High Court Kerala High Court

C.Manikantan Nair vs Attukal Bhagavathy Temple Trust on 29 June, 2010

Kerala High Court
C.Manikantan Nair vs Attukal Bhagavathy Temple Trust on 29 June, 2010
       

  

  

 
 
  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

W.P(C) No.20120, 20205 &

20206 of 2010
-: 2 :-

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

W.P(C) No.20120, 20205 &

20206 of 2010
-: 3 :-

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

W.P(C) No.20120, 20205 &

20206 of 2010
-: 4 :-

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
-: 5 :-

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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20206 of 2010
-: 6 :-

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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20206 of 2010
-: 7 :-

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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20206 of 2010
-: 8 :-

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