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CASE NO.: Appeal (civil)  1700 of 2007

PETITIONER: Shiv Gopal Sah @ Shiv Gopal  Sahu

RESPONDENT: Sita Ram Saraugi & Ors

DATE OF JUDGMENT: 30/03/2007

BENCH: Ashok Bhan & V.S. Sirpurkar

JUDGMENT: J U D G M E N T (Arising out of SLP (Civil) No.1729 of 2006)

V.S. SIRPURKAR, J:

1.      Leave granted. 2.      Judgment of the High Court passed under Section 115 CPC  confirming the order passed by the Additional Munsiff is in challenge in this  appeal.  The High Court has approved of the amendments which were  permitted to be made by the trial court. 3.      Learned counsel appearing on behalf of the petitioner herein assails  both the judgments stating that the said amendment application was liable  to be dismissed on the ground that it permitted the plaintiffs to include a  time barred claim and secondly it was hopelessly belated and as such the  plaintiffs lacked bona fides.   4.      Some facts would be necessary.  Original suit was filed in the year  1986 bearing registration number Eviction Suit No.11 of 1986 which was  filed by Sita Ram Saraugi and some others impleading the present  petitioner-defendant Shiv Gopal Sah @ Shiv Gopal Sahu.  This was a suit  for eviction on the ground of personal necessities of the plaintiffs.  Original  defendant Ram Charitra Sahu appeared and raised a plea that he was not  a tenant and further that he was in fact an owner having purchased the suit  property along with the other part of the property from Banwari Sah and  others by sale deed dated 4.10.1985 and as such he was the full owner of  the entire house including the suit property.  In view of these pleadings  raised by the defendant, the suit was converted into a Title Suit by the  order of the court dated 16.12.1988.  By subsequent order dated 4.1.1991  the suit was renumbered as Title Suit No.17 of 1991 and the plaintiff was  directed to pay advalorem court fees as also to effect the necessary  amendments. The plaintiff failed to avail of this opportunity to amend the  suit. Eventually, the original defendant died and the present petitioner- defendant has been impleaded for him.  The original plaintiff, namely, Sita  Ram Saraugi seems to have sold the suit property during the pendency of  the suit in favour of Vijay Kumar Yadav and Manju Devi, respondent nos.3  and 4 herein in the year 1997, who were added as the co-plaintiffs by their  application dated 22.5.2004. 5.      On 11.12.2004 the plaintiffs moved an application under Order 6  Rule 17 CPC seeking amendments to the plaint.  It was stated in that  amendment application that the said amendments have become  necessary on account of the plea raised by the defendant regarding his  becoming an owner by the registered sale deed dated 4.10.1985.  It was  also suggested that the averments regarding the title of the plaintiffs,  reliefs to be claimed relating to the title, description of the area of the land  in the suit and the explanation of plaintiffs relating to the sale deeds in  favour of the defendant had to be introduced by the amendments.  It was  also alleged that it was necessary to challenge the sale deed dated  4.10.1985 in favour of the defendants and get it declared bogus and not  binding against the plaintiffs and that the defendant no.1 had not acquired  any right, title or interest over the suit property by that sale deed and to

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further assert that plaintiff Sita Ram Saraugi had a valid title and  possession on the suit land which he transferred validly in favour of Vijay  Kumar Yadav and Manju Devi.  The plaintiffs also prayed, vide the said  amendment application, that the original plaintiff Sita Ram Saraugi was  liable to be transposed as a party-defendant. 6.      This amendment application was, though strongly opposed by the  defendants on various grounds, allowed and as stated earlier, the  challenge by the defendants by way of a Civil Revision thereto in the High  Court also did not succeed necessitating the present appeal.   7.      Shri Kulkarni, the learned counsel appearing for the petitioner- original defendant pointed out that the High Court was in error in  confirming the order passed by the trial court allowing the amendment.  His  main thrust was that the amendment application was trying to introduce a  time barred claim regarding the declaration of the sale deed dated  4.10.1985 being a bogus and ineffective document.  According to the  learned counsel the fact of the said sale deed was brought to the notice of  the plaintiffs way back in the year 1987 when the defendants had pleaded  a title in his favour on the basis of that sale deed.  Learned counsel further  points out that even after the original eviction suit was converted into title  suit in the year 1988 and was re-numbered in 1991, the civil court in its  order dated 4.1.1991 had permitted the original plaintiffs, respondent no.1  and 2 to suitably amend the plaint.  However, the original plaintiffs did not  challenge the said sale deed dated 4.10.1985 which was in direct conflict  with his title.  Learned counsel further points out that again in the year  1987 when the plaintiff transferred the suit property in favour of Vijay  Kumar Yadav and Manju Devi, respondents 3 and 4 herein as the watchful  purchasers, the new so-called transferees were bound to join the plaintiffs  which they did not do upto 2004 and it was only after they joined the suit  as the co-plaintiffs that it dawned upon them for the first time to challenge  the sale deed dated 4.10.1985 in favour of the petitioner-defendant.  All  this suggests that the challenge to the sale deed which had become known  to the original plaintiff way back in 1987 and of which there was bound to  be a notice to the newly added plaintiffs, hopelessly time barred.  Learned  counsel further submits that there are no bona fides in the plaintiffs at all  as the plaintiffs have remained callously negligent towards their own rights.   Learned counsel, therefore, states that the trial court as well as High Court  erred in allowing the amendments.   8.      As against this it was contended by the learned counsel appearing  on behalf the original plaintiffs-respondents 1 and 2 herein that it was  always permissible for the court to allow the amendment at any stage and  even if it is presumed that the challenge has become time barred, yet the  court could permit the amendments.  Learned counsel for the respondent  tried to rely on some rulings of this Court stating that this Court had  permitted the amendments even when a time barred challenge was sought  to be introduced by the amendments. 9.      It is to be seen as to whether the courts below were right in allowing  the plaintiffs to introduce the amendments. 10.     There can be no dispute that the defendant had opened his cards  and asserted his title vis-‘-vis the original plaintiffs right in the beginning in  the year 1987 when he, for the first time, filed the written statement.  It is  then that the original eviction suit was converted into the title suit.  This  was the first opportunity to challenge the sale deed dated 4.10.1985. As if  this was not sufficient, the trial court also permitted the plaintiffs to make  the necessary amendments.  We fail to understand the apathy on the part  of the plaintiffs in the wake of all this happenings.  As if this was not  sufficient when the plaintiffs allegedly sold the property in favour of Vijay  Kumar Yadav and Manju Devi in the year 1997 by two separate sale  deeds, he could have given the notice of the cloud on his title to the  purchasers or atleast the purchasers were bound to take notice of the  cloud on the title of the original plaintiff.  The purchasers, i.e., respondents  3 and 4 herein respectively remained complacent right till 2004. We do not  know as to how original plaintiffs kept the suit alive for a long period of  seven years.  It is only in the year 2004 that the transferees sought to add  themselves as the co-plaintiffs which should have been done immediately  after they purchased the said suit property by two separate sale deeds in

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the year 1997.  It is, therefore, clear that the original plaintiff as also the  subsequent purchasers remained complacent and negligent all through for  a period of more than 15 years and woke up for the first time to challenge  the sale deed dated 4.10.1985 by seeking a declaration that it is bogus  and did not create any title in favour of the original defendant.   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, atleast 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 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. 13.     In Dondapati Narayana Reddy vs. Duggireddy Venkatanarayan  Reddy & Ors. [(2001) 8 SCC 115] this court observed: "The amendment should, generally, be allowed unless it is  shown that permitting the amendment would be unjust and  result in prejudice against the opposite side which cannot be  compensated by costs or would deprive him of a right which  has accrued to him with the lapse of time."

14.     In T.N. Alloy Foundry Co. Ltd. vs. T.N. Electricty Board & Others  [(2004) 3 SCC 392] a three Judge Bench of this Court relying on L.J.  Leach & Co. Ltd. vs. Jardine Skinner and Co. [AIR 1957 SC 357] reiterated  as under: "The law as regards permitting amendments to the plaint is  well settled.  In L.J. Leach & Co. Ltd. v. Jardine Skinner and  Co. 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."

The situation is no different in this appeal and as such a suit as described  above would be clearly barred by limitation. 15.     The defendant having set up a rival title on the basis of sale deed  dated 4.10.1985 the plaintiff was bound to amend his pleadings if he  wanted to challenge the said sale deed to be ineffective and incapable of  creating a valid title in favour of the defendant.  It completely beats us as to  why the plaintiff remained complacently negligent right from 1987 in case  of original plaintiff and after 1997 in case of co-plaintiffs.  On the top of it  when we see the amendment application, it is sadly silent regarding any  explanation as to why all these steps were not taken after a long period  right from 1987 till the amendment application is made on 11.12.2004.   Having not challenged, the sale deed dated 4.10.1985, the plaintiff could  not lead evidence regarding the circumstances under which that sale deed  came into existence which facts they would be entitled now if the  amendments were to be allowed.  That would be completely different from  their preliminary task of proving a better title to the property.   15.     Under the circumstances we would not permit the plaintiffs now at

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this stage to introduce a time barred claim under the peculiar facts and  circumstances of this case where we find a complacent negligence on the  part of the plaintiffs apart from the towering delay of more than 15 years.   We, therefore,  allow this appeal and set aside the orders of the High Court  as well as the trial court and dismiss the application for amendment dated  11.12.2004.   16.     There will be no order as to costs.