Rajagopal vs Krishnan

Mr. S. Palanivelu, J.—The petitioner is the plaintiff in O.S.No. 654 of 2007 on the file of the Additional District Munsif, Karur. The suit is for permanent injunction against the defendants. The short facts of the case go to show that the plaintiff, the owner of the suit property, settled the same in favour of his wife Lakshmi Ammal on 10.07.1998 by means of a registered sale deed. The third respondent is the wife of the second respondent and the second respondent is the son of first respondent. The first respondent is brother of the above said Lashmi Ammal. By means of a registered Will dated 14.12.2000, the said Lakshmi Ammal bequeathed the suit properties in favour of the second defendant. Thereafter, she died on 10.11.2001. In the plaint, there is no allegation with regard to the settlement, that is to say, whether it was obtained by coercion, fraud, etc., by relatives of wife of the plaintiff. 2. The trial was started, witnesses were examined and when the case was posted for arguments, the plaintiff filed two applications viz., one for amending the plaint to incorporate a prayer that the settlement deed is null and void. The petition was hotly contested by the second defendant and the learned District Munsif dismissed the application by observing that the relief prayed for by the petitioner is time barred and hence, the amendment application could not be allowed. In consequence, the Court below has dismissed the application for reopening the case. 3. Mr. M.Bindran, the learned Counsel for the petitioner would submit that the point of limitation can be considered at the time of final hearing of the case and that there are valid grounds to allow the applications. 4. Repelling the contentions, Mr. D.Rajendran, learned Counsel for the respondent would contend that inasmuch as the prayer sought to be incorporated in the plaint is hopelessly time barred, there is no legal nor valid ground to allow the amendment application. 5. The settlement deed was executed by the plaintiff on 10.07.1998. In the plaint, he has not been pleaded anything as regards the circumstances whether he was subjected to coercion nor he was compelled to sign and put his thumb impression in the settlement deed. The suit was filed on 12.10.2007 and the written statement was filed on 16.11.2007. Even on the date of filing of the suit, the relief as regards the settlement got time barred since it was above three years, it is contended. 6. The learned Counsel for the respondent would place reliance upon the following decisions of this Court for the proposition that when the relief sought for by means of amendment is time barred, there is no justification to allow the amendment application. They are as follows:

(1) 2011 (2) CTC 28 (N.Lalitha v. Manujothi Ashramam) (2) 2011 (6) CTC 477 (Chinnu Padayachi v. Dhanalakshmi) 7. The learned Counsel for the petitioner would place reliance upon a decision of the Hon''ble Supreme Court in Pankaja v. Yellappa (D) LRs., reported in 2004 (4) CTC 231 wherein Their Lordships have expressed view that an amendment application should not be disallowed merely because it is opposed that it is barred by limitation when there are points of limitation contain arguable questions and the proposed amendment does not introduce different relief. The operative portion of the judgment goes thus: "12. 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 to 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 sub-serves the ultimate cause of justice and avoids further litigation the same should be allowed. 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." After referring to various judgments of the Supreme Court, it is held that an amendment application should not be disallowed merely because it is opposed on the ground that the same is barred by limitation 8. However, in this case, another circumstance which would draw attention of this Court, which is, the amendment application was filed after trial was commenced. The existing provision in Order 6 Rule 17 has been introduced by the Amendment Act 22 of 2002 which provides that no application for amendment shall be allowed after the trial has commenced unless it is recorded by the Court that in spite of due diligence, the party could not have taken steps for amendment earlier to the commencement of the trial. The present provision goes thus: "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: Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial." 9. The amended provision above mandates the Court to record a finding that for what reason the party was unable to file the amendment application before the commencement of trial, for which it is necessary for the party to seek amendment to incorporate necessary pleadings in the affidavit. 10. To put it otherwise, it may be stated that the party has to furnish the cause for not taking any steps with regard to the proposed amendment before the commencement of trial, otherwise he has to be not-suited for the relief prayed for. In the case on hand, absolutely there is no reason available in the affidavit as to what reason the petitioner could not file this amendment application anterior to the commencement of trial. In this circumstance, it has to be necessarily observed that the petitioner has not satisfied the statutory requirement as contemplated in proviso to existing Order 6 Rule 17 CPC. Hence, there is no justification for allowing the amendment application. The facts available in this case would indicate that the petitioner has been all along conscious about the execution of the settlement deed in favour of his wife. Still he did not raise his little finger to take steps during the pendency of the case earlier to the commencement of trial. Even though it is stated in the reply statement filed by the petitioner that he was forcibly taken to Registrar''s Office and by coercion his signatures and thumb impression were obtained in the settlement deed without disclosing what the document is, he has not taken any steps before commencement of trail. The reply statement was filed on 08.03.2010 but the amendment application was filed in January, 2012, after the trial started. In these circumstances, this Court does not find any justification to entertain the amendment application. There is no infirmity either legally or factually in the order challenged before this Court which deserves to be confirmed. The Civil Revision Petitions are devoid of merits which are liable to be dismissed. In fine, both the Civil Revision Petitions are dismissed. Consequently, connected miscellaneous petitions are dismissed. No costs. C.R.Ps. Dismissed - M.Ps. Dismissed - No Costs