IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 20120 of 2010(O)
1. C.MANIKANTAN NAIR,S/O.CHELLAPPAN PILLAI,
... Petitioner
2. M.PRABHAKARAN NAIR,S/O.LATE MADHAVAN
Vs
1. ATTUKAL BHAGAVATHY TEMPLE TRUST,
... Respondent
For Petitioner :SRI.K.B.PRADEEP
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :29/06/2010
O R D E R
THOMAS P.JOSEPH, J.
====================================
W.P(C) No.20120 of 2010,
W.P(C) No.20205 of 2010
and
W.P(C) No.20206 of 2010
====================================
Dated this the 29th day of June, 2010
J U D G M E N T
These Writ Petitions are in challenge of common order
passed by learned Sub Judge, Thiruvananthapuram on I.A.
Nos.2616, 2617 and 2615 respectively, in O.S.Nos.494 of 2002,
335 of 2005 and 493 of 2002. These suits are filed by the
respondent, described as a Trust for recovery of various amounts
from the petitioners who were the Secretary and President of the
said Trust during 1993-99. Allegations in these cases are of
mismanagement, misappropriation, falsification of accounts and
such other matters concerning property of the Trust and in the
matter of purchase of articles, assignment of contracts and such
other matters. Petitioners resisted the suit on various grounds. In
the year 2010 respondent filed the above said applications for
amendment of the plaints which were resisted by petitioners.
Petitioners also sought for amendment of their written statement
to contend that suits are bad for non-joinder of necessary parties.
All the applications were heard by the additional Sub Judge and
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20206 of 2010
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disposed of by a common order as per which applications
preferred by petitioners and respondent were allowed.
Petitioners are aggrieved by the common order to the extent it
allowed applications preferred by the respondent for amendment
of plaints. Learned counsel for petitioners contended that what
is sought to be incorporated by amendment are matters which
are otherwise barred by limitation in that suits are filed in the year
2002 and 2005 but the applications for amendment are filed in
the year 2010. According to the learned counsel ordinary rule
that a relief which has already become barred by limitation shall
not be allowed to be incorporated by way of amendment should
govern the matter. In the absence of a plea under Section 10 of
the Limitation Act (for short, “the Act”) the suits cannot be saved
from the bar of limitation. Learned counsel has invited my
attention to Order VII Rule 6 of the Code of Civil Procedure (for
short, “the Code”) which states that when the suit is instituted
after expiration of period prescribed by the law of limitation
plaint shall state grounds upon which exemption from limitation
is claimed. According to the learned counsel there is no whisper
in the plaints as to any exemption from the law of limitation under
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Sec.10 of the Act or as required under Order VII Rule 6 of the
Code which is now sought to be supplemented by amendment
which prejudiced defence of petitioners. Reliance is placed on
Revajeetu Builders and Developers v.
Narayanaswamy and Sons (2009) 10 SCC 84).
2. No doubt, under Order VII Rule 6 of the Code plaint
should specifically state the grounds of exemption from limitation
when the suit is preferred beyond the period prescribed for the
purpose. Section 10 of the Act states that there shall be no
limitation in a suit against a person in whom property has been
vested for any purpose. Learned counsel has a case that
respondent is not a Trust as envisaged under Sec.10 of the Act
and further that there is no averment in the plaint that there was
any vesting for specific purpose. Now I am concerned with the
question whether court below was justified in allowing the
applications for amendment.
3. In the decision relied on by learned counsel it is
stated in paragraph 39 after referring to the decisions which
state that even claims barred by limitation are not outside the
purview of Order VI Rule 17 of the Code, that the rule is not a
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20206 of 2010
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universal one and under certain circumstances amendment may
be allowed notwithstanding the law of limitation. It is stated
that fact that claim is barred by law of limitation is only one of
the factors to be taken into account by the court in exercising the
discretion as to whether amendment should be allowed or
refused. In paragraph 63 factors to be taken into consideration
while deciding the application for amendment are narrated and
clause (6) states that as a general rule the court decline
amendment if a fresh suit on the amended claims would be
barred by limitation on the date of application.
4. In a later decision – State of Maharashtra v.
M/s. Hindustan Construction Company Ltd (2010 [2]
Supreme 697) the same principle has been enunciated and it is
stated that amendment of pleadings is a matter of procedure and
the grant or refusal thereof is in the discretion of the court which
as in the case of any other discretion, has to be exercised
consistent with the legal principles. It is also stated that there is
no rule that claim which is barred by limitation cannot be allowed
to be incorporated by amendment. Reference has been made to
the decision in Ganesh Trading Co. v. Moji Ram (1978) 2
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20206 of 2010
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SCR 614 where it is held that procedural law is intended to
facilitate and not to obstruct course of substantive justice.
Provisions relating to pleading in civil cases are meant to give to
each side intimation of case of the other so that it may be met to
enable courts to determine what is really at issue between parties
and to prevent deviations from the pleadings. This court in
Kunheedu v. Marakkar and Others (1989 [1] KLJ 92)
considered the question whether under Order VI Rule 17 of the
Code amendment to introduce a new cause of action or a new
relief even beyond the period of limitation can be allowed. It was
held that if the plaint contains basic foundation for the relief
claimed (by way of amendment) there is nothing wrong in
allowing amendment even beyond the period of limitation.
Bearing in mind the above principles I shall consider whether
court below is right in allowing the applications of respondent.
5. I referred to the nature of the allegations made by the
respondent in the plaints. For e.g., in O.S.No.494 of 2004 it is
stated that petitioners were office bearers (Secretary and
Secretary) of the respondent-Trust during 1993-99 and that
petitioners due to their commissions and omissions caused huge
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loss to the respondent. There are specific allegations regarding
misappropriation, misfeasance and conduct of like nature. In
paragraph 2 of the plaint reference is made to the relationship
between petitioners and respondent-Trust as they being office
bearers of the Managing Committee. Paragraph 13 of the plaint
states about breach of trust on the part of petitioners which was
realised by the respondent on 22.6.2002. On the above
allegations applications for amendment was made to incorporate
paragraph 29(a) and (b) and also to amend portion of cause of
action in the plaints. In paragraph 29(a) what is sought to be
incorporated by amendment is that petitioners are trustees of the
respondent as Secretary and President for the period 1993-99 and
thus were in a fiduciary relationship, that respondent-Trust is an
express Trust engaged in religious and charitable activities,
illegalities and irregularities were committed by the petitioners
while acting as trustees of the respondent in their capacity as
Secretary and President and hence the suit is not barred under
Sec.10 of the Act. Similar grounds are incorporated in paragraph
29(b). There, it is stated that commissions and omissions
resulted in loss to the respondent and that respondent asked
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petitioners to make good the loss on 22.6.2006. In the cause of
action as originally averred it is stated that it arose from March,
1997, February, 1998 and February, 1999 when the contracts
were accepted and continuously thereafter when provisions were
purchased by the petitioners as above stated causing loss to the
respondent. The words incorporated by amendment is that cause
of action arose on 22.6.2006 (also) when petitioners finally
refused to make good the loss. In other suits also similar
allegations are made in the plaint and the applications of
amendment.
6. It is seen from the averments in the plaint that
throughout it is the consistent case of respondent that it is a
Charitable Trust of which petitioners were office bearers,
Secretary and President and in that capacity their commissions
and omissions during their term of office, i.e., from 1993 to 1999
resulted in huge loss to the respondent and that came to the
knowledge of respondent only on 22.6.2006. What is sought to be
incorporated by way of amendment is only explicit statements
which in otherwise stated in the plaint. It is not as if suits are
attempted to be brought within the scope of Sec.10 of the Act for
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the first time without any averment at all in the plaints. Going by
the averments in the original plaints what I can understand is that
there are sufficient foundation already pleaded to state that the
commissions and omissions of petitioners resulted in loss to
the respondent which were done by petitioners in their capacity
as Secretary and President of the respondent-Trust in which case
Sec.10 of the Act came into application. What is attempted to be
achieved by amendment is only a specific averment that in the
circumstances pleaded in the plaint Sec.10 of the Act came into
application and the suits are not barred by limitation. Having
gone through the materials on record I find that the court below
has exercised the discretion in accordance with the known
principles of law and it calls for no interference.
Writ Petitions fail and are dismissed.
THOMAS P. JOSEPH, JUDGE.
vsv