Sri B. Shiva vs Sri Ramesh Reddy and Smt. Sarasamma

A.N. Venugopala Gowda, J.—This writ petition by the plaintiff is directed against an order dated 13.03.2012 passed in O.S.No. 907/2006 by the Civil Judge (Sr. Dr..) at Anekal, dismissing I.A.4 filed under Order 6 Rule 17 of CPC. Respondents are the defendants in the suit. Petitioner has filed the suit against the respondents on 08.10.2004 based on an alleged agreement of sale dated 30.08.1999 and on an alleged cause of action dated 06.10.2004 and 07.10.2004, for granting of the following reliefs:-

(a) To declare that the Plaintiff as the ''PURCHASER'' of the Suit Schedule Property.

(b) Permanent Injunction restraining the Defendants, their men, or agents or General Power of Attorney Holders, or anybody claiming under them from interfering with the peaceful possession and enjoyment of the Plaintiff in respect of the Suit Schedule property.

The defendants have filed written statement and have contended that the plaintiff had filed O.S.No. 146/2001 and the same was dismissed on 20.09.2002; that the suit is not maintainable and the claim to the suit property based on the agreement dated 30.08.1999 is barred by time; that there was breach of terms and conditions of the agreement by the plaintiff and he is not entitled to any of the reliefs prayed in the suit.

Plaintiff filed I.A.4 on 14.12.2010 under Order 6 Rule 17 r/w 151 of CPC to permit amendment of plaint i.e., "to delete prayer (a)" and substitute the same as follows:-

a) Direct the defendants to execute the registered sale deed in favour of the plaintiff and in the event if defendants fail to do so by directing the Office of this Hon''ble Court to register the said sale deed in favour of the plaintiff in respect of the suit schedule property.

b) And to grant such other relief or reliefs as this Hon''ble Court may deem fit to grant, in the circumstances of the case.

In the affidavit accompanying I.A.4 it has been stated that by oversight and inadvertence, suit for declaration and consequential reliefs was filed and now he is inclined to convert the suit for the relief of specific performance of contract and as such, it is necessary to amend the prayer of the suit by "deletion and substitution of prayer (a)". Statement of objections having been filed by the defendants, upon hearing the learned advocates for the parties, the learned Trial Judge having noticed that I.A.4 was field after lapse of 6 years and at a belated stage, finding that the prayer is barred by time and that it creates a new cause of action, has passed an order of dismissal. Assailing the said order this writ petition has been filed.

Sri Sumanth L. Bharadwaj, learned advocate appearing for the petitioner contended that the Trial Court has acted unreasonably in passing the impugned order. He submitted that based on the existing pleading, the prayer in the plaint was sought to be substituted and at this stage of the suit, it is not permissible for the Court to consider the bar of limitation. He submitted that due to inadvertence, proper relief had not been sought and hence, to decide the real question in controversy between the parties, prayer in I.A.4 ought to have beer; allowed. Learned counsel submitted that there being material irregularity committed by the Trial Court in dismissing I.A.4, interference is warranted. He placed the reliance on the decision in the case of Laxmidas Dahyabhai Kabarwala Vs. Nanabhai Chunilal Kabarwala and Others,

Sri. B.V. Malla Reddy and Sri. H.V. Harish, learned advocates appearing for the respondents on the other hand submitted that, on the date I.A.4 was filed for amendment of the suit for specific performance of contract, the suit was barred by limitation in view of the provision contained under Article 54 of Limitation Act, 1963. They submitted that there is suppression of material facts by the petitioner-plaintiff, since the dismissal of O.S.No. 146/2001 on 20.09.2002 has been suppressed both in the plaint and also in this writ petition and that the petitioner has not approached the Court with clean hands. They further submitted that the plaintiff having based the suit on the agreement of sale dated 30.08.1999, could not have sought the relief, to declare him as the purchaser of the suit property and seek decree of permanent injunction against the defendants, who are true owners of the suit property. The suit itself being not maintainable, however, after lapse of 6 years, I.A.4 filed being untenable, Trial Court is justified in passing the impugned order. Learned counsel made submissions in support of the view taken by the Trial Court and placed reliance on the decision, in the case of Shiv Gopal Sah @ Shiv Gopal Sahu Vs. Sita Ram Saraugi and Others, and sought dismissal of the writ petition.

Perused the writ record. The point for consideration is ''whether the Trial Court is justified in dismissing I.A.4?''

Suit was filed on 06.10.2004. Defendants filed written statement. Sri Sumanth L. Bharadwaj, did not dispute the assertion made by Sri B.V. Malla Reddy, with regard to petitioner having filed O.S.No. 146/2001 based on the agreement of sale dated 30.08.1999, to pass a decree of injunction and the dismissal of suit on 20.09.2002. The plaint in O.S.No. 1289/2004 does not make any reference to filing of O.S.No. 146/2001 and the result therein. Even in this writ petition also, there is no reference to O.S.No. 146/2001 between the parties. Thus, there is substance in the submission made by the respondents that the petitioner has not approached the Court with clean hands and that there is suppression of the material fact. Be that as it may.

The petitioner admits that the suit property belongs to the respondents. His claim to the suit property is based on an agreement of sale dated 30.08.1999. According to the plaint averments, the possession of the suit property was delivered to the plaintiff on 30.08.1999 and there was an attempt by the defendants to interfere with his peaceful possession and enjoyment of the suit property on 06.10.2004 and on 07.10.2004. After issuing of notice dated 08.09.2004. the suit was instituted on 08.10.2004, to pass a decree declaring the plaintiff as purchaser of the suit property and also to pass a decree of permanent injunction. After more than six years, plaintiff filed I.A.4 to delete prayer (a) and to substitute prayers, in the manner proposed, noticed supra. The suit has now been sought to be changed to ''one of specific performance'' as against ''the declaration''. Certainly, there would be change in the nature of the suit. Even otherwise, the suit having been instituted based on an agreement of sale dated 30.08.1999, the relief of specific performance was sought only on 14.02.2010. Even according to the plaintiff there was an attempt made by the defendants to dispossess him from the suit property on 06.10.2004 and 07.10.2004 and that he got a notice issued on 08.09.2004. The plaint averments would indicate that the alleged cause of action for the suit arose on 06.10.2004 and 07.10.2004.

The petitioner filed suit by making reference to the said agreement of sale. Suit filed is for a decree of declaration and injunction. By filing I.A.4, suit is sought to be converted to a suit for specific performance of contract. On the date I.A.4 was filed, the suit for specific performance had become barred by limitation. Though, learned advocates appearing for the respondents submitted that even on the date suit was filed i.e., on 08.10.2004, it was barred by time in view of filing and dismissal of O.S.No. 146/2001 on 20.09.2002, there is no need for me to address the said contention, as it is for the Trial Court to take note of the said defence and record findings.

The decision in the case of Laxmidas Dayabhai Kabrawala (supra), has no application to the case on hand, since matter therein related to a counter claim filed in the suit. The petitioner has not offered any explanation in I.A.4, for not seeking the proposed prayer, at the time, the suit was filed. I.A.4 was filed after lapse of six years from the date suit was filed.

In the case of Muni Lal Vs. The Oriental Fire and General Insurance Company Ltd. and another, the Apex Court has held as follows:-

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. Considered 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 the case of K. Raheja Constructions Ltd. Vs. Alliance Ministries and others, suit was filed by the petitioner in 1987 for passing a decree of permanent injunction against the respondents from selling the property, based on a contract of sale of Trust property of the respondents. An application under Order 6 Rule 17 of CPC was made in the year 1994 i.e., after 7 years of filing of the suit, seeking to amend the plaint for grant of specific performance of the contract on the ground that it was subsequently discovered that Charity Commissioner had granted permission for sale of the property and therefore, they were entitled to decree of specific performance. Noticing the period of limitation provided under Article 54 of the Limitation Act, 1963, the application having been filed after 7 years from the date of filing of the suit, the valuable right of limitation having accrued to the respondents, the prayer for amendment of the plaint was declined.

In the case of Shiv Gopal Sah @ Shiv Gopal Sahu Vs. Sita Ram Saraugi and Others, almost in identical circumstances, it has been held as follows:

We have gone through the amendment application carefully where we do not find any explanation whatsoever for this towering delay. We would expect some explanation, at least regarding the delay since the delay was very substantial. The whole amendment application, when carefully scanned, does not show any explanation whatsoever. This negligent complacency on the part of the plaintiffs would not permit them to amend the plaint, more particularly when the claim has, apparently, become barred by time.

It is quite true that this Court in a number of decisions, has allowed by way of an amendment even the claims which were barred by time. However, for that there had to be a valid basis made out in the application and first of all there had to be bona fides on the part of the plaintiffs and a reasonable explanation for the delay. It is also true that the amendments can be introduced at any stage of the suit, however, when by that amendment an apparently time barred claim is being introduced for the first time, there would have to be some explanation and secondly, the plaintiff would have to show his bona fides, particularly because such claims by way of an amendment would have the effect of defeating the rights created in the defendant by lapse of time. When we see the present facts, it is clear that no such attempt is made by the plaintiffs anywhere more particularly in the amendment application.

In Dondapati Narayan Reddy Vs. Duggirddey Venkatanarayana Reddy and Others, this court observed: "The amendment should, generally, be allowed unless it is shown that permitting the amendment would be unjust and result in prejudice against the opposite side which cannot be compensated by costs or would deprive him of a right which has accrued to him with the lapse of time."

In T.N. Alloy Foundry Co. Ltd. Vs. T.N. Electricity Board and Others, a three Judge Bench of this Court relying on L.J. Leach and Company Ltd. Vs. Jardine Skinner and Co., reiterated as under:

The law as regards permitting amendments to the plaint is well settled. In L.J. Leach & Co. Ltd. v. Jardine Skinner and Co. it was held that the court 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.

The situation is no different in this appeal and as such a suit as described above would be clearly barred by limitation.

The defendant having set up a rival title on the basis of sale deed dated 4-10-1985 the plaintiff was bound to amend his pleadings if he wanted to challenge the said sale deed to be ineffective and incapable of creating a valid title in favour of the defendant. It completely beats us as to why the plaintiff remained complacently negligent right from 1987 in case of original plaintiffs and after 1997 in case of co-plaintiffs. On the top of it when we see the amendment application, it is sadly silent regarding any explanation as to why all these steps were not taken after a long period right from 1987 till the amendment application is made on 11-12-2004. Having not challenged, the sale deed dated 4-10-1985, the plaintiff could not lead evidence regarding the circumstances under which that sale deed came into existence which facts they would be entitled now if the amendments were to be allowed. That would be completely different from their preliminary task of proving a better title to the property.

Under the circumstances we would not permit the plaintiffs now at this stage to introduce a time barred claim under the peculiar facts and circumstances of this case where we find a complacent negligence on the part of the plaintiffs apart from the towering delay of more than 15 years. We, therefore, allow this appeal and set aside the orders of the High Court as well as the trial Court and dismiss the application for amendment dated 11.12.2004.

Keeping in view the factual background of the case, amendment proposed in I.A.4 being ex-facie barred by limitation and there being also a change in the nature of the suit, the Trial Court is justified in dismissing I.A.4. The impugned order is neither irrational nor illegal for being interfered with.

In the result, writ petition being devoid of merit is dismissed. However, the Trial Court is directed to decide the suit expeditiously and with a period of one year from the next hearing date of the suit.

No costs.