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Judgment
This civil revision has been filed against the order passed by learned SubJudge (City Judge) Srinagar on 351997, where under learned trial
judge has allowed amendment and permitted the plaintiff/respondent before me to include the relief in the plaint. By virtue of such amendment,
plaintiff seeks the relief of declaration regarding order issued by respondent No.2 under No.BWM/EP13/ 117376 dated 2231985 to be declared
as illegal, against his rights besides the relief, already prayed for in the plaint. In order to appreciate the controversy a brief resume of the facts of
the case are required be marshaled.
The person of the respondent before me, Ghulam Ahmad Sofi is an employee of Bemina Woolen Mills and is alleged to have been appointed in
the corporation as a permanent employee as Assistant Boiler man in the pay scale of Rs. 250500 in the year 1963. It is alleged that in March
1979, he was, as per rules referred by the defendants/ Petitioners to the Deputy Director, Health Services for determining his age. The Medical
Officer concerned having ascertained the age of the plaintiff a 35 years in the year 1979 and has issued age certificate accordingly to that effect,
which forms annexureA to the plaint.
It is further averred that the said age certificate was sent to the defendant No.l i.e. the present petitioner. The defendant no. l issued a letter
addressed to Deputy Provident commissioner, Srinagar for necessary entries in the plaintiff's service record. This letter forms annexureB to the
plaint. However, in reply to the said letter, the Provident Fund authorities addressed a letter No.5519 dated 2591998 to the petitioners before me,
stating there in that the date of birth of the plaintiff has been changed as per age proof certificate issued by Chief Medical Officer. Srinagar. A copy
of the said letter forms annexureC to the plaint. It was on 2641983 that the petitioner before me passed an order No.BWM/Adm/431/35 dated
2641983, by virtue of which, plaintiff has been retired from service with effect from 641983 on the count that he has attained the age of 55 years.
The order of his superannuation is forming annexureD to the plaint.
The order of superannuation seems to have been put to challange by the person of plaintiff by way of the suit and he alleges that he was to retire
from service in the year 1989 and the impugned order of his retirement, showing him to have superannuated on 641983, is not in accordance with
the correct appreciation of the records and the age of the respondent and a prayer has been made that the plaintiff/respondent before me be
allowed to continue to be an employee of the Mill and the order issued by defendant No.2 under NO.BWM/Adm/43/35 dated 2641983 being
illegal, against rules, ineffective and inoperative against the plaintiff and as such, plaintiff be deemed and declared to be entitled to all the
emoluments and benefits as an employee of said Woolen Mills.
The suit of the plaintiff/respondent seems to have been resisted by the defendants /petitioners before me by raising all legal and factual pleas. It is
submitted that the date of birth as recorded in the service book of the plaintiff is 6the April 1928 which as per averments of the defendants cannot
be changed in view of the rules of the Company. However, the plaintiff having joined regular services in 1972, he could not have been referred to
the Medical Board in 1979 and if any unauthorised officer/person has referred him, that is not binding on the company.
It seems that the suit of the plaintiff was initially put to trial regarding only two issues which were struck out of the pleadings of the parties, which
read:
1) Whether the suit in the present form is not maintainable? OPP
2) Whether the suit has been valued correctly for the purpose of court fee and jurisdiction? OPP
The suit of the plaintiff was dismissed when findings on these two issues were returned by the trial court on 2021985. Against this order, plaintiff
seems to have filed an appeal before the court of learned District Judge and the court of learned District Judge Srinagar seems to have accepted
the same and remanded back the case after the findings returned by the trial court were set aside.
After the case was remitted back, it seems that number of issues have been framed in the matter which are as many as nine and during the
tendency of the suit, evidence of the plaintiff has been recorded. In the meantime, defendants/present petitioners came out with another order of
superannuation of the plaintiff/respondent 'bearing No.BMW/PF/13/1127376 dated 2231985, which necessitated him to submit an application for
amending his plaint and to incorporate and challenge the said order in the plaint.
The learned trial court while dealing with the application for incorporation of this prayer, learned court after having heard/ the parties at length
and appreciated the law cited at the bar has observed that the amendment has been necessitated because the real matter in controversy is the date
of superannuation of the plaintiff/respondent/the date of birth and this has been done only when the order of superannuation of the
plaintiff/respondent before me has been issued. It has also been observed by the trial court that it will not entail recording of any further evidence
already plaintiff has lead his evidence Defendants have now to lead evidence in the matter
The pleas which have been taken by the petitioners in this revision petition before this court are that the amendment allowed at the belated
stage is bound to cause prejudice to the person of the defendants/petitioners.
I have heard learned counsel for the parties at great length and appreciated the law cited at the bar.
The mere fact that the plaintiff is not to lead any more evidence to project his prayer which he has incorporated by way of amendment is not
justifiable because the fact remains that .the order which has been incorporated by way of amendment, to be put to challenge is the order which
has been passed/issued way back in 1985 and the amendment application for incorporating this in the prayer clause of the suit already pending, has
been made somewhere in November 1996. Ordinarily to put to challenge such an order, the law of Limitation provides a period of three years as
per Article 62 of the Limitation Act. The plaintiff/ respondent before me should have been vigilant and should have approached the court for the
proposed amendment within the statutory period when the order of superannuation which is being sought to be incorporated in the prayer clause
issued in the year 1985 should have been got incorporated by way of amendment, which he has not done. Merely saying that the
plaintiff/respondent before me was not properly and legally advised or he lacked legal advice will not absolve him, So the amendment in such
circumstances, where in prayer for cancellation or declaration of order having been based by defendants/petitioners in the matter is being sought to
be declared null and void, ineffective and inoperative in the eyes of law, by incorporating the same by way of amendment in the suit, already
pending, is infact causing great prejudice and depriving the petitioners of their valuable right which has accrued to them by efflux of time, because
on the date of allowing such amendment, the suit for cancellation of that order is totally barred by limitation. So such amendments are. not to be
given effect or allowed. In support of his contentions, Mr.Manzoor has referred me to AIR 1957 SC 357,where in their lordships of the apex
court have observed that it is nodoubt nature 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 application.
He has also referred to AIR 1957 SC 363,where in same principle has been reiterated by the apex court.
In the case in hand, the plaintiff/ respondent has sought amendment after more than ten years. So the suit for putting a challenge to such order
would be totally barred by limitation and the amendments which are otherwise barred and for which fresh suit on the relevant date of incorporating
of the amendment of making of the prayer of amendment is against the statute of Limitation Act.
Thus by allowing amendment under consideration by the trial court in derogation of law of Limitation and incorporating the prayer for
declaration of the order which has been issued in the year 1985 and the amendment application having been made after more than ten years and at
the time of allowing such amendment, a suit for such declaration of the order challenged by way of incorporating that in the prayer clause, would be
totally barred by limitation, should and ought not to have been allowed. On that score, the order has resulted in miscarriage of justice, as is
envisaged under the provisions of Section 115 clause (d) of Civil P.C. coupled with the exercise of jurisdiction which has been exercised by
learned trial Judge, illegally and with material irregularity. Thus on that count, the order impugned cannot stand judicial test.
For the foregoing reasons, this revision is allowed and the order impugned passed by the trial court dated 351997 is set aside. Let the case file
go back to the trial court for proceeding in the matter in accordance with law. Parties are directed to cause their appearance before the trial court
on 30121997.