Mainabai Lakshman Tanjave v. Aagatrao Dyanu Ghodake

2. By the present Writ Petition, the petitioners have prayed for following reliefs:- "(B) After calling for the records and proceedings from the Court of learned Civil Judge, Junior Division, Madha in respect of the Regular Civil Suit No. 22/2008, this Hon'ble Court may be pleased to examine the legality, validity and / or propriety of the impugned Judgments and Orders dated 17.11.2016 passed by the learned Civil Judge, Junior Division, Madha in respect of Regular Civil Suit no.22/2008 below Exhibit 35 and 39;

(c) After examining the legality, validity and / or propriety of the same, this Hon'ble Court may be pleased to quash and set aside the 1 of 13 separate impugned Judgment and Orders dated 17.11.2016 passed by the learned Civil Judge, Junior Division, Madha and further be pleased to reject the applications below Exh. 35 and 39 preferred in the Regular Civil Suit No. 22/2008."

3. Petitioners are aggrieved by the twin orders both dated 17.11.2016 passed by the Civil Judge, Junior Division, Madha in two applications namely Exh. 35 and Exh. 39 filed by the respondents in Regular Civil Suit No. 22 of 2008.

4. Briefly stated, the facts are as under:- 4.[1] Petitioners are the original defendants and respondents are the legal heirs of the original plaintiff. The suit property for which entitlement is claimed by the plaintiffs is Gat No. 139 admeasuring 0.69 acres situated in Village Chandaj, Taluka Madha, District Solapur. The original plaintiff i.e respondent herein filed Regular Civil Suit No. 22 of 2008 against the defendants for permanent injunction in respect of the suit property. The original plaintiff expired on 16.04.2015. His legal heirs are the present respondents. 4.[2] Respondents i.e plaintiffs filed application Exh. 35 stating that original defendant No. 1 had expired on 27.03.2014 and his legal heirs (present petitioners) were required to be brought on record. Petitioners objected to this application on the ground of maintainability. Respondents - 2 of 13 plaintiffs thereafter filed an application Exh. 39 for seeking amendment of the suit plaint. This Application was filed on 25.10.2016. The petitioners objected to the proposed amendment application on the ground of maintainability and limitation, inter alia, contending that the proposed amendment if allowed would change the nature of the suit and a completely different relief would be introduced and granted by the Court. On the aspect of limitation, it was contended that the cause of action to seek the relief had arisen in 2008 immediately on filing the written statement and the application was filed after a period of 8 years. 4.[3] The Trial Court allowed both the aforesaid applications Exh. 35 and Exh. 39 by two separate orders which are annexed as “Exh. J” and “Exh. K” to the paper book.

5. Mr. Shah, learned counsel appearing for the petitioners has assailed both the orders in the present writ petition. In respect of the order below Exh. 35, it is submitted that the same was filed beyond limitation after a period of almost 2 years and 3 months and therefore not maintainable. He submitted that in the year 2016, the respondents had filed a similar application Exh. 26 to 3 of 13 implead the legal heirs of the deceased original plaintiff. That application was allowed even though it was filed beyond the period of 90 days there was a delay of 10 months. The present application has been delayed by more than 2 years and 3 months. Hence, on the ground of limitation, the present application was required to be dismissed rather than allowed by the trial Court.

6. In respect of Application under Exh. 39, Mr. Shah contended that the petitioners (defendants) had filed written statement dated 07.08.2008, inter alia, denying the right of the plaintiff as the owner of the suit property. He submitted that as a complete afterthought after reading the written statement, respondents filed application Exh. 39 in the year 2016 for amendment of the plaint and the amendment was to the effect that the respondents sought declaration of title in the name of the original deceased plaintiff as the owner of the suit property on the basis of a deed of purchase dated 25.07.1979. Thus he submitted that though the original suit was filed for seeking injunction, by way of the proposed amendment application Exh. 39, the respondents now sought to completely alter the nature of the suit by seeking declaratory title of the suit property. It was further 4 of 13 contended that the amendment application was filed in October 2016 whereas the original suit was of the year 2008, thus, the said application altering the entire nature of the suit filed after a period of 8 years from the date of the cause of action and therefore was not maintainable and deserved to be dismissed. He has, therefore, submitted that both the impugned orders dated 17.11.2016 passed by the trial Court in Exh. 35 and Exh. 39 be dismissed with costs.

7. PER CONTRA, Mr. Kulkarni, learned counsel appearing for the respondents - original plaintiffs has supported the two impugned orders dated 17.11.2016 and contended that the amendment which is sought by the plaintiffs is before commencement of the trial and the trial court has taken a liberal view while deciding the amendment application and allowed the same. He submitted that for consideration of the amendment application, the merits of the amendment would not be gone into and further if the petitioners are aggrieved on the issue of limitation, the petitioners can always approach the trial court and seek framing of the issue of limitation. He contended that since amendment application Exh. 39 has been allowed, it relates back to the date of institution of the suit i.e 2008 under the 5 of 13 doctrine of “relate back”. Finally it was submitted that seeking declaration regarding ownership in the suit property alongwith permanent injunction prayed for in the original suit plaint did not alter the nature of the suit.

8. I have heard the learned counsel for the respective parties and perused the pleadings. Submissions made by the parties are on the pleaded lines.

9. Before we advert to the respective submissions, provisions of Order 6 Rule 17 relating to amendment are relevant for consideration in the present case. Order VI Rule 17 is extracted as under:-

10. It is stated that though the courts have a very wide discretion in the matter of amendment of pleadings, Courts' power must be exercised judiciously and with great care while deciding the applications for amendment. One of the principal conditions required to be considered by the 6 of 13 Court is whether grant of amendment is necessary for determination of the real controversy in the suit. If this condition is not satisfied, the amendment cannot be allowed. This is a basic test which should govern the Court’s discretion in granting or refusing amendment. The Supreme Court in a decision in the case of Revajeetu Builders and Developers Vs. Narayanswamy and Sons & Ors[1] has laid down some basic principles which ought to be taken into consideration while allowing or rejecting the application for amendment. Paragraph numbers 39 and 63 are relevant and extracted as under:-

7 of 13 lead to multi- ple litigation; (5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? and (6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive."

11. Mr. Shah, learned counsel appearing for the petitioners has laid emphasis on clause (5) and (6) of paragraph No. 63 herein above in support of his challenge to the order passed below Exh. 39 and vehemently stated that the proposed amendment of seeking declaratory title is unconstitutional and would fundamentally change the nature and character of the original suit. He has further argued that if the principle enunciated in clause (6) above is applied to the facts of the present case, then in that case, the trial court ought to have considered the fact that the amendment application was moved 8 years after the cause of action and was therefore barred by limitation on the date of the application.

12. On a careful reading of the provisions of Order 6 Rule 17 of the Code of Civil Procedure and the decision in the 8 of 13 case of Revajeetu Builders and Developers (supra), I have no hesitation in accepting the submissions made on behalf of the petitioners in the present petition in respect of challenge to the order under Exh. 39. It is an admitted position in the present case that the predecessor-in-title of the petitioners has challenged the title of the predecessor-in-title of the respondents by filing his written statement on 07.08.2008, therefore, the cause of action for seeking declaratory relief of title to the suit property arose on 07.08.2008. The amendment is now sought after more than 8 years from the date of denial of the title. Under the provisions of Article 58 of the Limitation Act, 1963 in such a case, the maximum period of limitation allowed is 3 years and thus, the action on the part of the respondents (plaintiffs) was clearly barred by the law of limitation. The amendment sought for to seek declaratory relief of title could not have been allowed and granted in view of the aforesaid provisions because the original suit was a suit simpliciter seeking injunction. Petitioners have relied on the decision of the Apex Court in the case of Anathula Sudhakar Vs. P. Buchy Reddy (dead) by LRs. & Ors.[4] and more specifically paragraph 21 thereof. There is a very categorical summarization of the position in regard to suits for perpetual injunction relating to