WPMS/922/2022
2022 Latest Caselaw 3923 UK

 IN THE HIGH COURT OF UTTARAKHAND
                       AT NAINITAL
       ON THE 7TH DAY OF DECEMBER, 2022
                              BEFORE:
      HON'BLE SHRI JUSTICE MANOJ KUMAR TIWARI


         Writ Petition (M/S) No. 922 of 2022

BETWEEN:
Rakam Singh                                                ...Petitioner
      (By Mr. Anshu Kumar, learned counsel for petitioner)


AND:
Bhagvat @ Bhagmal & others.                           ...Respondents
      (By Mr. Nagesh Aggarwal, learned counsel for respondent no. 1)


                           JUDGMENT

Petitioner filed a suit for permanent injunction, which is numbered as O.S. No. 57 of 2005 and is pending in the court of Civil Judge (Jr. Div.), Roorkee, District Haridwar. Petitioner filed an application under Order 6 Rule 17 CPC, seeking leave to amend the plaint. In his application, he contended that during pendency of the suit, he has been dispossessed from the land in question, therefore, he be permitted to add two new paragraphs in the plaint and relief of mandatory injunction may also be permitted to be added. The said application was allowed by the learned Trial Court vide order dated 5.4.2021. However, in the revision filed by respondent nos. 1 & 2, the order passed by Trial court was set aside vide judgment dated 24.3.2022. Thus feeling aggrieved, petitioner has preferred this writ petition, challenging Revisional Court's judgment.

2. Heard learned counsel for the parties and perused the record.

3. Learned Trial Court allowed the amendment application filed by petitioner by holding that leave to amend has been sought by the plaintiff to bring on record the developments, which took place during pendency of the suit, and amendment, if allowed, will not change the nature of the suit, and rejection of amendment application will lead to multiplicity of litigation. However, learned Revisional Court has set aside the order passed by learned Trial Court, only on the ground that amendment was sought by the plaintiff belatedly.

4. Learned counsel for the petitioner submits that the view taken by Revisional Court is patently erroneous, inasmuch as, an application seeking leave to amend the pleading cannot be rejected solely on the ground of delay.

5. This Court finds substance in the said submission made on behalf of the petitioner.

6. In support of the aforesaid contention, learned counsel for the petitioner has placed reliance upon a judgment rendered by Hon'ble Supreme Court in the case of Pankaja v. Yellappa, (2004) 6 SCC 415. In the said case, Hon'ble Supreme Court has held that by an amendment, a new relief, which is barred by limitation can be permitted to be added in the plaint, if that subserves cause of justice and avoids further litigations. Paragraph nos. 12 to 19 of the said judgment, are reproduced below:-

"12. So far as the court's jurisdiction to allow an amendment of pleadings is concerned, there can be no two opinions that the same is wide enough to permit amendments even in cases where there has been substantial delay in filing such amendment applications. This Court in numerous cases has held that the dominant purpose of allowing the amendment is to minimise the litigation, therefore, if the facts of the case so permit, it is always open to the court to allow applications in spite of the delay and laches in moving such amendment application.

13. 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 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?

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 straitjacket formula for allowing or disallowing an amendment of pleadings. Each case depends on the factual background of that case.

15. This Court in the case of L.J. Leach and Co. Ltd. v. Jardine Skinner and Co. [AIR 1957 SC 357] has held:

"16. It is no doubt true that courts 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, if that is required in the interests of justice."

16. This view of this Court has, since, been followed by a three-Judge Bench of this Court in the case of T.N. Alloy Foundry Co. Ltd. v. T.N. Electricity Board [(2004) 3 SCC 392] . Therefore, an application for amendment of the pleading should not be disallowed merely because it is opposed on the ground that the same is barred by limitation, on the contrary, application will have to be considered bearing in mind the discretion that is vested with the

court in allowing or disallowing such amendment in the interest of justice.

17. Factually in this case, in regard to the stand of the defendants that the declaration sought by the appellants is barred by limitation, there is dispute and it is not an admitted fact. While the learned counsel for the defendant-respondents pleaded that under Entry 58 of the Schedule to the Limitation Act, the declaration sought for by the appellants in this case ought to have been done within 3 years when the right to sue first accrued, the appellant-plaintiff contends that the same does not fall under the said entry but falls under Entry 64 or 65 of the said Schedule of the Limitation Act which provides for a limitation of 12 years, therefore, according to them the prayer for declaration of title is not barred by limitation, therefore, both the courts below have seriously erred in not considering this question before rejecting the prayer for amendment. In such a situation where there is a dispute as to the bar of limitation this Court in the case of Ragu Thilak D. John v. S. Rayappan [(2001) 2 SCC 472] has held:

"The amendment sought could not be declined. The dominant purpose of allowing the amendment is to minimise the litigation. The plea that the relief sought by way of amendment was barred by time is arguable in the circumstances of the case. The plea of limitation being disputed could be made a subject-matter of the issue after allowing the amendment prayed for."

18. We think that the course adopted by this Court in Ragu Thilak D. John case [(2001) 2 SCC 472] applies appropriately to the facts of this case. The courts below have proceeded on an assumption that the amendment sought for by the appellants is ipso facto barred by the law of limitation and amounts to introduction of different relief than what the plaintiff had asked for in the original plaint. We do not agree with the courts below that the amendment sought for by the plaintiff introduces a different relief so as to bar the grant of prayer for amendment, necessary factual basis has already been laid down in the plaint in regard to the title which, of course, was denied by the respondent in his written statement which will be an issue to be decided in a trial. Therefore, in the facts of this case, it will be incorrect to come to the conclusion that by the amendment the plaintiff will be introducing a different relief.

19. We have already noted, hereinabove, that there is an arguable question whether the limitation applicable for seeking the relief of declaration on facts of this case falls under Entry 58 of the

Limitation Act or under Entry 64 or Entry 65 of the Limitation Act which question has to be decided in the trial, therefore, in our view, following the judgment of this Court in the case of Ragu Thilak D. John [(2001) 2 SCC 472] we set aside the impugned orders of the courts below, allow the amendment prayed for, direct the trial court to frame necessary issue in this regard and decide the said issue in accordance with law bearing in mind the law laid down by this Court in the case of L.J. Leach and Co. Ltd. [AIR 1957 SC 357]"

7. Mr. Nagesh Aggarwal, learned counsel appearing for respondent no. 1 supports the view taken by learned Revisional Court and submits that it is settled position in law that a relief, which is barred by limitation, cannot be added in the plaint through amendment. In support of this contention, he has relied upon a judgment rendered by Hon'ble Supreme Court in the case of Shiv Gopal Sah @ Shiv Gopal Sahu v. Sita Ram Saraugi and others, reported in (2007) 14 SCC 120. Paragraph nos. 11 & 12 of the said judgment are reproduced below:-

"11. We have gone through the amendment application carefully where we do not find any explanation whatsoever for this towering delay. We would expect some explanation, at least regarding the delay since the delay was very substantial. The whole amendment application, when carefully scanned, does not show any explanation whatsoever. This negligent complacency on the part of the plaintiffs would not permit them to amend the plaint, more particularly when the claim has, apparently, become barred by time.

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."

8. In the said judgment, Hon'ble Supreme Court examined the amendment application and found that there was no explanation for delay of more than 18 years in filing the amendment application, therefore, in the facts of the said case, it was held that "such negligent complacency on the part of the plaintiffs would not permit them to amend the plaint, more particularly when the claim has, apparently, become barred by time".

9. In the present case, the reason for delay in moving the amendment application has been stated that the plaintiff is an old person, who resides in Deoband Tehsil of District Saharanpur, in State of Uttar Pradesh.

10. It is not in dispute that the suit property is situate in District Haridwar in State of Uttarakhand, therefore, plaintiff's advance age and his absence from State of Uttarakhand is sufficient explanation for the delay.

11. Mr. Nagesh Aggarwal, learned counsel for respondent no. 1 submitted that petitioner is seeking to convert a suit for permanent injunction into a suit for mandatory injunction, through amendment, which is not permissible.

12. The said submission is bereft of merit. Hon'ble Supreme Court in the case of Sampath Kumar v. Ayyakannu, reported in (2002) 7 SCC 559, while dealing with a case, where through an application seeking leave to amend the plaint, filed after 11 years

of date of institution of the suit, a suit for permanent prohibitory injunction was sought to be converted to a suit for declaration of title and recovery of possession, held that "in our opinion, the basic structure of the suit is not altered by the proposed amendment. What is sought to be changed is the nature of relief sought for by the plaintiff. In the opinion of the trial court, it was open to the plaintiff to file a fresh suit and that is one of the reasons which has prevailed with the trial court and with the High Court in refusing the prayer for amendment and also in dismissing the plaintiff's revision. We fail to understand, if it is permissible for the plaintiff to file an independent suit, why the same relief which could be prayed for in a new suit cannot be permitted to be incorporated in the pending suit. In the facts and circumstances of the present case, allowing the amendment would curtail multiplicity of legal proceedings". Paragraph nos. 6 to 12 of the said judgment are reproduced below:-

"6. It is true that the plaintiff on the averments made in the application for amendment proposes to introduce a cause of action which has arisen to the plaintiff during the pendency of the suit. According to the defendant the averments made in the application for amendment are factually incorrect and the defendant was not in possession of the property since before the institution of the suit itself..

7. In our opinion, the basic structure of the suit is not altered by the proposed amendment. What is sought to be changed is the nature of relief sought for by the plaintiff. In the opinion of the trial court, it was open to the plaintiff to file a fresh suit and that is one of the reasons which has prevailed with the trial court and with the High Court in refusing the prayer for amendment and also in dismissing the plaintiff's revision. We fail to understand, if it is permissible for the plaintiff to file an independent suit, why the same relief which could be prayed for in a new suit cannot be permitted to be incorporated in the pending suit. In the facts and circumstances of the present case, allowing the amendment would curtail multiplicity of legal proceedings.

8. In Rukhmabai v. Lala Laxminarayan [AIR 1960 SC 335] this Court has taken the view that where a suit was filed without seeking an appropriate relief, it is a well-settled rule of practice not to dismiss the suit automatically but to allow the plaintiff to make necessary amendment if he seeks to do so.

9. Order 6 Rule 17 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 forth and seeking determination of the real questions in controversy between the parties shall be permitted to be made. The question of delay in 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 the 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 straitjacket 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 filed. (See observations in Siddalingamma 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 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.

12. On the averments made in the application, the same ought to have been allowed. If the facts alleged by the plaintiff are not correct it is open for the defendant to take such plea in the written statement and if the plaintiff fails in substantiating the factual averments and/or the defendant succeeds in substantiating the plea which he would obviously be permitted to raise in his pleading by way of consequential amendment then the suit shall be liable to be dismissed. The defendant is not prejudiced, more so when the amendment was sought for before the commencement of the trial."

13. Mr. Nagesh Aggarwal, learned counsel for respondent no. 1 submits that the relief sought to be added through amendment application is barred by time, as applicant/plaintiff asserts that he was dispossessed from the suit property in the year 2009.

14. The application seeking leave to amend filed by plaintiff cannot be rejected merely because the nature of relief is sought to be changed by the plaintiff. It is permissible for the plaintiff to file an independent suit for the relief sought to be added through amendment, and if allowing the amendment would curtail multiplicity of legal proceedings, then there is nothing wrong in allowing the amendment sought by

the plaintiff. Although, amendment once incorporated ordinarily relates back to the date of filing of the suit, however doctrine of relation back in the context of amendment of pleadings is not one of universal application and in appropriate case, Court can provide that the amendment permitted by it shall not relate back to the date of filing of the suit.

15. Accordingly, writ petition is allowed. The impugned judgment and order of Revisional Court is set aside and the order passed by Trial Court is restored.

(MANOJ KUMAR TIWARI, J.) Pr