Bhagwan Singh vs Jagdev Singh and Ors.

J.P. Singh, J.—This Civil Revision is directed against order dated 20th of February, 2004 of Munsiff, Jammu, allowing plaintiffs' application

for amendment of plaint.

Facts giving rise to this Civil Revision may be stated thus:

A suit for declaration that WILL dated 0131986 executed by Saro Devi devising property situated in Paloura, Tehsil Jammu in petitioner,

Bhagwan Singh, is illegal, void and inoperative document and does not confer any right in favour of the petitioner, with consequential relief of

permanent prohibitory injunction restraining petitioners from interfering in the peaceful possession of land, was filed on 19121996. The whole suit

was based on the plea raised in paragraphs No. 3 and 4 of the plaint. For facility of reference, these paragraphs are reproduced hereunder:

That in view of the bar under Section 31 of the Agrarian Reforms Act, Mst. Saro Devi was not competent to will away the property which she

has done by executing will dated 1/3/1986 registered on 2/3/1986 in favour of defendant No. 1 The said document is void, illegal and inoperative

document and does not confer any title/right in favour of defendant No. 1 in pursuance to said document and is to be declared as such. The

plaintiffs and proforma defendant being the only heirs are entitled to inherit the estate of Saro Devi deceased and declaration to that effect is to be

given. Defendant No. 1 individually and in connivance with defendants 2 to 3 are determined to threatening to interfere in the peaceful possession

of plaintiffs and proforma defendant with regard to the property in question and further threatened of alienations and raising construction thereon

though none of the aforesaid defendants have any right to do the aforesaid overt acts.

That the plaintiffs were never aware of execution of this deed in question and only a week back, they acquired knowledge about the same

when the defendants who in connivance with defendants2 and 3 tried to raise forcible construction over the estate in question and on confrontation,

they openly stated that the will in question has been executed in their favour and mutation too attested in their favour. On getting copy of mutation,

the same too has been challenged before the competent forum and the certified copy of the will too was received on 18/12/1996 and on the same

day, the suit was drafted which is being presented on the next day viz. 19/12/1996. The suit is thus within time from the date, the plaintiffs acquired

knowledge of will in question. Even otherwise a void document does not confer or create any rights, is a settled law.

Petitioners/defendants filed their written statement questioning, inter alia, the maintainability of the suit and that the suit was barred by time.

The Trial Court framed nine issues arising out of the pleadings of the parties on 29052000 and treated issues1 and 2 as preliminary issues.

It was on 16th of August, 2000 that the plaintiffs filed an application for amendment of their plaint seeking incorporation of paragraphs No. 5A, 5B

and 5C in the plaint. These paragraphs read thus:

5A. That the deceased Saro Devi expired on 2.3.1986 at about 4 AM and was bed ridden and unconscious for about a week before her death

although she was ill about 3 months before her death.

The defendant No. 1 connived with his father and prepared the alleged WILL and got it registered in the office of Sh R.C. Gandhi Advocate on

2.3.1986 by personation and misrepresentation. The WILL is alleged to have registered after the death of deceased by Fraud & deceitful means.

5B. that the WILL is alleged to have been registered by Munsiff Jammu in the office of R.C. Gandhi advocate which is against the provisions of

law. The WILL could be registered either in the office of Sub Registrar or in the house of the testator. There is no provisions in the law that WILL

can be registered in the office an Advocate.

5(C) That the alleged WILL is not witnessed by the independent witnesses of the village, The testator was alleged to have been identified by the

father of the defendant who is interested and has connived with the defendant No. 1 The alleged will is nothing but only a waste paper.

The plaintiffs/respondents had stated in paragraph No. 5 of the application that they could not incorporate the pleas reflected in the aforesaid

paragraphs, as they were not knowing the date o£ death, of the'deceased, which became known to them when they obtained death certificate of

the deceased. It was urged by the plaintiffs/respondents in the application that the proposed amendment would neither change the nature of the suit

nor would it cause any prejudice to the defendants/petitioners. This application of the plaintiffs/respondents was contested by the

defendants/petitioners, who submitted that the suit had been instituted after a period of ten years from the date of execution I and registration of the

will as also from the date of death of Mst. Saro Devi and that the suit was itself barred by time. The petitioners/defendants urged that the

plaintiffs/respondents, through the proposed amendment, wanted to change the very basis of the challenge to the validity of the WILL and that

amendment to the plaint was impermissible in view of the provisions of Order VI Rule 17 of the Code of Civil Procedure. The petitioners

specifically stated that the respondents/plaintiffs were resident of the same village and were from the same clan; they had, thus, complete

knowledge of the death of Mst. Saro and they knew about the death of Mst. Saro on 2nd of March, 1986, but had made an incorrect plea of their

not knowing the date of death of Mst. Saro, in their application, so as to carve out a new challenge to the WILL. Learned trial Court allowed the

application of the plaintiffs, permitting them to amend their plaint on payment of Rs. 200/ as costs. The trial Court allowed the amendment on the

ground that the amendment sought for by the plaintiffs/respondents would not change the nature of the suit, in any manner, because the legality of

the WILL was already a matter in dispute in the suit.

The present Revision has, thus, arisen in the circumstances detailed hereinabove.

Shri S.D. Sharma, learned counsel for the petitioners/defendants, submits that the proposed amendment would change the very nature of the suit

and that the same could not have been allowed because the grounds raised in the amended plaint could not be permitted to be so raised, as the

adjudication of these grounds stood barred by time. Learned counsel further submits that the plaintiffs had made an incorrect statement in the

application that they did not know about the death of Mst. Saro at the time of filing of the suit and they came to know about it only when they got

the death certificate of Mst. Saro. Shri Sharma refers to B.K. Narayana Filial us. Paramesuwan PiWai and Another, reported as (2000) 1 SCC

712, to urge that the amendment could be allowed only if the addition of a new cause of action was not barred by time. According to Shri Sharma,

the proposed new cause of action was clearly barred by time and the same could not have been allowed by the learned Munsiff.

Shri K.S. Chib, learned counsel for the plaintiffs/respondents, on the other hand, referred to Pankqja and another vs. Yellappa (D) by L.Rs. and

others, reported as AIR 2004 SC 4102, and submitted that in view of the law laid down in the judgment cited by him, the amendment had been

correctly allowed by the learned trial Court. He, however, was unable to satisfy the Court as to how would the plaintiffs justify their plea that they

had no knowledge of the WILL and had filed the application for amendment only when they came to know about the date of death of Saro Devi

from the death certificate, when he was confronted with the copy of the death certificate, which the plaintiffs had annexed with their application

seeking amendment of the plaint, which appears to have been issued on 01011997. Learned counsel was further unable to reconcile the fact that

the death certificate of Mst. Saro Devi had been annexed by the defendants too along with their written statement, filed in April, 1997, which

specifically records the date of death of Mst Saro Devi as 2nd of March, 1986.

I have considered the submissions of learned counsel for the parties. The only cause shown by the plaintiffs/respondents in their application to

seek amendment to plaint, was that they were unaware about the date of death of Mst. Saro Devi, which they came to know only from the death

certificate of Mst. Saro Devi. This plea of the plaintiffs is found to be incorrect on the face of it, because Photostat copy of the death certificate of

Mst. Saro annexed with the application for amendment of the plaint is shown to have been issued in the year 1997. Not only this, the plaintiffs

knew about the date of death of Mst. Saro, because the defendants had annexed with their written statement a copy of the death certificate

evidencing the death of Mst. Saro in 1986. This written statement had been filed by the defendants in the trial Court in April, 1997.

These admitted facts appear to have escaped notice of learned Munsiff. While allowing the amendment, learned Munsiff does not appear to

have considered as to whether or not the allowing of amendment, would be permitting a time barred claim to be introduced in the suit by way of

amendment.

The judgment cited by Shri K.S. Chib, does not, as a rule of thumb, lays down that a time barred claim too could be permitted to be introduced

by way of amendment. It, on the other hand, lays emphasis on the discretion of the Court as to whether or not should it allow a time barred claim,

keeping in view the subservient ultimate cause of justice, so as to avoid further litigation on the same question. It would be profitable to refer to

what was held by the Supreme Court in this judgment in paragraphs Nos. 13, 14, 15 and 16:

But the question for our consideration is whether in cases where the delay has extinguished the right of the party by virtue or 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?

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 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 straight]acket formula for allowing or disallowing an amendment of pleadings. Each case depends on the

factual background of that case.

This Court in the case of L.J. Leach and Co. Ltd. and another vs. Messrs. Jardine Skinner and Co., AIR 1957 SC 357, has held:

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.

This view of this Court has, since, been followed by a 3 Judge Bench of this Court in the case of T.N. Alloy Foundry Co. Ltd. vs. T.N.

Electricity Board and others, 2004 (3) SCC 392. 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.

I have considered the law laid down by Supreme Court of India in B.K.Narayana Pillai vs. Parameswaran Pilled and Another, reported as

(2000) 1 SCC712; M/s. Ganesh Trading Co. vs. Moji Ram, reported as AIR 1978 SC 484; and T.N. Alloy foundry Co. Ltd. vs. T.N. Electricity

Board and others, reported as (2004) 3 SCC 392, relied upon in Pankqja and another vs. Yellappa (D) by L.Rs. and others, reported as AIR

2004 SC 4102.

After having gone through the aforesaid judgments, I am of the view that Court would, as a rule, decline to allow amendment, if a fresh suit on

the amended claim would be barred by time on the date of application. But this is a factor to be taken into account while exercising discretion as to

whether or not amendment should be ordered and this would not, as such, affect the power of the Court to order it, if the amendment was required

in the interests of justice, (emphasis supplied)

The trial Court was required to address itself on the question as to whether or not the cause shown by the plaintiffs in their application of their

not knowing about the date of death of Mst. Saro merited consideration, in view of the existing material on records that the plaintiffs had obtained

the death certificate of Mst. Saro in January, 1997. It was further required to consider as to whether or not a time barred claim could be permitted

to be introduced in the facts and circumstances of the case and in the interests of justice, in view of the law on the subject.

Order of the trial Court allowing amendment of the plaint, without considering the above factors, cannot, thus, be justified as legally valid.

I would, thus, while allowing this Revision, set aside the impugned order and direct the trial Court to decide the application of the plaintiffs

afresh, in accordance with law, keeping in view the observation made in this order.