1. Heard learned counsel for the petitioners, learned Additional Chief Standing Counsel and learned counsel for respondent no.8. Despite service and after revision of list, respondent no.1 did not appear.
2. In Original Suit No.57 of 1999 filed by Faridduin and others an application under Order VI Rule 17 CPC was moved for adding prayer for cancellation of two sale deeds, one of 19.8.1966, and another on 6.9.1999. The objection was filed by the respondents. Learned Civil Judge (Senior Divison), Balrampur, after hearing the parties, rejected the application for amendment. Civil Revision No.16 of 2001 was filed, which was partly allowed by the District Judge, Balrampur. The rejection of amendment order pertaining to sale deed dated 19.8.1966 was maintained and the order of Civil Judge (Senior Division) was modified, and an application for amendment pertaining to cancellation of sale deed dated 6.9.1999 was allowed. Feeling aggrieved, this petition has been filed by the plaintiff.
3. It was submitted by the learned counsel for the petitioner that the order by both the court belows regarding prayer for cancellation of sale deed dated 19.8.1966 is erroneous, as he has mentioned in the amendment application that he came to know of sale deed dated 19.8.1966 on 27.11.1999, when defendant no.1 filed copy of the above sale deed in the court. In view of this, it was submitted that the findings by both the court belows are erroneous. It was further submitted that the prayer for cancellation of sale deed dated 19.8.1966, being time barred, is mixed question of fact and law, and the trial court could have framed issue on this point after allowing the amendment application, and then the issue could have been decided.
4. Learned counsel for the petitioner relied upon the laws of (1) Pankaja and another v. Yellappa (Dead) by LRS. and others, (2004) 6 SCC 415, (2) Rajesh Kumar Aggarwal and others v. K.K. Modi and others, (2006) 4 SCC 385, (3) Ramesh B. Desai and others v. Bipin Vadilal Mehta and others, (2006) 5 SCC 638, (4) Andhra Bank and ABN AMRO Bank N.V. and others, (2007) 6 SCC 167, (5) Raghu Thilak D. John v. S. Rayappan and others, (2001) 2 SCC 472, (6) Smt. Shahjahan v. District Judge, Faizabad and others, 2010 (28) LCD 582, (7) Saleem v. IInd Additional District Judge, Balrampur and others, 2008 (26) LCD 887, and (8) Ningawwa v. Byrappa and 3 others, AIR 1968 SC 956.
5. Learned counsel for the respondents submitted that in the proposed amendment, which was to be pleaded by the amendment application in the plaint, no where has been stated that they came to know of sale deed dated 19.8.1966 on 27.11.1999. In view of this, the fact that the plaintiff came to know of sale deed dated 19.8.1966 on 27.11.1999 could not be inserted in the plaint, and then there is no pleading to the effect that plaintiff came to know regarding sale deed dated 19.8.1966 on 27.11.1999. In view of this, the courts below have rightly rejected the prayer for amending the plaint and adding relief of cancellation of sale deed dated 19.8.1966.
6. Learned counsel for the respondent submitted that Jiyauddin alias Babban and Nijamuddin alias Puttan all sons of Shamshuddin sold their share of house no.19.8.1966 by executing a registered sale deed and on 15.8.1984 certified copy of the sale deed was obtained by Jiyauddin alias Babban. He further submitted that after thirty years of execution of sale deed Kamruddin son of Jiyauddin filed a civil suit bearing no.143 of 1996 for cancellation of sale deed dated 19.8.1966 by enclosing certified copy dated 15.8.1984 of that sale deed, which was obtained by Jiyauddin himself. In array of parties of suit no.143 of 1996 Jiyauddin alias Babban, Nijamuddin and Riyajuddin were made defendant nos.1, 2 and 3. He submitted that on 9.8.1996, Civil Judge held that summons upon Ziyauddin alias Babban, Nijamuddin and Riyajuddin were personally served. On 6.9.1999, Abdul Majeed sold the purchased house to Smt. Tahira - opposite party no.1. In 1999 too, Fariduddin, who has already filed written statement in Civil Suit No.143 of 1996 filed suit no.57 of 1999 for permanent injunction. On 6.1.2000/21.1.2000, after the death of Nijamuddin his legal heirs were substituted and summons too were served. On 20.7.2000, civil suit no.143 of 1996 was dismissed in default and no restoration application was filed. An amendment application for amending the basic nature of civil suit no.57 of 1999 was moved by Fariduddin even after knowledge that suit no.143 of 1996 for cancellation of sale deed dated 19.8.1966 has already been dismissed and that dismissal order has attained finality, and looking into these aspect of the matter, amendment application was rejected on 13.2.2001 by the trial court. The revision preferred against order dated 13.2.2001 was dismissed on 8.7.2002. On 17.8.2002, Smt. Tahira filed written statement in suit no.57 of 1999 in the trial court. It is submitted that meaning of 'just' as derived from Supreme Court's words and phrases shows that "Just may apply in nearly all of its sense either to ethics or law, denoting something, which is morally right and fair. It connotes reasonableness and something conforming to rectitude and justice something equitable, fair." So, the mode, method and expression of amendment application as well as sought amendment was fraught with unfairness and unjustness and intended only and only to deprive and expel from her paternal as well as purchased property of opposite party no.1, and thus, the writ petition is devoid of merits and is liable to be dismissed.
7. In the case of Pankaja and another v. Yellappa (Dead) by LRS. and others (supra) the Apex Court has held in para 14 that "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."
8. In the case of Rajesh Kumar Aggarwal and others v. K.K. Modi and others (supra) the Apex Court has held that "The object of Order 6 Rule 17 is that the courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. The rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the court. The court always gives leave to amend the pleadings of a party unless it is satisfied that the party applying was acting mala fide. The amendment to pleading should be liberally allowed since procedural obstacles ought not to impede the dispensation of justice. The court should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard the rights of both parties and to subserve the ends of justice.
9. The Apex Court further held that "While considering whether an application for amendment should or should not be allowed, the court should not go into the correctness or falsity of the case in the amendment. Likewise, it should not record a finding on the merits of the amendment and the merits of the amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing the prayer for amendment."
10. In Ramesh B. Desai and others v. Bipin Vadilal Mehta and others (supra) the Apex Court has held that "Limitation is mixed question of fact and law."
11. In Andhra Bank and ABN AMRO Bank N.V. and others (supra) the Apex Court has held in para 6 that "That apart it is permissible in law to amend a written statement of the defendant by which only an additional ground of defence has been taken.
12. The Apex Court held in para 5 that "The only question at the time of considering the amendment of the pleadings would be whether such amendment would be necessary for decision of the real controversy between the parties in the suit."
13. In Raghu Thilak D. John v. S. Rayappan and others (supra) the Apex Court held as under: -
"After referring to the judgments in Charan Das v. Amir Khan, AIR 1921 PC 50; L.J. Leach & Co. Ltd. v. Jardine Skinner & Co., AIR 1957 SC 357; Ganga Bai v. Vijay Kumar, (1974) 2 SCC 393; Ganesh Trading Co. v. Moji Ram, (1978 2 SCC 91; and various other authorities, this Court in B.K. Narayana Pillai v. Parameswaran Pillai, (2000) 1 SCC 712 held :
"3. The purpose and object of Order 6 Rule 17 CPC is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interest of justice on the basis of guidelines laid down by various High Courts and this Court. It is true that the amendment cannot be claimed as a matter of right and under all circumstances. But it is equally ture tha the courts while deciding such prayers should not adopt a hypertechnical approach. Liberal approach should be the genral rule particularly in cases where the other side can be compensated iwth the costs. Technicalities of law should not be permitted to hamper the courts in the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled for multiplicity of litigation."
14. In Smt. Shahjahan v. District Judge, Faizabad and others (supra) this Court has while considering the matter of amendment in written statement that "Where proposed amendment is explanatory in nature, which does not cause any prejudice to the petitioner, amendment in written statement should be allowed."
15. In Saleem v. IInd Additional District Judge, Balrampur and others (supra) this Court has held that "the Courts should be liberal in granging the prayer for amendment of pleading unless serious injustice or irreparable loss is caused ot other side, or on the ground that prayer for amendment was not a bona fide one."
16. In Ningawwa v. Byrappa and 3 others (supra) the Apex Court has held that "Starting point of limitation is not the date of execution of gift deed, but time when fraud becomes known to the party wronged."
17. It is also apparent from the above decisions that such amendment application should not be mala fide.
18. In Mohanan v. Prabha G. Nair and another, (2004) 3 SCC 391, the Apex Court has held in para 2 that "It must be noticed that the appellant herein did not get the full opportunity to produce evidence before the Magistrate. The negligence of the Doctor could be ascertained only by scanning the material, if any, and the expert evidence that may be adduced. Having regard to the facts of this case, we feel that the appellant-complainant should have been given an opportunity to present the case before the Magistrate. The learned Single Judge was not justified in quashing the complaint at the threshold, especially in a case where the culpability could be established only on proper analysis of the expert evidence that may be adduced by the complainant. In the result, we set aside the judgment of the learned Single Judge and direct the Magistrate to consider the matter in accordance with law. We may hasten to add that the first respondent being a Medical Practitioner, if any application for bail is filed, the same shall be favourably considered by the Magistrate."
19. In Ashutosh Chaturvedi versus Prano Devi & others, AIR 2008 Supreme Court 2171, the Apex Court has held in para 11 that "In T.N. Alloy Foundry Co. Ltd. v. T.N. Electricity Board and Ors. [(2004) 3 SCC 392], this Court, upon taking into consideration its earlier decisions in L.J. Leach and Company Ltd. v. Jardine Skinner and Co. [1957 SCR 438], held that as a rule, the Court will decline to allow amendment for a fresh suit on the amended claim if it had become barred by limitation on the date of application. {See also State Bank of Hyderabad v. Town Municipal Council, 2006 (13) SCALE 332}
20. In Alkapuri Co-operative Housing Society Ltd. Versus Jayantibhai Naginbhai (Deceased), AIR 2009 Supreme Court 1948, the Apex Court has held in paras 15 that "It is neither in doubt nor in dispute that the court's jurisdiction to consider an application for amendment of pleading is wide in nature, but, when, by reason of an amendment, a third party is sought to be impleaded not only the provisions of O.VI R.17, Code of Civil Procedure (C.P.C.) but also the provisions of O.I R.10, C.P.C. would come into play. When a new party is sought to be added, keeping in view the provisions of sub - rule (5) of Rule 10 of Order I, C.P.C., the question of invoking the period of limitation would come in."
21. The Apex Court has further held in para 18 that "There cannot be any doubt or dispute that an application for amendment of the plaint seeking to introduce a cause of action which had arisen during the pendency of the suit stands on a different footing than the one which had arisen prior to the date of institution of the suit. We have noticed hereinbefore that the plaintiff-respondents in their application for amendment of the plaint themselves accepted the fact that the appellant herein not only had filed a suit prior in point of time to the suit filed by the deceased respondent but had also obtained an injunction as a result whereof they did not obtain effective possession of the suit land. If that be so, in our opinion, the plaintiff-respondents in effect and substance are seeking to alter the basic structure of the suit which in the case of Sampath Kumar (supra) itself has been held to be impermissible."
22. From a careful perusal of above decisions of the Apex Court it is clear that jurisdiction to allow or not to allow an amendment application by which a time barred relief is being added is a discretionary power and such discretion will have to be exericsed by judicious evaluation of the facts and circumstances in which the amendment is sought.
23. In the light of submissions made by both the parties, it will be apt to mention that present suit no.57 of 1999 was of permanent injunction with a prayer for decree of court to restrain the defendant from interfering in the peaceful possession of the plaintiffs. The prayer of injunction invariably leads to fact that declaration of ownership of the plaintiff is also required. The objection filed by the defendants reveals that amendment application was opposed on three grounds (1) the proposed amendment will change the nature of the suit; (2) by way of amendment a relief is being sought to add cancellation of sale deed dated 19.8.1966, which has now become barred by time, if fresh suit is filed for cancellation; and (3) a suit for cancellation of sale deed dated 19.8.1966 was filed by Quamruddin son of Jizamuddin, which was original suit no.143 of 1996, and thus, the plaintiff had knowledge of the sale deed dated 19.8.1966 and just for getting favour of law of limitation this amendment application has been moved, which is mala fide.
24. A perusal of record reveals that Original Suit No.57 of 1999, when firstly filed, did not contain any plea of cancellation of sale deeds, so the basis of cancellation of sale deed and the date of knowledge of sale deed ought to have been pleaded at the time of moving amendment application.
25. In view of this, if the amendment application is allowed, then this fact that they came to know about the sale deed dated 19.8.1966 on 27.11.1999 will still be missing from the plaint. It is also noteworthy that the facts, on which exemption from limitation is pleaded, must come in the plaint by way of pleading. Copy of plaint of original suit no.143 of 1996 is on record, which has been filed by Quamruddin son of Jiyauddin, who has now after death of Jiyauddin taken his place in the present writ petition as petitioner no.3/5. In that case it has been mentioned that cause of action arose on 25.1.1996 when he came to know about the alleged sale deed dated 19.8.1966. It is also noteworthy that Jiyauddin father of the plaintiff was a party in that case and was served personally vide order dated 9.8.1996.
26. No doubt, several applications have been filed in Original Suit No.57 of 1997 that suit no.143 of 1996 was not filed by Quamruddin, but this matter cannot be decided at this stage in this writ petition becaue it will require evidence. So, the fact remains that original suit no.143 of 1996 allegedly filed by Quamruddin son of Jiyauddin for cancellation of sale deed dated 19.8.1966 and along with that suit a certified copy of sale deed, which was obtained on 15.8.1984 was annexed, and which was allegedly obtained by Jiyauddin. This fact has been mentioned in para 8 of the counter affidavit filed by Smt. Tahira Khatoon. This fact that certified copy of the sale deed dated 19.8.1966 was obtained by Jiyauddin @ Babban has not been specifically denied in the rejoinder affidavit. This clearly goes to show that Jiyauddin was aware of the sale in the year 1984, as he has applied for and obtained certified copy of it. This fact also has been pleaded in written statement filed in Original Suit No.57 of 1999 (Annexure CA - 1).
27. In view of aforesaid, the order does not suffer from any illegality or irregularity. No interference is required under Article 226 of the Constitution of India. The writ petition is liable to be dismissed, and is hereby dismissed. No order as to costs.
Order Date :- September 5, 2014 Anupam (Arvind Kumar Tripathi - II)