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PETITIONER: RADHIKA DEVI

       Vs.

RESPONDENT: BAJRANGI SINGH & ORS.

DATE OF JUDGMENT:       18/01/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. G.B. PATTANAIK (J)

CITATION:  JT 1996 (2)   238        1996 SCALE  (1)750

ACT:

HEADNOTE:

JUDGMENT:                        O R D E R      We have heard learned counsel for both sides.      Leave granted.      The appellant has instituted Partition Suit No.24/88 in the Court  of Subordinate Judge, Aurangabad for partition of certain  properties.  Respondents  16  to  20  herein  filed written statement on June 15, 1988 wherein they pleaded that Ramdeo Singh  had executed  and registered  a gift  deed  in their favour  on July  28, 1978  bequeathing the  properties covered thereunder.  They became  owners of  those lands and the appellant  is bound  by the  same. Pending the suit, the appellant filed an application under Order 6 Rule l7, CPC on November 11, 1992 seeking declaration that the gift deed was obtained by  the respondents illegally and fraudulently and, therefore,  it   was  ineffective  and  does  not  bind  the appellant. Though  the trial  Court by  order dated November 24, 1992  allowed the  petition, the  High Court in Revision no.1657/92 by  order  dated  August  13,  1993  allowed  the petition and  set aside the order directing amendment of the plaint. Thus, this appeal by special leave.      Shri S.K.  Sinha, learned counsel for the appellant has contended  that  the  appellant  had  no  knowledge  of  the execution of  the gift  deed by  Ramdeo  Singh  and  by  the amendment of  the plaint, the appellant is not defeating the right of  the respondents but is merely seeking to avoid the gift deed  executed which  was  detrimental  to  appellant’s right, title  and interest  in the  property. Therefore, the amendment does not alter either the character of the suit or the nature and the relief already sought, viz., partition of the property.  Shri Sanyal,  the learned  senior counsel for the respondents,  contended that the appellants had lost the right to  seek the  above declaration  as  being  barred  by limitation. The  registration of the document is a notice to everyone claiming  any right,  title and  interest  therein; even otherwise,  the respondents  in the  written  statement filed on  June 15,  1988 has  specifically pleaded about the

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gift being  made by  Ramdeo Singh  in their  favour. Despite that, the  appellant had  not taken  any steps till November 1999 by  which time even the suit for declaration within the limitation of three years from the date of knowledge had got time-barred. Therefore  the appellant  is  not  entitled  to amend the plaint which would prejudicially affect the rights of the respondents.      We find no force in the contention of the appellant. No doubt, the  amendment of the plaint is  normally granted and only in exceptional cases where the accrued rights are taken away by  amendment of  the pleading,  the Court would refuse the amendment.  This Court  in Laxmidas Dahyabhai  Kabarwala vs. Nunabhai  Chunilal Kabarwala  [(l964) 2  SCR 567 at 582) held thus:      "It is,  no doubt,  true that,  save  in      exceptional cases,  leave to amend under      0.6, r.l7 of the Code will ordinarily be      refused when the effect of the amendment      would be  to take  away from  a party  a      legal right  which had accrued to him by      lapse of  time. But this rule can  apply      only when either fresh allegations added      or  fresh   reliefs  sought  by  way  of      amendment.  Where,   for  instance,   an      amendment   is   sought   which   merely      clarifies an  existing pleading and does      not in  substance add to or alter it, it      has never been held that the question of      a  bar  of  limitation  is  one  of  the      questions to  be considered  in allowing      such clarification  of a  matter already      contained in  the original pleading. The      present is a fortiori so. The defendants      here  were   not  seeking   to  add  any      allegation nor to claim any fresh relief      which  they   had  prayed   for  in  the      pleading already filed."      In that case this Court considered the cross-objections to be  treated as a cross suit since no alteration was being made in  the written  statement to  treat  it  as  a  plaint originally instituted.  The amendment which was sought to be made was  treated to  be clarificatory  and, therefore, this Court had  upheld the amendment of the written statement and treated it  to be  a cross  suit. The ratio therein squarely applies to  a fact  situation where the party acquires right by bar  of limitation  and if the same is sought to be taken away  by  amendment  of  the  pleading,  amendment  in  such circumstances would  be refused.  In the  present case,  the gift deed  was executed  and registered as early as July 28, 1978 which is a notice to everyone. Even after filing of the written statement,  for 3  years no steps were taken to file the application  for amendment  of the  plaint. Thereby  the occurred right in favour of the respondents would be defeated by permitting  amendment of  the  plaint.  The  High  Court, therefore, was  right in  refusing to  grant  permission  to amend the plaint.      The appeal is accordingly dismissed but without costs.