(An Application Under Article 227 ... vs Najma Bibi And Others
2023 Latest Caselaw 1767 Ori

       IN THE HIGH COURT OF ORISSA AT CUTTACK
                     CMP No. 741 OF 2014
       (An application under Article 227 of the Constitution of
       India)
                               *****
     Sk. Sanawar                                ....       Petitioner
                                         Miss Sradha Das, Advocate
                    on behalf of Mr. Prafulla Kumar Rath, Advocate

                                    -versus-
     Najma Bibi and others                       .... Opp. Parties
                                         Mr. S.S.K. Nayak, Advocate
                                     *****
            CORAM:
            JUSTICE K.R. MOHAPATRA
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             Heard and disposed of on : 24.02.2023
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                             JUDGMENT

K.R.Mohapatra, J

1. This matter is taken up through hybrid mode.

2. Order dated 26th April, 2014 (Annexure-1) passed by learned Civil Judge (Junior Division), Bhadrak in C.S. No.250 of 2000 is under challenge in this CMP, whereby an application filed by the Plaintiffs-Opposite Parties under Order VI Rule 17 C.P.C., has been allowed.

3. Miss Das, learned counsel being authorized by Mr. Rath, learned counsel for the Petitioner submits that initially the Plaintiffs- Opposite Parties filed a suit for permanent injunction claiming that they are using the suit property as their only access to the main road. But by way of amendment, they not only tried to change the description of the land, but also prayed for incorporation of a prayer of easementary right over the suit property. Amendment sought for is hopelessly barred by limitation. By allowing the amendment, the

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nature and character of the suit has been changed. Further, by way of amendment, an attempt is made to defeat the accrued right of the Defendant-Petitioner. These material aspects were lost sight of by learned trial Court while adjudicating the petition under Order VI Rule 17 C.P.C.

4. In support of her case, she relied upon a decision of Shiv Gopal Sah Alias Shiv Gopal Sahu -v- Sita Ram Saraugi and others, reported in (2007) 14 SCC 120, wherein at Paragraphs-12 and 14, the Hon'ble Supreme Court has held as under:

"12. It is quite true that this Court in a number of decisions, has allowed by way of an amendment even the claims which were barred by time. However, for that there had to be a valid basis made out in the application and first of all there had to be bona fides on the part of the plaintiffs and a reasonable explanation for the delay. It is also true that the amendments can be introduced at any stage of the suit, however, when by that amendment an apparently time-barred claim is being introduced for the first time, there would have to be some explanation and secondly, the plaintiff would have to show his bona fides, particularly because such claims by way of an amendment would have the effect of defeating the rights created in the defendant by the lapse of time. When we see the present facts, it is clear that no such attempt is made by the plaintiffs anywhere more particularly in the amendment application.

xxx xxx xxx

14. In T.N. Alloy Foundry Co. Ltd. v. T.N. Electricity Board [(2004) 3 SCC 392] a three-Judge Bench of this Court relying on L.J. Leach & Co. Ltd. v. Jardine Skinner and Co. [AIR 1957 SC 357] reiterated as under : (SCC p. 393, para 2) "The law as regards permitting amendment to the plaint, is well settled. In L.J. Leach & Co. Ltd. v. Jardine Skinner and Co. [AIR 1957 SC 357] it was held 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 the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the court to order it."

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The situation is no different in this appeal and as such a suit as described above would be clearly barred by limitation."

5. She further relied upon a decision in the case of L.C. Hanumanthappa (since dead) represented by his Lrs. -v- H.B. Shivakumar, reported in (2016) 1 SCC 332, wherein the case of Sampath Kumar -v- Ayyakannu reported in (2002) 7 SCC 539 has been relied upon, relevant paragraph of which reads as under:

"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 filed."

6. She further relied upon a decision of this Court in Binodini Sadual -v- Ranjit Kumar Mohanty and others, reported in 2017 SCC OnLine Ori 531, wherein at Paragraphs 10 and 11, it is held as under:-

"10. Considering the submission of Sri Rath, learned counsel for the O.Ps. that the amended provision of Order 6 Rule 17 of C.P.C. requiring satisfaction of due diligence in filing an amendment application with inordinate delay has no application to the case as the suit is prior to the amendment of Order 6 Rule 17 of C.P.C., this Court finds, though the amended provision is not applicable to the case at hand for being instituted in the year 1998 prior to the amendment, yet for the availability of the challenge to the plaintiff's right, title and interest over the disputed property having been brought by way of response in the written statement in the year 1999, this Court finds, the proposed amendment not only suffers on account of delay but also involves no bona fide action on the part of the plaintiff. On perusal of the discussions made in the impugned order, this Court finds, even though the trial court has taken into account the plea and objection of the respective parties

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but has failed to appreciate the delay in bringing the proposed amendment.

11. In spite of a clear pleading justifying right over property by the plaintiff and in spite of a clear denial of the plaintiff's claim of right and title over disputed property by the defendant no.2 since 1999, it cannot be construed that plaintiff was unaware of challenge to his right and came to know this aspect only in 2014 when additional written statement was filed. Besides plaintiff- O.P.1 since has amended the plaint on different occasions, nothing prevented the plaintiff to bring such amendment earlier. Thus the present amendment is grossly barred by time and meant to frustrate the trial of the suit. This Court further observes that such amendment if allowed at this stage will not only change the nature and character of the suit but will put the defendants into prejudice."

7. She also relied upon the case of Life Insurance Corporation of India -v- Sanjeev Builders Private Limited and another, reported in 2022 SCC OnLine 1128, wherein it is held as under:

"70. Our final conclusions may be summed up thus:

xxx xxx xxx

(iii) The prayer for amendment is to be allowed xxx xxx xxx

(c) the amendment does not raise a time barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations).

(iv) A prayer for amendment is generally required to be allowed unless

(i) by the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim would be time barred becomes a relevant factor for consideration, xxx xxx xxx

(iv) by the amendment, the other side loses a valid defence."

8. She thus submits that claim of the Petitioner being barred by limitation and no case is made out, as to why, such a time barred claim should be entertained, the petition under Order VI Rule 17

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C.P.C. should not have been entertained. She, accordingly, prays for setting aside the impugned order under Annexure-1.

9. Mr. Nayak, learned counsel for the Plaintiffs-Opposite Parties submits that foundational pleading is available in the plaint with regard to easementary right of the Petitioner. Although the suit was filed for permanent injunction, but subsequently, it was felt that easementary right has to be claimed failing which there might be multiplicity of litigations. He further submits that the claim is not barred by limitation, as alleged. The case laws cited by learned counsel for the Petitioner supports the case of the Plaintiffs-Opposite Parties. It is his submission that learned trial Court, while adjudicating the matter, has also taken note of objection with regard to limitation and relying upon a decision in the case of Revajeetu Builders and Developers -v- Narayanaswamy and Sons and others, reported in 2009 (II) OLR SC 815, allowed the application. Since the amendment is necessary for effective and complete adjudication of the suit, no illegality has been committed by learned trial Court in allowing such a prayer. He, therefore, prays for dismissal of the CMP.

10. While considering the submissions made by learned counsel for the parties, this Court goes through the provision under Section 15 of the Indian Easements Act, 1882, which reads as under:

"15. Acquisition by prescription. -Where the access and use of light or air to and for any building have been peaceably enjoyed therewith, as an easement, without interruption, and for twenty years, and where support from one person's land, or things affixed thereto, has been peaceably received by another person's land subjected to artificial pressure, or by things affixed thereto, as an easement, without interruption, and for twenty years, and where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement and as of right, without interruption, and for twenty years, the right to such access and use of light or air, support or other easement shall be

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absolute. Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested......."

11. From a close reading of the said provision, it is apparent that each of the said periods of twenty years shall be taken to be a period ending within two years next before institution of the suit, wherein the claim to which such period relates is contested. Thus, objection of limitation raised by the Petitioner both before learned trial Court and before this Court is a matter of adjudication by receiving evidence. Further, the merit of the amendment sought for cannot be gone into at the time of its consideration. Since from the pleadings of the parties, it cannot be conclusively said that the claim made by the Plaintiffs-Opposite Parties is barred by limitation, if the same is allowed to be taken, more particularly, when the parties have not entered the witness box to lead evidence, although issues were settled by the time petition for amendment was filed.

12. On perusal of the case laws cited by learned counsel for the Petitioner, it appears that the same are of no assistance to the Petitioner as applicability of law of limitation to the amendment of pleadings is always subject to the facts and circumstances of each case. In that view of the matter, this Court feels that since right to contest the claim made by the Plaintiffs-Opposite Parties is not taken away by said amendment, learned trial Court has committed no error in allowing such amendment. The Defendant-Petitioner is at liberty to file additional written statement to contest the said claim of the Plaintiffs-Opposite Parties. However, it appears that the amendment was sought for after twelve years of institution of the suit that too after framing of issues. Thus, the prejudice caused to the Defendant has to be compensated by awarding adequate cost.

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13. Accordingly, the CMP is disposed of directing that the amendment sought for by the Plaintiffs-Opposite Parties shall be allowed subject to payment of cost of Rs.5,000/- (Rupees Five Thousand Only) to the Defendant-Petitioner to be paid within a period of fifteen days from the date of production of certified copy of this order. The additional written statement, if any, shall also be filed by that date serving copy thereof on learned counsel for the Petitioner.

14. Since the suit is of the year, 2000, learned trial Court shall recast the issue, if necessary, and proceed with the trial expeditiously, if necessary, by adhering to the procedure under Order XVII Rule 1 C.P.C.

Urgent certified copy of this judgment be granted on proper application.

                                       (K.R. Mohapatra)
ms                                           Judge