Madras High Court
G.Kaleeswari vs M.Meenakshi Sundaram on 13 July, 2021
CRP(PD)(MD).No.970 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 13.07.2021
CORAM
THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR
C.R.P. (PD)(MD).No.970 of 2021
and
CMP(MD)No.5493 of 2021
G.Kaleeswari : Petitioner/Petitioner/Plaintiff
Vs.
1.M.Meenakshi Sundaram
2.M.Sathya : Respondents/Respondents/Defendants
PRAYER: Civil Revision Petition is filed under Article 227 of Constitution of
India, to call for the records to the impugned fair and decreetal order dated
08.03.2021 made in I.A.No.1 of 2019 in O.S.No.124 of 2019 on the file of the
District Munsif Court, Rajapalayam and set aside the same.
For Petitioner : Mr.V.Pandiyan
ORDER
The Civil Revision Petition is directed against the order passed in I.A.No.1
of 2019 in O.S.No.124 of 2019, dated 08.03.2021, on the file of the District
Munsif Court, Rajapalayam, dismissing the petition filed under Order 6 Rule 17
CPC.
https://www.mhc.tn.gov.in/judis/
CRP(PD)(MD).No.970 of 2021
2.The revision petitioner is the plaintiff and she has filed the suit in O.S.No.
109 of 2014, on the file of the Principal District Munsif Court, Srivilliputhur,
claiming the relief of permanent injunction restraining the defendants and their
men from in any manner interfering with the plaintiff's peaceful possession and
enjoyment of the suit property.
3.It is evident from the records that the suit was subsequently transferred to
the file of the District Munsif Court, Rajapalayam and the suit was taken on file in
O.S.No.124 of 2019. When the suit was pending for arguments, the plaintiff has
filed the petition under Order 6 Rule 17 Cr.P.C to amend the plaint for including
the relief of declaration, that the suit property is belonging to the plaintiff. The
learned District Munsif, after enquiry has passed the impugned order on
08.03.2021, dismissing the amendment application. Aggrieved by the said order,
the plaintiff has come forward with the present revision.
4.The case of the petitioner is that her earlier counsel appearing before the
trial Court had died suddenly and she engaged a new counsel to conduct the suit,
that subsequently she came to know from her new counsel that the relief of
declaration was not claimed and that therefore, it has become just and necessary to
amend the plaint for including the relief of declaration.
https://www.mhc.tn.gov.in/judis/
CRP(PD)(MD).No.970 of 2021
5.The defence of the respondent is that they have disputed the title of the
plaintiff in their written statement itself specifically that the suit property is owned
by the second defendant, that the proposed relief of declaration is clearly barred
by time and that the plaintiff has filed the above application with sole intention to
harass the respondents and to drag on the proceedings.
6.The plaintiff, claiming to be the owner of the property, as per the Will
dated 05.03.2004 executed by her grandmother Kaliammal and by alleging that
she has been in possession and enjoyment of the suit property, has laid the above
suit for permanent injunction. The defendants, admitting that the suit property was
originally owned by Kaliammal, have taken a defence that the said Kaliammal has
executed a registered power of attorney in favour of the first defendant, who in
turn executed a sale deed in favour of the second defendant dated 10.12.2010, that
the second defendant has permitted the plaintiff to reside in the suit property
considering the relationship between the parties and that when the defendants
demanded the plaintiff to hand over the suit property, she has been postponing the
same and subsequently filed the above suit.
7.The defendants have also taken a stand that the bare injunction suit
without claiming the relief of declaration is not maintainable. As rightly observed
https://www.mhc.tn.gov.in/judis/
CRP(PD)(MD).No.970 of 2021
by the learned trial Judge, since the defendants have disputed the title of the
plaintiff in the written statement itself, the plaintiff ought to have taken steps for
amending the plaint within a period of three years from the date of filing of the
written statement. At this juncture, it is necessary to refer the decision of the
Hon'ble Supreme Court in L.C.Hanumanthappa (since dead) represented by
his Legal Representatives vs. H.B.Shivakumar reported in (2016) 1 Supreme
Court Cases 332.
“ 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, 1993 therefore a suit based
https://www.mhc.tn.gov.in/judis/
CRP(PD)(MD).No.970 of 2021
on declaration of title would have become time-barred. 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. This being so, we find no infirmity in the impugned
judgment of the High Court. The present appeal is accordingly
dismissed.”
8.It is settled law that the Court 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 application. As already pointed out, in the case on hand, the
defendants have specifically disputed and denied the rights of the plaintiff over
the suit property. Admittedly, the suit was filed on 17.03.2014 and the written
statement was filed on 23.07.2014, but the application for amendment came to be
filed on 18.12.2020, after lapse of more than 6 years since the filing of written
statements to convert the suit of bare injunction suit into a suit for declaration and
for permanent injunction.
9.Applying the legal dictum laid down by the Hon'ble Supreme Court, the
decision of the trial Court in dismissing the amendment petition, as the proposed
https://www.mhc.tn.gov.in/judis/
CRP(PD)(MD).No.970 of 2021
K.MURALI SHANKAR,J.
das
amendment are barred by limitation, cannot be found fault with. Hence, this Court
is not inclined to admit the revision.
10.In the result, the Civil Revision Petition is dismissed. No costs.
Consequently, connected Miscellaneous Petition is closed.
13.07.2021
das
To
1.The District Munsif Court, Rajapalayam.
2.The Section Officer (VR Section),
Madurai Bench of Madras High Court, Madurai.
Note:
In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may
be utilized for official purposes, but, ensuring that
the copy of the order that is presented is the correct
copy, shall be the responsibility of the
advocate/litigant concerned.
C.R.P. (PD)(MD).No.970 of 2021
and
CMP(MD)No.5493 of 2021
https://www.mhc.tn.gov.in/judis/
