culled out in the said decision governing the scope of the
power of a court to allow amendments including the precept that
claims which are barred by limitation, should not be permitted to be
introduced by way of an amendment of pleadings. Mr. Sibal drew the
attention of the Court to the following passages as appearing in that
decision. :-
6
(2009) 10 SCC 84
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| “55. In Haridas Aildas Thadani v. Godrej Rustom | ||
|---|---|---|
| Kermani [(1984) 1 SCC 668] this Court said that: (SCC pp. 669- | ||
| 70, para 1) | ||
| “1. … It is well settled that the Court should be extremely | ||
| liberal in granting prayer of amendment of pleading unless | ||
| serious injustice or irreparable loss is caused to the other side. | ||
| It is also clear that a Revisional Court ought not to lightly | ||
| interfere with a discretion exercised in allowing amendment | ||
| in absence of cogent reasons or compelling circumstances.” | ||
| 56. In B.K. Narayana Pillai v. Parameswaran Pillai [(2000) 1 | ||
| SCC 712], a suit was filed by A for recovery of possession | ||
| from B alleging that B was a licensee. In the written | ||
| statement B contended that he was a lessee. After the trial began, | ||
| he applied for amendment of the written statement by adding an | ||
| alternative plea that in case B is held to be a licensee, the licence | ||
| was irrevocable. The amendment was refused. Setting aside the | ||
| orders refusing amendment, this Court stated: (SCC p. 715, para 3) | ||
| “3. The purpose and object of Order 6 Rule 17 CPC is to<br>allow either party to alter or amend his pleadings in such<br>manner and on such terms as may be just. The power to allow<br>the amendment is wide and can be exercised at any stage of<br>the proceedings in the interests of justice on the basis of<br>guidelines laid down by various High Courts and [the<br>Supreme Court]. It is true that the amendment cannot be<br>claimed as a matter of right and under all circumstances. But<br>it is equally true that the courts while deciding such prayers<br>should not adopt a hypertechnical approach. Liberal approach<br>should be the general rule particularly in cases where the<br>other side can be compensated with the costs. Technicalities<br>of law should not be permitted to hamper the courts in the<br>administration of justice between the parties. Amendments<br>are allowed in the pleadings to avoid uncalled for multiplicity<br>of litigation.” | ||
| 57. In Suraj Prakash Bhasin v. Raj Rani Bhasin [(1981) 3 SCC | ||
| 652] this Court held that: (SCC p. 653) | ||
| “… liberal principles which guide the exercise of discretion | ||
| in allowing amendment are that multiplicity of proceedings | ||
| should be avoided, that amendments which do not totally | ||
| alter the character of an action should be readily granted | ||
| while care should be taken to see that injustice and prejudice | ||
| of an irremediable character are not inflicted on the opposite | ||
| party under pretence of amendment, that one distinct cause of | ||
| action should not be substituted for another and that the |
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| subject-matter of the suit should not be changed by | |||
|---|---|---|---|
| amendment.” | |||
| Factors to be taken into consideration while dealing with | |||
| applications for amendments | |||
| 63. On critically analysing 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.” | |||
instituted seeks a declaration in respect of a sale deed dated 18
February 2001. It was his contention that since the suit came to be
instituted only in the year 2019, it would clearly be barred by time in
light of Article 58 as appearing in the Schedule to the Limitation Act,
7
1963 . It was Mr. Sibal‟s submission that not only was the suit time
barred, even the averments which are sought to be introduced by
virtue of the amendment application would be beyond the statutory
period of limitation.
7
The 1963 Act
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13. Controverting the aforesaid submissions, Mr. Sindhwani,
learned Senior Counsel appearing for the Plaintiff, has firstly alluded
to the oft repeated principles as flowing from the various judgments
rendered on the subject and which command courts to adopt a liberal
approach while granting prayers for amendments that may be made.
Mr. Sindhwani submitted that the injunction which was granted on the
suit noticed above was a fact which came to the knowledge of the
Plaintiff only recently and more particularly in the last week of
January 2020 and viewed in that light, it would be evident that the
objection of the claims being barred by limitation is clearly
unfounded.
14. Learned Senior Counsel submitted that the grounds on which
the sale deed dated 18 February 2001 was sought to be questioned are
merely in addition to those which stand incorporated in the plaint. Mr.
Sindhwani submitted that while considering amendments which are
proposed, courts are essentially obliged to consider whether those
would be necessary for deciding the real controversy which arises
between the parties and to avoid multiplicity of proceedings. Learned
Senior Counsel in support of the aforenoted submissions relied upon
the judgment of the Supreme Court in Andhra Bank vs. ABN Amro
8
Bank N.V. and to the following principles which were laid down
therein: -
“5. We have heard Mr. Rohit Kapadia, learned Senior Counsel
appearing for the appellant and Mr. S. Ganesh, learned Senior
Counsel for the respondent. We have perused the original written
statement as well as the application for amendment of the written
statement. After going through the written statement and the
8
(2007) 6 SCC 167
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| application for amendment of the written statement, we are of the | |
| view that the amendment sought to be introduced by the appellant | |
| must be allowed. From a perusal of the impugned order of the | |
| Special Court we find basically that two grounds have been taken | |
| by the Special Court for rejecting the prayer for amendment of the | |
| written statement. The first ground is that considerable delay has | |
| been caused by the appellant in filing the application for | |
| amendment of the written statement. It is well settled that delay is | |
| no ground for refusal of prayer for amendment. Mr. Ganesh, | |
| appearing for ABN Amro submits before us that by filing of such | |
| an application for amendment of the written statement which has | |
| been filed with long delay, the appellant sought to stall the hearing | |
| of the suit which has been fixed on 13-7-2007. In response to this | |
| Mr. Kapadia, learned counsel for the appellant, submits that in the | |
| event the prayer for amendment is allowed by us his client | |
| undertakes to file the amended written statement by day after | |
| tomorrow i.e. 12-7-2007 before the Special Court. Since, we are of | |
| the view that delay is no ground for not allowing the prayer for | |
| amendment of the written statement and in view of the submissions | |
| made by Mr. Kapadia, we do not think that delay in filing the | |
| application for amendment of the written statement can stand in the | |
| way of allowing the prayer for amendment of the written | |
| statement. So far as the second ground is concerned, we are also of | |
| the view that while allowing an application for amendment of the | |
| pleadings, the Court cannot go into the question of merit of such | |
| amendment. The only question at the time of considering the | |
| amendment of the pleadings would be whether such amendment | |
| would be necessary for decision of the real controversy between | |
| the parties in the suit. From a perusal of the amendment application | |
| we find that the appellant in its prayer for amendment has only | |
| taken an additional defence that in view of Section 230 of the | |
| Contract Act, the suit itself is not maintainable. It is well settled, as | |
| noted herein earlier, that at the time of considering the prayer for | |
| amendment of the written statement it would not be open to the | |
| Court to go into the fact whether in fact the suit in view of Section | |
| 230 of the Contract Act was or is not maintainable. |
| 6. That apart it is permissible in law to amend a written statement | |
|---|---|
| of the defendant by which only an additional ground of defence has | |
| been taken. |
7. In view of the reasons stated hereinabove we are of the view that
the order of the Special Court rejecting the application for
amendment of the written statement filed by the appellant is liable
to be set aside and the prayer for amendment of the written
statement must be allowed. Accordingly, the application for
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| amendment of the written statement is allowed and the impugned | |
| order is set aside. We are informed by the learned counsel for the | |
| parties appearing before us, as noted herein earlier, that the suit has | |
| been fixed for hearing on 13-7-2007 and the parties will not seek | |
| any adjournment on that date. In that view of the matter we direct | |
| the appellant to file the amended written statement by 12-7-2007 | |
| positively and thereafter the Special Court shall proceed with the | |
| hearing of the suit. The appeal is allowed to the extent indicated | |
| above. There will be no order as to costs.” |
15. Mr. Sindhwani also referred the Court to the judgment of the
Supreme Court in Mohinder Kumar Mehra vs. Roop Rani Mehra
9
& Ors. where the fundamental principles which govern the exercise
of powers under Order VI Rule 17 were explained as follows: -
| “7. By Amendment Act 46 of 1999 with a view to | |
|---|---|
| shortage litigation and speed of the trial of the civil suits, Rule 17 | |
| of Order VI was omitted, which provision was restored by | |
| Amendment Act 22 of 2002 with a rider in the shape of the proviso | |
| limiting the power of amendment to a considerable extent. The | |
| object of newly inserted Rule 17 is to control filing of application | |
| for amending the pleading subsequent to commencement of trial. | |
| Not permitting amendment subsequent to commencement of the | |
| trial is with the object that when evidence is led on pleadings in a | |
| case, no new case be allowed to set up by amendments. The | |
| proviso, however, contains an exception by reserving right of the | |
| Court to grant amendment even after commencement of the trial, | |
| when it is shown that in spite of diligence, the said pleas could not | |
| be taken earlier. The object for adding proviso is to curtail delay | |
| and expedite adjudication of the cases. This Court in Salem | |
| Advocate Bar Association, T.N. Vs. Union of India, (2005) 6 | |
| SCC 344 has noted the object of Rule 17 in Para 26 which is to the | |
| following effect: |
“26. Order 6 Rule 17 of the Code deals with amendment of
pleadings. By Amendment Act 46 of 1999, this provision
was deleted. It has again been restored by Amendment Act
22 of 2002 but with an added proviso to prevent application
for amendment 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 trial. The proviso, to
some extent, curtails absolute discretion to allow
9
CIVIL APPEAL NO.19977 of 2017 dated 11.12.2017
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| amendment at any stage. Now, if application is filed after | ||
|---|---|---|
| commencement of trial, it has to be shown that in spite of | ||
| due diligence, such amendment could not have been sought | ||
| earlier. The object is to prevent frivolous applications which | ||
| are filed to delay the trial. There is no illegality in the | ||
| provision.” | ||
| 8. The judgment on which much reliance has been placed by | ||
| learned counsel for the appellant is Rajesh Kumar Aggarwal & | ||
| Ors. Vs. K.K. Modi & Ors. (2006) 4 SCC 385. This Court had | ||
| occasion to consider and interpret Order VI Rule 17 in Paragraphs | ||
| 15 and 16, in which following has been held:- | ||
| “15. The object of the rule is that the courts should try the | ||
| merits of the case that come before them and should, | ||
| consequently, allow all amendments that may be necessary | ||
| for determining the real question in controversy between the | ||
| parties provided it does not cause injustice or prejudice to | ||
| the other side. | ||
| 16. Order 6 Rule 17 consists of two parts. Whereas the first | ||
| part is discretionary (may) and leaves it to the court to order | ||
| amendment of pleading. The second part is imperative | ||
| (shall) and enjoins the court to allow all amendments which | ||
| are necessary for the purpose of determining the real | ||
| question in controversy between the parties.” | ||
| 9. Although Order VI Rule 17 permits amendment in the pleadings | ||
| “at any stage of the proceedings”, but a limitation has been | ||
| engrafted by means of Proviso to the effect that no application for | ||
| amendment shall be allowed after the trial is commenced. | ||
| Reserving the Court‟s jurisdiction to order for permitting the party | ||
| to amend pleading on being satisfied that in spite of due diligence | ||
| the parties could not have raised the matter before the | ||
| commencement of trial. In a suit when trial commences? Order | ||
| XVIII of the C.P.C. deal with “Hearing of the Suit and | ||
| Examination of Witnesses”. Issues are framed under Order XIV. | ||
| At the first hearing of the suit, the Court after reading the plaint | ||
| and written statement and after examination under Rule 1 of Order | ||
| XIV is to frame issues. Order XV deals with “Disposal of the Suit | ||
| at the first hearing”, when it appears that the parties are not in issue | ||
| of any question of law or a fact. After issues are framed and case is | ||
| fixed for hearing and the party having right to begin is to produce | ||
| his evidence, the trial of suit commences. This Court in Vidyabai | ||
| & Ors. Vs. Padmalatha & Anr., (2009) 2 SCC 409 held that | ||
| filing of an affidavit in lieu of examination-in-chief of the | ||
| witnesses amounts to commencement of proceedings. In Paragraph | ||
| 11 of the judgment, following has been held:- |
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| “11. From the order passed by the learned trial Judge, it is | ||
| evident that the respondents had not been able to fulfill the | ||
| said precondition. The question, therefore, which arises for | ||
| consideration is as to whether the trial had commenced or | ||
| not. In our opinion, it did. The date on which the issues are | ||
| framed is the date of first hearing. Provisions of the Code of | ||
| Civil Procedure envisage taking of various steps at different | ||
| stages of the proceeding. Filing of an affidavit in lieu of | ||
| examination-in-chief of the witness, in our opinion, would | ||
| amount to “commencement of proceeding.” |
16. Mr. Sindhwani also highlighted the fact that in Mohinder
Kumar Mehra too the amendments were sought to be opposed on the
ground of limitation. It was submitted that the Supreme Court while
dealing with the said objection had pertinently observed that the
question of limitation would be one which would necessarily have to
await the final determination of the claim. This Mr. Sindhwani argued
in light of the following observations as appearing in Mohinder
Kumar Mehra :-
| “16. Now, we come to the one of the main reason given by the trial | |||||
|---|---|---|---|---|---|
| court in rejecting the application that the claim was barred by | |||||
| limitation. The Nizamuddin property, which property was sought | |||||
| to be added in the suit for partition was a property, which was sold | |||||
| by respondent No.1 in the year 2000, in which the plaintiff was | |||||
| also one of the witnesses. The trial court took the view that the suit | |||||
| was simplicitor for recovery of money for which limitation is only | |||||
| three years from the date of sale and not twelve years as claimed | |||||
| by the applicant. With regard to the limitation, the plaintiff- | |||||
| appellant relies on Article 110 of the Limitation Act, which is to | |||||
| the following effect:- | |||||
| Article<br>No. | Description of Suit | Period of<br>Limitation | Time from which<br>period begins to run | ||
| 110 | By a person excluded<br>from a joint family<br>property to enforce a<br>right to share therein. | Twelve<br>Years | When the exclusion<br>becomes known to<br>the plaintiff | ||
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| 17. Present is not a case of simply recovery of money. Plaintiff‟s | ||
|---|---|---|
| claim is to enforce a right to share in the Nizamuddin property, | ||
| which was sold in the year 2000 and according to plaintiff, the | ||
| limitation is twelve years as per Article 110. The High Court has | ||
| also noted the order of Additional District Judge holding that claim | ||
| is barred by time. The High Court refrained from expressing any | ||
| final opinion on the question of limitation but observed that the | ||
| view taken by the Additional District Judge is correct. It is relevant | ||
| to refer to Para 28 of the judgment, which is to the following | ||
| effect:- | ||
| “The learned Additional District Judge in the impugned order | ||
| has also accepted the contention of the counsel for the | ||
| respondents/defendants of the relief sought to be added by | ||
| way of amendment being barred by time and Articles 106 and | ||
| 110 of the Schedule to the Limitation Act being not | ||
| applicable. The counsel for the petitioner/plaintiff has been | ||
| unable to show any precedent that a claim for a definite share | ||
| in the sale proceeds of, a property would be governed by | ||
| Articles 106 and Article 110 supra. However, the same being | ||
| in the nature of entering into the merits of the amendment, I | ||
| refrain from dealing with the said aspect, though the view | ||
| taken by the learned Additional District Judge appears to be | ||
| reasonable and plausible.” | ||
| 18. In the facts of the present case, final determination as to | ||
| whether the claim could be held to be barred by time could have | ||
| been decided only after considering the evidence led by the parties. | ||
| Whether plaintiff had any share in the property, which was sold in | ||
| the year 2000 and what was the nature of his share and whether he | ||
| can claim recovery of his share within twelve years were all the | ||
| questions on which final adjudication could have been made after | ||
| considering the evidence and at the stage of considering the | ||
| amendment in the facts of the present case, it was too early to come | ||
| to a conclusion that limitation was only three years and not twelve | ||
| years as claimed by the plaintiff. The High Court on the one hand | ||
| refrained from expressing any opinion and on the other hand has | ||
| expressed his agreement with the view taken by the Additional | ||
| District Judge rejecting the application as barred by time. | ||
| 20. Although, learned counsel for the parties in their submissions | ||
| have raised various submissions on the merits of the claim of the | ||
| parties, which need no consideration by us since the only issue | ||
| which has to be considered is as to whether the amendment | ||
| application filed by the plaintiff deserves to be allowed or not. We | ||
| make it clear that we have neither entered into merits of the claim | ||
| nor have expressed any opinion on the merits of the claim of either |
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party and it is for the trial court to consider the issues on merits
while deciding the suit.
21. Taking into overall consideration of the facts of the present
case and specially the fact that evidence by the parties was led after
the filing of the amendment application, we are of the view that
justice could have been served in allowing the amendment
application. We thus allow the appeal and set aside the order of the
High Court as well as the order of the Additional District Judge.
The amendment application I.A. No. 1001 of 2011 stand allowed.
Both the parties have led their evidences and case has already been
fixed for hearing, however, to avoid any prejudice to the parties,
justice will be served in giving a limited opportunity to the parties
to lead additional evidence, if they so desire.”
17. It was also urged that courts while dealing with a prayer for
amendment are not liable to go into the question of either the veracity
or the truthfulness of the allegations that may be made. That,
according to Mr. Sindhwani, is a subject which must be reserved for
final determination in the suit proceedings. In support of the said
submission, Mr. Sindhwani placed reliance upon the following
observations as appearing in the decision of the Supreme Court in
10
Ramesh B. Desai vs. Bipin Vadilal Mehta :-
“16. It was emphasised in para 25 of the report that the statement
in the plaint without addition or subtraction must show that it is
barred by any law to attract application of Order 7 Rule 11 CPC.
The principle is, therefore, well settled that in order to examine
whether the plaint is barred by any law, as contemplated by clause
( d ) of Order 7 Rule 11 CPC, the averments made in the plaint alone
have to be seen and they have to be assumed to be correct. It is not
permissible to look into the pleas raised in the written statement or
to any piece of evidence. Applying the said principle, the plea
raised by the contesting respondents that the company petition was
barred by limitation has to be examined by looking into the
averments made in the company petition alone and any affidavit
filed in reply to the company petition or the contents of the
affidavit filed in support of Company Application No. 113 of 1995
10
(2006) 5 SCC 638
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| filed by the respondents seeking dismissal of the company petition | |
| cannot at all be looked into. |
| 18. The case set up by the petitioners in the company petition is | |
|---|---|
| that they had absolutely no knowledge of the alleged utilisation of | |
| the funds of the Company for purchase of shares by Bipinbhai and | |
| they came to know about it by or about in the month of May 1987 | |
| when a criminal complaint was filed by some office-bearers of the | |
| union of the Company and thereafter Petitioner 1 gave notice dated | |
| 14-6-1987. As mentioned earlier two cheques of Rs 10 lakhs and 5 | |
| lakhs were given on 13-11-1982 and another cheque of Rs 5 lakhs | |
| was given on 25-11-1982 by M/s Sayaji Industries Ltd. to M/s | |
| Santosh Starch Products and on the same day M/s Santosh Starch | |
| Products gave Rs 20 lakhs through cheques to Bipinbhai and his | |
| family members. Thereafter, Bipinbhai purchased 8600 shares of | |
| the Company M/s Sayaji Industries Ltd. and became its Managing | |
| Director on 18-11-1982. Though we should not be understood as | |
| recording any finding on this point, but in the natural course of | |
| events or at least it looks quite probable that the petitioners in the | |
| company petition, who are small shareholders of the Company, | |
| may not have come to know about the aforesaid transactions. |
| 19. A plea of limitation cannot be decided as an abstract principle | ||
|---|---|---|
| of law divorced from facts as in every case the starting point of | ||
| limitation has to be ascertained which is entirely a question of fact. | ||
| A plea of limitation is a mixed question of law and fact. The | ||
| question whether the words “barred by law” occurring in Order 7 | ||
| Rule 11(d) CPC would also include the ground that it is barred by | ||
| law of limitation has been recently considered by a two-Judge | ||
| Bench of this Court to which one of us was a member (Ashok | ||
| Bhan, J.) in Balasaria Construction (P) Ltd. v. Hanuman Seva | ||
| Trust [(2006) 5 SCC 658, below] it was held: (SCC p. 661, para 8) | ||
| “8. After hearing counsel for the parties, going through the | ||
| plaint, application under Order 7 Rule 11(d) CPC and the | ||
| judgments of the trial court and the High Court, we are of the | ||
| opinion that the present suit could not be dismissed as barred | ||
| by limitation without proper pleadings, framing of an issue of | ||
| limitation and taking of evidence. Question of limitation is a | ||
| mixed question of law and fact. Ex facie in the present case | ||
| on the reading of the plaint it cannot be held that the suit is | ||
| barred by time.” | ||
| This principle would be equally applicable to a company petition. | ||
| Therefore, unless it becomes apparent from the reading of the | ||
| company petition that the same is barred by limitation the petition | ||
| cannot be rejected under Order 7 Rule 11(d) CPC.” |
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18. Reliance was also placed on the judgment of the Supreme Court
in Harshwardhan & Ors. vs. M/S Jai Jalaram Infrastructure Firm
11
& Ors. where while dealing with the issue of claims being barred by
time and such objections being taken at the stage of introduction of
amendments, the Supreme Court explained the legal position in the
following terms: -
| “ | Having heard learned counsel for the parties, we are of the view |
|---|---|
| that there was nothing perverse in the order of the trial Court allowing the | |
| amendment. The High Court was not correct in interfering on the two | |
| grounds stated by it. As was correctly pointed out by learned counsel for | |
| the appellants, the application to amend the plaint clearly states that it is | |
| only after the written statement was filed that the application to amend | |
| has been made as the written statement referred to the alleged | |
| cancellation. Further, as has been held in “L.J. Leach & Co. Ltd. & Anr. | |
| Vs. Messrs. Jardine Skineer & Co.”, AIR 1957 SC 357 and “Pirgonda | |
| Hongonda Patil Vs. Kalgonda Shidgonda Patil & Ors”, AIR 1957 SC | |
| 363”, the plea of time bar is not absolute to reject amendments. As was | |
| held in those judgments, time bar is one factor to be considered, and the | |
| opposite party can always be compensated in costs, if the amendment is | |
| allowed. |
In the present case, we have seen that costs were also imposed
for allowing the amendment. This being the case, we set aside the
judgment of the High Court and restore the judgment of the trial Court.
The trial will now proceed in accordance with law.
The appeal is allowed accordingly.
”
19. For a more comprehensive analysis of the basic principles
which would regulate the exercise of power under Order VI Rule 17
Mr. Sindhwani lastly placed reliance upon a recent decision rendered
by the Supreme Court in Life Insurance Corporation of India vs.
12
Sanjeev Builders Pvt. Ltd. & Anr. and more particularly to the
following conclusions as enunciated therein: -
11
CIVIL APPEAL NO(s).18246 of 2017 dated 11.12.2017
12
2022 SCC OnLine SC 1128
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“ (i) Order II Rule 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 Rule 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 Rule 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.
(vi) Where the amendment would enable the court to pin-
pointedly consider the dispute and would aid in rendering a
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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 , 2022
SCC OnLine Del 1897)”
20. Mr. Sindhwani finally urged that even if the present amendment
application was viewed as having been filed with delay, that too
would not constitute sufficient ground to reject the same especially
when it was clearly designed to obviate multiplicity of proceedings.
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Learned Senior Counsel placed for the consideration of the Court the
13
following principles as late down in Pankaja vs. Yellappa :-
“ 12. So far as the court's jurisdiction to allow an amendment of
pleadings is concerned, there can be no two opinions that the same
is wide enough to permit amendments even in cases where there
has been substantial delay in filing such amendment applications.
This Court in numerous cases has held that the dominant purpose
of allowing the amendment is to minimise the litigation, therefore,
if the facts of the case so permit, it is always open to the court to
allow applications in spite of the delay and laches in moving such
amendment application.
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 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 on 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 straitjacket formula
for allowing or disallowing an amendment of pleadings. Each case
depends on the factual background of that case.
15. This Court in the case of L.J. Leach and Co. Ltd. v. Jardine
Skinner and Co. [AIR 1957 SC 357] has held: (AIR p. 362, para
16)
“ 16 . It is no doubt true that courts would, as a rule, decline to
allow amendments, if a fresh suit on the amended claim would
be barred by limitation on the date of the application. But that
is a factor to be taken into account in exercise of the discretion
as to whether amendment should be ordered, and does not
affect the power of the court to order it, if that is required in
the interests of justice.”
13
(2004) 6 SCC 415
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16. This view of this Court has, since, been followed by a three-
Judge Bench of this Court in the case of T.N. Alloy Foundry Co.
Ltd. v. T.N. Electricity Board [(2004) 3 SCC 392] . Therefore, an
application for amendment of the pleading should not be
disallowed merely because it is opposed on the ground that the
same is barred by limitation, on the contrary, application will have
to be considered bearing in mind the discretion that is vested with
the court in allowing or disallowing such amendment in the interest
of justice.
18. We think that the course adopted by this Court in Ragu Thilak
D. John case [(2001) 2 SCC 472] applies appropriately to the facts
of this case. The courts below have proceeded on an assumption
that the amendment sought for by the appellants is ipso facto
barred by the law of limitation and amounts to introduction of
different relief than what the plaintiff had asked for in the original
plaint. We do not agree with the courts below that the amendment
sought for by the plaintiff introduces a different relief so as to bar
the grant of prayer for amendment, necessary factual basis has
already been laid down in the plaint in regard to the title which, of
course, was denied by the respondent in his written statement
which will be an issue to be decided in a trial. Therefore, in the
facts of this case, it will be incorrect to come to the conclusion that
by the amendment the plaintiff will be introducing a different
relief.
19. We have already noted, hereinabove, that there is an arguable
question whether the limitation applicable for seeking the relief of
declaration on facts of this case falls under Entry 58 of the
Limitation Act or under Entry 64 or Entry 65 of the Limitation Act
which question has to be decided in the trial, therefore, in our view,
following the judgment of this Court in the case of Ragu Thilak D.
John [(2001) 2 SCC 472] we set aside the impugned orders of the
courts below, allow the amendment prayed for, direct the trial court
to frame necessary issue in this regard and decide the said issue in
accordance with law bearing in mind the law laid down by this
Court in the case of L.J. Leach and Co. Ltd. [AIR 1957 SC 357]”
21. Having noticed the rival submissions which have been
addressed on behalf of respective parties, the Court firstly notes that
that the plaint as originally framed rests on the allegation that the
Defendants had misrepresented the truth and played fraud upon the
Plaintiff as well as her father in proceeding to obtain a conveyance in
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respect of the entire suit property. It was the case of the Plaintiff that
the sale deed was executed under the impression that apart from the
first floor which was in her occupation, it was the remainder parts of
the suit property alone which were sought to be transferred in
furtherance of the arrangement arrived at between the Defendants and
her father who was facing severe financial constraints.
22. The Plaintiff further asserts that it was only on or about
September 2019 that the Defendants apprised her of the sale deed
being in respect of the entire property including the share apportioned
to her. She is stated to have thereafter obtained a certified copy of the
sale deed from the concerned Sub-Registrar and instituted the present
suit. Insofar as the sale deed being a nullity on account of the
injunction of 08 July 1993, it is her case that it was only recently and
while inspecting relevant records on the web portal of the Court that
she became aware of the order dated 08 July 1993. It is thereafter that
she is stated to have inspected the records relating to the proceedings
taken before the Debts Recovery Tribunal. It is in that background
that the instant amendment came to be proposed.
23. It must at the outset be noted that the grounds which are taken
in the amendment essentially appear to be an additional and ancillary
challenge to the validity of the sale deed. The cause of action and the
principal dispute remains that of the validity of the sale deed. In terms
of the amendment, the Plaintiff additionally seeks to challenge its
validity on the ground of the same being rendered a nullity in light of
the injunction which is stated to operate.
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24. It becomes pertinent to observe that at the stage of considering
whether those amendments are liable to be allowed, the Court is not
obliged to weigh in or enter a definitive finding with respect to the
correctness of the assertion of the Plaintiff that the facts surrounding
the injunction order were only recently discovered or that the sale
deed executed in teeth of the injunction that operated is a nullity.
Those and other aspects connected therewith would necessarily have
to await trial and after parties have been afforded an opportunity to
address submissions. The amendment application alludes to the recent
discovery of facts relating to the injunction order. It is asserted that the
sale deed having been executed in violation of the injunction, is
rendered a nullity. In the absence of any material or evidence which
may have established, even prima facie, that the Plaintiff was aware of
those facts earlier in point of time and has chosen to raise a claim
which is hopelessly barred by time, the Court would be clearly
justified in permitting the proposed amendments.
25. That then takes the Court to assess and evaluate the relevancy
of the facts which are proposed to be introduced. While dealing with
this issue, the Court would have to evaluate whether the allegations
have relevance to the controversy which forms part of the suit and
whether the facts which are sought to be introduced have a material
bearing on the issues forming the subject matter of the suit. Whether
the sale deed is in fact null and void and whether the injunction
restrained the vendor and the defendants from entering into a sale
consideration are all issues relating to the merits of the dispute inter
partes. Notwithstanding the above, the assertions made in respect of
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the challenge to the sale deed clearly appear to be germane to the
controversy which forms the subject matter of the suit. What also
weighs in the balance and in favour of the plaintiff is the principle of
avoidance of multiplicity of proceedings. If the Court were to refuse
the amendments which are proposed, it would still be open to the
Plaintiff to institute an independent action, subject of course to
whatever objections that may be available in law for the defendants to
raise. On this ground too, the amendment application is liable to be
allowed.
26. As was noticed hereinabove, the assertion of a recent discovery
of new facts as made on behalf of the Plaintiff was neither questioned
nor assailed on behalf of the defendants. The arguments on the aspect
of limitation were essentially raised and urged in respect of the issues
arising in the original suit and whether the Plaintiff could have sought
a declaration with respect of a sale deed executed in February 2001 by
way of a suit which ultimately came to be instituted in 2019. That
question clearly does not arise for determination presently since the
only issue which merits consideration at this stage is the amendments
which are proposed to be introduced. Those facts clearly appear to be
pertinent to the dispute forming part of the original suit.
27. As would be evident from a reading of the proposed
amendments, the facts which are sought to be introduced clearly
appear to be an additional plank on which the validity of the sale deed
dated 18 February 2001 is sought to be assailed. The challenge is
based on the discovery of additional facts by the Plaintiff. The
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principal challenge in the suit essentially remains the same, namely,
the validity of the sale deed dated 18 February 2001. Whether the
Plaintiff would ultimately succeed in the grant of that relief
notwithstanding the fact that she was a marginal witness to the sale
deed also does not merit consideration at this stage. In any case, it
clearly does not appear to fall within the mischief of the “new case”
rule as propounded by our courts while examining the scope of Order
VI Rule 17.
28. The aforesaid claim is also not shown or established to be
hopelessly barred by time or the statute of limitation which applies. As
was pertinently observed by the Supreme Court in Mohinder Kumar
Mehra as well as Ramesh B. Desai , a question of limitation is not an
abstract issue and would necessarily have to be considered bearing in
mind the facts that may ultimately be brought on the record of the suit
proceedings. A plea of limitation, as is well settled, is a mixed
question of law as well as fact. In any case and as was explained by
the Supreme Court in Life Insurance Corporation of India , a prayer
for amendment is ordinarily to be allowed unless the amendment ex
facie proposes to introduce what appears to be a time barred claim.
29. Mr. Sibal had contended that the suit for declaration as
presented would necessarily be governed by Article 58 of the
Schedule appended to the Limitation Act. The said provision
prescribes that such a suit must be presented within three years from
the time when the right to sue first accrues. The expression „ right to
sue first accrues ‟ has been consistently explained by precedents to be
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the point of commencement when the right asserted in the suit was
first infringed or when a clear or unequivocal threat to that right is
raised. It also encompasses the point in time when the Plaintiff would
have first derived knowledge of the infringement. Insofar as cases
where fraud is alleged, the provisions of Section 17 of the 1963 Act
also assume significance.
30. Tested on those principles, the Court finds itself unable to hold
that the claim raised in the amendment application can be said to be, at
least prima facie, barred by limitation. The Court deems it necessary
to clarify that the submission of Mr. Sibal that the original suit itself is
barred by limitation is not an issue which warrants examination at this
stage. Presently and at this stage all that may be observed is that the
allegations with respect to the sale deed being void in light of the
injunction which operated is neither shown nor established to be
barred by time. At the cost of repetition, it may be noted that the
Defendants failed to establish that the Plaintiff did in fact have
knowledge of those facts prior to the asserted date of knowledge and
that limitation in terms of Article 58 read with Section 17 was thus
liable to be computed from a point of time earlier than the one
suggested in the amendment application.
31. Consequently, and for all the aforesaid reasons, the
amendment application is allowed.
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32. The Court notes that an amended plaint already stands placed
on the record. The Defendants in the light of the present order may
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file an additional Written Statement within a period of four weeks
from today.
33. Let I.A. 315/2020 and I.A. 319/2020 be called on 18.05.2023.
YASHWANT VARMA, J.
FEBRUARY 21, 2023
neha/ SU
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