2. By this petition, the petitioners have challenged the judgment and order dated 9.3.2005 passed by the Civil Judge (Junior Division), Gorakhpur, in Original Suit No. 1173 of 1999 contained in annexure no. 4 to the writ petition, whereby the amendment application dated 16.3.2002 filed by the plaintiff-respondents has been allowed and the order dated 29.11.2005 passed by the Additional District Judge, Gorakhpur, whereby Civil Revision No. 107 of 2005 of defendants-petitioners has been dismissed.
3. The relevant facts of the case in brief are that respondent no.1 Jamuna Prasad Jaisawal, late Basudev son of late Ramagya Prasad and Sadho Saran (respondent no.5 ) son of late Ramagya Prasad, have instituted a suit against petitioner no.1. Smt. Kailaspati Devi, petitioner no.2 Pingal Prasad son of Ram Dularey and one Shri Pramod respondent no. 6, claiming relief of possession over the house detailed at the foot note of the plaint. Further relief claimed was that the petitioners/defendants may be directed to give a sum of Rs. 425/- and defendants no. 2 and 3 may be directed to pay Rs. 30/- and Rs. 20/- per month respectively from the date of filing of suit till the date of handing over possession of house to the plaintiff respondents. In the said suit, Jamuna Prasad respondent no.1 was arrayed as plaintiff no.1, late Basu Dev son of late Ramagya Prasad as plaintiff no. 2 and Sadho Saran son of late Ramagya Prasad /respondents no. 5 was arrayed as plaintiff no.3. Smt. Kailashpati Devi wife of Pingal Prasad ( petitioner no.1) arrayed as defendant no.1 Pingal Prasad son of Ram Dularey ( petitioner no.2) as defendant no.2 and Pramod ( Respondent no. 6 as defendant no.3 in the suit.
4. It is stated that the house in question is recorded in the municipal record as House No. 59/12 and House No. 59/11 and defendant respondent no.1 was tenant of upper portion of house at the rate of Rs. 30/- per month and in the ground floor one Shri Raghav Prasad was tenant at the rate of Rs. 11/- per month. It is stated that father of plaintiffs no. 2 and 3, late Ramagya Prasad died during the life time of his father Shankar Prasad in the year 1967 and after the death of Ramagya Prasad plaintiffs no. 2 and 3, being heirs of late Shankar Prasad, had become landlord and owners of the property in dispute. It is stated that the grand father of plaintiff nos. 2 and 3 late Shankar Prasad mortgaged the house in dispute to defendant/petitioner no.1 for a sum of Rs. 2500/- on 25.6.1968 which was registered on 15.7.1968 and defendant petitioner no.1 has been given possession in compliance of Rahannama dated 15.7.1968. According to the mortgaged deed a right has been given to the defendant-petitioner no.1 to the effect that she will realise the rent and will maintain the house. Thereafter, it is also stated that the plaintiffs no. 2 and 3 filed a Misc. Case against defendant no.1 Smt. Kailashpati Devi under section 83 of the Transfer of Property Act on 26.4.1997 which has been registered as Misc. Case No. 165 of 1997( Basdev and another Vs. Smt. Kailashpati Devi). In the said proceedings, defendant petitioner has filed her objection. In the aforesaid proceedings, learned trial court directed to pay Rs. 12,227/- against the Rahannama with 1% interest per month and in pursuant thereof Rs. 13,206/- has been deposited through challan no. A-2 on 14.1.1999 in the State Bank of India, Gorakhpur. After depositing the said amount an application was filed for direction to the defendant petitioner to handover the possession of the house in dispute but instead of handing over possession, defendant-petitioners filed objection. It is further stated that the said house in question was sold by the plaintiffs no. 2 and 3 in the suit to the plaintiff/respondent no.1 by executing a sale deed dated 2.6.1998 and in pursuant to the sale deed the plaintiff-respondent no.1 has been given right to possession and ownership.
5. It is stated that during the pendency of suit no. 1173 of 1999-Jamuna Prasad and another Vs. Smt. Kailashpati and others, plaintiff/respondent no.1 filed an application on 16.3.2002 being paper no. 67K/2 under Order 6 Rule 17 C.P.C. seeking amendment in the plaint to the effect that a decree of redemption of said mortgage deed dated 25.6.1968 may be passed. Against said application defendant-petitioners filed objection stating therein that by amendment sought to be made , a new case contrary to original case is intended to be set up which would change the nature of the suit; that relief sought to be added in the plaint is barred by law of limitation that in case the amendment is allowed it will take away right accrued in favour of defendant-petitioners. Thus, the application seeking amendment is malafide and misconceived and is liable to be rejected.
6. The trial court vide its judgment and order dated 9.3.2005 allowed the said amendment application on payment of cost to the tune of Rs. 150/- to the defendant-petitioners holding that the question of limitation involved in the case, shall be decided as a separate issue. The revision filed against the order dated 9.3.2005 has been dismissed by the Additional District Judge, Gorakhpur vide judgment and order dated 29.11.2005 affirming the judgment and order of the trial court, hence this petition by the petitioners /defendants.
7. The submission of learned Counsel for the petitioners is that the trial court has allowed the amendment application without considering the facts and circumstances of the case merely on the ground that in order the resolve the real controversy involved in the case and to avoid multiplicity in proceedings it would be in the interest of justice to allow the amendment sought for in the plaint by awarding cost of Rs. 150/- be paid to petitioner/defendants by the plaintiff respondents, whereas the relief sought to be added in the plaint is barred by law of limitation and rights accrued in favour of defendants-petitioners would be taken away inasmuch as nature of suit would be changed. In support of his submissions learned Counsel for the petitioners has placed reliance upon several decisions of Apex Court including Pirgonda Hongonda Patil Vs. Kalgonda Shidgonda Patil and others 1957 S.C. 363, Radhika Devi Vs. Bajrangi Singh and others 1996 AWC 724, Pronoy Kumar Sanyal Vs. Beni Madhav Sonyal 2011 A.C.J. 182 and Van Vibhag Karamchari Griha Nirman Sahakari Sanstha Maryadit (Regd.) Vs.. Ramesh Chander and others 2010 AIR SCW 6761.
8. Contrary to it, the submission of the learned Counsel for the plaintiff-respondents is that from the perusal of the objection raised against said amendment filed by the petitioner-defendants, it is no doubt true that they have raised objection against the amendment in plaint that on such amendment the nature of the suit would be changed and that the rights accrued in favour of the defendant-petitioners would be taken away and relief claimed by said amendment would be barred by law of limitation but could not lay any factual foundation to substantiate the aforesaid grounds as to how the relief sought to be added through the amendment would be barred by law of limitation and how the right accrued in favour of defendant-petitioners would be taken away and how the nature of suit would be changed. No material particulars in respect of aforesaid statements has been given in the said objection filed against the amendment application, therefore, trial court has rightly allowed the amendment application and revisional court below has rightly dismissed the revision filed by the defendants-petitioners. In support of his aforesaid submission learned counsel appearing for plaintiff-respondents has placed reliance upon Pankja and another Vs. Yellappa 2005 (23) LCD 133 and Surender Kumar Sharma Vs Makhan Singh 2009 (10) SCC 626.
9. I have considered the rival submissions of the learned Counsel for the parties and perused the record.
10. 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. Apex 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 arises for consideration of this Court is that 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 amendment? 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 assessment of the facts and circumstances in which the amendment is sought. If the granting of an amendment really sub-serves the ultimate cause of justice and avoids further litigation the same should be allowed. But 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.
11. In P.H. Patil Vs. K.S. Patil AIR 1957 SC 363 it was held by Apex Court that all amendments ought to be allowed which satisfy the two conditions: (a) not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. It was further observed that an amendment should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. It is merely a particular case of this general rule that where a plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused; to allow it would be to cause the defendant an injury which could not be compensated in costs by depriving him of a good defence to the claim.
12. In L.J. Leach and Co. Ltd. and another Vs. Messrs. Jardine Skinner and Co. AIR 1957 SC 357 Apex Court has observed as under:-
" 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."
13. In K. Raheja Constructions Ltd. Vs. Alliance Ministries and others, AIR 1995 SC 1768 Apex Court has held that an application for amendment filed seven years after the filing of suit to include the plea of specific performance would not defeat the valuable rights of limitation accruing to other side. In that case it was held that when a plea for specific performance was not included in the original suit, it could not be included after a period of seven years having regard to Article 54 of Limitation Act as the said amendment was barred by limitation.
14. In B.K.N. Pillai Vs. P. Pillai and others A.I.R.2000 S.C. 614 the Apex Court has placed reliance upon its earlier decisions and decisions of foreign courts and quoted the observations in para 4 of the decision as under:
"4. This Court in A.K. Gupta & Sons Vs. Damodar Valley Corporation, (1966) 1 SCR 796 : (AIR 1967 SC 96 at pp. 97-98) held:
"The general rule, no doubt, is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit or new case or cause of action barred:Weldon v. Neale, (1887) 19 QBD 394. But it is also well recognised that where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts to no more than a different or additional approach to the same facts, the amendment will be allowed even after the expiry of the statutory period of limitation: See Charan Das v. Amit Khan, AIR 1921 PC 50 and L.J. Leach & Company Limited v. Jardine Skinner and Company, 1957 SCR 438: (AIR 1957 SC 357).
The Principal reasons that have led to the rule last mentioned are, first, that the object of Courts and Rules or procedure is to decide the rights of parties and not to punish them for their mistakes (Cropper v. Smith. (1884) 28 Ch D 700) and secondly, that a party is strictly not entitled to rely on the statute of limitation when what is sought to be brought in by the amendment can be said in sub-stance to be already in the pleading sought to be amended in Kishandas Rupchand v. Kalgonda Shidgonda Patil. 1957 SCR 595: (AIR 1957 SC 363).
The expression 'cause of action' in the present context does not mean 'every fact which it is material to be proved to entitle the plaintiff to succeed' as was said in Cooke v. Gill, (1873)8 CP 107, in a different context, for if it were so, no material fact could ever be amended or added and, of course, no one would want to change or add an immaterial allegation by amendment. That expression for the present purpose only means, a new claim made on new basis constituted by new facts. Such a view was taken in Robinson v. Unicos Property Corporation Limited, 1962(2) AllER 24, and it seems to us to be the only possible view to take. Any other view could make the rule futile. The words 'new case' have been understood to mean new set of ideas, Doman v. J.W. Ellis and Company Limited, 1962 (1) All ER 303. This also seems to us to be a reasonable view to take. No amendment will be allowed to introduce a new set of ideas to the prejudice of any right acquired by any party by lapse of time."
15. In Vishwambhar and others Vs. Laxminarayana and another, AIR 2001 SC 2607 Apex Court has held that if as a result of allowing the amendment the basis of suit is changed, such amendment even though allowed can not relate back to the date of filing of the suit to cure the defect of limitation. In para-10 of the said decision the Apex Court observed as under:
"10. From the averments of the plaint it cannot be said that all the necessary averments for setting aside the sale deeds executed by Laxmibai were contained in the plaint and adding specific prayer for setting aside the sale deeds was a mere formality. As noted earlier, the basis of the suit as it stood before the amendment of the plaint was that the sale transactions made by Laxmibai as guardian of the minors were ab initio void and, therefore, liable to be ignored. By introducing the prayer for setting aside the sale deeds the basis of the suit was changed to one seeking setting aside the alienations of the property by the guardian. In such circumstance the suit for setting aside the transfers could be taken to have been filed on the date the amendment of the plaint was allowed and not earlier than that."
16. In Ragu Thilak D. John Vs. S. Rayappn and others 2001 (2) SCC 472 the Apex Court observed as under: -
"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 subject-matter of the issue after allowing the amendment prayed for."
17. In Pankja and another Vs. Yellappa and others 2005 (23) LCD 133 SC in para 14 of the decision it has been held 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 upon the facts and circumstances. There can be no straight jacket formula for allowing or disallowing an amendment of pleadings. If the plea of limitation is disputed the same can be made subject matter of issue after allowing the amendment. In Surendra Kumar Sharma Vs. Makhan Singh (2009) 10 SCC 626 it has been held that belated application for amendment of plaint is not liable to be rejected merely on the ground of delay if court finds that by allowing the application real controversy between the parties can be resolved. The court can allow such application where opposite party can be compensated by cost or otherwise.
18. In Laxmidas Dahyabhai Kabarwala Vs. Nanabhai Chunilal Kabarwala, 1964 (2) SCR 567 at 582 the Apex Court held as under:
" It is, no doubt, true that, save in exceptional cases, leave to amend under Order VI, Rule 17 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."
19. In view of legal position stated by Apex Court from time to time it is clear that all amendments ought to be allowed which satisfy the two conditions: (a) not working injustice to other side; (b) of being necessary for the purpose of determining the real questions in controversy between the parties. An amendment should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. As a general rule where a plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, such amendment must be refused; to allow it would be to cause the defendant an injury which could not be compensated in costs by depriving him of a good defence to the claim. In other words if a fresh suit on the amended claim would be barred by limitation on the date of application the court should normally decline to allow such amendment but it is factor to be taken into account in exercise of the discretion as to whether amendment should be allowed and does not affect the power of Court to order it, if that is required in the interest of justice. Thus, the general rule is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit or new case or cause of action is barred by time but where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts to no more than a different or additional approach to the same facts, the amendment will be allowed even after the expiry of the statutory period of limitation.(See Charan Das Vs. Amit Khan, AIR 1921 PC 50). A party is strictly not entitled to rely on the statute of limitation when what is sought to be brought in by the amendment can be said in substance to be already in pleading sought to be amended. (See Kishandas Rupchand Vs. Kalgonda Shidgonda Patil, AIR 1957 SC 363).
20. The expression 'cause of action' in the present context does not mean 'every fact which is material to be proved to entitle the plaintiff to succeed' as was said in Cooke v. Gill, (1873)8 CP 107, if it were so, then no material fact could ever be amended or added. The expression for the present purpose only means, a new claim made on new basis constituted by new facts, and no amendment will be allowed to introduce a new set of ideas to the prejudice of any right acquired by any party by lapse of time. This rule can apply only when either allegations are added or fresh reliefs sought by way of amendment but where 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.
21. In cases where a plea is raised in opposition of amendment sought to be made in the pleading, that amendment sought to be made is barred by time or law of limitation and other side disputes the application of such plea of limitation and the Court comes to the conclusion that question of limitation in circumstances of the case is arguable issue then in such circumstances normally the court should consider the plea of limitation as disputed issue and it should be made subject matter of a fresh issue and should be decided as a separate preliminary issue after allowing the amendment sought for in the pleading. In such circumstances, it would be appropriate for the Court to allow such amendment with effect from the date of filing of such amendment application and not earlier than that as in other cases normally the amendment relates back from the date of institution of suit.
22. The aforesaid view also finds support from various other decisions of Supreme Court including T.N. Alloy Foundry Co. Ltd. Vs. T.N. Electricity Board and others 2004 (3) SCC 392 and decisions cited by learned counsel for the parties do not run contrary to the views expressed by this Court herein before.
23. Thus, testing the facts of the case on the touch stone of legal proposition stated herein before, I find that all necessary averments have already been made in the plaint in respect of mortgage deed dated 25.6.1968 registered on 15.7.1968 and for relief of recovery of possession of the house in dispute from the defendants-petitioners, merely relief of redemption of mortgage deed dated 25.6.1968 registered on 15.7.1968 was left over or omitted in the relief claimed in the suit which was sought to be added through the said amendment. In my opinion, such amendment is no more than a different or additional approach to the same facts and such amendment could be allowed even after expiry of statutory period of limitation, as in such situation it can not be said that the plaintiff has made a new claim on new basis constituted by new facts, therefore, it cannot be held that intended amendment is barred by law of limitation.
24. That apart from perusal of the objection against the amendment application filed by the petitioner-defendants, contained in Annexure-3 of the writ petition, it is no doubt true that defendant-petitioners have raised the objections that relief sought through the said amendment application is barred by time and law of limitation and rights accrued in their favour are intended to be taken away inasmuch as nature of suit would be changed in case the amendment application is allowed, but no foundation has been laid in the said objections as to how the relief claimed through amendment application is barred by law of limitation and how the rights accrued in favour of defendant-petitioners are to be taken away and as to why the nature of suit would be changed in case the amendment would be allowed. Mere statement of fact without any material particulars in respect of the statements, in my considered opinion, would not be in conformity with requirement of law and sufficient for sustaining the aforesaid objections. Such objections could be sustained only where such objections are raised with material particulars. Therefore, the aforesaid plea raised by the defendant-petitioner could be rejected merely for want of material particulars but the trial court appears to have taken liberal view in the matter and allowed the amendment in plaint by awarding the costs upon the plaintiffs so that any inconvenience caused to the defendants could be appropriately compensated by taking the issue of limitation as disputed issue to be tried separately.
25. So far as alleged change in nature of suit is concerned, in my view in given facts and circumstances of the case, as stated earlier it can not be held that on account of amendment sought for in respect of the relief of redemption of mortgage deed the nature of suit would be changed, therefore, on that count also the objection raised against amendment sought for in the plaint can not be sustained and same is the position with another objection regarding allegation that any right accrued in favour of defendants would be taken away from said amendment.
26. Since, I have decided the aforesaid issue of limitation, therefore, the trial court need not to decide the same as indicated in the impugned orders, instead thereof the trial court shall treat the aforesaid amendment sought for in the plaint as allowed in absolute term and shall proceed with the suit in accordance with law by treating the plaint as amended. However, in case the suit itself is barred by law of limitation, it shall be open for the trial court to examine that issue in respect of maintainability of suit on that count, as this court has not decided the plea of limitation about the maintainability of suit. In the circumstances, the orders passed by trial court and revisional courts stand modified to the extent indicated herein before.
27. With the aforesaid observation and direction, writ petition stands disposed of finally.