Page 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  6595 OF 2015 (arising out of S.L.P. (Civil) No. 15513 of 2015)

L.C. HANUMANTHAPPA (SINCE DEAD)              …Appellant(s)   REPRESENTED BY HIS LRS.

           VERSUS

H.B. SHIVAKUMAR    ...Respondent

J U D G M E N T  

R.F. Nariman, J.

1. Leave granted. 2. The present  case arises out  of  cross suits  filed by the

parties.  On 9th March, 1990, one L.C. Hanumanthappa filed a

suit  against  one  H.B.  Shivakumar  for  permanent  injunction

restraining  the  defendants,  his  servants  and  agents  from

disturbing  the  peaceful  possession  and  enjoyment  of  the  suit

schedule property. In this suit,  namely, O.S. No. 1386 of 1990

filed before the City Civil Court, Bangalore, the plaintiff averred

that  he  is  the  absolute  owner,  and  in  lawful  possession  and

1

Page 2

enjoyment of the suit property. He also averred in the said suit

that the schedule property is clearly distinguishable and could be

identified without difficulty.  According to the plaintiff, the cause of

action  arose  when  the  defendant  tried  to  trespass  on  the

schedule property two days before the suit was filed.

3. Within a few days from the filing of this suit, the defendant

in the first suit filed a suit being suit number O.S. 1650 of 1990  in

the City Civil Court at Bangalore against one L.C. Ramaiah and

the said Shri  Hanumanthappa stating that  the defendants had

attempted to trespass into the suit schedule property about 15

days prior  to  the suit  being filed,  and asked for  a permanent

injunction  against  the  said  defendants  restraining  them  from

interfering with the peaceful  possession and enjoyment  of  the

suit schedule property.  The plaintiff also claimed to be the owner

in possession of the suit schedule property.  

4. In the written statement to O.S. No. 1386 of 1990 dated

16th May, 1990, the defendant not only referred to his own suit

which had by then already been filed, but specifically stated as

follows:-

“4. The boundaries furnished by the plaintiff to old survey site No.13, in the plaint schedule is totally

2

Page 3

false and that has nothing to do with the boundaries mentioned in his document.  

5. The  Plaintiff  has  failed  to  established  any relationship between old site No.13 and Corporation No.12/2, as claimed by him in the plaint.  

6. The  allegations  that  at  the  time  of  the purchase of the schedule property by the plaintiff, western boundary was a building site bearing No.14 and however subsequently the said portion left for building  site  has  been  converted  as  road  and  is being used as such since several years are false and further it  is false to state that the east of the schedule  property  bearing  building  site  No.  12  is situate  and  the  same  was  belonging  to  one  H. Venkataramanappa and however, the said site has been  sold  by  him  and  now  the  said  property  is owned  by  one  Sri  Ahmadullah  khan  and  he  has constructed a building thereon, as alleged in para 2 of the plaint.

7. The  plaintiff  has  purposefully  distorted  the boundary  of   his  old  site  No.  13  to  bring substantially  the  boundaries  of  site  No.15,  old  3, C.T.S.  No.  1157  (city  Survey)  which  exclusively belongs to the defendant.   

13. The suit  for  injunction is not  maintainable in that, he has failed to establish title with possession over site No. old 13, and that is not establishing any connection  between old  site  No.13,  and  new No. 12/2,  alleged  to  be  assigned  by  Bangalore  City Corporation or about 6-6-1989.”

5. It  can  thus  be  seen  that  on  16th May,  1990  itself  the

plaintiff in O.S. No. 1386 of 1990 was put on notice that his suit

3

Page 4

for injunction was not maintainable as he had failed to establish

title over the suit schedule property.

6. Both suits were tried together, and by a judgment dated

10th March,  1999,  the  Court  of  Additional  City  Civil  Judge  at

Bangalore decreed O.S. No. 1650 of 1990 and dismissed O.S.

No.  1386 of  1990.   In  the  first  appeals  filed  against  the  said

judgment, the High Court of Karnataka by its judgment dated 28 th

March,  2002  allowed  R.F.A.  No.  415  of  1999,  and  dismissed

R.F.A. No. 456 of 1999, and remanded the matter back to the

trial  court  for  fresh  consideration.  The  High  Court  while

remanding the matter observed as follows:-

“10. The  trial  Court  had  also  appointed  the Commissioner. The Commissioner after  inspecting the  properties  has  given  his  report.  The commissioner  has  also  been  examined  as  PW.2. From looking into the pleadings and the evidence adduced by the parties,  it  is  crystal clear that  the dispute is in respect of the identity of two properties and to  declare  right  and title  over  the properties. The respondent in this case has not disputed the sale  deed  which  stands  in  the  name  of  the appellant.  Since  the  defendant  is  disputing  and existence of the suit schedule property, the present application is  filed  for  declaration of  his  title.  The respondent has resisted the application, contending that the relief sought for by the appellant is barred by  limitation  and  that  relief  sought  by  way  of limitation. However, such a plea can be raised by the  respondents  by  filing  additional  written

4

Page 5

statement. Considering the fact that the dispute in respect of an immovable property and question of identification of two properties have been involved, as the defendant is also not disputing the sale deed of the appellant, this court to allow the application filed  by  the  appellant  for  amendment  of  plaint seeking additional evidence.  

11. Accordingly, R.F.A. No. 415/99 is allowed. The judgment and decree passed in O.S. No. 1386/90, is  set  aside.  The matter  is  remanded to the Trial Court to hold fresh enquiry after giving reasonable opportunities for both the parties. The defendant is entitled to file additional written statement and also entitled to raise the question of limitation. The Trial Court shall dispose of the suit within six (6) months from to-day in accordance with law. The judgment and decree passed in O.S.  1650/90, which is the subject matter of RFA 415/99 is concerned, there is no  need  for  this  court  to  disturb  the  decree  of injunction and that the decree that may be passed in  O.S.  1386/90  by  the  Trial  Court  will  have  a bearing  on  the  judgment  and  decree in  O.S.  No. 1650/90.  In  the  event  of  appellant  succeeding  in O.S. 1386/90, the judgment and decree passed in O.S.  1650/90  in  favour  of  Shivakumar  for  bare injunction  will  be  unenforceable  against  the appellant  –  Hanumathappa.  However,  it  is  made clear  till  the  disposal  of  O.S.  1386/90,  the respondent/plaintiff-shivakumar  in  O.S.  1650/90  is hereby directed to maintain status-quo. If  such an order  is  not  passed,  the respondent/plaintiff-Shivakumar  may  proceed  with the construction and if  he is  allowed to  construct and in the event of appellant succeeds in O.S. No. 1386/90,  than  it  will  lead  to  multiplicity  of proceedings. Therefore it is necessary to direct the respondents to maintain status-quo.”

5

Page 6

7. On 1st April, 2002, the plaintiff in O.S. No. 1386 of 1990

then sought to amend the plaint in terms of the said judgment by

adding para 5A to the plaint in which the plaintiff stated:-

“5A. “The Plaintiff  submit  that  the Defendant  has no manner  of  right  title  and  interest  in  the  plaint Schedule Property. The Defendant has denied the title of the plaintiff  in respect of the suit  Schedule Property. Hence it  is  just and essential  to declare that the plaintiff is absolute owner in possession of the Schedule property. If the declaration as sought is not granted the Plaintiff who is the absolute owner from  05/05/1956  and  enjoying  the  property  as absolute owner thereof, will  be put great loss and prejudice.  On  the  other  hand  no  hardship  or prejudice  will  be  caused  to  the  defendant  if  the declaration as sought is granted.”

8.  A decree  for  declaration  of  title  to  the  suit  schedule

property was then added as a prayer to the amended plaint. On

1st August,  2002,  the  defendant  filed  an  additional  written

statement in which the defendant stated that the said plea based

on  a  new  cause  of  action,  namely,  declaration  of  title,  was

time-barred.

9. After remand, by its judgment and decree dated 16th April,

2009, the City Civil Court at Bangalore decreed the suit O.S. No.

1386 of 1990.  It turned down the plea of limitation by stating that

since in the original written statement the defendant had admitted

6

Page 7

the  title  of  plaintiff  Hanumanthappa,  and  only  in  the  written

statement dated 1st August, 2002 was title denied for the first time

after  the  amendment  of  the  plaint  was  moved,  the  relief  of

declaration claimed by the plaintiff would be within the period of

limitation.  

10. In  R.F.A.  No.  796  of  2009,  by  the  impugned judgment

dated  5th March,  2015,  the  High  Court  reversed  the  said

judgment on limitation stating that the original written statement

filed on 16th May, 1990 had clearly stated that the plaintiff did not

have the necessary title to the suit schedule property, and as the

amendment of the plaint was moved long after three years from

16th May, 1990, it was clear that it was time-barred.   O.S. No.

1386 of 1990 was thus dismissed on limitation alone.  The High

Court also turned down the plea with reference to Section 22 of

the Limitation Act, 1963 stating that on the facts of the present

case limitation could not be extended because the wrong in the

present case was not a continuing wrong.

11. Learned counsel for the appellant has argued that once

an amendment to the plaint is allowed, it necessarily relates back

to the date on which the plaint was originally filed, and since the

amendment was allowed in the present case by the judgment

7

Page 8

dated 28th March, 2002, the said amendment related back to 9 th

March, 1990 when the suit was originally filed. He further argued

that the suit was based on title, and the title of the plaintiff was

admitted in paragraph 2 of the original written statement, as was

held by the trial court in its judgment dated 16 th April, 2009. He

therefore submitted that the impugned judgment ought to be set

aside. However, he did not press the plea of continuing wrong on

the facts of the present case.

12. Learned counsel for the respondent, on the other hand,

argued that the plaintiff’s title was clearly denied in the original

written statement and three years having elapsed from the said

date,  the amendment was obviously time-barred.   Further, the

judgment  dated  28th March,  2002 itself  made it  clear  that  the

amendment was allowed subject to the plea of limitation being

raised. He further argued that the amendment made introduced a

completely  new  cause  of  action  based  on  fresh  facts  and

therefore any amendment made could not possibly relate back

as such amendment would be clearly time-barred.  

13. We have heard learned counsel for the parties. It is not

disputed that Article 58 of the Limitation Act would apply to the

8

Page 9

amended  plaint  inasmuch  as  it  sought  to  add  the  relief  of

declaration  of  title  to  the  already  existing  relief  for  grant  of

permanent injunction.   In Khatri Hotels Private Limited & Anr.

v. Union of India & Anr.,  (2011) 9 SCC 126, this Court while

construing Article 58 of the Limitation Act held as follows:-

“Article 58 of the Schedule to the 1963 Act, which has a bearing on the decision of this appeal, reads as under:

“THE SCHEDULE Period of Limitation

[See Section 2(j) and 3] First Division-Suits

 Description of suit        Period of              Time from which period                                              limitation                 begins to run

 *              * *                    Part III- Suits Relating To Declarations             *                              * *   58. To obtain any other     Three Years  When the right to sue first accrues.          declaration.

Article 120 of the Schedule to the Limitation Act, 1908  (for  short  “the  1908  Act”)  which  was interpreted  in  the  judgment  relied  upon  by  Shri Rohatgi reads as under:

 “Description of suit    Period of    Time from which period begins to run            limitation

 *                              * * 120. Suit for which no period      Six years   When the right to sue accrues.”         of limitation is provided          elsewhere in this Schedule.

9

Page 10

The  differences  which  are  discernible  from  the language of the above reproduced two articles are:

(i)  The  period  of  limitation  prescribed  under Article 120 of the 1908 Act was six years whereas the period of  limitation prescribed under the 1963 Act is three years and,

(ii) Under Article 120 of the 1908 Act, the period of  limitation  commenced  when  the  right  to  sue accrues.  As  against  this,  the  period  prescribed under Article 58 begins to run when the right to sue first accrues.

Article 120 of the 1908 Act was interpreted by the Judicial Committee in  Bolo v. Koklan [(1929-30) 57 IA 325 : AIR 1930 PC 270] and it was held: (IA p. 331)

“There can be no ‘right to sue’ until there is an accrual  of  the right asserted in the suit  and its infringement, or at least a clear and unequivocal threat  to  infringe  that  right,  by  the  defendant against whom the suit is instituted.”

The  same  view  was  reiterated  in  Annamalai Chettiar  v.Muthukaruppan  Chettiar  [ILR  (1930)  8 Rang 645] andGobinda Narayan Singh v. Sham Lal Singh [(1930-31) 58 IA 125].

In  Rukhmabai  v. Lala Laxminarayan [AIR 1960 SC 335 : (1960) 2 SCR 253] , the three-Judge Bench noticed the earlier judgments and summed up the legal  position in  the  following  words:  (Rukhmabai case [AIR 1960 SC 335 : (1960) 2 SCR 253] , AIR p. 349, para 33)

“33. … The right to sue under Article 120 of the [1908 Act] accrues when the defendant has clearly  or  unequivocally  threatened to infringe the  right  asserted  by  the  plaintiff  in  the  suit.

10

Page 11

Every threat by a party to such a right, however ineffective and innocuous it may be, cannot be considered to be a clear and unequivocal threat so as to compel him to file a suit. Whether a particular  threat  gives  rise  to  a  compulsory cause  of  action  depends  upon  the  question whether  that  threat  effectively  invades  or jeopardizes the said right.”

While  enacting  Article  58  of  the  1963  Act,  the legislature has designedly made a departure from the language of  Article  120 of  the 1908 Act.  The word “first” has been used between the words “sue” and  “accrued”.  This  would  mean  that  if  a  suit  is based on multiple causes of  action,  the period of limitation will begin to run from the date when the right  to  sue  first  accrues.  To  put  it  differently, successive violation of the right will not give rise to fresh  cause  and  the  suit  will  be  liable  to  be dismissed  if  it  is  beyond  the  period  of  limitation counted  from the  day  when the  right  to  sue  first accrued.” [at paras 25 – 30]

14. Given this statement of the law, it is clear that the present

amendment of the plaint is indeed time-barred in that the right to

sue for declaration of title first arose on 16 th May, 1990 when in

the very  first  written statement  the defendant  had pleaded,  in

para 13 in particular, that the suit for injunction simpliciter is not

maintainable in that the plaintiff had failed to establish  title with

possession over the suit property. The only question that remains

to  be  answered  is  in  relation  to  the  doctrine  of  relation  back

11

Page 12

insofar as it applies to amendments made under Order VI Rule

17 of the Code of Civil Procedure.

15. As early as in the year 1900, the Bombay High Court in

Kisandas Rupchand v. Rachappa Vithoba,  ILR 33 Bom 644

(1900),  held as follows:-

“  ...  All  amendments  ought  to  be  allowed  which satisfy the two conditions (a) of not working injustice to the other side, and (b) of being necessary for the purpose  of  determining  the  real  questions  in controversy between the parties ... but I refrain from citing further authorities, as, in my opinion, they all lay down precisely the same doctrine. That doctrine, as I  understand it,  is  that amendments should be refused only where the other party cannot be placed in the same position as if  the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. It is merely a particular case of this general rule that where a plaintiff seeks to amend by setting up a  fresh  claim  in  respect  of  a  cause  of  action which since the institution of the suit had become barred  by  limitation,  the  amendment  must  be refused; to allow it would be to cause the defendant an injury which could not be compensated in costs by depriving him of  a good defence to the claim. The ultimate test therefore still  remains the same: can the amendment be allowed without injustice to the other side, or can it not?” [at p. 655]

16. This statement of the law was expressly approved by a

three Judge Bench of this Court in Pirgonda Hongonda Patil

12

Page 13

v. Kalgonda Shidgonda Patil, 1957 SCR 595, at pages 603 to

604.

17. Twenty years later, the Privy Council  in  Charan Das v.

Amir Khan, 47 IA 255 (1920), stated the law as follows:-

“That there was full power to make the amendment cannot  be  disputed,  and  though  such  a  power should not as a rule be exercised where the effect is to take away from a defendant a legal right which has accrued to him by lapse of time, yet there are cases where such considerations are out-weighed by the special circumstances of the case.”

18. This statement of the law was cited with approval in  L.J.

Leach & Co. Ltd. v. Jardine Skinner & Co., 1957 SCR 438, at

pages 450 to 451.

19. The facts  in  the aforesaid  case were that  the plaintiffs

had,  on  the  basis  of  the  material  facts  stated  in  the  plaint,

claimed damages on the basis of the tort of conversion. It had

been held by the courts below that on the pleading and on the

evidence such claim must fail.  At the stage of arguments in the

Supreme Court,  the plaintiff  applied to the Supreme Court  for

13

Page 14

amendment  of  the plaint  by raising an alternative plea on the

same set  of  facts,  namely, a claim for  damages for  breach of

contract for non-delivery of the goods.  The respondents in that

case resisted the said plea for  amendment, stating that a suit

based on this new cause of action would be barred by limitation.

This Court,  while allowing the said amendment, stated that no

change needs to be made in the material facts pleaded before

the  court  all  of  which  were  there  in  support  of  the  amended

prayer.  In any case, the prayer in the plaint as it originally stood

was itself  general  and merely claimed damages. Thus,  all  the

allegations  which  were  necessary  for  sustaining  a  claim  of

damages for breach of contract were already there in the plaint.

The  only  thing  that  was  lacking  was  the  allegation  that  the

plaintiffs  were  in  the  alternative  entitled  to  claim damages for

breach of contract.  In the facts of the said case, this Court held:-

“It  is  no  doubt  true  that  courts  would,  as  a  rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of  the application.  But  that  is  a  factor  to  be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the court to order it, if that is required in the interests of justice.”  [at page 415]

14

Page 15

20. It is clear that this case belonged to an exceptional class

of cases where despite the fact that a legal right had accrued to

the  defendant  by  lapse  of  time,  yet  this  consideration  was

outweighed by the special  circumstances of  the case, namely,

that no new material fact needed to be added at all, and only an

alternative prayer in law had necessarily to be made in view of

the original plea in law being discarded.   

21. Similar  is  the  case  with  Pirgonda  Hongonda  Patil,

reported  in  1957  SCR  595. Here  again  it  was  held  that  the

amendment did not really introduce a new fact at all, nor did the

defendant have to meet a new claim set up for the first time after

the expiry of the period of limitation.  

22. In  K.  Raheja  Constructions  Ltd.  &  Anr.  v.  Alliance

Ministries  &  Ors., 1995   Supp.  (3)  SCC 17,  this  Court  was

seized  with  a  belated  application  to  amend  a  plaint  filed  for

permanent  injunction.  Seven  years  after  it  was  filed,  an

amendment application was moved seeking to amend the plaint

to one for specific performance of contract.  In turning down such

amendment  on  the  ground that  it  was  time-barred,  this  Court

held:-

15

Page 16

“It is seen that the permission for alienation is not a condition  precedent  to  file  the  suit  for  specific performance.  The  decree  of  specific  performance will always be subject to the condition to the grant of the  permission  by  the  competent  authority.  The petitioners  having  expressly  admitted  that  the respondents have refused to abide by the terms of the contract, they should have asked for the relief for  specific  performance  in  the  original  suit  itself. Having allowed the period of seven years to elapse from the date of filing of the suit, and the period of limitation being three years under Article 54 of the Schedule  to  the  Limitation  Act,  1963,  any amendment on the grounds set  out,  would defeat the  valuable  right  of  limitation  accruing  to  the respondent.” [at para 4]

23. Similarly,   in  Vishwambhar  &  Ors.  v.  Laxminarayan

(Dead)  through  LRs  &  Anr.,  (2001)  6  SCC  163,  in  a  suit

originally  filed for  recovery of  possession,  an amendment was

sought to be made after the limitation period had expired, for a

prayer of declaration that certain sale deeds be set aside.  This

was repelled by this Court as follows:-

“On a fair reading of the plaint, it is clear that the main fulcrum on which the case of the plaintiffs was balanced  was  that  the  alienations  made  by  their mother-guardian Laxmibai were void and therefore, liable to be ignored since they were not supported by  legal  necessity  and  without  permission  of  the competent court. On that basis, the claim was made that the alienations did not affect the interest of the plaintiffs  in  the  suit  property.  The  prayers  in  the plaint  were inter  alia  to  set  aside the sale  deeds

16

Page 17

dated  14-11-1967  and  24-10-1974,  recover possession  of  the  properties  sold  from  the respective  purchasers,  partition  of  the  properties carving out separate possession of the share from the suit  properties of  the plaintiffs and deliver the same to them. As noted earlier, the trial  court  as well as the first appellate court accepted the case of the plaintiffs that the alienations in dispute were not supported by legal necessity. They also held that no prior permission of the court was taken for the said alienations. The question is, in such circumstances, are the alienations void or voidable? In Section 8(2) of the Hindu Minority and Guardianship Act, 1956, it is  laid  down,  inter  alia,  that  the  natural  guardian shall not, without previous permission of the court, transfer by sale any part of the immoveable property of the minor. In sub-section (3) of the said section, it is  specifically  provided  that  any  disposal  of immoveable  property  by  a  natural  guardian,  in contravention of  sub-section (2) is voidable at the instance of the minor or any person claiming under him. There is, therefore, little scope for doubt that the alienations made by Laxmibai which are under challenge in the suit were voidable at the instance of the plaintiffs and the plaintiffs were required to get the alienations set aside if they wanted to avoid the transfers  and  regain  the  properties  from  the purchasers. As noted earlier in the plaint as it stood before the amendment the prayer for setting aside the  sale  deeds  was  not  there,  such  a  prayer appears  to  have  been  introduced  by  amendment during  hearing  of  the  suit  and  the  trial  court considered  the  amended  prayer  and  decided  the suit  on  that  basis.  If  in  law  the  plaintiffs  were required to have the sale deeds set  aside before making any claim in respect of the properties sold, then a suit without such a prayer was of no avail to the plaintiffs. In all probability, realising this difficulty the plaintiffs filed the application for amendment of the plaint seeking to introduce the prayer for setting

17

Page 18

aside the sale deeds. Unfortunately, the realisation came  too  late.  Concededly,  Plaintiff  2  Digamber attained  majority  on  5-8-1975  and  Vishwambhar, Plaintiff  1  attained majority  on 20-7-1978.  Though the suit was filed on 30-11-1980 the prayer seeking setting  aside  of  the  sale  deeds  was  made  in December  1985.  Article  60  of  the  Limitation  Act prescribes a period of three years for setting aside a transfer of property made by the guardian of a ward, by  the  ward  who  has  attained  majority  and  the period is to be computed from the date when the ward  attains  majority.  Since  the  limitation  started running from the dates when the plaintiffs attained majority the prescribed period had elapsed by the date of presentation of the plaint so far as Digamber is  concerned.  Therefore,  the  trial  court  rightly dismissed the suit filed by Digamber. The judgment of  the  trial  court  dismissing  the  suit  was  not challenged by him. Even assuming that as the suit filed  by  one  of  the  plaintiffs  was  within  time  the entire suit could not be dismissed on the ground of limitation, in the absence of challenge against the dismissal  of  the  suit  filed  by  Digamber  the  first appellate court could not have interfered with that part of the decision of the trial court. Regarding the suit  filed  by  Vishwambhar,  it  was  filed  within  the prescribed period of limitation but without the prayer for setting aside the sale deeds. Since the claim for recovery of possession of the properties alienated could not have been made without setting aside the sale  deeds  the  suit  as  initially  filed  was  not maintainable. By the date the defect was rectified (December 1985) by introducing such a prayer by amendment  of  the plaint  the prescribed period of limitation for seeking such a relief had elapsed. In the  circumstances,  the  amendment  of  the  plaint could not come to the rescue of the plaintiff.

From the averments of the plaint, it cannot be said

18

Page 19

that  all  the necessary averments for  setting aside the  sale  deeds  executed  by  Laxmibai  were contained in the plaint and adding specific prayer for setting aside the sale deeds was a mere formality. As noted earlier, the basis of  the suit  as it  stood before  the  amendment  of  the  plaint  was  that  the sale transactions made by Laxmibai as guardian of the minors were ab initio void and, therefore, liable to be ignored. By introducing the prayer for setting aside  the  sale  deeds  the  basis  of  the  suit  was changed  to  one  seeking  setting  aside  the alienations of the property by the guardian. In such circumstance, the suit for setting aside the transfers could be taken to have been filed on the date the amendment of the plaint was allowed and not earlier than that.” [at paras 9 and 10]

24. In Siddalingamma and Anr v. Mamtha Shenoy,  (2001)

8 SCC 561, this Court held while allowing an amendment of the

plaint in a case of bona fide requirement of the landlord that the

doctrine of relation back would apply to all  amendments made

under Order VI Rule 17 of the Code of Civil  Procedure, which

generally  governs  amendment  of  pleadings,  unless  the  court

gives reasons to exclude the applicability of such doctrine in a

given case. No question of limitation was argued on the facts in

that  case  which  would  therefore  be  in  the  category  of  cases

which would follow the line of judgments which state that costs

can  usually  compensate  for  an  amendment  that  is  made

19

Page 20

belatedly  but  within  the  period  of  limitation,  it  not  being  an

exceptional case such as those contained in the two judgments

L.J.  Leach  &  Co.  Ltd. and  Pirgonda  Hongonda  Patil cited

above.  

25. In  Sampath Kumar v. Ayyakannu and Anr., (2002)  7

SCC  559,  this  Court  was  faced  with  an  application  for

amendment made 11 years after the date of the institution of the

suit  to  convert  through  amendment  a  suit  for  permanent

prohibitory  injunction  into  a  suit  for  declaration  of  title  and

recovery of possession. This Court held:-

“In our opinion, the basic structure of the suit is not altered  by  the  proposed  amendment.  What  is sought to be changed is the nature of relief sought for by the plaintiff. In the opinion of the trial court, it was open to the plaintiff to file a fresh suit and that is one of the reasons which has prevailed with the trial  court and with the High Court in refusing the prayer  for  amendment  and also in  dismissing the plaintiff's  revision.  We  fail  to  understand,  if  it  is permissible  for  the  plaintiff  to  file  an  independent suit, why the same relief which could be prayed for in a new suit cannot be permitted to be incorporated in the pending suit. In the facts and circumstances of the present case, allowing the amendment would curtail multiplicity of legal proceedings.

Order  6  Rule  17  CPC confers  jurisdiction  on  the

20

Page 21

court  to  allow  either  party  to  alter  or  amend  his pleadings at any stage of the proceedings and on such terms as may be just. Such amendments as are  directed  towards  putting  forth  and  seeking determination of  the real  questions in  controversy between the parties shall be permitted to be made. The question of delay in moving an application for amendment  should  be  decided  not  by  calculating the  period  from the  date  of  institution  of  the  suit alone but  by  reference to  the stage to  which the hearing  in  the  suit  has  proceeded.  Pre-trial amendments are allowed more liberally than those which  are  sought  to  be  made  after  the commencement  of  the  trial  or  after  conclusion thereof.  In  the  former  case  generally  it  can  be assumed  that  the  defendant  is  not  prejudiced because he will have full opportunity of meeting the case of the plaintiff as amended. In the latter cases the question of prejudice to the opposite party may arise  and  that  shall  have  to  be  answered  by reference to the facts and circumstances of  each individual case. No straitjacket formula can be laid down. The fact remains that a mere delay cannot be a ground for refusing a prayer for amendment.

An amendment  once incorporated relates back to the  date  of  the  suit.  However,  the  doctrine  of relation-back  in  the  context  of  amendment  of pleadings is not one of universal application and in appropriate  cases  the  court  is  competent  while permitting  an  amendment  to  direct  that  the amendment permitted by it shall not relate back to the date of the suit and to the extent permitted by it shall be deemed to have been brought before the court on the date on which the application seeking the  amendment  was  filed.  (See  observations  in Siddalingamma  v.  Mamtha Shenoy  [(2001) 8 SCC 561] .)

21

Page 22

In the present case the amendment is being sought for almost 11 years after the date of the institution of the suit. The plaintiff is not debarred from instituting a new suit seeking relief of declaration of title and recovery of possession on the same basic facts as are pleaded in the plaint seeking relief of issuance of  permanent  prohibitory  injunction  and  which  is pending.  In  order  to  avoid  multiplicity  of  suits  it would be a sound exercise of discretion to permit the  relief  of  declaration  of  title  and  recovery  of possession being sought for in the pending suit. The plaintiff  has  alleged  the  cause  of  action  for  the reliefs now sought to be added as having arisen to him during the pendency of the suit. The merits of the averments sought to be incorporated by way of amendment  are  not  to  be judged at  the stage of allowing  prayer  for  amendment.  However,  the defendant is right in submitting that if he has already perfected  his  title  by  way  of  adverse  possession then the right so accrued should not be allowed to be  defeated  by  permitting  an  amendment  and seeking a new relief which would relate back to the date of the suit and thereby depriving the defendant of the advantage accrued to him by lapse of time, by  excluding  a  period  of  about  11  years  in calculating the period of prescriptive title claimed to have been earned by the defendant. The interest of the defendant can be protected by directing that so far as the reliefs of declaration of title and recovery of  possession,  now sought for, are concerned the prayer in that regard shall be deemed to have been made  on  the  date  on  which  the  application  for amendment has been filed.” [at paras 7, 9, 10 and 11]

26. It  is  clear  that  on  the  facts  in  the  above  case  the

amendment was allowed subject to the plea of limitation which

22

Page 23

could be taken up by the defendant when the trial in the case

proceeds.   

27. In  Van  Vibhag  Karamchari  Griha  Nirman  Sahkari

Sanstha Maryadit (Registered) v. Ramesh Chander and Ors.,

(2010)  14  SCC 596, this  Court  considered  a  suit  which  was

originally  filed  for  declaration  of  ownership  of  land  and  for

permanent injunction. The suit had been filed on 11th February,

1991.  An  amendment  application  was  moved  under  Order  VI

Rule 17 of the Code of Civil Procedure on 16 th December, 2002

for inclusion of the relief of specific performance of  contract. This

Court in no uncertain terms refused the midstream change made

in the suit, and held:-

“In the present case, the factual situation is totally different and the appellants have not filed any suit for specific performance against the first respondent within  the period of  limitation.  In  this  context,  the provision of Article 54 of the Limitation Act is very relevant.  The  period  of  limitation  prescribed  in Article 54 for filing a suit for specific performance is three years from the date fixed for the performance, or  if  no such date is  fixed,  when the plaintiff  has notice that performance is refused.

Here  admittedly,  no  date  has  been  fixed  for performance  in  the  agreement  for  sale  entered between the  parties  in  1976.  But  definitely  by  its notice  dated  3-2-1991,  the  first  respondent  has

23

Page 24

clearly made its intentions clear about refusing the performance  of  the  agreement  and  cancelled  the agreement.

Even though the prayer for amendment to include the relief of specific performance was made about 11 years after the filing of the suit,  and the same was allowed after 12 years of the filing of the suit, such an amendment in the facts of the case cannot relate back to the date of filing of the original plaint, in  view  of  the  clear  bar  under  Article  54  of  the Limitation Act. Here in this case, the inclusion of the plea of specific performance by way of amendment virtually  alters  the  character  of  the  suit,  and  its pecuniary  jurisdiction had gone up  and  the  plaint had to be transferred to a different court. This Court held  in  Vishwambhar  v.  Laxminarayan  [(2001)  6 SCC 163] , if as a result of allowing the amendment, the basis of the suit is changed, such amendment even though allowed, cannot relate back to the date of filing the suit to cure the defect of limitation (SCC at  pp.  168-69,  para  9).  Those  principles  are applicable to the present case.” [at paras 24, 25 and 32]

28. In  Prithi Pal Singh and Anr. v. Amrik Singh and Ors.,

(2013)  9  SCC  576, this  Court  was  concerned  with  a  suit

claiming pre-emption under the Punjab Pre-emption Act, 1913.

An  amendment  was  sought  to  the  plaint  claiming  that  the

plaintiff was entitled to relief as a co-sharer of the suit property.

This Court after considering some of its earlier judgments held:-

24

Page 25

“In our opinion, there is no merit in the submissions of  the  learned  counsel.  A  reading  of  the  order passed by this Court shows that the application for amendment  filed  by  Respondent  2  was  allowed without  any  rider/condition.  Therefore,  it  is reasonable to presume that this Court was of  the view that the amendment in the plaint would relate back to the date of  filing the suit.  That apart,  the learned Single Judge has independently considered the issue of limitation and rightly concluded that the amended suit was not barred by time.” [at para 11]

29. Applying the law thus laid down by this Court to the facts

of this case, two things become clear. First, in the original written

statement itself dated 16th May, 1990, the defendant had clearly

put the plaintiff on notice that it had denied the plaintiff’s title to

the suit  property.  A reading of  an isolated para in the written

statement, namely, para 2 by the trial court on the facts of this

case has been correctly commented upon adversely by the High

Court  in  the  judgment  under  appeal.  The  original  written

statement  read  as  a  whole  unmistakably  indicates  that  the

defendant had not accepted the plaintiff’s title.  Secondly, while

allowing the amendment, the High Court in its earlier judgment

dated 28th March, 2002 had expressly remanded the matter to

the  trial  court,  allowing  the  defendant  to  raise  the  plea  of

25

Page 26

limitation.   There  can  be  no  doubt  that  on  an  application  of

Khatri  Hotels  Private  Limited (supra),  the  right  to  sue  for

declaration of title first arose on the facts of the present case on

16th May, 1990 when the original written statement clearly denied

the plaintiff’s title.  By 16th May, 1993 therefore a suit based on

declaration of title would have become time-barred.   It is clear

that the doctrine of relation back would not apply to the facts of

this  case  for  the  reason  that  the  court  which  allowed  the

amendment expressly allowed it subject to the plea of limitation,

indicating  thereby  that  there  are  no  special  or  extraordinary

circumstances  in  the  present  case  to  warrant  the  doctrine  of

relation back applying so that a legal right that had accrued in

favour of the defendant should be taken away. This being so, we

find no infirmity in the impugned judgment of the High Court.  The

present appeal is accordingly dismissed.     

……………………J. (A.K. Sikri)

……………………J. (R.F. Nariman)

New Delhi; August  26, 2015.

26