Madras High Court
R.Yogaprise vs )Pasupathy on 22 July, 2021
CRP(MD)No.406 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 22.07.2021
(Reserved on 10.02.2021)
CORAM :
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
CRP(MD)No.406 of 2019
and
CMP(MD)No.2036 of 2019
R.Yogaprise ... Petitioner /
Petitioner/Plaintiff
vs.
1)Pasupathy
2)Minnal Kodi
Mrs.Saradha (Died)
3)Minor Sanjai
4)Minor Laksha Deepan
5)Minor Lathika
6)Ochappan
7)Murugan
8)Periyakaruppan ... Respondents/
Respondents/Defendants
Petition filed under Article 227 of the Constitution of India, against
the fair and decreetal order dated 21.12.2018 passed in I.A.No.422 of
2018 in O.S.No.156 of 2010 on the file of the District Munsif cum
Judicial Magistrate No.1, Usilampatti.
1/14
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CRP(MD)No.406 of 2019
For petitioner : Mr.K.Nagendra Prasad
For respondents 1 to 6 : Mr.K.K.Samy
&8
For 7th respondent : No appearance
ORDER
This revision petition has been filed against the order dated
21.12.2018 passed in I.A.No.422 of 2018 in O.S.No.156 of 2010 on the
file of the District Munsif cum Judicial Magistrate No.1, Usilampatti.
2.The learned counsel for the revision petitioner/plaintiff would
state that he filed the above suit against the respondents/defendants
for the relief of partition of the suit schedule properties. The petitioner
is the son of one Rajangam and his mother is Mayilammal and both of
them died. The 1st defendant is the second wife of the petitioner's
father Rajangam and defendants 2 and 3 born to the petitioner's father
through the 1st defendant. The 3rd defendant died on 22.07.2010. The
respondents 3 to 5/defendants 4 to 6 are her legal heirs and the
respondents 6 to 8/defendants 7 to 9 are subsequent purchasers of the
suit properties. In the suit, the defendants filed written statement on
23.09.2011 taking a defence that on accepting Rs.2,000/- the
petitioner has executed a release deed dated 27.07.1998,
extinguishing his rights from the joint family properties and therefore,
the petitioner filed the present interlocutory application to amend the
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CRP(MD)No.406 of 2019
prayer in the plaint by adding the relief of declaration declaring the
said release deed dated 27.07.1998 as null and void. The trial Court,
by the impugned order dated 21.12.2018, dismissed the petition for
amendment that since the petitioner has not filed the present petition
within three years from the date of written statement, it is barred by
limitation, against which, this revision is filed.
3.The learned counsel for the petitioner would state that though
the written statement was filed on 23.09.2011 alleging that the
petitioner executed the release deed, the said deed was marked before
the trial Court only on 06.08.2018 and the present petition has been
filed on 20.09.2018 ie., within 3 years therefrom and hence, it is well
within the period of limitation, but the trial Court has erroneously
dismissed the petition on the ground of limitation. He would further
state that application for amendment has to be considered and decided
along with other issues of the suit and it should not be summarily
dismissed on the ground of limitation.
4.The learned counsel for the petitioner would further state that
the alleged release deed was not a listed document along with the
written statement and it was marked only on 06.08.2018 ie., after 6
years, in violation of the mandatory provision Order 8 Rule 1A(3) CPC.
The 1st respondent /1st defendant himself has admitted in paragraph 6
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CRP(MD)No.406 of 2019
of the written statement that after the demise of the
petitioner's/plaintiff's mother, his grandfather took the
petitioner/plaintiff to his village and more than 40 years, there was no
contact and relationship between the plaintiff and his father as well the
defendants. The said averment itself would prima facie prove that the
alleged release deed is forged one and without considering the same,
the Court below has mechanically dismissed the present petition. Thus,
he prayed to set aside the impugned order and to allow the
amendment petition.
5.The learned counsel for the respondents 1 to 6 would state that
the petitioner has wantonly suppressed the execution of the release
deed dated 27.07.1998 in the plaint and though he came across the
averments of the written statement as to the release deed in the year
2011 itself, till 2018, he did not take steps either to cancel the release
deed or to file amendment petition. He would further state that by way
of amendment, the petitioner is seeking new relief which is not
admissible and the amendment petition filed after commencement of
trial cannot be entertained as per Order VI Rule 17 of C.P.C.
6. The learned counsel for the respondents 1 to 6 further
submitted that the said deed has been registered on the file of the Sub
Registrar, Usilampatti and therefore, it cannot be said to be forged. It
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CRP(MD)No.406 of 2019
is further submitted that even after knowing the release deed from the
written statement in 2011, the petitioner could have very well applied
for certified copy of the said document from the Registration
Department and filed the present petition to rebut the execution of the
release deed, but he did not do so and kept silent. The said attitude
itself would show that the petitioner is adopting delaying tactics. The
limitation is a mixed question of law and since the release deed is
registered by a public authority, the trial Court has rightly dismissed
the amendment petition. Thus, he prayed to dismiss this revision
petition.
7. Heard the learned counsel for the petitioner as well as the
respondents 1 to 6 & 8. Though notice served, none appeared on
behalf of the 7th respondent.
8. Before going into the issue involved in this petition, this Court
is inclined to refer to some of the decisions of the Hon'ble Apex Court.
(a)In the case of Pankaja and another Vs. Yellappa reported
in 2004 (6) SCC 415, the Hon'ble Apex Court has held as follows:
"11. So far as the Court's jurisdiction to
allow an amendment of pleadings is concerned
there can be no two opinion that the same is wide
enough to permit amendments even in cases
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CRP(MD)No.406 of 2019
where there has been substantial delay in filing
such amendment applications. This Court in
numerous cases has held the dominant purpose of
allowing the amendment is to minimize the
litigation, therefore, if the facts of the case so
permits, it is always open to the court to allow
applications in spite of the delay and latches in
moving such amendment application.
12. 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 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?
13. 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
in 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 straight jacket formula for allowing or
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CRP(MD)No.406 of 2019
disallowing an amendment of pleadings. Each
case depends on the factual background of that
case.
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 straightjacket formula for allowing or
disallowing an amendment of pleadings. Each
case depends on the factual background of that
case."
(b) In the case of Puran Ram Vs. Bhaguram reported in 2008
(4) SCC 102, the Hon'ble Apex Court has held as follows:
"19. Before parting with this judgment, we
may deal with the submission of the learned
counsel for the respondent that the application for
amendment could not be allowed inasmuch as the
same was barred by limitation. We are unable to
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CRP(MD)No.406 of 2019
accept this contention of the learned counsel for
the respondents. In this regard, we may observe
that the court may, in its discretion, allow an
application for amendment of the plaint even
where the relief sought to be added by amendment
is allegedly barred by limitation. This view was also
expressed by this Court in Pankaja Vs.
Yellappa--2004 (6) SCC 415. In that decision, it was
held that there is no absolute rule that in such a
case, the amendment should not be allowed and
the discretion of the court in that regard depends
on the facts and circumstances of the case and
such discretion has to be exercised on a judicious
evaluation thereof. It was further held in that
decision that an amendment, which subserves the
ultimate cause of justice and avoids further
litigation, should be allowed.
(c) In the case of Sampath Kumar Vs. Ayyakannu and
another, reported in 2002 (7) SCC 559, the Hon'ble Apex Court has
held as follows:
“9. Order 6 Rule 17 of the CPC confers
jurisdiction on the Court to allow either party to
alter or amend his pleadings at any stage of the
proceedings and on such terms as may be just.
Such amendments as are directed towards
putting-form and seeking determination of the real
questions in controversy between the parties shall
be permitted to be made. The question of delay in
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CRP(MD)No.406 of 2019
moving an application for amendment should be
decided not by calculating the period from the
date of institution of the suit alone but by
reference to the stage to which the hearing in the
suit has proceeded. Pre-trial amendments are
allowed more liberally than those which are
sought to be made after the commencement of
the trial or after conclusion thereof. In former case
generally it can be assumed that the defendant is
not prejudiced because he will have full
opportunity of meeting the case of the plaintiff as
amended. In the latter cases the question of
prejudice to the opposite party may arise and that
shall have to be answered by reference to the
facts and circumstances of each individual case.
No strait-jacket formula can be laid down. The fact
remains that a mere delay cannot be a ground for
refusing a prayer for amendment.
10. An amendment once incorporated
relates back to the date of the suit. However, the
doctrine of relation back in the context of
amendment of pleadings is not one of universal
application and in appropriate cases the Court is
competent while permitting an amendment to
direct that the amendment permitted by it shall
not relate back to the date of the suit and to the
extent permitted by it shall be deemed to have
been brought before the Court on the date on
which the application seeking the amendment was
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CRP(MD)No.406 of 2019
filed. (See observation in Siddalingamma and Anr.
v. Mamtha Shenoy, [2001] 8 SCC 561.
11. In the present case the amendment is
being sought for almost 11 Years after the date of
the institution of the suit. The plaintiff is not
debarred from instituting a new suit seeking relief
of declaration of title and recovery of possession
on the same basic facts as are pleaded in the
plaint seeking relief of issuance of permanent
prohibitory injunction and which is pending. In
order to avoid multiplicity of suits it would be a
sound exercise of discretion to permit the relief of
declaration of title and recovery of possession
being sought for in the pending suit. The plaintiff
has alleged the cause of action for the reliefs now
sought to be added as having arisen to him during
the pendency of the suit. The merits of the
averments sought to be incorporated by way of
amendment are not to be judged at the stage of
allowing prayer for amendment. However, the
defendant is right in submitting that if he has
already perfected his title by way of adverse
possession then the right so accrued should not be
allowed to be defeated by permitting an
amendment and seeking a new relief which would
relate back to the date of the suit and thereby
depriving the defendant of the advantage accrued
to him by lapse of time, by excluding a period of
about 11 years in calculating the period of
prescriptive title claimed to have been earned by
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CRP(MD)No.406 of 2019
the defendant. The interest of the defendant can
be protected by directing that so far as the reliefs
of declaration of title and recovery of possession,
now sought for, are concerned the prayer in that
regard shall be deemed to have been made on the
date on which the application for amendment has
been filed.”
9. From the above decisions, it is very clear that the court may, in
its discretion, allow an application for amendment of the plaint even
where the relief sought to be added by amendment is allegedly barred
by limitation. Before exercising discretion, the Court has to make
judicious evaluation of the facts and circumstances of the case and to
see whether if the amendment petition is allowed, it would really
subserve the ultimate cause of justice and avoid further litigation.
10. In this case, the suit has been filed for the relief of partition.
According to the defendants, the plaintiff has already executed
registered release deed dated 27.07.1998 on receiving Rs.2,000/- in
respect of his shares in the properties. According to the
petitioner/plaintiff, his signature has been obtained fraudulently in the
release deed. By way of amendment, the petitioner/plaintiff wanted to
add the relief of declaration, declaring the release deed dated
27.07.1998 as null and void. Though the petitioner/plaintiff was brought
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CRP(MD)No.406 of 2019
to the knowledge about the release deed in the written statement itself,
he has filed the petition for amendment belatedly. Now, the relief of
partition sought for by the petitioner/plaintiff can be decided only on
consideration of release deed dated 27.07.1998. The trial is not yet
completed. In order to avoid multiplicity of proceedings and considering
the fact that the issue involved in the suit will be decided once for all,
the Court below could have allowed the petition. But, it has not been
done so. Considering the length of delay in filing the petition for
amendment, this Court is inclined to allow this petition with cost and
with liberty to the respondents/defendants to raise the point of
limitation at the time of trial.
11. In the result, this Civil Revision Petition is allowed and the
order passed by the Court below dated 21.12.2018 is set aside and the
petition for amendment is allowed subject to payment of cost of
Rs.10,000/- (Rupees ten thousand only) to the Chief Minister Relief
Fund, within a period of four weeks from the date of receipt of a copy of
this order, failing which the petition for amendment shall stand
dismissed automatically without any further reference to the Court. The
respondents/defendants are at liberty to raise the point of limitation at
the time of trial. Considering the year of the suit, the Court below is
directed to dispose of the suit within a period of six months from the
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CRP(MD)No.406 of 2019
date of receipt of a copy of this order. Both the parties are directed to
cooperate with the trial Court for early disposal of the case.
Consequently, connected miscellaneous petition is closed.
22 .07.2021
Index : Yes / No
Internet : Yes / No
pm
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.
To
1.The District Munsif cum Judicial Magistrate No.1,
Usilampatti.
2.The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
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CRP(MD)No.406 of 2019
J.NISHA BANU, J.
pm
PRE-DELIVERY ORDER MADE IN
CRP(MD)No.406 of 2019
DATED : 22 .07.2021
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