Telangana High Court
Sri Kollipara Tulasi Vara Prasad vs Smt. Seelamsettyalimelu Manga ... on 27 February, 2025
IN THE HIGH COURT FOR THE STATE OF TELANGANA
CRP.No.3061 of 2024
Between:
Kollipara Tulasi Vara Prasad,
S/o Late K.Basavayya Naidu
...Petitioner
And
Seelamsetty Alimelu Manga Thayaramma,
W/o Late Seelamsetty Yathirajulu
and eight others.
... Respondents
JUDGMENT PRONOUNCED ON 27.02.2025
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
1. Whether Reporters of Local newspapers : Yes
may be allowed to see the Judgment?
2. Whether the copies of judgment may be
marked to Law Reporters/Journals? : Yes
3. Whether her Lordship wishes to
see the fair copy of the Judgment? : Yes
_______________________________________
JUSTICE LAXMI NARAYANA ALISHETTY
LNA, J
CRP.No.3061 of 2024
2
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
CRP.No.3061 of 2024
% 27.02.2025
Between:
# Kollipara Tulasi Vara Prasad,
S/o Late K.Basavayya Naidu
..... Petitioner
And:
$ Seelamsetty Alimelu Manga Thayaramma,
W/o Late Seelamsetty Yathirajulu
and eight others.
....Respondents
< Gist:
> Head Note:
! Counsel for Petitioner: Smt Manjari S.Ganu
^ Counsel for Respondents: Sri B.N.Swamiji
? Cases Referred:
1. 2022(6) ALT 17 (SC)
2. (1996) 7 SCC 486
3. (2013) 115 CLT 103
4. 2024(2) ALD 74 (SC)
LNA, J
CRP.No.3061 of 2024
3
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
CIVIL REVISION PETITION No.3061 OF 2024
ORDER:
This Revision Petition is filed challenging the order dated
03.08.2023 passed in I.A.No.730 of 2022 in O.S.No.830 of 2013 on the
file of the XXVI Additional Chief Judge, City Civil Court, Hyderabad,
whereunder an application filed under Order VI Rule 17 CPC seeking to
amend the plaint was allowed.
2. Heard Smt Manjari S.Ganu, learned counsel for petitioner and
Sri B.N.Swamiji, learned counsel for the respondents.
3. The petitioner herein is defendant No.2 and respondent Nos.1 to 3
herein are the plaintiffs in the suit before the trial Court. It is mentioned
in the affidavit that respondent Nos.4 to 9 are not necessary parties to the
Revision Petition.
4. For convenience, hereinafter the parties are referred to as they are
arrayed in the suit.
5. Brief factual matrix of the case relevant for adjudication of the
present Civil Revision Petition is that plaintiffs filed the suit for partition
and separate possession in respect of the suit schedule property; that the
defendants entered appearance and filed written statement and one
LNA, J
witness was examined as D.W-1 on behalf of the defendants on
06.06.2022, by taking leave of the Court vide order in I.A.No.53 of 2020
and he was also cross-examined; that the suit was coming up for
plaintiffs' side evidence and at that stage, the plaintiffs filed I.A.No.730
of 2022 under Order VI Rule 17 CPC to amend the plaint by inserting the
relief to declare the sale deed dated 14.03.2013 bearing document
No.1256/2013 as null and void and not binding on the parties. The
plaintiffs averred that they were in severe financial crunch and also in
view of health issues, they were unable to pay Court fee for seeking the
relief of cancellation of sale deed at the time of filing of the suit,
therefore, they filed the present application for amendment and were
ready to pay the Court fee for the said relief.
6. The defendants filed counter resisting the said application
contending that in page No.2 of the plaint, the plaintiffs have mentioned
about the execution of sale deed by defendant Nos.1 to 3 in favour of
defendant No.4 way back in the year 2013 and the plaintiffs who failed to
seek the relief of cancellation of sale deed at the time of filing the suit,
now, cannot be permitted to amend the same at this stage. They further
averred that the reasons putforth by the plaintiffs are absurd and baseless
and further, the proposed amendment is barred by limitation as on the
LNA, J
date of filing of the application and as such, the application is not
maintainable and is liable to be dismissed.
7. The trial Court, on due consideration of contentions of both the
parties and by relying upon the judgment of the Hon'ble Supreme Court
in Life Insurance Corporation of India Vs. Sanjeev Builders Priave
Limited and another 1, allowed the application, subject to payment of
costs of Rs.1,000/- payable by plaintiffs to defendant Nos.1 and 2 on or
before 17.08.2023, vide the impugned order, by observing that probably
due to poor financial status of plaintiffs, though such a ground is
impermissible under law, since the trial in the suit has not practically
commenced as the evidence of the plaintiffs' is yet to be led and as the
proposed amendments are ancillary to the main relief and are intended
only for effective adjudication of the issues involved in the suit and that
no prejudice would be caused to the defendants. Challenging the said
order, the present Revision Petition is filed.
8. Learned counsel for the revision petitioner/defendant No.2
contended that the trial Court erred in allowing the application which is
filed after commencement of trial and also about nine years after filing of
the suit. She further contended that the trial Court erroneously relied upon
the judgment of the Hon'ble Supreme Court in Sanjeev Builders Private
Limited's case (cited supra) since the facts and circumstances of the said
2022(6) ALT 17 (SC)
LNA, J
case and the present case are completely different, the said judgment has
no application to the instant case. Learned counsel further contended that
the proposed amendment is clearly barred by limitation and therefore, the
claim which is barred by limitation cannot be allowed.
9. Learned counsel for the revision petitioner/defendant No.2 further
contended that in fact, the trial Court failed to consider the observations
and guidelines of the Hon'ble Supreme Court in Sanjeev Builders Private
Limited's case (cited supra), wherein at para-32 of the judgment, it is
clearly observed that prayer for amendment cannot be allowed if it is a
time barred claim resulting in divesting the valuable rights accrued to
opposite side.
10. Learned counsel for the petitioner/defendant No.2 relied upon the
judgment of the Hon'ble Supreme Court in Radhika Devi Vs. Bajrangi
Singh and others 2, wherein it is held that where a party acquires right by
bar of limitation and if the same is sought to be taken away by
amendment of the pleadings, the amendment, in such circumstances,
cannot be allowed.
11. In the aforesaid case, a gift deed was executed and registered on
28.07.1978 which is a notice to everyone. The suit was filed in the year
1988 and even after filing of written statement, for three years no steps
were taken for filing of application for amendment of plaint. However,
(1996) 7 SCC 486
LNA, J
thereafter an application under Order VI Rule 17 CPC was filed on
11.11.1992 to declare the gift deed as null and void and not binding on
the plaintiffs and the Hon'ble Supreme Court held that the rights accrued
in favour of the defendants would be defeated by permitting such
amendment of plaint.
12. Learned counsel for the petitioner/defendant No.2 also relied upon
the judgment of the Orissa High Court in Sadananda Mohanty Vs. Smt.
Urmila Das and others 3, wherein in similar facts and circumstances as
stated in Radhika Devi's case (cited supra), it is held that amendment
which is time barred cannot be permitted to be entertained.
13. Per contra, learned counsel for respondent Nos.1 to 3/plaintiffs
contended that the trial Court, on due consideration of facts and
circumstances of the case and also taking into consideration the financial
crunch and the health issues, has rightly allowed the application. He
further contended that no grounds are made out to interfere with the well-
reasoned order of the trial Court and therefore, the Revision Petition is
liable to be dismissed.
14. Learned counsel for respondent Nos.1 to 3 has relied upon the
judgment of the Hon'ble Supreme Court in Vasantha (dead) through
LRs. Vs. Rajalakshmi @ Rajam (dead) through LRs 4, wherein it is held
(2013) 115 CLT 103
2024(2) ALD 74 (SC)
LNA, J
that amendment of plaint can be made at any stage of suit, even at Second
Appeal stage.
15. Perusal of record would disclose that in the instant case, the suit
was filed in the year 2013 and witness was examined on behalf of the
defendants ahead of the evidence of plaintiffs, by taking leave of the
Court, and he was also cross-examined and the suit was coming up for
plaintiffs' side evidence and at that stage, the plaintiffs filed an
application in I.A.No.730 of 2022 under Order VI Rule 17 CPC to amend
the plaint to insert the prayer to declare the sale deed dated 14.03.2013
bearing document No.1256/2013 as null and void and not binding on the
plaintiffs.
16. It is pertinent to note that the suit was filed in the year 2013,
whereas an application to amend the plaint was filed in the year 2022,
i.e., about nine years after institution of the suit.
17. As per Section 59 of the Limitation Act, 1963, limitation to seek
the relief to cancel or set aside an instrument or decree or for the
rescission of a contract is only three years.
18. In the present case, it is not the case of the plaintiffs that they are
not aware of execution of sale deed dated 14.032013. In fact, in page 2 of
the plaint, the plaintiffs themselves have mentioned about the execution
of sale deed dated 14.03.2013, therefore, in the considered opinion of this
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Court, the application filed by the plaintiffs for amendment of plaint
seeking the relief of cancellation of the said sale deed is beyond limitation
and therefore, the trial Court ought not to have entertained the said
application.
19. The trial Court while allowing the application has relied upon the
judgment of the Hon'ble Supreme Court in Sanjeev Builders Private
Limited's case (cited supra). In fact, in the said judgment, the Hon'ble
Supreme Court though observed that plea of amendment generally
requires to be allowed, but has carved out certain exceptions to the said
Rule and one of such exceptions is that while amendment for time barred
claim is sought to be introduced, the fact that the claim would be time
barred becomes a relevant factor for consideration. The aspect of relief
being sought is barred by limitation is not considered by the trial Court
while allowing the application, as rightly contended that by the learned
counsel for the petitioner. This view of this Court is fortified by the
judgment of the Hon'ble Supreme Court in Radhika Devi's case (cited
supra), wherein it is categorically held that where a party acquires right
by bar of limitation and if the same is sought to be taken away by
amendment of pleadings, the amendment, in such circumstances, would
be refused. The ratio laid down by the Hon'ble Supreme Court in
Radhika Devi's case (cited supra) squarely applies to the facts of the
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present case. In fact, the judgment relied upon by the learned counsel for
respondent Nos.1 to 3 in Vasantha's case (cited supra) is also in favour
of the revision petitioner in the light of observation at para 32 thereof.
20. In view of the foregoing reasons, legal position and also in light
of Section 59 of the Limitation Act, 1963, this Court is of the considered
opinion that the trial Court has committed error in entertaining the
application though the same is clearly barred by limitation and therefore,
the impugned order is liable to be set aside.
21. Accordingly, this Revision Petition is allowed and the impugned
order passed by the trial Court is set aside.
22. Pending Miscellaneous Applications, if any, shall stand closed. No
costs.
__________________________________
LAXMI NARAYANA ALISHETTY,J
Date:27.02.2025
Note:
LR copy to be marked.
B/o
dr
