Muthammal vs Thamburati and Others

P. Sathasivam, J.—Plaintiff in O.S.No. 559 of 1990 on the file of District Munsif, Tenkasi, aggrieved against the Order passed in I.A. No.

496 of 1995 has filed the present revision before this Court.

The petitioner herein has originally filed O.S.No. 559 of 1990 on the file of District Munsif, Tenkasi, for declaration and permanent injunction in

respect of the suit property against the defendants. The respondents/defendants filed a written statement disputing the various averments.

In the affidavit filed in support of I.A. No. 496 of 1995, the petitioner herein contended that pending suit he has also filed LA. No. 1465 of

1990 under Order 39 Rule 1 and 2 of C.P.C., and also obtained interim injunction in the said application. According to her, when the injunction

was in force, the defendants have constructed stair-case and toilet in the first schedule of the property and also provided door and window on the

plaintiff''s site. This has been strengthened by the report of the Commissioner, who in categorical terms confirmed that the defendants have put up

new construction in the subject matter of the property. In those circumstance, the plaintiff sought for an amendment to incorporate the relief of

mandatory injunction. With regard to the new structures created or constructed after the institution of the suit The respondents/defendants, filed a

counter affidavit contending that the present relief of mandatory injunction is barred by limitation and it is not open to the plaintiff to take such step

at the belated stage.

The court below on consideration of the affidavit and counter affidavit filed by both parties, after holding that the alleged construction was found

place in the Commissioner''s report filed even as early as on 26.7.1991 the plaintiff having failed to take any step for about 4 1/2 years, dismissed

the said application as barred by limitation. The said order is now questioned in the revision by the plaintiff.

Mr. T.M. Hariharan, learned counsel for the petitioner, after referring to Order 6, Rule 17 of C.P.C., contended that since the present

amendment sought for is not going to change the cause of action and that the order of the court below dismissing his application is incorrect. He

also brought to my notice that the construction of toilet and steps as well as fixing of window and door way in the subject matter of the property is

after the institution of the suit, hence the plaintiff has no other go except to amend the plaint in the interest of justice and in order for complete

adjudication of the cause involved. In support of his contention, he relied on the following decisions of this Court reported in (1) Natesan v.

Govindasami, 1988 2 L.W. 397; (2) A.K. Gupta and Sons Vs. Damodar Valley Corporation, and (3) Jai Jai Ram Manohar Lal Vs. National

Building Material Supply Gurgaon, .

On the other hand, Mr. Peppin Fernando, learned counsel appearing for the respondents, defendants submitted that if the proposed amendment

is clearly barred by limitation, the court has no power to permit the plaintiff to amend her plaint. In support of the above proposition, he has very

much relied on the following decisions reported in:-

(i) K. Nagutha Mohamed Nainar v. Vadavalli Ammal 1959 1 M.L.J. 307; (ii) Chinnaswami Naicker Vs. Kandasami Gounder and Others, ; (iii)

The Correspondent, The Americal Advent Mission School Vs. J. Jeevanandam (since died) and Others, and (iv) Radhika Devi v. Bajrangi singh

and Ors. 1996 C LT 434 (SC).

I have carefully considered the rival submissions.

Before going into the controversy, it is better to see the necessary provision for amendment, which is incorporated in the Code of Civil

Procedure, namely, Order 6, Rule 17 which is extracted hereunder:-

Order 6, Rule 17: Amendment of pleadings:- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in

such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the

real questions in controversy between the parties.

In our case, originally the plaintiff has laid the suit for declaration and permanent injunction in respect of first schedule property. It is further seen

that inspite of obtaining an order of injunction, according to the plaintiff, the defendants put up stair-case as well as toilet in the subject matter of the

property. They have also provided door way and window in the property in dispute. In those circumstances, the necessary relief has to be prayed

for with regard to removal of the said constructions said to have been taken place after the institution of the suit. The respondents, defendants filed

a counter statement wherein it is contended that the present petition is hopelessly barred by limitation. Even in the Commissioner''s report filed in

the month of July, 1991 he has noted the existence of toilet and other fittings in the subject matter of the property. Knowing his specific stand in the

written statement and the report of the Commissioner, the plaintiff did not take any step for amendment of her plaint. No doubt, there is no

reference with regard to the exact date of construction. However the court below found that even in the Commissioner''s report dated 26.7.1991,

there is a reference to the construction found in the suit property. The court below in those circumstance, has come to the conclusion that the

present petition filed in the year 1995 that is after 4 1/2 years is clearly barred by limitation. As per the provisions of the Limitation Act, the period

of limitation is 3 years in respect of the relief relating to mandatory injunction, that is, three years when the right to sue accrues. In this case, as seen

from the Commissioner''s report dated 26.7.1991, even at the time of inspection, the Commissioner had noted the existence of toilet and other

fittings in the suit property. In those circumstance, the court below after holding that the present petition for amendment is clearly barred by

limitation, dismissed the said petition.

On this aspect the earlier judgment is K. Nagutha Mohamed Nainar v. Vadavalli Ammal 1959 1 M.LJ. 307. In the said decision, Ramaswami,

J., has held that an amendment of the plaint which would deprive the defendants of a valuable right of limitation will not be allowed.

The other decision is Chinnaswami Naicker Vs. Kandasami Gounder and Others, . While interpreting Order 6, Rule 17 K. Veeraswami, J.,

(as he then was) has held that in the absence of enabling provision, if on the date the application for amendment was made the suit would have

been barred by limitation, there is no escape but that the application has got to be dismissed on the ground of limitation. No doubt amendment of

pleading should be freely allowed at whatever stage it is asked for. But, this can only be subject to please as to limitation or other prejudice to the

other part. The principle is that an application for amendment of the pleading should be within the time allowed for the institution of the suit.

In The Correspondent, The Americal Advent Mission School Vs. J. Jeevanandam (since died) and Others, , Division Bench of this Court has

held thus:

.....When a contention is being raised about the law of limitation with regard to the amendments sought to be introduced, the Court, while

considering the application for amendment, if it is inclined to allow it, must also consider the question of effect of amendments on, limitation and

give specific directions as to the date on which the amendments shall take effect. If no such direction is given, then such amendments must be held

to be effective only from the date of the amendment application. There could be cases, which are not of amendments properly so called, but a case

of addition of barred reliefs into the plaint which did not project them at all, when it was originally laid, as in the present case, and which the Court,

as exceptional cases, considers it just and proper to introduce at a later stage. Hence, specific directions, as to their effect on limitation, are

required.

In the said case, after holding that the relief sought for, namely, relief of damages by way of amending the plaint is barred by limitation the learned

Judge refused to allow the amendment because the law of limitation disabled them to do so.

The other latest decision is the decision of the Apex Court reported in Radhika Devi v. Bajrangi Singh and Ors., 1996 1 C L T 434 (SC). In

that case the gift deed was executed and registered as early as June, 28, 1978 which is a notice to everyone. Even after the filing of the written

statement, for 3 years no steps were taken to file the application for amendment of the plaint. According to the Supreme Court, thereby the

accrued right in favour of the respondents would be defeated by permitting amendment of the plaint.

On the other hand, there are decisions of this Court as well as the Apex Court that amendment may be allowed irrespective of law of

limitation, if the cause of action is not going to be changed and in the interest of justice. Now let me consider the decisions in respect of the above

said proposition of law. In A.K. Gupta and Sons Vs. Damodar Valley Corporation, the 3 Judges Bench of the Supreme Court had held thus:

(7)"" It is not in dispute that at the date of the application for amendment a suit for a money claim under the contract was barred. 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 on new case or cause

of action is 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. Amir Khan, 47 Ind. App 255 : AIR 1921 PC 50 and

L.J. Leach and Company Ltd. Vs. Jardine Skinner and Co., .

(8) The principal reasons that have led to the rule last mentioned are, first, that the object of Courts and rules of procedures is to decide the rights

of the parties and not to punish them for their mistakes Cropper v. Smith, 1884 26 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 substance to be already in the pleading

sought to be amended Kisandas Rupchand v. Rachappa Vithoba, ILR 1909 33 Bom. 644 , approved in Pirgonda Hongonda Patil Vs. Kalgonda

Shidgonda Patil and Others, .

(9) 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 mean, a

new claim made on a new basis constituted by new facts. Such a view was taken in Robinson v. Unions Property Corporation Ltd., 1962 2 All.

E.R 24, and it seems to us to be the only possible view to take. Any other view would make the rule futile. The words ""new case"" have been

understood to mean ""new set of ideas"": Dornan v. J.W. Ellis and Co., Ltd., 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.

In Jai Jai Ram Manohar Lal Vs. National Building Material Supply Gurgaon, , the Supreme Court in the light of Order, Rule 17 read with

Order 30, Rule 1 C.P.C., has held that since the amendment of the plaint being discretion of the Court not to be refused on technical grounds.

In Shikharchand Jain Vs. Digamber Jain Praband Karini Sabha and Others, has held:

... Ordinarily, a suit is tried in all its, stages on the cause of action as it existed on the date of its institution. But it is open to a Court including a

Court of appeal to take notice of events which have happened after the institution of the suit and afford relief to the parties in the changed

circumstances where it is shown that the relief claimed originally has (1) by reason of subsequent change of circumstance become inappropriate; or

(2) where it is necessary to take notice of the changed circumstance in order to shorten the litigation, or (3) to do complete justice between the

parties. (See Rai Charon v. Biswanath AIR 1915 Cal. 103 .

Finally in Natesan v. Govindasami, 1988 2 L.W. 397 Sivasubramaniam, J. in a similar circumstance, has held thus:

....In this case, I find that what is asked for by way of amendment is only an alternative prayer for possession. This prayer becomes important

because of the fact that possession is claimed by the defendants and in case the trial court finds that they are in possession, then the plaintiffs will be

without any effective remedy. It is only to avoid such a contingency and to avoid multiplicity of proceedings, the provisions in Order 6, Rule 7,

C.P.C. are intended. In this case, I am satisfied that the interests of the defendants are not going to be prejudiced in any manner, since the

proposed amendment does not change the character of the suit in any manner. However, the petitioners should compensate the respondents for

having delayed the matter unduly. Therefore, this civil revision petition is allowed and the amendments petition will stand allowed, on condition that

the petitioners pay a sum of Rs. 200 to the respondents by way of costs incurred in contesting the petition for amendment. Time for payment of

costs, four weeks from this date.

A reading of Order 6, Rule 17 of C.P.C., at the first sight shows that at any stage of the proceedings, it is open to the parties to alter or a

mend his pleadings in such a manner and on such terms for the purpose of determining the real question in controversy between the parties. The

decisions cited on the side of the respondents show that if the proposed amendment brings new cause of action and the same is barred by

limitation, certainly the same cannot be permitted. In the light of the decisions both in favour as well as against allowing amendment one thing is

clear that 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 on

new case or cause of action is barred. As pointed out by the Supreme Court in A.K. Gupta and Sons Vs. Damodar Valley Corporation, , where

the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts merely to a different or additional

approach to the same facts, the amendment is to be allowed ever after expiry of the statutory period of limitation. In the said leading judgment, the

Supreme Court has also observed:

The object of Courts and rules of procedure is to decide the rights of parties and not to punish them for their mistake. Further, a party is strictly is

not entitled to relief on the statute of limitation when sought to be brought in by the amendment can be said in substance to be already in the

pleadings sought to be amended.

Even though the decisions cited by the learned counsel for the respondents clearly show that the amendment sought to be made is subject to the

law of limitation, if the cause of action is not going to be changed and in any thing happens after filing the suit, it is open to the affected party to take

necessary steps for amendment of the plaint. No doubt, no amendment will be allowed to introduce a new set of ideas to the prejudice of any right

acquired by any party of lapse of time. In our case, even though some new obstructions were made in the suit property after the institution of the

suit, at this stage no details were there with regard to the date of construction. No doubt, the Commissioner in his report dated 26.7.1991 has

mentioned the above structures in his report. But in the absence of a definite date, it is not possible for the Court to defeat the relief made in the

amendment petition at this stage itself without any evidence.

Hence, while holding that in the absence of enabling provision, if on the date the application for amendment was made, the suit would have

been barred by limitation, there is no escape but that the application has got to be dismissed on the ground of limitation. In view of the facts

available in our case, namely, there is no definite date with regard to the structures constructed in the suit property. In the interest of justice, the

plaintiff is entitled to amend her plaint. Moreover, if the plaintiff succeeds in her relief for declaration in respect of the suit property if the relief of

mandatory injunction is not before the Court, the plaintiff may not be in a position to use the suit property. Buy permitting her to amend the plaint as

prayed for in the petition, the original cause of action is not going to be changed. Only in addition to prove her case for declaration, she has to

place necessary materials with regard to the relief of mandatory injunction. The defendants are also equally entitled to place all the materials in

order to reject the claim of the plaintiff including the law of limitation at the time of the trial. It is well settled by many decisions of this Court as well

as Supreme Court that for merely allowing an application for amendment, there is no adjudication of the merits of the amended pleas introduced

that the merits of the amended pleas have got to be adjudicated upon after allowing the opposite side to put-forth additional pleadings in answer to

the same and that certainly the additional pleadings may take in also the plea of bar of limitation. As already discussed, it is well settled that the

court may in appropriate cases allow the amendment even after the statutory period of limitation. By allowing the amendment, no injury or injustice

is caused to the respondent herein. No jurisdictional error is also involved in this case because of the amendment being ordered. The amendment

application should have been allowed, since it is not going to change the nature of the plea nor does it affect the rights of the defendants. The

defendants are entitled to put-forward all their contentions even if the amendment is allowed. As already observed by the Apex Court, I am of the

view that the object of Courts and rules of procedures is to decide the rights of the parties in toto and not to punish them their mistake. Since the

plaintiff has taken the present step for amendment only at the time of trial, I hereby direct the petitioner herein to pay a sum of Rs. 1,000 to the

respondents by way of cost incurred in contesting the present petition for amendment. Time for payment of cost two weeks from this date. Civil

revision petition is allowed. Consequently, C.M.P. No. 11796 of 1996 is dismissed.