Insofar as the Court's jurisdiction to allow an amendment of
the pleadings is concerned, our Courts have consistently held that the
jurisdiction is wide enough to permit amendments even in cases where
there has been substantial delay in filing amendment applications. The
Courts have held that the dominant purpose of allowing the amendment
is to minimize the litigation and therefore, in the facts and circumstances
of the case, it is always open to the Court to disregard the delay and
allow an amendment. The Supreme Court has considered the content
and extent of this discretion in the case of Pankaja v/s Yallappa
(supra). The Court in that case held as follows :
“ 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.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
CHAMBER SUMMONS NO.551 OF 2014
IN
SUIT NO.2726 OF 1994
Sumer Builders Pvt. Ltd.
vs
Sadhana Textiles Mills Pvt. Ltd. And Ors. .
CORAM : S.C. GUPTE, J.
DATED: SEPTEMBER 2, 2014
Citation;2015(1) ALLMR795
This Chamber Summons is taken out by the
Plaintiff/Applicant for amendment of the plaint. The Schedule of the
amendment annexed to the Chamber Summons seeks to add averments
in respect of a purported declaration and deed of apartment, both dated
17 October 2002, executed between Defendant Nos.1 and 5. The
amendment further seeks to add prayers seeking inter alia a declaration
of nullity of the purported declaration and deed of apartment. The facts
of the case, leading to the present application, may be briefly stated as
follows :
The Plaintiff has filed the present suit for specific
2.
performance of an agreement for sale of land executed between
Defendant No.1 and the Plaintiff. During the pendency of the suit, the
Plaintiff claimed to have learnt about a transaction between Defendant
No.1 and Defendant No.5 contained in a letter of allotment dated 16
August 1996, by which Defendant No.1 purported to create rights in
favour of Defendant No.5 in respect of the suit property. The Plaintiff,
accordingly, sought to amend the plaint inter alia by seeking cancellation
of the purported letter of allotment dated 16 August 1996. This Court,
by its order dated 26 February 2014, allowed the Chamber Summons in
terms of prayer clause (a) thereof, leaving all contentions of the parties,
including the issue of limitation, open. This order has been accepted by
Defendant No.1 and not carried in appeal. The Plaintiff has, accordingly,
amended the plaint impleading the Defendants as party Defendants to
the present suit and seeking cancellation of the letter of allotment
executed by Defendant No.1 in favour of Defendant No.5.
3.
After his joinder to the suit, Defendant No.5 filed a written
statement, disclosing inter alia that there was a conveyance executed on
17 October 2002 by way of a declaration and deed of apartment in
respect of the suit property. By the present Chamber Summons, the
Plaintiff seeks to add the requisite averments challenging the purported
declaration and deed of apartment, and seeks a declaration of nullity and
cancellation thereof.
4.
The Chamber Summons is opposed by Defendant No.5 on
the ground, firstly, that the declaration and deed of apartment are
executed on 17 October 2002. The declaration and deed of apartment
having being registered, the Plaintiff has had deemed notice of the
execution and registration thereof. In the premises, it is submitted that
any challenge to the declaration and deed of apartment on the date of
the application of amendment, is clearly barred by the law of limitation.
It is submitted that under Section 3 of the Transfer of Property Act, a
person has a deemed notice of the instrument as from the date of
registration thereof. It is submitted that under Article 59 of the Schedule
to the Limitation Act, 1963, a suit for cancellation or setting aside of an
instrument must be filed within three years of the Plaintiff coming to
know of the facts entitling the Plaintiff to have the instrument cancelled
or set aside. It is submitted that the Plaintiff is accordingly deemed to be
in the knowledge of the instrument, which is claimed to be in breach of
the Plaintiff's right of specific performance in the suit herein, as on the
date of the registration of the instrument. It is submitted that reckoning
this date to be date for starting of the period of limitation, any
application seeking cancellation of the instrument filed more than three
years after such knowledge, is barred under Article 59. Learned Counsel
for Defendant No.5 relies on the judgments of the Supreme Court in the
cases of Radhika Devi Versus Bajrangi Singh 1, Shivgopal Sah Alias
Shiv Gopal Sahu Versus Sita Ram Saraugi 2 and Ashutosh Chaturvedi
Versus Prano Devi Alias Parani Devi 3 in support of his submissions.
These judgments are countered by the learned Counsel for the Plaintiff
by citing the judgment of the Supreme Court in the case of Pankaja
Versus Yallappa4. It is submitted by the learned Counsel for the Plaintiff
1 (1996) 7 Supreme Court Cases 486
2 (2007) 14 Supreme Court Cases 120
3 (2008) 15 Supreme Court Cases 610
4 (2004) 6 Supreme Court Cases 415
that granting of amendment is a matter of discretion for the Court and
such discretion should be exercised having regard to the facts and
5.
circumstances of each case.
Insofar as the Court's jurisdiction to allow an amendment of
the pleadings is concerned, our Courts have consistently held that the
jurisdiction is wide enough to permit amendments even in cases where
there has been substantial delay in filing amendment applications. The
Courts have held that the dominant purpose of allowing the amendment
is to minimize the litigation and therefore, in the facts and circumstances
of the case, it is always open to the Court to disregard the delay and
allow an amendment. The Supreme Court has considered the content
and extent of this discretion in the case of Pankaja v/s Yallappa
(supra). The Court in that case held as follows :
“ 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. has held :(AIR p. 362, para 16)
“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
threeJudge Bench of this Court in the case of T.N. Alloy
Foundry Co. Ltd. v. T.N. Electricity Board. 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 defendantrespondents
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 appellantplaintiff 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 has
held: (SCC p. 472)
“The amendment sought could not be declined.
The dominant purpose of allowing the
amendment is to minimize 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 subjectmatter 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 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. ”
6.
Having regard to this wide discretion of the Court in the
matter of allowing of amendments, it is necessary to be seen whether in
the present case such discretion ought to be exercised in favour of the
Plaintiff and the amendment proposed should be allowed.
7.
This Court by its order dated 26 February 2014, in the first
place, allowed the amendment of the plaint by (i) impleadment of
Defendant No.5 as a party Defendant to the present suit and (ii)
inclusion of challenge to the transaction between Defendant No.1 and
Defendant No.5 in respect of the suit property. The Plaintiff at that stage
claimed to be aware of only the letter of allotment issued by Defendant
No.1 in favour of Defendant No.5 purporting to create rights in respect
of the suit property. The impleadment of Defendant No.5 and
incorporation of challenge to the transaction between Defendant Nos. 1
and 5 was allowed, by keeping the contentions of parties concerning the
bar of limitation in respect of such impleadment and challenge, open.
Thus, the Court has already been seized of a challenge to the creation of
third party rights by Defendant No.1 in favour of Defendant No.5. In the
backdrop of these facts, it may now be seen that the Plaintiff, by way of
the present Chamber Summons, seeks to incorporate a further challenge
to the creation of rights by Defendant No.1 in favour of Defendant No.5
by a purported declaration and deed of apartment. After the Chamber
Summons was allowed and the plaint was amended, the Plaintiff claims
to have learnt about these documents from the Written Statement of
Defendant No.5. With a view to claim effective relief in respect of the
transaction between Defendant No.1 and Defendant No.5, which is
claimed to be in breach of the Plaintiff's right to specific performance of
the suit agreement for sale, the Plaintiff has taken out the present
Chamber Summons. Having regard to the fact that creation of rights by
Defendant No.1 in favour of Defendant No.5 has already been impugned
in the present suit, with a view to effectively grant relief to the Plaintiff,
it is necessary that the present amendment proposed by the Plaintiff
ought to be allowed. In the peculiar facts and circumstances of the
present case, it is in the fitness of things that this Court exercises its
discretion to allow the amendment in favour of the Plaintiff. If such
amendment is not allowed, even if the Plaintiff were to succeed in its
challenge to creation of rights by Defendant No.1 in favour of Defendant
No.5, in the absence of the present amendment, no effective relief can be
granted to the Plaintiff. Accordingly, the present Chamber Summons
deserves to be allowed.
The reliance placed by the learned Counsel for Defendant
8.
No.5 on the judgments of the Supreme Court in the cases of Radhika
Devi, Shivgopal Sah and Ashutosh Chaturvedi(supra), is besides the
point. These cases affirm the proposition that the amendment of the
plaint is not granted normally when accrued rights are taken away by
amendment of the pleadings, though in an exceptional case, even
according to these judgments, there is a discretion in the Court to allow
the amendment. Secondly, what these cases affirm is that by allowing
the amendment, the rights created in favour of the Defendant by lapse of
time would stand defeated and that such a course is not permissible. As
held by me above, having regard to the peculiar facts and circumstances
of the case, the exercise of discretion to allow the amendment ought to
be exercised in this case in favour of the Plaintiff. As long as the issue of
limitation is kept open, as is done in the order of this Court whilst
allowing the first amendment on 24 February 2014, it cannot be said
that an accrued right in favour of the Defendant, as a result of an
intervening period of limitation, is taken away. This right is certainly
available to the Defendant, if his contentions regarding the bar of
limitation are expressly kept open.
In this view of the matter, the Chamber Summons deserves
9.
to be allowed. Accordingly, the Chamber Summons is made absolute in
terms of prayer clauses (a) and (b), subject to the plea of limitation
being kept open.
10.
Amendment to be carried out within a period of two weeks
The amended copy of the plaint to be served on the
11.
from today.
12.
Defendants.
Defendants will have liberty to file a further written
( S.C. GUPTE, J. )
statement, if any.
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