Madras High Court
Athimoolam vs M.Sevarkodi Balamurugan on 11 September, 2023
C.R.P.(MD)No.2174 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 11.09.2023
CORAM:
THE HONOURABLE MR.JUSTICE C.KUMARAPPAN
C.R.P.(MD)No.2174 of 2018
and
C.R.P.(MD)No.9667 of 2018
1.Athimoolam
2.Narayanan
3.Raju ... Petitioners/Respondents 1 to 3 /Defendants 1to3
Vs.
1.M.Sevarkodi Balamurugan
2.M.Gopalakrishnan
3.M.Ayyanraj
4.Anandi
5.Muthumeena ... Respondents 1 to 5 / Petitioners/
Plaintiff
6.Muthuchamy
7.The Joint Sub Registrar No.1,
South Agraharam
Periyakulam Town,
Theni District. ... Respondents 6&7/Respondents 4 &5 /
Defendants 4&5
1/16
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C.R.P.(MD)No.2174 of 2018
Prayer: This Civil Revision Petition is filed under Article 227 of the
Constitution of India, against the order and decretal order, dated
05.12.2017, made in I.A.No.134 of 2017, in O.S.No.166 of 2012, on the
file of the District Munsif Court, Periyakulam.
For Petitioners : Mr.V.Janakiramulu
For Respondents : Mr.Suriyanarayanan for R1 to R5
: No appearance for R6
: N.Senthil Ayyanar
Government Advocate for R7
ORDER
The instant Civil Revision Petition has been filed against the
order, dated 05.12.2017, made in I.A.No.134 of 2017, in O.S.No.166 of
2012, on the file of the District Munsif Court, Periyakulam.
2. The revision petitioners herein are the respondents 1
to 3 / defendants 1 to 3. The respondents 1 to 5 herein are the
petitioners / plaintiffs, and the respondents 6 & 7 herein are the
respondents 4 & 5 / defendants 4& 5 before the Court below.
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3. For the sake of convenience, the parties are referred to
according to their litigative status before the Court below.
4. It appears that the plaintiffs have filed the suit for the relief
of permanent injunction restraining the defendants not to alienate or
encumber the suit property. The said suit was filed on 13.09.2012.
Resisting the above said suit, the defendants have filed a written
statement on 22.02.2013. In the written statement, the defendants have
unequivocally disputed the title of the plaintiffs. In the pleadings, in no
uncertain terms stated that the suit property was sold to the defendants
by virtue of document, dated 20.12.1991 for Rs.74,000/-.
5. However, it appears that after the period of three years from
the date of filing of the written statement, the plaintiffs have moved an
application for amendment in I.A.No.134 of 2017. Wherein, the
plaintiffs introduced new pleadings in the body of the plaint and also
sought for the prayer of declaration, to declare that the unregistered
document, dated 20.12.1991, is a result of forgery and will not bind the
plaintiffs. Apart from that the prayer, he also wanted consequential
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C.R.P.(MD)No.2174 of 2018
prayer in respect of the valuation of the suit. The said application was
resisted by the defendants on the ground that the very amendment
sought for is hit by the principles of limitation.
6. However, the Court below has allowed the application with
the finding that, the disputed sale deed is an unregistered sale deed,
therefore, to have an effective disposal, the amendment sought for by
the plaintiffs needs to be allowed.
7. Aggrieved with the said order, the defendants 1 to 3 have
approached this Court by way of this Civil Revision Petition.
8. The learned counsel for the defendants 1 to 3 would submit
that the very order passed by the Court below is squarely hit by the
principles of limitation, and would further submit that since the very
prayer is allowed the nature and character of the suit will be changed,
therefore, he would submit that the very amendment application is
liable to be dismissed, by allowing the Civil Revision Petition.
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C.R.P.(MD)No.2174 of 2018
9. Per contra, the learned counsel for the respondents would
submit that they are not changing the character and nature of the suit
and would further submit that the very disputed sale deed is the
unregistered sale deed and has recently impounded by the Court,
therefore, would submit that the very application is liable to be
dismissed and prayed to confirm the order of the Court below.
10. I have given my anxious consideration to the either side
submissions.
11. It is an admitted fact that the suit was filed on 13.09.2012.
Similarly the written statement was filed on 22.02.2013. In which, a
specific pleading has been raised in respect of the sale deed, dated
20.12.1991. Therefore, it is amply clear that the plaintiffs was put on
notice about existence of sale deed, dated 20.12.1991 through the
written statement. However, the realisation of the plaintiffs to file
amendment application in respect of sale deed came little latter. In the
meanwhile, three years period have lapsed. After that the amendment
application came to be filed on 31.01.2017.
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C.R.P.(MD)No.2174 of 2018
12. The learned counsel for the plaintiffs would contend that
though the application has been filed belatedly, the intervening
circumstances such as direction to pay the stamp duty penalty must be a
reparative measure to the plaintiff, and that the learned counsel for the
plaintiffs would further submit that, the same would save the limitation
to file the application for amendment. In substance, it is the submission
of the learned counsel for the plaintiffs that they moved an application
within a period of 3 years from the date of payment of stamp duty
penalty, therefore, would contend that the application is well within the
limitation.
13.However, this Court is not persuaded with the submissions
made by the learned counsel for the plaintiffs. According to Article 58
of the Limitation Act, the same mandates that the suit should be
instituted within a period of 3 years, from the date, when the right to sue
first accrues. Therefore, as rightly submitted by the learned counsel for
the defendants, the right to sue first accrued to the plaintiffs as early as
on 22.02.2013, when they filed a written statement with categorical
pleading about the existence of sale deed, dated 20.12.1991.
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C.R.P.(MD)No.2174 of 2018
14. At this juncture, the learned counsel for the plaintiffs
would rely upon the judgment of the Hon'ble Supreme Court reported in
AIR-1957-SC-357 (L.C.Leach & Co.Ltd V. Jardine Skinner & Co.)
and AIR-1957-SC-363-, 2009-5-LW-510 and 2002-7-SCC-559
(Sampath Kumar V. Ayyakannu) and would contend that in all those
above cases, even after the period of limitation, the Hon'ble Supreme
Court has permitted the amendment.
15. This Court has carefully gone through those judgments.
The facts of the above referred cases is not applicable to the facts in
hand. Because in all those reported judgment the structure and
character of the suit was not altered. In the above reported judgment,
what they amended is only the nature of relief and not the nature of the
suit.
16. But, here in this case, while seeing the amendment, the
petitioner wants to add new pleadings in the body of the plaint and
thereby, the structure of the suit is attempted to be changed. To put it
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C.R.P.(MD)No.2174 of 2018
differently the proposed prayer sought for rest up the proposed
amendment in the body of the plaint.
17. In this regard, it is appropriate to rely upon the judgment
of the Hon'ble Supreme Court reported in 2016-1-SCC-332
(L.C.Hanumanthappa V. H.B.Shivakumar). Wherein, this Court in
categorical terms held as follows:-
“14. Given this statement of the law, it is clear
that the present amendment of the plaint is indeed time-
barred in that the right to sue for declaration of title first
arose on 16th May, 1990 when in the very first written
statement the defendant had pleaded, in para 13 in
particular, that the suit for injunction simpliciter is not
maintainable in that the plaintiff had failed to establish
title with possession over the suit property. The only
question that remains to be answered is in relation to the
doctrine of relation back insofar as it applies to
amendments made under Order VI Rule 17 of the Code of
Civil Procedure.”
18. In the above judgment, the Hon'ble Supreme Court held
that the doctrine of relation back is not the universal Rule and it depend
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C.R.P.(MD)No.2174 of 2018
upon the facts and circumstances of the each case. In the said judgment
it has been further held that when the nature and character of the suit is
affected, the doctrine of relation back could not be applied. As a
consequence of amendment application needs to be dismissed.
19. It is pertinent to mention here that, the plaintiffs wanted to
amend a prayer in respect of a declaration of sale deed. In this regard, it
is appropriate to refer the judgment reported in 2001-6-SCC-163
(Vishwambhar and Ors. V. Laxminarayan (Dead) through L.Rs. and
Anr.). The relevant portion of the judgment is as follows-
“23. On a fair reading of the plaint, it is clear
that the main fulcrum on which the case of the plaintiffs
was balanced was that the alienations made by their
mother-guardian Laxmibai were void and therefore, liable
to be ignored since they were not supported by legal
necessity and without permission of the competent court.
On that basis the claim was made that the alienations did
not affect the interest of the plaintiffs in the suit property.
The prayers in the plaint were inter alia to set aside the
sale deeds dated 14.11.1967 and 24.10.1974, recover
possession of the properties sold from the respective
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purchasers, partition of the properties carving out
separate possession of the share from the suit properties
of the plaintiffs and deliver the same to them. As noted
earlier, the trial court as well as the first appellate court
accepted the case of the plaintiffs that the alienations in
dispute were not supported by legal necessity. They also
held that no prior permission of the court was taken for
the said alienations. The question is in such circumstances
are the alienations void or voidable? In Section 8(2) of
the Hindu Minority and Guradianship Act, 1956, it is laid
down, inter alia, that the natural guardian shall not,
without previous permission of the Court, transfer by sale
any part of the immovable property of the minor. In sub-
section (3) of the said section it is specifically provided
that any disposal of immovable property by a natural
guardian, in contravention of sub-section (2) is voidable
at the instance of the minor or any person claiming under
him. There is, therefore, little scope for doubt that the
alienations made by Laxmibai which are under challenge
in the suit were voidable at the instance of the plaintiffs
and the plaintiffs were required to get the alienations set
aside if they wanted to avoid the transfers and regain the
properties from the purchasers. As noted earlier in the
plaint as it stood before the amendment the prayer for
setting aside the sale deeds was not there, such a prayer
appears to have been introduced by amendment during
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C.R.P.(MD)No.2174 of 2018
hearing of the suit and the trial court considered the
amended prayer and decided the suit on that basis. If in
law the plaintiffs were required to have the sale deeds set
aside before making any claim in respect of the properties
sold then a suit without such a prayer was of no avail to
the plaintiffs. In all probability realising this difficulty the
plaintiffs filed the application for amendment of the plaint
seeking to introduce the prayer for setting aside the sale
deeds. Unfortunately, the realisation came too late.
Concededly, plaintiff no.2 Digamber attained majority on
5th August, 1975 and Vishwambhar, plaintiff no.1 attained
majority on 20th July, 1978. Though the suit was filed on
30th November, 1980 the prayer seeking setting aside of
the sale deeds was made in December, 1985. Article 60 of
the Limitation Act, prescribes a period of three years for
setting aside a transfer of property made by the guardian
of a ward, by the ward who has attained majority and the
period is to be computed from the date when the ward
attains majority. Since the limitation started running from
the dates when the plaintiffs attained majority the
prescribed period had elapsed by the date of presentation
of the plaint so far as Digamber is concerned. Therefore,
the trial Court rightly dismissed the suit filed by
Digamber. The judgment of the trial court dismissing the
suit was not challenged by him. Even assuming that as the
suit filed by one of the plaintiffs was within time the entire
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C.R.P.(MD)No.2174 of 2018
suit could not be dismissed on the ground of limitation, in
the absence of challenge against the dismissal of the suit
filed by Digambar the first appellate court could not have
interfered with that part of the decision of the trial court.
Regarding the suit filed by Vishwambhar it was filed
within the prescribed period of limitation but without the
prayer for setting aside the sale deeds. Since the claim for
recovery of possession of the properties alienated could
not have been made without setting aside the sale deeds
the suit as initially filed was not maintainable. By the date
the defect was rectified (December, 1985) by introducing
such a prayer by amendment of the plaint the prescribed
period of limitation for seeking such a relief had elapsed.
In the circumstances the amendment of the plaint could
not come to the rescue of the plaintiff.
From the averments of the plaint it cannot be
said that all the necessary averments for setting aside
the sale deeds executed by Laxmibai were contained in
the plaint and adding specific prayer for setting aside
the sale deeds was a mere formality. As noted earlier, the
basis of the suit as it stood before the amendment of the
plaint was that the sale transactions made by Laxmibai
as guardian of the minors were ab initio void and,
therefore, liable to be ignored. By introducing the prayer
for setting aside the sale deeds the basis of the suit was
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changed to one seeking setting aside the alienations of
the property by the guardian. In such circumstance the
suit for setting aside the transfers could be taken to have
been filed on the date the amendment of the plaint was
allowed”
(Emphasis supplied by this Court)
20. In the above judgment, the Hon'ble Supreme Court after
discussing various aspect has repelled the contention of the plaintiffs for
an amendment. At this juncture, it is appropriate to refer the Article 58
of the Limitation Act. The mandates 3 years time period from the date
when the right to sue accrues to obtain any other declaration.
21. Here, the plaintiffs came to know about the existence of the
alleged sale deed, dated 20.12.1991, as early as on 22.02.2013, when the
defendants filed the written statement. Hence, their right to challenge
accrues firstly when they came to know about the disputed sale deed, on
22.02.2013, when the written statement filed. However, the application
for amendment came to be filed only on 31.01.2017, admittedly after the
period of limitation. In the meanwhile, the relief become barred by
limitation. Hence, this Court is of the view that the order passed by the
Court below is liable to be interfered with.
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C.R.P.(MD)No.2174 of 2018
22. In the result, the instant Civil Revision Petition stands
allowed and thereby, the order dated 05.12.2017, passed in I.A.No.134
of 2017 by the Court below is ordered to be set aside. There shall be no
order as to cost. Consequently, connected Miscellaneous Petition is
closed.
11.09.2023
NCC : Yes/No
Index :Yes/No
Ls
To
1.The District Munsif Court,
Periyakulam.
2.The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
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C.R.P.(MD)No.2174 of 2018
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C.R.P.(MD)No.2174 of 2018
C.KUMARAPPAN.,J.
Ls
Order made in
C.R.P(MD)No.2174 of 2018
11.09.2023
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