Bombay High Court
Harinarayan G. Bajaj And Anr vs Vijay Agarwal And Others on 7 December, 2011
Bench: D.G. Karnik
1 CHS No.106/10
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
CHAMBER SUMMONS NO.106 OF 2010
IN
SUIT NO.2256 of 1998
Harinarayan G. Bajaj and Anr ... Plaintiffs
versus
Vijay Agarwal and others ... Defendants
ig ...
Ms.Sonal i/b Ravi Goenka for the plaintiffs
Mr.S.U.Kamdar, Sr. Advocate with Sandeep Parikh, Mr.G.B. Kedia,
Mr.Manoj Arge and Ms.Pooja Patil i/b G.B.Kedia for defendant nos.
1,2, 4 and 5.
CORAM : D.G. KARNIK, J
DATED : 7th December 2011
ORAL ORDER:-
1.
Heard learned counsel for the applicants (defendant nos.1, 2
4 and 5) and the plaintiffs. Other defendants are absent when
called.
2. This chamber summons has been taken out by defendant nos.
1,2, 4 and 5 (hereinafer referred to as "the defendants") for
amendment of the written statement. The chamber summons is
seriously opposed by the plaintiffs interalia on the grounds that the
chamber summons is barred by limitation as it is made beyond the
period prescribed by Article 137 of the Limitation Act and that the
chamber summons is not bonafide and has been taken out only for
the purpose of delaying the trial. The written statement was filed
on 20 November 2006 and the suit was posted for framing of issues
in December 2009. After the draft issues were tendered,
apprehending that the issues would be framed and the trial would
begin, the defendants have taken out this chamber summons for
delaying the trial and denying the plaintiff no.1 who is a senior
citizen, the fruits of the litigation. Counsel for the plaintiffs further
submits that amendment is not at all necessary for deciding the real
issues in controversy between the parties and therefore, the
chamber summons should be dismissed.
3. Per contra, learned counsel for the defendants submitted that
courts always adopt a liberal approach for allowing an amendment
of pleadings. The allegation that the chamber summons has been
taken out for delaying the trial is not true. The defendants have
raised a substantial defence in the original written statement. The
necessary facts have already been pleaded. Amendment is sought
only for elaborating the facts already mentioned in the written
statement and no new grounds are proposed to be added by the
amendment. As regards the question of limitation, counsel for the
defendants submitted that no period of limitation has been
prescribed by the Limitation Act, 1963, for making an application
for amendment of a pleading. An application for amendment of a
pleading can be made at any time. Article 137 of the Limitation Act
does not apply to an application (chamber summons) for
amendment of a plaint or a written statement.
4. In view of the submissions of the parties, following points
arise for my consideration.
(i) Whether Article 137 of the Limitation Act applies to an
application for amendment of pleadings?
(ii)If yes, whether the present application (chamber summons) is
barred by Limitation?
(iii)Whether in the facts and circumstances of the case, the
amendment should or should not be allowed?
5.
Counsel for the defendants fairly stated that the question
whether Article 137 of the Limitation Act applies to an application
for amendment of pleadings has not so far been considered by this
Court or any other court, save and except by the Allahabad High
Court in Didwania and Co.(P) Ltd Vs. Jagdish Narain Indranarain,
AIR 1971 Allahabad 407. In my view, the decision in Didwania &
Co. also is not directly on the point and the issue is res nova.
6. Section 3 of the Limitation Act provides that subject to the
provisions contained in sections 4 to 24, every suit instituted, appeal
preferred, and application made after the prescribed period (of
limitation) shall be dismissed although limitation has not been set
up as a defence. Section 2(j) of the Limitation Act provides that
"period of limitation" means the period of limitation prescribed for
any suit, appeal or application by the Schedule. Schedule to the
Limitation Act which prescribes the period of limitation for suits,
appeals and application is divided into three divisions. The first
division relates to the suits and consists of Articles 1 to 113 which
are divided into 10 parts. The second division relates to appeals
and consists of Articles 114 to 117. The third division relates to
applications and is divided into two parts. Part-1 speaks of
application in specified cases and consists of Articles 118 to 136.
Part-2 of the third division consists of only one article viz. Article
137 which reads thus:
Description of application Period of Time from which
Limitation period begins to run
137. Any other application Three years
for which no period of
When the right to
apply accures.
limitation is provided
elsewhere in this division.
Article 137 is a residuary article relating to applications and applies
to all applications other than those which have been specified in
Articles 118 to 136 of the Limitation Act. Any application to be
made to any court for which a period of limitation is not specified
in Articles 118 to 136 is governed by Article 137 of the Limitation
Act. In my view, there is no warrant for excluding application of
Article 137 of the Limitation Act to an application for amendment of
pleadings. As period of limitation for making an application for
making an amendment of pleadings is not specified in Articles 118
to 136 of the Limitation Act, it would be governed by Article 137 of
the Limitation Act. There is no reason to hold that Article 137 does
not cover or does not apply to an application for amendment of
pleadings. Of course, the starting point from which the period is to
be reckoned is "when the right to apply" for amendment accrued.
7. Learned counsel for the defendants however invited my
attention to Order 6 Rule 17 of the Code of Civil Procedure (for
short "the Code") which prior to its amendment in the year 2002
read as follows:
"17. Amendment of pleadings.-The Court may at any
stage of the proceedings allow either party to alter or
amend his pleadings in such manner and on such
terms as may be just, and all such amendments shall
be made as may be necessary for the purpose of
determining the real questions in controversy between
the parties:
Relying upon the words "at any stage of the proceedings" appearing
in Order 6 Rule 17 of the Code, the learned counsel submitted that
these words exclude the operation of Article 137 of the Limitation
Act, to an application for amendment of pleadings made under
Order 6 Rule 17 of the Code. If the law permits an application for
amendment of pleadings to be made at any stage of the
proceedings, counsel submitted, it cannot be held to be barred by
limitation at all as that would be contrary to the intent of the
legislature that such application can be made at any stage of the
proceedings. I am unable to agree. The expression "at any stage of
the proceedings" only denotes the stage of the proceedings, be it
before the framing of the issues or after framing of the issues, before
commencement of the trial or after the commencement of the trial
or even after conclusion of the trial. There are several instances
when an application for amendment of pleadings is made and
allowed in an appeal. This is because appeal is regarded as
continuation of the proceedings. This position has now altered
because of an addition of a proviso to Order 6 Rule 17 of the Code
which requires an application for amendment is required to be
made before the commencement of the trial and an application
made after the commencement of the trial cannot be allowed unless
the court is satisfied that in spite of the due diligence the party
applying could not have raised the matter before the
commencement of the trial. Order 6 Rule 17 of the Code confers a
right on a party to apply for amendment of the pleadings. However,
the remedy for this right to apply for an amendment may get barred
by the Limitation Act. A party to a suit would have a right to apply
for amendment at any stage subject to law of limitation. The
remedy will be barred after the period prescribed under Article 137
of the Limitation Act elapses. Order 6 Rule 17 of the Code of Civil
Procedure cannot be held to be an exception to section 3 of the
Limitation Act which requires the court to dismiss a suit, an appeal
or an application made after expiry of the period of limitation. An
application for amendment of pleadings must be made within the
period prescribed by Article 137 of the Limitation Act.
8. In Kerala State Electricity Board Vs. T.P. Kunhaliumma, (1976)
4 SCC 634, the Supreme Court was considering whether a petition
filed before the District Judge under section 16(3) of the Indian
Telegraph Act, 1885 claiming an enhancement of compensation was
barred by Article 137 of the Limitation Act, 1963. Relying upon a
decision of a two Judge Bench of the Supreme Court in the case of
Town Municipal Council, Athani Vs. Presiding Officer, Labour Court,
Hubli (1969) 1 SCC 873, it was contended before the court that
Article 137 does not apply to the applications which were presented
of any tribunal bodies or authorities other than a civil court.
Following the decision in Nityananda M. Joshi Vs. Life Insurance
Corporation of India, 1969(1) SCC 199, the three Judge Bench of
the Supreme Court held that Article 137 of the Limitation Act
applies to any petition or application filed before a civil court under
any Act. In paragraph no.22 of the decision, the Supreme Court
observed :
"The conclusion we reach is that Article 137 of the
1963 Limitation Act will apply to any petition or
application filed under any Act to a civil court. With
respect we differ from the view taken by the two-
judge bench of this Court in Athani Municipal Council
case and hold that Article 137 of the 1963 Limitation
Act is not confined to applications contemplated by or
under the Code of Civil Procedure"
The decision in the case of Kerala State Electricity Board (supra)
was followed by the Supreme Court in Kunvarjeet Singh Khandpur
Vs. Kirandeep Kaur and others, (2008) 8 SCC 463. After extracting
the above quoted passage from the decision of Kerala State
Electricity Board (supra), the court held:
"In terms of the aforesaid judgment (Kerala State
Electricity Board) any application to civil court under
the Act is covered by Article 137".
(underlining supplied)
In view of the clear enunciation of law by the Supreme Court that
every application made to a civil court is covered by Article 137 of
the Limitation Act, it must be held that Article 137 applies even to
an application made for amendment of the pleadings
9. Mr.Kamdar, learned counsel appearing for the defendants
referred to and relied upon a decision of the Supreme Court in
Revajeetu Builders and Developers Vs. Narayanaswamy and Sons
and others (2009) 10 SCC 84 and invited my attention to the
observations in paragraph no.39 which reads thus:
"39. The rule, however, is not a universal one and
under certain circumstances, such an amendment may
be allowed by the court notwithstanding the law of
limitation. The fact that the claim is barred by the law
of limitation is but one of the factors to be taken into
account by the court in exercising the discretion as to
whether the amendment should be allowed or
refused, but it does not affect the power of the court if
the amendment is required in the interests of justice
(see Ganga Bai Vs. Vijay Kumar and Arundhati Mishra
Vs. Ram Charitra Pandey)"
The observations cannot be read out of context. It is settled
principle of law that judgments of court are not to be read as statute
but the observations made in a judgment must be read in the
context in which they are made. The above quoted observations
were made while dealing with an argument that the amendment
should not be allowed as it sought to add a claim which was barred
by limitation on the date on which the application for amendment
was made. It was in this context that the Supreme Court held that
the court has a discretion whether the amendment should be
allowed or refused. In a given case, the question whether the
claim which is sought to be introduced by an amendment in the
plaint is barred by limitation or not would be a mixed question of
law and facts and in that case it would be inappropriate to shut out
an amendment without the trial and without knowing whether the
claim made is really barred by limitation. The decision on the
question of limitation as to a claim often requires appreciation of
evidence. The distinction between a claim sought to be introduced
by an amendment being barred by limitation and the application
for amendment being barred by limitation must be borne in mind.
The starting point for computing period of limitation for making an
application for amendment of the plaint is the date when the right
to apply for amendment accrues. In a given case, the right to apply
for amendment may accrue on a day which is different than the date
on which the cause of action for the claim sought to be made by
amendment accrues. Article 137 of the Limitation Act provides
that the period of limitation for making of an application is to be
computed from "when the right to apply accrues". The court would
therefore, have to see when the right to apply for the amendment of
pleadings accrued to the plaintiff and compute the period of
limitation from the date when the right accrued.
10. As regards the decision of the Allahabad High Court in
Didwania and Co.(P) Ltd Vs. Jagdish Narain Indranarain, Air 1971
Allahabad 407, the facts therein were that Didwania and Co.Pvt.Ltd.
(hereinafter referred to as "the company") went in liquidation. Two
liquidators acting on behalf of the company filed a suit. The
application for amendment was made on 3 November 1965 praying
for amendment to the title of the plaint deleting the name of the
liquidator who had died and substituting it by another name. The
trial court held that the suit had abated as the heirs of the liquidator
were not brought on record within the prescribed period of
limitation. The High Court held that the company was a jurisdic
personality and the suit cannot abate even if the liquidator died.
Liquidator acted only as vehicle on behalf of the company. Death of
a liquidator in a suit filed by a company cannot be equated with the
death of a party to a suit. It was in this context that the High Court
observed that an application for amendment was not governed by
any law of limitation. This decision is not an authority on the
applicability of Article 137 of the Limitation Act to an application for
amendment. The observation in the decision to the effect "such an
application was not governed by any law of limitation" is at best a
casual observation not deciding the issue whether Article 137 of the
Limitation Act applies to an application for amendment of the
plaint.
11. For these reasons, it must be held that Article 137 of the
Limitation Act applies to all applications to be made to a civil court
including an application for amendment made under Order 6 Rule
17 of the Code.
12. The second question is: whether the application for
amendment in the present case is barred by limitation. As stated
earlier, starting point of limitation is "when the right to apply
accrued". Counsel for the plaintiff in the present case fairly stated
that cause of action for applying for the amendment arose on the
day following the day when the written statement was filed. No
new facts were sought to be pleaded but only explanation regarding
the existing facts was sought to be added by the proposed
amendment. The explanation should have been added in the first
place but for some reason had not been added. Therefore, the
cause for addition of the explanation which was sought to be
introduced by an amendment arose on the day following the day on
which written statement was filed. The written statement was filed
on 20 November 2006. The right to apply for amendment therefore
accrued on 21 November 2006. The chamber summons has been
taken out on 19 January 2010 i.e after lapse of three years from the
day when the right to apply for amendment accrued. Chamber
Summons is thus barred by limitation.
13. As regards the third question framed above, in my view, the
amendment cannot be refused but for the fact that it is barred by
limitation. It is settled principle of law that rules of procedure are
handmaid to the administration of justice. An amendment cannot
be refused merely because of mistake, negligence, inadvertence or
even infraction of the rules of procedure. The court always gives
leave to amend pleadings to a party unless it is satisfied that the
party applying was acting malafide or that by his blunder he had
caused injury to his opponent which may not be compensated by an
order of costs. (see Jai Jai Ram Manharlal vs. National Building
Material Supply, 1969 (1) SCC 869). The decision in the case of Jai
Jai Ram has been consistently followed and has recently been
applied in the case of State of Maharashtra vs. Hind Construction
Co, (2010) 4 SCC 518. But for the limitation, I would have allowed
the chamber summons. ig
14. For these reasons, the chamber summons is dismissed but in
the facts and circumstances of the case without any order as to
costs.
(D.G.KARNIK, J)
