Rameeza Beevi and Others vs S. Mohammed Ibrahim

M. Thanikachalam, J.—The plaintiffs are the revision petitioners.

The revision petitioners, claiming title to the suit property, seeking recovery of possession from the defendant, have filed the suit, alleging that the

sale deed executed by the original owner of the suit property viz. Pakkir Mohammed, dated 16.6.1986, is not valid since the same was obtained

by fraud, valuing the suit u/s 25-A of the Tamil Nadu Court Fees Act.

The defendant/respondent in this revision, admitting that the suit property originally belonged to the first plaintiffs husband, viz. Pakkir

Mohammed, as his self acquired property, had opposed the suit, that by virtue of a registered sale deed, dated 16.6.1986, executed by the said

Pakkir Mohammed the first plaintiff''s husband, he became the absolute owner of the suit property, that the suit filed, without the prayer for

cancellation of the said sale deed, is not maintainable and that the suit is barred by limitation, with among other grounds.

The revision petitioners, though filed the suit in the year 1997, despite the objection raised by the defendant in the written statement about the

maintainability of the suit, have not taken any step, till 2003, to include the prayer for cancellation or setting aside the sale deed, dated 16.6.1986.

Only in the year 2003, the revision petitioners have filed LA. No. 936 of 2003, seeking permission of the Court, to amend the plaint, in order to

include a prayer, to set aside or cancel the sale deed, dated 16.6.1986. In the affidavit filed in support of the said petition, no reason is offered,

why the proposed amendment, which was available, even on the date of the filing of the suit, was omitted to be included, and under what

circumstances, now, the plaintiffs are constrained to seek the relief of cancellation of the sale deed, etc.

The respondent/defendant, in his counter, would contend, that despite the plaint was returned, by the trial Court, directing the plaintiffs to seek a

relief of cancellation of the sale deed dated 16.6.1986, it was not accepted by the plaintiffs, and therefore, the prayer, now sought for, by the

proposed amendment, which is clearly barred by limitation, is not permissible, the further fact being that the right accrued in favour of the

defendant, on the basis of the limitation, cannot be taken away by the proposed amendment.

The learned District Munsif, Manapparai, considering the rival contentions of the parties, as well as the law declared by the Courts, as brought

to her knowledge by either counsel, came to the conclusion that the proposed amendment is clearly barred by limitation, that if this kind of prayer,

which is barred by limitation, is allowed to be carried out in the plaint, certainly, that will cause irreparable loss to the defendant, since the

defendant had accrued some right, by the bar imposed under the Limitation Act, which cannot be nullified by the proposed amendment. Thus,

taking the view, the petition for amendment was dismissed, as per the order dated 1.4.2004, which is under challenge in this revision petition.

Heard both.

The learned Counsel for the revision petitioners would contend that only on the ground that the proposed amendment is barred by limitation, the

substantial right claimed by the plaintiffs, by the proposed amendment, cannot be negatived, at the threshold, and if at all, subject to limitation,

which could be decided at the time of the trial, the amendment application ought to have been allowed, which was not done by the trial Court, and

therefore, the revision deserves acceptance, since the proposed amendment is not going to change the character of the suit, in view of the

allegations already available, questioning the sale deed, which is sought to be now cancelled or set aside by the proposed amendment. It is the

further submission of the learned Counsel for the revision petitioners, that the proposed amendment is not at all barred by limitation and in order to

solve the dispute between the parties, in the same proceedings pending, the dominant purpose of Order 6, Rule 17, C.P.C. should be complied

with, thereby exercising the wide jurisdiction available in the Court, the amendment petition should be allowed.

In response to the above submissions, the learned Counsel for the respondent would contend, that in spite of the fact that the petitioners knew

that the sale is to be set aside, they have not included such a prayer, at the time of filing of the suit, and when the proposed amendment petition was

filed, the prayer sought for is clearly barred by limitation, and this being the position, a barred claim should not be allowed to crept in the plaint, by

way of amendment and if allowed that will take away the accrued right or the earned right of the defendant by limitation, as well by the lapses

committed by the plaintiffs, which is impermissible.

In this context, in order to appreciate the rival contentions of the parties, we have to see the pleadings in the original plaint, as well as the

conduct of the plaintiffs, at the time of filing of the suit.

As recorded by the trial Court, not disputed before me, the plaint was filed before the trial Court on 17.7.1997. The learned District Munsif,

by going through the averments available in the plaint, felt that the prayer for cancellation of deed, which was disputed in the plaint, must be made,

to have an effective adjudication and in this view, the plaint was returned to include the prayer for cancellation of the sale deed, even directing to

pay the Court Fee, as per the value given in the disputed sale deed. This return was not complied with, whereas, as recorded by the trial Court, it

was asserted since the sale deed is not valid or legal, it is not necessary for the plaintiffs, to seek cancellation of sale deed, thereby maintaining the

old stand taken by the plaintiffs, that the suit is maintainable for declaration and possession alone, without seeking any prayer for cancellation of the

sale deed.

The respondent/defendant has filed the written statement on 31.7.2003, wherein it is stated that the plaintiffs have to seek the relief of setting

aside the sale deed, in favour of the defendant, since not prayed for such a relief, paying necessary Court Fee, the suit is liable to be dismissed, on

that ground alone, further raising a plea of limitation also. From the above admitted facts, it is clear, that the plaintiffs were put to notice or

informed, not only by the Court, but also by the defendant, thereby had the knowledge that the suit is not maintainable without seeking the relief of

setting aside the sale. In this view, the plaintiffs cannot plead ignorance, about the prayer now sought to be introduced, saying, he came to know

only recently, that this prayer is necessary, to have complete adjudication. Therefore, it should be held conclusively that the plaintiffs had

knowledge or information, that if at all they want to have declaration and possession, the sale in favour of the defendant has to be set aside. This

being the position, the plaintiffs have not filed any application to amend the plaint, seeking the relief, now sought for, in time, whereas, the petition

for amendment was filed only in the month of December, 2003 very belatedly. True, belated filing of amendment application alone cannot be the

sole criterion, to negative the relief, but the conduct is so important. Having the above said facts in mind, it is to be seen, whether the proposed

amendment is barred by limitation or not, in order to extend the wide discretionary relief under Order 6, Rule 17, C.P.C., permitting the plaintiffs,

to amend the plaint as well as to find out whether the defendant had acquired any right, if so whether that would be defeated, by allowing the

amendment application.

The proposed amendment being one for cancellation or setting aside the sale deed, dated 16.6.1986, this prayer should come under Article 59

of the Limitation Act. Article 59 of the Limitation Act reads:

Description of suit Period of Time from which period

Limitation begins to run

To cancel or set Three When the facts entitling the

aside an instrument years plaintiff to have the

or decree or for the instrument or decree cancelled

rescission of a or set aside or the contract

contract. rescinded first become known

to him.

Article 59 of the Limitation Act, prescribe the commencement of period of limitation, for this kind of the suit, beginning from the date of

knowledge. In case of registered sale deed, the registration should be taken as knowledge to one and all. Therefore, ordinarily, unless it is shown

otherwise, the date of registration should be taken, as the starting point of limitation.

In this case, the sale deed, now sought to be cancelled, is dated 16.6.1986 and that date also has been given as the date of cause of action in

the plaint, thereby showing that the plaintiffs had knowledge. It is not specifically stated, in the plaint that the registration of the sale deed came to

the knowledge of the plaintiffs, subsequently on a particular date, though in paragraph 5, at the end, it is stated, that the registration of the sale

deed, dated 16.8.1986, came to the knowledge of the plaintiffs, recently. In paragraph 7 of the plaint also, the date of knowledge is not given,

whereas the cause of action is given as 10.4.1997, i.e. the date of application for obtaining registration copy of the sale deed, after coming to know

about the sale deed, wherein also it is not stated, on which date the plaintiffs had knowledge about the registration of sale deed, or its existence, as

the case may be. In this view, if the date of sale is taken, as the date first become known to the plaintiffs, then it should be held, that the prayer now

sought to be introduced, is clearly barred by limitation.

The submission of the learned Counsel for the revision petitioners, based upon the Supreme Court rulings that the question of limitation need

not be gone into, while deciding the amendment application is also countered by the other side, placing reliance upon certain Supreme Court

decisions, as not maintainable, which I will discuss, at a later part of this order, after giving a finding, even taking into consideration, the subsequent

date of knowledge, as discussed above, subsequent to the registration of the document, when the plaintiffs, first become known, the registration of

sale deed.

The relevant Article applicable to this prayer is 59, not in dispute. Therefore, as per the third column in Article 59 of the Act, time begins to

run, from the date first known to the plaintiffs, namely the availability of the registered document, which is labelled, as one obtained by fraud or

coercion, as the case may be. Here, the plaintiffs came to know, about the existence of a fraud sale deed, at least, on 10.4.1997, as per the cause

of action given in paragraph 7, which cannot be denied. If that date is to be taken, as the time, from which the period of limitation begins to run,

then the plaintiffs should have sought for the relief, to cancel or set aside the instrument within three years from the said date onwards, i.e. on or

before 10.04.2000.

Admittedly, the proposed amendment petition was filed only in 2002, which is beyond the period of three years and therefore there cannot be

any doubt, to say concretely and conclusively, that the proposed amendment, on the date of filing of the application is barred by limitation.

As adverted to above, if the plaintiffs were diligent, in prosecuting their right, which they want to now include in the plaint, they should have

taken the strain, to amend the plaint, when this fact was brought to their notice by the return of the plaint, by the Court. There also, when the

plaintiffs were specifically informed in the month of July 1997, that the plaintiffs should seek the prayer for setting aside the sale, they were

adamant, reiterating that the fraudulent sale deed need not be set aside, since in their view, in the eye of law, it is not in existence or non est. If that

is the stand to continue, it is not known, why the prayer is sought for now, after three years, from the date of filing of the plaint, or return of the

plaint, which is clearly barred by limitation. Therefore, on the facts established, it should be held, conclusively that the prayer sought for to cancel

or to set aside the sale deed, is beyond the period of limitation, as envisaged under Article 59 of the Limitation Act, 1963 and therefore, it is

doubtful, whether such a prayer could be inserted in the plaint by way of amendment. This doubt, entertained as per the submission of the learned

Counsel for the plaintiffs, has no legs to stand, in view of the law declared by the Apex Court.

The learned Counsel for the revision petitioners in his attempt to postpone the question of limitation to be canvassed, at later point of time,

relied on a decision of the Apex Court in L.J. Leach and Company Ltd. Vs. Jardine Skinner and Co., , wherein the Apex Court has ruled:

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 interest of justice.

In this decision also, the view of the Apex Court was, that the Court should decline to allow the amendment, if fresh suit on the amended claim

would be barred by limitation, thereby, informing that the amendment could be ordinarily permitted, if the same is not barred by limitation, on the

date of amendment application, or the amendment could be allowed, if there is any doubt, regarding the question of limitation, postponing the

same, to be canvassed, at the final stage.

In the case involved in the above decision, the plaintiffs therein applied for amendment of the plaint by raising alternative claim for damages for

breach of contract for non-delivery of goods, which was opposed. The Apex Court felt, the claim was only damages, for non-delivery of goods,

as per clause available in the agreement and the amendment being founded on such clause, the damage claimed cannot be said to be, beyond the

scope of the suit. In this view, it was not made certain, that the claim was barred by limitation and therefore, the Apex Court has come to the

conclusion, the prayer in the plaint itself is general and merely claims damages and in order to decide the dispute between the parties, in the same

suit, an alternative prayer for damages could be allowed, which kind of situation is not available in this case.

As adverted to above, the suit was one for declaration and possession, inspite of allegations in the plaint that the sale deed was fraud, not

binding upon the plaintiffs, and such a suit was maintained, despite the Court''s return, that the plaint should contain prayer for declaration, for

cancelling the instrument. The prayer sought to be introduced, though on the same date of cause of action, if a fresh suit is to be filed, on the

amended claim, certainly it would be barred by limitation. In this view, as held in the above decision, I am unable to find any support, from the

above ruling, in order to permit the plaintiffs to amend the plaint, whereas the dictum is against them.

The Apex Court, later on, while deciding the case in Pirgonda Hongonda Patil Vs. Kalgonda Shidgonda Patil and Others, referring the above

decision, has observed:

All amendments ought to be allowed which satisfy the two conditions (a) of 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... but I refrain from citing further authorities, as, in my opinion,

they all lay down precisely the same doctrine. That doctrine, as I understand it, is that 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. The ultimate

test therefore still remains the same: Can the amendment be allowed without injustice to the other side, or can it not ?

From the above ruling, it is clear, an amendment must be refused, where the plaintiffs seek to amend, by setting up a fresh claim in respect of cause

of action, which since the institution of the suit had become barred by limitation. Not only that, if the amendment is allowed, the right, which

accrued by the bar of limitation in favour of the defendant, in this case would be eclipsed, thereby causing substantial injury, to the defendant,

which cannot be compensated even by cost. In this view, for the reasons recorded on facts, the amendment should be refused, and the same

cannot be allowed, though the scope under Order 6, Rule 17, C.P.C. was wide.

As laid down by the Apex Court in Punjab National Bank Vs. Indian Bank and Another, , if the proposed amendment is merely a clarification

of pre-existing averments in the plaint that can be allowed. It is also held in the above decision, though the amendment sought for was after a delay

of 9 long years, the proposed amendment did not attract the bar of limitation. In this view, amendment sought for in the above case was allowed,

though it is belated, not on the ground, despite the proposed claim was barred by limitation, the same should be allowed subject to the question of

limitation, to be decided at later point of time.

The learned Counsel very much relied on a decision of the Apex Court, in Ragu Thilak D. John Vs. S. Rayappan and Others, , wherein the

Apex Court has observed, that the issue about the limitation could be raised after allowing the amendment. In the case involved, as seen from the

rulings, it is not established that the proposed amendment was barred by limitation, on the date of filing the application for amendment. From the

reading of the above judgment, it is seen, only on the basis of the subsequent development, which took place after filing of the suit, an amendment

was sought for and considering that fact, the Apex Court allowed the amendment, application observing:

The plea that the relief sought by way of amendment was barred by time is arguable in the circumstances of the case as is evident from the perusal

of the averments made in paras 8(a) to 8(f) of the plaint which were sought to be incorporated by way of amendment. We feel that 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 prayer

for.

As seen from paragraph 4 of the judgment, in view of the subsequent development in that suit, the appellant therein was compelled to file an

application under Order 6, Rule 17, C.P.C. for amendment of plaint, adding certain averments, which was refused by the lower Court, if allowed

would result in introducing a new case and cause of action, further, observing that the amendment sought was barred by limitation. Since the

amendment sought for was, on the basis of subsequent development, the Apex Court felt, as extracted above, the defence raised, that the

amendment was barred by time is arguable and no finding is given, that the amendment is barred by limitation, despite the same should be allowed.

In the case on hand, on facts coupled with law, there could be no doubt, to label the proposed amendment, as barred under law and therefore

allowing the amendment, postponing the issue of limitation, may not be proper under the facts and circumstances of the case.

For the foregoing reasons, it should be held even on the basis of rulings relied on by the learned Counsel for the revision petitioners, the

proposed amendment, at the belated stage, when it is barred by time, is impermissible, which is supported by the rulings of the Apex Court, as

pointed out by the learned Counsel for the respondent.

In Radhika Devi Vs. Bajrangi Singh and others, , the Apex Court has taken a view, that the amendment of plaint seeking declaration that the

gift deed was obtained illegally, fraudulently, filed beyond period of limitation is impermissible, since the defendant had acquired right, by bar of

limitation, which cannot be taken away by allowing the amendment petition, detriment to the right of the other side. The case involved in the above

decision, is more or less similar to the facts of the case on hand. In the case involved in the above decision, the plaintiff therein instituted a suit for

partition in the year 1988, which was opposed, projecting the gift deed in favour of the defendant, dated 28.6.1978, claiming absolute right.

Pending suit, an amendment application was filed on November 11, 1992, seeking declaration that the gift deed was obtained by the respondent

illegally and fraudulently. The Apex Court, considering the question of limitation and the date of knowledge, accepted the argument advanced on

behalf of the other side and has observed:

The registration of the document is a notice to everyone claiming any right, title and interest therein; even otherwise the respondents in the written

statement filed on June 15, 1988 has specifically pleaded about the gift being made by Ramdeo Singh in their favour. Despite that, the appellant

had not taken any steps till November, 1992, by which time even the prayer for declaration within the limitation of three years from the date of

knowledge had got time barred. Therefore, the appellant is not entitled to amend the plaint which would prejudicially affect the rights of the

respondents.

It is further observed at the last paragraph that:

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

written statement, for 3 years no steps were taken to file the application for amendment of the plaint. Thereby the accrued right in favour of the

respondents would be defeated by permitting amendment of the plaint. The High Court, therefore, was right in refusing to grant permission to

amend the plaint.

which ratio is, by all force applicable to this case and in this view, undoubtedly, it should be concluded that the proposed amendment is barred by

limitation, if allowed that will defeat the right of the other side, which they have accrued.

Munilal v. The Oriental Fire & General Insurance Co. Ltd. and Anr. 1996 (1) LW 349 is also an authority to refuse, the amendment sought for

in this case. In the above ruling, a suit came to be filed for declaration that the plaintiff is entitled to payment by the insurance company for the loss

of a truck, without praying for consequential relief of payment of quantified amount. Thereafter, an alternative prayer was sought for mandatory

injunction for payment of specified amount. Considering the facts and circumstances of the case, the Apex Court came to the conclusion, as seen

from paragraph 4 of the judgment that by the date of the application for amendment filed, the relief stood barred by limitation. Considering the

previous ruling of the Apex Court, applying the fact of the case therein, it is held by the Apex Court that:

On a consideration of this case in its proper perspective, we are of the view that granting of amendment of plaint seeking to introduce alternative

relief of mandatory injunction for payment of specified amount is bad in law. The alternative relief was available to be asked for when the suit was

filed but not made. He cannot be permitted to amend the plaint after the suit was barred by limitation, during the pendency of the proceeding in the

appellate Court or the second appellate Court. Considering from this perspective, we are of the opinion that the District Court and the High Court

were right in refusing the prayer of amendment of the suit and the Courts below had not committed any error of law warranting interference.

In our case also, the prayer sought for now, was available, when the plaintiffs were directed to seek this prayer also, which was not accepted. This

being the position, applying the above ruling, I should say empathetically, that the proposed amendment is not permissible, as rightly held by the

trial Court.

In Sampath Kumar Vs. Ayyakannu and Another, , the Apex Court, while considering, if the amendment is allowed from which date it shall

come into force and approving the previous ruling, it is ruled:

An amendment once incorporated relates back to the date of the suit. However, the doctrine of relation back in the context, of amendment of

pleadings is not one of universal application and in appropriate cases the Court is competent while permitting an amendment to direct that the

amendment permitted by it shall not relate back to the date of the suit and to the extent permitted by it shall be deemed to have been brought

before the Court on the date on which the application seeking the amendment was filed.

In the case involved in the above decision, an amendment was sought for almost after 11 years, after the date of institution of the suit, for

declaration of title and possession. The Apex Court has held, on the date of filing the amendment, the plaintiff is not debarred from instituting a new

suit, seeking relief of declaration of title and recovery of possession on the same basic facts as are pleaded in the plaint, seeking relief of issuance of

permanent prohibitory injunction and which is pending. Therefore, the Apex Court held, the merits of the averments sought to be incorporated by

way of amendment, are not to be judged at the stage of allowing prayer for amendment and gave a protection to the defendant also, observing:

The interest of the defendant can be protected by directing that so far as the reliefs of declaration of title and recovery of possession, now sought

for, are concerned the prayer in that regard shall be deemed to have been made on the date on which the application for amendment has been

filed.

Thereby relegating the question of limitation, to a later stage, because of the fact, the amendment application was filed within the period of

limitation, available for declaration and possession.

As adverted above, in the case on hand, on the date of application for amendment, the prayer sought to be introduced, by the proposed

amendment is clearly barred by limitation, and therefore, even if it is to be observed that the amendment shall be deemed to have been made on the

date of which the application for amendment is filed, it will not serve any earthly purpose, because of the admitted position that the declaration

sought for is clearly barred by limitation. In this view, I am declined to allow the amendment application, even giving effect the amendment

application, on the date on which the same has been filed.

In the light of the above rulings, as well as having regard to the facts and circumstances of the case, it should be held, that the proposed

amendment is barred by limitation, on the date of filing of the application even for instituting a fresh suit, and in this view, if this kind of application is

allowed, as per the rulings of the Apex Court, that would amount to eclipsing the right accrued in favour of the defendant, which is impermissible.

Therefore, the wide discretion available under Order 6, Rule 17, C.P.C., cannot be extended to the revision petitioners, under the facts and

circumstances of the case.

The trial Court, considering all the facts and circumstances of the case, applying the correct position of law, has reached an unerring

conclusion, which does require affirmation, and not any interference by this Court. The revision is not meritorious, and deserves only dismissal.

In the result, the revision is dismissed with costs. Consequently, connected C.M.P. is also dismissed.