IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:27.01.2009 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA C.R.P.(PD)No.3838 of 2008 and M.P.No.1 of 2008 1. S.N.Appaji Gowdu 2. Nagesh 3. Jagadeesan 4. Pachiappan 5. Chinnasamy 6. Kullappa 7. Pillappa 8. Kalappa 9. Venkataraman 10.Kalavathy 11.Minor Venkatesan rep. by guardian mother Kalavathy ... Petitioners vs. 1. Sri Nanjundeswaraswamy Temple Denkanikottai rep. by its Managing Trustee, Hosahalli Village, Virudhukottai Post, Denkanikottai Taluk Krishnagiri District. 2. Appojiyappa 3. Mahaprabhu 4. Marappa 5. N.Vedeamma 6. N.Parimala 7. N.Soodamani 8. N.Uma 9. N.Kalpana 10.Doddakka 11.Ramakrishnan 12.Kannan 13.Uchappa 14.Lashmi 15.Muniraj 16. Ramesh 17. Pachammal ... Respondents This civil revision petition is preferred against the fair and decreetal orders of the learned District Munsif of Hosur dated 01.08.2008 in I.A.No.405 of 2005 in O.S.No.351 of 1987. For Petitioners : Mr.V.Nicholas For R2 and R3 : Mr.V.Raghavachari O R D E R
Animadverting upon the order dated 01.08.2008 passed by the learned District Munsif of Hosur, in I.A.No.405 of 2005 in O.S.No.351 of 1987, this civil revision petition is focussed.
2. Heard both sides.
3. Avoiding discursive discussion, I would like to pithily and precisely, succinctly and tersely set out the relevant facts which are absolutely necessary and germane for the disposal of this revision petition:
The respondents 1 to 3/plaintiffs herein filed the suit O.S.No.351 of 1987 seeking the following reliefs:
“m) jhth brhj;Jf;fspy; thjpfspd; bghJ mDgt ghj;jpaij of;nsh; bra;Jk;
M) jhth brhj;Jf;fspy; thjpapd; epk;kjpahd RthJd mDgtj;jpw;F 1 Kjy; 14 gpujpthjpfspdhnyh my;yJ mth;fSila Ml;fspdhnyh vt;tpj jila[k; jP’;Fk; bjhe;jput[k;. mHpk;g[k; mf;fpuk gpuntrKk; Vw;glhj gof;F 1 Kjy; 14 gpujpthjfspd; bgahpy; xU gh;kbdd;l; ,d;$’;rd; cj;jput[ gpwg;gpj;Jk;
,) jhth bryt[fs; thjpf;F gpujpthjpfshy; fpilf;Fk;go cj;jput[ gpwg;gpj;Jk;”
as against the defendants. The suit reached the fag end. While so, the plaintiffs filed I.A.No.405 of 2005 to amend the plaint. The lower Court allowed the prayer for amendment. Being aggrieved by and dissatisfied with the said order of the lower Court, the petitioners herein/defendants 2 to 4, 6 to 9 and 12 to 16 preferred this revision on various grounds.
4. The learned counsel for the revision petitioners placing reliance on the grounds of revision would develop his argument to the effect that ignoring the catena of decisions of the Hon’ble Apex Court, the lower Court simply allowed the amendment and hence the order of the lower Court should be set aside. In support of his proposition, he would cite the following decisions:
(i) 2008(1() L.W.451 [Shiv Gopal Sah @ Shiv Gopa Sahu v. Sita Ram Saraugi and others]
7. … According to the learned counsel the fact of the said sale deed was brought to the notice of the plaintiffs way back in the year 1987 when the defendants had pleaded a title in his favour on the basis of that sale deed. Learned counsel further points out that even after the original eviction suit was converted into title suit in the year 1988 and was re-numbered in 1991, the civil Court in its order dated 4.1.1991 had permitted the original plaintiffs, respondent no.1 and 2 to suitably amend the plaint. However, the original plaintiffs did not challenge the said sale deed dated 4.10.1985 which was in direct conflict with his title. Learned counsel further points out that again in the year 1987 when the plaintiff transferred the suit property in favour of Vijay Kumar Yadav and Manju Devi, respondents 3 and 4 herein as the watchful purchasers, the new so-called transferees were bound to join the plaintiffs which they did not do upto 2004 and it was only after they joined the suit as the co-plaintiffs that it dawned upon them for the first time to challenge the sale deed dated 4.10.1985 in favour of the petitioner – defendant. All this suggests that the challenge to the sale deed which had become known to the original plaintiff way back in 1987 and of which were bound to be a notice to the newly added plaintiffs, hopelessly time barred. Learned counsel further submits that there are no bona fides in the plaintiffs at all as the plaintiffs have remained callously negligent towards their own rights. Learned counsel, therefore, states that the trial court as well as High Court erred in allowing the amendments.”
(ii) 2008(5) CTC 253 [Rajkumar Gurawara (dead) through Lrs. vs. S.K.Sarwagi & Co.Pvt. Ltd. & another]
” …. 5. To put it clear, Order 6, Rule 17, C.P.C. confers jurisdiction on the Court to allow either party to alter or amend his pleadings at any stage of the proceedings on such terms as may be just. Such amendments seeking determination of the real question of the controversy between the parties shall be permitted to be made. Pre-trial amendments are to be allowed liberally than those which are sought to be made after the commencement of the trial. As rightly pointed out by the High Court in the former case, the opposite party is not prejudiced because he will have an opportunity of meeting the amendment sought to be made. In the latter case, namely, after the commencement of trial, particularly, after completion of the evidence, the question of prejudice to the opposite party may arise and in such event, it is incumbent on the part of the Court to satisfy the conditions prescribed in the Proviso.”
5. Placing reliance on those two decisions, the learned counsel would submit that the factual matrix involved in those decisions do squarely applicable in the facts and circumstances of this case. Even though the suit was filed by the plaintiffs as early as in the year 1987, they kept quiet till the year 2005 without seeking amendment to incorporate the prayer for declaration that the sale deeds emerged in respect of the suit property are null and void. On earlier occasion, one other I.A. was filed seeking amendment of the plaint and that was allowed and even at that time, they did not choose to get incorporated the prayer for declaration as they have made in the present I.A.No.405 of 2005; after commencement of trial, the Court should be strict in allowing the amendment and a liberal view cannot be taken.
6. Whereas the learned counsel for the respondents/plaintiffs would develop his argument to the effect that the prayer for declaration of the sale as null and void need not be construed as a separate or a new prayer, but it is only in continuation of the earlier prayer for declaration of title of the plaintiffs; the suit itself was filed for declaring the ownership of the plaintiff Temple as well as for recovery of possession; and the new prayer for declaration is virtually for the purpose of dispelling any cloud in future. He would also submit that the law of limitation cannot be pressed into service as against such a prayer. Whereas the learned counsel for the revision petitioners/defendants would submit that necessarily the law of limitation should be considered even at the time of entertaining an application for amendment. In support of his proposition, he would cite the following three decisions:
(i) 2000 A I H C 2934 [G.Mani v. Mahasundari and others]
(ii) 2005-4-L.W.244 [S.Kuppusamy v. P.K.Subramani and others]
(iii) JT 2000 (1) SC 36 [Pronoy Kumar Sanyal vs. Beni Madhav Sanyal]
7. I would like to observe that absolutely there is no quarrel over the trite proposition of law that even at the time of considering the application for amendment of the plaint under Order 6 Rule 17, it has to be seen as to whether the law of limitation is an embargo for allowing such application for amendment. Indubitably and incontrovertibly as has been already highlighted supra, the plaintiffs sought for declaration of title in general terms in favour of the plaintiffs and along with that itself the present prayer could have been added by using the words to the effect that consequently for a declaration that the sale deed emerged in favour of the defendants should be treated as null and void.
8. I am of the considered opinion that the argument of the learned counsel for the plaintiffs could be accepted for the reason that the present declaration sought for with regard to the sale deeds wherein the plaintiffs are not parties would tantamount to an ancillary relief to the main relief and in such a case, I am of the considered opinion that law of limitation cannot be pressed into service.
9. In the cited decision supra reported in 2008 (5) CTC 253, the Apex Court at paragraph 3 adverted to the factual aspect that initially the suit was filed only for injunction and subsequently after the trial had commenced, the plaintiffs did choose to get the prayer amended as one for possession and in such a case, the Apex Court heavily came upon the plaintiff and rejected his prayer. In the one other decision of the Apex Court reported in 2008(1) L.W.451 the factual position was to the effect that the plaintiffs were very much a party to the sale deed, nonetheless the relief was sought at the end of the trial. In these circumstances, the Apex Court took exception and deprecated the practice of plaintiffs coming with an application under Order 6 Rule 17 at the fag end of the case and thereby causing prejudice to the defendants. Put simply both the decisions cited supra are not applicable to the facts and circumstances of this case. Here, the gist and kernel of the sale deeds which are sought to be declared as void would demonstrate that some of the defendants sold part of the suit property in favour of some other defendants and in such a case, the present prayer for declaring those sale deeds as void is only a sequel to the main relief i.e. the declaration of plaintiffs’ title to the suit properties ex passant I would like to point out that even without the proposed amendment sought, the plaintiffs could prosecute the suit. However, by way of dispelling any cloud which might be raised at a later stage, the plaintiffs have chosen to get the present prayer also incorporated in the plaint. It is also glaringly clear that the parties all along litigated applying their mind on the relevant facts including the ones found set out in the said I.A., and in such a case, no prejudice would be caused to the defendants, it such an amendment is allowed. However, there was delay in filing the application for amendment for which the defendants could be compensated. Accordingly, I am of the opinion that there is no merit in this revision petition and the same is dismissed. The plaintiffs are directed to pay a cost of Rs.3,000/- to the defendants within a fortnight from the date of receipt of a coy of this order.
27.01.2009
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gms
To
Munsif of Hosur
G.RAJASURIA,J.,
gms
C.R.P.(PD)No.3838 of 2008
27.01.2009