Suresh Chandra Dubey vs Gopal Grih Nirman Sahkari Samiti ...
2023 Latest Caselaw 795 MP

                             1
 IN    THE     HIGH COURT OF MADHYA PRADESH
                    AT JABALPUR
                         BEFORE
      HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                 ON THE 13 th OF JANUARY, 2023
                 MISC. PETITION No. 2865 of 2021

BETWEEN:-
SURESH CHANDRA DUBEY S/O LATE SHRI KASHI
PRASAD DUBEY, AGED ABOUT 65 YEARS, OCCUPATION:
RETIRED GOVT. SERVANT MIG 352 H SECTOR
AYODHYA NAGAR BHOPAL (MADHYA PRADESH)

                                                      .....PETITIONER
(BY SHRI ASHISH GIRI - ADVOCATE)

AND
1.    GOPAL GRIH NIRMAN SAHKARI SAMITI
      MARYADIT BHOPAL THR. ITS PRESIDENT SHRI
      B.P. SINGH GOPAL GRIH NIRMAN SAHKARI
      SAMITI MYARYADIT BHOPAL 29 BHB SECTOR
      GOPAL NAGAR KHAJURI KALAN BHOPAL
      (MADHYA PRADESH)

2.    SANTOSH SHRIVASTAVA S/O SHRI SHYAMLAL
      SHRIVASTAVA OCCUPATION: NOT MENTION 286,
      KALPANA NAGAR, RAISEN ROAD, BHOPAL
      (MADHYA PRADESH)

3.    HARISHANKAR       SHRIVASTAVA  S/O   SHRI
      BHAIYALAL SHRIVASATAVA OCCUPATION: NOT
      MENTION 1-B, 18, SIDDHARTH ENCLAVE, RAISEN
      ROAD, BHOPAL (MADHYA PRADESH)

4.    KARTAR   SINGH   S/O  SHRI  PANNALAL
      OCCUPATION: NOT MENTION ANAND NAGAR,
      KHAJURI KALAN, HUZUR, BHOPAL (MADHYA
      PRADESH)

                                                   .....RESPONDENTS
(SHRI VIKRAM JOHRI - ADVOCATE FOR RESPONDENT NO.2 )

(SHRI RAVINDRANATH CHATURVEDI - ADVOCATE FOR RESPONDENT
NO.4)
                                      2
      This petition coming on for admission this day, th e court passed the
following:
                                     ORDER

This petition under Article 227 of the Constitution of India has been filed against the order dated 3.8.2021 passed by Ninth Civil Judge Class II, Bhopal in R.C.S. No.309-A/2010 by which the application filed by the petitioner under Order 6 Rule 17 CPC for amendment in his plaint has been rejected.

The facts necessary for disposal of the present petition in short, are that the petitioner has filed a suit for declaration of title and permanent injunction. The suit was filed in the month of May, 2010. It appears that the respondents

also filed their written statements in the month of September, 2010 along with their counter claim. In the counter claim, the respondents disclosed that two sale-deeds dated 12.8.2008 and 14.5.2010 have been executed by the defendant No. 4 in favour of the defendant Nos. 2 and 3. Thereafter, the petitioner filed his written statement to the counter claim on 1.4.2015. Thereafter, the petitioner filed an application under Order 6 Rule 17 CPC for amendment in his plaint thereby seeking declaration of the sale-deeds dated 12.8.2008 and 14.5.2010 as null and void. The application filed by the petitioner has been rejected by the trial Court on the ground that by proposed amendment, a time barred claim of declaration cannot be entertained.

It is submitted by the counsel for the petitioner that so far as the question of limitation is concerned, it is a mixed question of fact and law and the same can be decided by the trial Court by framing issue and, therefore, the application filed by the petitioner under Order 6 Rule 17 CPC should not have been rejected on the ground that the claim of the petitioner is barred by time. To

buttress his contention, the counsel for the petitioner has placed reliance on the decision of the Supreme Court in the case of Ragu Thilak D. John Vs. S. Rayappan and others reported in 2001 (2) SCC 472; Abdul Rehman and another Vs. Mohd. Ruldu and others reported in 2012 (11) SCC 341 and a judgment passed by coordinate Bench of this Court in the case of Ashok Gupta Vs. Bholanath and others reported in 2018 (3) MPLJ 357. It is submitted that even if the amendment is allowed then no prejudice will be caused to any of the defendants.

Per contra, the petition is vehemently opposed by the counsel for the respondents. By supporting the reasoning assigned by the trial Court, it is submitted by Shri Johri that the written statement was filed in the year 2010 and in the said written statement it was specifically pleaded that the sale-deeds dated 12.8.2008 and 14.5.2010 have been executed by the defendant No. 4 in favour of the defendant Nos. 2 and 3. Thus, the factum of execution of aforesaid two sale-deeds was within the knowledge of the petitioner at least from the date of filing of the written statement. However, the petitioner filed his written statement to the counter claim on 1.4.2015 i.e. after more than four and a half years whereas the limitation for declaration is 3 years. To buttress his contention, the counsel for the respondents has relied upon the judgment passed by the Supreme Court in the case of Life Insurance Corporation of India Vs.

Sanjeev Builders Private Limited and another reported in 2022 SCC Online SC 1128.

Heard learned counsel for the parties.

The Supreme Court in the case of Ragu Thilak D. John (supra) has held that where the plea that relief sought by way of amendment was barred by time

is arguable in the circumstances of the case, then the amendment should be allowed. If the facts of this case are considered then it is clear that the petitioner came to know about the execution of two sale-deeds dated 12.8.2008 and 14.5.2010 in the month of September, 2010 itself i.e. when the written statement with counter claim was filed. Therefore, the date of knowledge of the execution of the sale-deeds is undisputed and cannot be challenged by the petitioner. Thus, even applying the provision of Section 17 of the Limitation Act, the period of limitation would start running against the petitioner from the date of receipt of copy of the written statement. It is not the case of the petitioner that although the written statement was filed in the month of September, 2010 but the copy of the same was supplied to him at a later stage. So far as contention of the counsel for the petitioner that, in case if any objection is raised in the written statement to the counter claim and even if there is some delay in amending the plaint, even then the amendment should be allowed, is concerned, there is no dispute about the same. However, in the present case the written statement to the counter claim itself was filed on 1.4.2015 i.e. after a period of limitation of 3 years. The counsel for the petitioner could not point out any reason for such a delay in filing the written statement. Even otherwise, it is well established principle of law that the delay in filing a suit cannot be condoned under Section 5 of the Limitation Act. Since the relief sought by the petitioner by proposed amendment is barred by limitation and there is no arguable point with regard to the date of knowledge of execution of sale-deeds dated 12.8.2008 and 14.5.2010, this Court is of the considered opinion that the trial Court did not commit any mistake by rejecting the application filed under Order 6 Rule 17 CPC. As no jurisdictional error could be pointed out by the counsel

for the petitioner, the petition fails and is hereby dismissed.

(G.S. AHLUWALIA) JUDGE PB

PRADYUMNA BARVE 2023.01.17 10:45:17 +05'30'