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CASE NO.: Appeal (civil)  4983-4984 of 2004

PETITIONER: Pankaja & Anr.

RESPONDENT: Yellappa (D) by LRS. & Ors.

DATE OF JUDGMENT: 05/08/2004

BENCH: N. Santosh Hegde  & S.B. Sinha.

JUDGMENT: J U D G M E N T          (ARISING OUT OF S.L.P. ) NOS. 3089-3090 OF 2004)

SANTOSH HEGDE, J.

       Heard learned counsel for the parties.

               Leave granted.

       The appellants herein filed a suit before the Principal Civil  Judge, Shimoga, originally seeking  the following reliefs :-                  a )     To grant a judgment and decree of  permanent  Injunction  restraining  the Defendants 1 to 10  their men, and agents from  interfering with A A1 L O N C D portion of  the suit schedule  property.

b)      For  possession  of the property identified  as A1 B M N O L  portion  and  also  the   N  N1 O O 1  at   annexure-A  to the plaint   of the suit schedule  property.

c)      Such  other  relief/reliefs  that  this Hon’ble Court deems fit  to grant under  the circumstances  of the case as also  the cost  of this suit.

       It is their case during the pendency  of the said suit the  respondent  in violation  of the court order further encroached  into  suit property to an extent of 15’ x 15’.  Therefore,  the appellants  sought for an amendment  of the plaint  seeking for possession  of  the said encroached  area also.  This application was also allowed   by the Trial Court.   

In the written statement filed by the  respondents,  a   contention was taken  that a suit  for injunction  and possession  without seeking a declaration  of title  was not maintainable.   Written statement  was filed on 17th September, 1994.  On  27th of  July, 2000 realizing  that a prayer  for declaration  on the facts of  the case was essential  the appellants filed an application for  amendment of the plaint under  Order 6 Rule 17, CPC by adding  the following prayers :-

"[a]    To declare that the Plaintiffs are the owners  A1.B.M.N.N1.O1.O.L  of the suit schedule property."                  

       The Principal Civil Judge, Shimoga,  by his judgment and

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order dated 22nd of September, 2000 rejected the application of the  appellants  on the ground that the application is filed at a belated  stage.  

Being aggrieved  by the said order the appellants preferred a  Revision Petition before the High Court of Karnataka at Bangalore.  The said Revision Petition  came to be dismissed  by the High  Court  also on the ground that  the application for amendment  was  filed at a  belated stage. The court also held that the amendment   introduced a different relief than what  was originally asked for.   

The appellants thinking that there was an error  apparent  on  the judgment of the High Court filed a Review Petition which came  to be dismissed by the High Court.  

Therefore, the appellants  are now before us in this appeal  challenging the said order of the High Court as also  the order of  the Principal Civil Judge, Shimoga, rejecting  their application  praying for  amendment of the plaint.

Ms. Kiran Suri, learned counsel for the appellants contended  that the Trial Court was in error  in coming to the conclusion  that a  belated application for amendment  of the plaint, per se can not be   allowed, she also contended the High Court erred  in coming to the  conclusion that the proposed amendment  if granted  would take  away  the right  accrued  to the respondent by lapse of time.  She  submitted that this view of the High Court is opposed to a number  of judgments  of this Court where this Court had taken the view that  delay in filing an application for amendment by itself should not be  a ground for rejection  of such application  unless a serious  prejudice  was caused to the opposite party.  She further submitted  on the facts of this case the necessary averments  in regard to the  title  of the appellants over the suit property was already there in the  original plaint and what was sought by the amendment was only a  relief in furtherance  to the said plea found in the plaint.  She also  submitted that assuming for argument sake  that there was a delay   which  creates a right on the opposite side even then in an  appropriate case,  it was open to the Court to consider  the prayer  for amendment, bearing in mind the fact that the power of the Court  to allow application for amendment is unfettered  provided  the  facts of the case so  required the Court to exercise its discretion in  favour of allowing the amendment. In support of her case, she  placed strong reliance on the following judgments of this Court :-

1. Ragu Thilak D. John  Vs. S. Rayappan & Ors.,  2001(2) SCC  472; 2. Estralla Rubber   Vs.  Dass Estate (P) Ltd.  2001 (8) SCC 97; 3. Sampath Kumar  Vs.  Ayyakannu & Anr.  2002 (7) SCC 559.

       Mr. Girish Ananthamurthy, learned counsel appearing for the  respondents-defendants  strongly supported  the impugned orders of  the two courts below. He submitted that though the suit in question  was filed as far back as  on 11-7-1994 and the original defendant   had in his written statement  filed on 17-9-1994 disputed the title of  the appellants. Even then the appellants  application for amendment  of the suit  incorporating the prayer for possession was filed only  on 27-7-2000 nearly 6 years  after the institution of the suit.  He  further contended that in view of Entry 58 of the Schedule to the  Limitation Act, 1963 a suit for declaration could have been  instituted  only within 3 years when the right to sue  accrued to the  appellants and  the said right having accrued  as far back as  in the  year 1994,   an amendment  seeking a declaratory  prayer after 6  years thereafter is clearly barred  by the provision of the Limitation  Act and the respondents having accrued a statutory right the same  could not have been defeated by allowing an amendment filed

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beyond the statutory period of limitation.

       So far as the Court’s  jurisdiction  to allow an amendment  of  pleadings  is concerned there can be no two opinion 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  the dominant  purpose of  allowing the amendment is to minimize the litigation, therefore, if  the facts  of the case so permits, it is always open to the court to  allow applications in spite of the delay and latches  in moving such  amendment application.

       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 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?   

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

This Court in  the case of   L.J. Leach and Co. Ltd. & Anr.  Vs.  Messrs. Jardine Skinner and Co.  -  A.I.R. 1957 S.C. 357 has  held :-

"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."

       This view of this Court has, since, been followed by a 3  Judge Bench of this Court in the case of   T.N. Alloy Foundry Co.  Ltd.  Vs.  T.N. Electricity Board & Ors.  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.

       Factually in this case, in regard to the stand of the defendant  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

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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   Vs. S. Rayappan & Ors. 2001(2) SCC 472 (supra)  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."            We think that the course adopted by this Court  in Ragu  Thilak D. John’s case (supra) applies appropriately to the facts of  this case.  The courts below  have proceeded  on an assumption   that the amendments 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 amendments   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.  

       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 Entries  64 or 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 (supra), 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. & Anr.  (supra).

       For reasons stated above these appeals succeed and same are  allowed.