Babu vs Kandasamy
2023 Latest Caselaw 1274 Mad

                                                                                          C.R.P.No.959 of 2021

                                        IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                            Dated : 01.02.2023

                                                               CORAM

                                   THE HON'BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN

                                                      C.R.P.No.959 of 2021 &
                                                      C.M.P.No.7744 of 2021

                     1. Babu
                     2. Elagi                                                    ... Petitioners

                                                                   Vs.

                     Kandasamy                                                   ... Respondent

                                  Civil Revision Petition is filed under Article 227 of the Constitution of

                     India to set aside the fair and decreetal order dated 23.02.2021 made in

                     I.A.No.1 of 2019 in O.S.No.125 of 2016 on the file of the learned Principal

                     District Munsif, Tiruchengode.

                                          For Petitioners          : Mr.T.L.Thirumalaisamy

                                          For Respondent           : Mr.C.Paraneedharan

                                                              ORDER

The present Civil Revision Petition has been filed to to set aside the

fair and decreetal order dated 23.02.2021 made in I.A.No.1 of 2019 in

O.S.No.125 of 2016 on the file of the learned Principal District Munsif,

Tiruchengode.

https://www.mhc.tn.gov.in/judis C.R.P.No.959 of 2021

2. The brief facts of the case are as follows:-

The petitioners are the plaintiffs and the respondent is the defendant

in the suit. The plaintiffs are in peaceful possession and enjoyment of the

suit property. While so, the petitioners for their urgent family and business

need requested the respondent to lend a sum of Rs.1,00,000/- as loan and

the respondent also agreed to give the said amount on a condition that the

petitioners ought to have executed a debt deed wtih respect to the suit

property for security purpose and on further condition to execute sale deed

in respect of the said debt deed, accordingly, the petitioners have executed

a debt deed dated 06.03.2013 and sale deed dated 25.10.2013. Further,

the respondent also provided in writing to reconvey the same when the

petitioners discharged the said amount. Inspite of requests made by the

petitioners to receive the said sum of Rs.1,00,000/-, the respondent failed

to do so, hence the suit has been filed by the petitioners. Moreover, the

written statement was also filed by the respondent. In the meantime, the

petitioners filed I.A.No.1 of 2019 to amend the plaint stating that only after

reading the written statement, the petitioners had knowledge that they have

ommitted the prayer seeking declaration to declare that the sale deed

dated 25.10.2013 as null and void. The court below after considering the

averments and pleadings on either side, dismissed the said I.A, stating that

https://www.mhc.tn.gov.in/judis C.R.P.No.959 of 2021

the same suffers from limitation. As against the same, the petitioners have

come to this Court by way of the present petition.

3. The learned counsel for the petitioners would submit that the court

below failed to take note of the fact that the petitioners had specifically

pleaded that the respondent had demanded more money to reconvey the

suit property in their favour and they had never stated in the plaint that the

respondent denied their title to the suit property.

4. The learned counsel for the petitioners also submit that the court

below failed to follow the well settled principle of law that the amendment

which is deemed to be barred by limitation is a mixed question of law and

facts and therefore, the court below ought to have allowed the application

and decided the issue of limitation at the time of deciding the suit on merits.

Further, the denial of title of the petitioners by the respondent could be

decided only through both oral and documentary evidence depending on

the facts and circumstances of the present case.

5. Lastly, the learned counsel for the petitioners would submit that

the court below failed to appreciate the fact that the present application for

https://www.mhc.tn.gov.in/judis C.R.P.No.959 of 2021

amendment now sought for is filed prior to commencement of trial and

therefore, the order of the court below is liable to be reversed. That apart,

the learned counsel for the petitioners had relied on the order passed by

this Court reported in 2015 (1) CTC 820 [Chitra Vs.Kannan] to

substantiate their case.

6. Per contra, the learned counsel for the respondent submits that

when the petitioners had prior knowledge about the denial of their suit

property by the respondent at the time of filing of the suit itself, the present

amendment now sought for, is bared by limitation and the court below

rightly took note of the said fact and dismissed the petition, hence the same

does not require any interference, thereby pleaded to dismiss the present

Civil Revision Petition. Further, the learned counsel relied on the Judgment

of the Hon'ble Supreme Court reported in 2015 (6) CTC 562

[L.C.Hanumanthappa Vs.H.B.Shivakumar] and the order passed by

this Court reported in 2015 (2) CTC 365 [Sellayi (deceased)

1.Chinnammal & Others Vs. Valliammal @ Pappu & others.

7. Heard the learned counsel on either side and perused the

documents placed on record.

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8. The short point which falls under consideration is that whether the

amendment of the plaint sought by the petitioners / plaintiffs shall be

allowed or not. At this stage, it is relevant to extract Order 6, Rule 17 of

C.P.C. Which reads 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 Suit amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no Application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of trial."

9. Also, Rule 17 empowers the Court to allow either party to alter or

amend the pleadings in such manner and on such terms as may be just,

and necessary for the purpose of determining the real question in

controversy between the parties seek amendment can be allowed at any

state of the proceedings. However, the Proviso attached to the said Rule

says that no Application for amendment shall be allowed after the trial has

commenced. But such an embargo is not absolute and it is subjected to a

rider that such amendments can be allowed at a stage after the trial has

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commenced provided the Court comes to the conclusion that in spite of

due diligence, the party could not have raised the matter before the

commencement of the trial.

10. In the present case on hand, the sale deed dated 25.10.2013

executed by the petitioners in favour of the respondent is only for the

security purpose and the petitioners have omitted to seek the relief that the

said sale deed is null and void, further, the respondent has denied the title

of the petitioners to the suit property and further that the respondent had

issued a receipt to the petitioners stating that if a sum of Rs.3,09,000/- is

settled to them, the respondent will reconvey the suit property, whereby the

said document is produced as document no.11, in order include the above

said statements in the plaint, the petitioners / plaintiffs have come up with

the application seeking amendment.

11. Though the learned counsel for the respondent referred to the

Limitation Act by stating that since the petitioners have executed sale deed

in favour of the respondent on 25.10.2013, thereby, it is clear that the

petitoners are aware of the same in the year 2013 and hence petitioners

should have sought the relief of declaration within a period of three years,

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however, the same has not been done, hence the said amendement

sought, suffers from limiation is the contention of the respondent.

However, when already a Suit for injunction, which involves the question of

title, has been filed admittedly within time, there shall be no question of the

bar of limitation being attracted for seeking the relief of declaration, more

so, during the pendency of the Suit for injunction. Even assuming that

separate period of limitation can be applied in respect of the prayer for

declaration, the right to sue for declaration arose only on the filing of the

Written Statement of the Respondent containing averments denying the

title of the Petitioner herein. Within three years thereafter, the Application

for amendment of the prayer came to be filed. By no stretch imagination, it

can be contended that the prayer for amendment is beyond the period of

limitation.

12. So far as the enlargement of the scope of the Suit and the

alleged alteration of the nature of the Suit are concerned, the above said

discussions shall be enough to demonstrate that there is no enlargement of

the scope of the Suit except elucidation of issue in controversy by seeking

a specific prayer for declaration of title. The nature of the Suit also does not

get changed by the introduction of the prayer for declaration.

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13. As far as the inclusion of a paragraph in the Plaint narrating the

fact that the respondent issued a receipt to the petitioners that if the

petitioners settle the amount of Rs.3,09,000/-, the respondent will reconvey

the property to the petitioners and the said receipt has also been marked

as Plaint document no.11 and to include a prayer to declare that the sale

deed dated 25.10.2013 as null and void are concerned, it shall be more

helpful to the Respondent/Defendant to have the scope of the plea made

by the Plaintiffs in support of their claim for title expressly stated. Even

without such a plea, based on the denial of title made by the Defendant,

the Plaintiffs can adduce evidence in support of their claim that they

derived valid title. Besides throwing light on the issue, the proposed

amendment would lend help to the Court to know the real issue in

controversy and decide the same in the present Suit itself thereby avoiding

multiplicity of proceedings. The Judgments relied on by the learned

Counsel for the respondent is distinguished on facts and the same also will

not be, in any way, helpful to the case of the respondent.

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14. For all the reasons stated above, this Court comes to the

conclusion that the Trial Court has failed to exercise the jurisdiction

conferred on it and it is a fit case in which the order of the Trial Court has to

be interfered with by this Court.

In the result, the present Civil Revision Petition succeeds and the

same is allowed. The Petitioner shall be permitted to carry out the

amendment in the suit as prayed for in the amendment Petition within a

period of two weeks from the date of receipt of a copy of this Order and pay

the deficit Court-fee as per the new Valuation Slip attached consequent to

the amendment of the Plaint. The Trial Court shall make an endeavour to

dispose of the Suit as early as possible. Consequently, connected

Miscellaneous Petition is closed. No costs.

01.02.2023

Index : Yes/No Internet : Yes/No Speaking /Non-Speaking Order ssd

To The Principal District Munsif, Tiruchengode.

https://www.mhc.tn.gov.in/judis C.R.P.No.959 of 2021

V.BHAVANI SUBBAROYAN, J.,

ssd

C.R.P.No.959 of 2021

01.02.2023

https://www.mhc.tn.gov.in/judis