ORDER
S.N. Hussain, J.
1. Heard learned counsel for the parties.
2. Petitioners are defendants of Title Suit No. 93 of 1999 which was filed by opposite parties 1-3 for declaration of their title and recovery of possession and also challenging the entries in revisional survey Khatian and for other ancillary reliefs.
3. The petitioners are aggrieved by order dated 4.12.2004 passed in the aforesaid suit by which the learned Subordinate Judge-IV, Sitamarhi, allowed the plaintiffs’ petition for amendment of the plaint of their aforementioned suit.
4. The facts of this case. In short, are that the suit was filed in the year 1999 whereafter the defendants-petitioners appeared and filed their written statement on 22.12.2000 after serving a copy of the same on the learned counsel for the plaintiffs. Much thereafter on 21.4.2004 the plaintiffs filed a petition (Annexure-1) under Order VI Rule 17 of the Code of Civil Procedure for amending the plaint by way of adding a few statements and relief for cancellation of deeds dated 17.9.1952 and 13.3.1955 executed by the predecessor of the plaintiffs.
5. The said amendment petition was rejected by the learned Court below by order dated 8.7.2004 (Annexure-3) on the ground that the defendants in their written statement (Paragraphs-12 and 15) had specifically given the details of the said sale deeds and that although the copy of the said written statement was served upon the learned counsel for the plaintiffs on 22.12.2000, the plaintiffs filed the amendment petition challenging those deeds on 21.4.2004 i.e. much beyond the statutory period of three years from the date of knowledge as per the Limitation Act (Section 59).
6. Against the said order of the trial Court the plaintiffs filed Civil Revision No. 1023 of 2004 which was dismissed as withdrawn by this Court vide order dated 15.9.2004 (Annexure-4) stating the following circumstances : “In the circumstances learned counsel for the petitioners (plaintiffs) seeks permission to withdraw the civil revision petition to enable the petitioners to file a fresh petition alongwith the limitation petition. Learned counsel for the opposite parties (defendants) has no objection.”
7. After the said order of this Court, the plaintiffs filed exactly similar petition (Annexure-5) on 28.10.2004 on the same grounds, but this time alongwith a petition under Section 5 of the Limitation Act, for condoning the delay. The defendants filed their rejoinder (Annexure-6) dated 4.11.2004. However, the learned Court below by the impugned order dated 4.12.2004 allowed the amendment petition filed by the plaintiffs.
8. Mr. Anis Akhtar, learned counsel for the petitioners challenges the above mentioned impugned order of the learned Court below on several grounds. His first contention is that where a party acquires a right by bar of limitation and if the same is sought to be taken away by amendment of pleadings, amendment in such circumstances should be refused as even after filing and serving of the copy of the written statement, for three years no steps were taken to file the application for amendment of the plaint challenging the registered deeds, specially when registration is also a notice to every one. In this connection, he relies upon a decision of the Hon’ble Supreme Court in case of Radhika Devi v. Bajrangi Singh and Ors. reported in AIR 1996 SC 2358.
9. Learned counsel for the petitioners further submits that the copy of the written statement was served upon the plaintiffs’ counsel on 2212.2000 in which the details of the deeds were given, hence by the amendment petition dated 21.4.2004 a barred relief was being claimed against the deeds after much more than three years of the knowledge about the deeds given to them thorough the copy of the written statement. He further submits that the deeds in question were executed by the ancestor of the plaintiffs themselves and that too by registered documents, hence there is no question of any absence of knowledge or notice to them.
10. Mr. Akhtar, learned counsel for the petitioners, also claims that when a similar amendment petition filed by the plaintiffs earlier was dismissed upto this Court, the subsequent amendment petition was not maintainable. His other point is that the limitation petition was wrongly filed under the provision of Section 5 of the Limitation Act, and the amendment was allowed by the learned Court below without even condoning the delay in filing of that petition. He further avers that the learned Court below passed the impugned order on two wrong assumptions that this Court had earlier directed the plaintiffs to file a fresh petition and that the written statement was filed on 22.12.2002, but from the earlier order of this Court dated 15.9.2004 (Annexure-4) it is quite apparent that no such direction was given and that the written statement was filed on 22.12.2000.
11. On the other hand, Mr. Vijay Shankar Shrivastava, learned counsel for the plaintiffs-opposite parties, vehemently opposes the contentions of the learned counsel for the petitioners and submits that it is apparent from the earlier order of this Court dated 15.9.2004 (Annexure-4) that the said Civil Revision No. 1023 of 2004 was withdrawn by the plaintiffs for filing a fresh amendment petition alongwith a limitation petition in the Court below to which the defendants’ counsel did not object and hence it was dismissed as withdrawn, thus the subsequent amendment petition was maintainable.
12. Learned counsel for the opposite parties further submits that no doubt the plaintiffs’ counsel received the copy of the written statement on 22.12.2000 but neither did he read its contents nor he informed the plaintiffs about its contents and when for the first time they read and learnt about the same on 21.4.2004 then filed the amendment petition on that very date. He further states that the plaintiffs are either illiterate ‘Raj Mistris’ or is a female, hence they had entrusted their case on their counsel and his clerk. These facts were specifically mentioned in Paragraphs-4 to 6 of their limitation petition filed in the Court below.
13. Mr. Shrivastava, learned counsel for the opposite parties, also avers that there is no absolute rule that in each and every case where the relief sought to be added by way of amendment is barred by limitation is to be rejected as no straight jacket formula can be applied in every circumstances and addition of such a relief will depend upon the fact of each case. He further states that the aim in such cases must be to subserve the cause of justice, to minimise litigation, to save a party from serious prejudice and to include the pleadings germain to the cause of action and for these purposes the amendment sought had to be allowed. In this connection, he relies upon a decision of the Hon’ble Supreme Court in case of Pankaja v. Yellappa and Ors., reported in (2004) 6 SCC 415.
14. After hearing learned counsel for the parties and after perusing the materials on record, it is quite apparent that it is not in dispute that the copy of the written statement was served on the plaintiffs’ counsel on 22.12.2000 and that in Paragraphs-12 and 15 of the said written statement the details of the deeds in question were given and that the said deeds were sought to be challenged for the first time by way of amendment petition which was filed on 21.4.2004 i.e. much more than three years after the service of the copy of the written statement. The only explanation given by the plaintiffs for delay in filing of the amendment petition is that their counsel neither read the said copy of the written statement nor informed them about the contents of the said written statement. The said plea, in my view, is not at all satisfactory or believable specially in the circumstances of this case as it is not expected from a counsel that he would neither read the contents nor would inform his clients regarding the written statement for about four years without any genuine reason. From the aforesaid case laws cited by the parties in case of Radhika Devi, (supra) as well as in case of Pankaja and another (supra), the question is well settled by the Hon’ble Supreme Court that where the parties acquire a right by bar of limitation and if the same is sought to be taken away by an amendment, in such circumstances it would be refused specially when the deed was executed much earlier whereafter they were registered also which is legal notice to every one and even after filing of the written statement for more than three years no steps were taken to file the application for amendment of the plaint challenging those deeds. Hence, the accrued right in favour of the defendant would be defeated if such amendment of the plaint is permitted. Although, there can not be an absolute rule that in every case where relief is barred by limitation, amendment can not be allowed and definitely there is no straight jacket formula as the matter depends upon the facts of each case, but here in the facts of the instant case the deeds in question were executed by the ancestor of the plaintiffs themselves whereafter they were registered also and subsequently the defendants themselves informed the plaintiffs about the said deeds by serving a copy of the written statement on the learned counsel for the plaintiffs. But even then no step for adding any relief challenging the said deeds was taken by the plaintiffs according to the provision of Article 59 of the Limitation Act, within the time prescribed therein. Allowing such amendment is bound to cause serious prejudice to the defendants. Hence, I find force in the argument of the learned counsel for the petitioners.
15. The learned Court below has not at all considered the aforesaid aspect of the matter and has allowed the amendment petition by the impugned order on the wrong assumption that the amendment petition was filed on the direction of this Court in the earlier Civil Revision No. 1023 of 2004 vide order dated 15.9.2004. The said order of this Court clearly shows that the plaintiffs who were petitioners in that Civil Revision sought permission to withdraw that Civil Revision for filing a fresh amendment petition whereafter this Court dismissed that Civil Revision as withdrawn simplicitor without giving any direction either to the parties or to the Court. Hence, there is no question of any direction by this Court and it was the duty of the learned Court below to consider the fresh amendment petition of the plaintiffs on its own merits in accordance with law. It further transpires that the learned Court below has also confused the date of filing of the written statement in the concluding portion of its impugned order as it has assumed that the written statement was filed by the defendants on 22.12.2002, although, it was filed on 22.12.2000 and hence the bar of limitation had clearly cropped up.
16. In the aforesaid facts and circumstances of this case, this Civil Revision is allowed, the impugned order of the learned Court below is set aside and the amendment sought by the plaintiffs is rejected.