ORDER
1. The petitioner herein is the plaintiff in OS No.3 of 1991 on the file of Addl. Junior Civil Judge, Punganur. The petitioner filed a suit for declaration of his easement of necessity on he road which is marked by alphabet ‘CD’ to ‘GH’ of the plaint plan.
2. During the pendency of the suit, the petitioner/plaintiff got the Commissioner appointed for noting down the physical features of the road in existence. The Advocate-Commissioner had filed his report along with a rough sketch. Thereafter it appears that at the instance of the defendants, the Commissioner was asked to visit the suit schedule site, once again, he filed another report showing the location of the road on the second occasion. Tt was also observed by the Advocate-Commissioner that between the point ‘ST’ to ‘GH’ road is existing rest of the portions were merged into their cultivable land meaning thereby that some road was encroached upon. This report was filed in the year 1991. Now at the stage of the trial, the petitioner herein filed 1A No.325 of 1997 seeking amendment of the plaint. The said application was rejected. Hence, the petitioner filed this revision petition.
3. Heard the learned Counsel for the petitioner and the learned Counsel for the respondents. Sri S. V. Shall, learned Counsel for the petitioner submitted at the Bar that
the learned Judge wrongly refused the amendment application presuming that the claim of the plaintiff petitioner herein is barred by limitation. The learned Counsel for the petitioner invited my attention to the Section 22 of the Limitation Act which speaks as under:
“Section 22. Continuing Breaches and torts :–In the case of a continuing breach of contract in the case of a continuing tort, a fresh period of limitation begins to run at every moment or the time during which the breach or the tort, as the case may be continues.”
4. Therefore, it was submitted that it was a specific case of the plaintiff in the amendment application that the defendants have extended their fields so as to make encroachment over the cart track and thereby narrowing the cart track as shown in the map as submitted by the Advocate-Commissioner.
5. While rebutting the aforesaid argument, Sri R. Radhakrishna Reddy, learned Counsel for the respondents, submitted that the claim of the plaintiff is barred by limitation and such an application for amendment was rightly dismissed by the learned Judge. Relying upon the ruling in Shaik Pedda Adam and others v. Shik Adam and others, and also in NSSSarma v. P. Venkateswar Rao, 1997 (1) ALT 147. With reference to the above rulings, it was emphatically submitted by the learned Counsel for the respondents that if the relief claimed is barred by limitation. The amendment should not be allowed and it was rightly rejected by the trial Court. The learned Counsel for the respondents also relied upon the ruling in Radhika Devi v. Bajrangi Singh, , wherein it was held by their Lordships is as follows:
“We find no force in the contention of the appellant. No doubt, the amendment
of the plaint is normally granted and only in exceptional cases where the accrued rights are taken away by amendment of the pleading, the Court refuse the amendment. This Court in Laxmidas Dahyabhai Kabarwala v. Nanabhai Chunilal Kabarwala, , held thus:
“It is, no doubt, true that, save in exceptional cases, leave to amend under Order 6, Rule 17 of the Code will ordinarily be refused when the effect of the amendment would be to take away from a party a legal right which had accrued to him by lapse of time. But this rule can apply only when either fresh allegations added or fresh reliefs sought by way of amendment. Where, for instance, as amendment is sought which merely clarifies an existing pleading and does not in substance add to or alter it, it has never been held that the question of a bar of limitation is one of the questions to be considered in allowing such clarification of a matter already contained in the original pleading. The present is a fortiori so. The defendants here were not seeking to add any allegation nor to claim any fresh relief which they had prayed for in the pleading already filed.”
In that case this Court considered the cross objections to be treated as a cross suit since no alteration was being made in the written statement to treat it as a plaint originally instituted. The amendment which was sought to be made was treated to be classificatory and, therefore, this Court had upheld the amendment of the written statement and treated it to be a cross suit. The ratio therein squarely applies to a fact situation where the party acquires right by bar of limitation and if the same is sought to be taken away by amendment of the pleading, amendment in such circumstances would be refused. In the
present case, the gift deed was executed and registered as early as July 28,197S which is a notice to everyone. Even after filing of the written statement, for 3 years no steps were taken to file the application for amendment of the plaint. Thereby the accrued right in favour of the respondents would be defeated by permitting amendment of the plaint. The High Court, therefore, was right in refusing to grant permission to amend the plaint.”
6. ‘The ruling cited by the learned Counsel is not applicable to the present set of facts. This Court has no hesitation in accepting the ruling of the Apex Court in which it was held that the amendment to the time barred claim so as to bring the claim within a period of limitation is not permissible. But the present case is governed by Section 22 of the Limitation Act, Further it is proved by evidence that the defendants have made encroachment over the cart-track. Thus, the right of the plaintiff as well as the general public is obstructed. In that case, it must be held that The cause of action arose to the plaintiff from day to day and every moment. Therefore, if the present application is allowed, it cannot be said that the claim of the plaintiff/petitioner would be brought within the period of limitation. Therefore, the contention of the learned Counsel for the respondents is hereby rejected.
7. The learned Counsel for the petitioner brought to my notice a ruling reported in Masooma Bibi v. Mohammad Said Khan, AIR 1942 All. 77, it was specifically laid down by his Lordship as follows:
“Obstruction to a water-course and to the flow of water is a continuing wrong as to which the cause of action is renewed de die indiem so long as the obstruction causing such interference is allowed to continue.”
8. In the present case, if the plaintiff along with other villagers acquired right to pass through the track which is described in the plaint schedule by a necessity and then it must be held that if the obstruction is caused by the defendants, cause of action is a continuous one.
9. Taking the above into consideration, this Court allows the revision petition by setting aside the order passed in IA No.325 of 1997 by the learned Junior Civil Judge, Pungamir. The petitioner/plaintiff is permitted to carry out the amendment within 15 days from the date of receipt of a copy of the order.
10. The observation made in the petition that the defendants made encroachment on the cart-way is only for deciding this revision. The observation made in this petition in that respect should not be taken as a bar to resolve the dispute between the parties on merits.
11. The learned Counsel for the petitioner made a submission at the Bar that the plaintiff will not seek any interim relief or ad interim mandatory injunction.
12. With these directions, the civil revision petition stands allowed. No costs.