Pankaja & Anr Vs. Yellappa
& Ors  Insc 430 (5 August 2004)
N. Santosh Hegde & S.B.
Sinha. (Arising out of S.L.P. ) Nos. 3089-3090 of 2004) Santosh Hegde, J.
Heard learned counsel for the parties.
The appellants herein filed a suit before the Principal Civil Judge,
Shimoga, originally seeking the following reliefs :- a ) To grant a judgment
and decree of permanent Injunction restraining the Defendants 1 to 10 their
men, and agents from interfering with A A1 L O N C D portion of the suit
b) For possession of the property identified as A1 B M N O L portion and
also the N N1 O O 1 at annexure-A to the plaint of the suit schedule property.
c) Such other relief/reliefs that this Hon'ble Court deems fit to grant
under the circumstances of the case as also the cost of this suit.
It is their case during the pendency of the said suit the respondent in
violation of the court order further encroached into suit property to an extent
of 15' x 15'. Therefore, the appellants sought for an amendment of the plaint
seeking for possession of the said encroached area also. This application was
also allowed by the Trial Court.
In the written statement filed by the respondents, a contention was taken
that a suit for injunction and possession without seeking a declaration of
title was not maintainable.
Written statement was filed on 17th September, 1994. On 27th of July, 2000
realizing that a prayer for declaration on the facts of the case was essential
the appellants filed an application for amendment of the plaint under Order 6
Rule 17, CPC by adding the following prayers :- "[a] To declare that the
Plaintiffs are the owners A1.B.M.N.N1.O1.O.L of the suit schedule
property." The Principal Civil Judge, Shimoga, by his judgment and order
dated 22nd of September, 2000 rejected the application of the appellants on the
ground that the application is filed at a belated stage.
Being aggrieved by the said order the appellants preferred a Revision
Petition before the High Court of Karnataka at Bangalore.
The said Revision Petition came to be dismissed by the High Court also on
the ground that the application for amendment was filed at a belated stage. The
court also held that the amendment introduced a different relief than what was
originally asked for.
The appellants thinking that there was an error apparent on the judgment of
the High Court filed a Review Petition which came to be dismissed by the High
Therefore, the appellants are now before us in this appeal challenging the
said order of the High Court as also the order of the Principal Civil Judge,
Shimoga, rejecting their application praying for amendment of the plaint.
Ms. Kiran Suri, learned counsel for the appellants contended that the Trial
Court was in error in coming to the conclusion that a belated application for
amendment of the plaint, per se can not be allowed, she also contended the High
Court erred in coming to the conclusion that the proposed amendment if granted
would take away the right accrued to the respondent by lapse of time. She
submitted that this view of the High Court is opposed to a number of judgments
of this Court where this Court had taken the view that delay in filing an
application for amendment by itself should not be a ground for rejection of
such application unless a serious prejudice was caused to the opposite party.
She further submitted on the facts of this case the necessary averments in
regard to the title of the appellants over the suit property was already there
in the original plaint and what was sought by the amendment was only a relief
in furtherance to the said plea found in the plaint. She also submitted that
assuming for argument sake that there was a delay which creates a right on the
opposite side even then in an appropriate case, it was open to the Court to
consider the prayer for amendment, bearing in mind the fact that the power of
the Court to allow application for amendment is unfettered provided the facts
of the case so required the Court to exercise its discretion in favour of allowing
the amendment. In support of her case, she placed strong reliance on the
following judgments of this Court :- 472;
Mr. Girish Ananthamurthy, learned counsel appearing for the
respondents-defendants strongly supported the impugned orders of the two courts
below. He submitted that though the suit in question was filed as far back as
on 11-7-1994 and the original defendant had in his written statement filed on
17-9-1994 disputed the title of the appellants. Even then the appellants
application for amendment of the suit incorporating the prayer for possession
was filed only on 27-7-2000 nearly 6 years after the institution of the suit.
He further contended that in view of Entry 58 of the Schedule to the Limitation Act,
1963 a suit for declaration could have been instituted only within 3 years
when the right to sue accrued to the appellants and the said right having
accrued as far back as in the year 1994, an amendment seeking a declaratory
prayer after 6 years thereafter is clearly barred by the provision of the Limitation Act and the
respondents having accrued a statutory right the same could not have been
defeated by allowing an amendment filed beyond the statutory period of
So far as the Court's jurisdiction to allow an amendment of pleadings is
concerned there can be no two opinion that the same is wide enough to permit
amendments even in cases where there has been substantial delay in filing such
This Court in numerous cases has held the dominant purpose of allowing the
amendment is to minimize the litigation, therefore, if the facts of the case so
permits, it is always open to the court to allow applications in spite of the
delay and latches in moving such amendment application.
But the question for our consideration is whether in cases where the delay
has extinguished the right of the party by virtue of expiry of the period of
the period of limitation prescribed in law, can the court in the exercise of
its discretion take away the right accrued to another party by allowing such
belated amendments? The law in this regard is also quite clear and consistent
that there is no absolute rule that in every case where a relief is barred
because of limitation an amendment should not be allowed.
Discretion in such cases depends on the facts and circumstances of the case.
The jurisdiction to allow or not allow an amendment being discretionary the
same will have to be exercised in a judicious evaluation of the facts and
circumstances in which the amendment is sought. If the granting of an amendment
really subserves the ultimate cause of justice and avoids further litigation
the same should be allowed. There can be no straight jacket formula for
allowing or disallowing an amendment of pleadings. Each case depends on the
factual background of that case.
This Court in the case of L.J. Leach and Co. Ltd. & Anr.
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." This view of this Court has, since,
been followed by a 3 Judge Bench of this Court in the case of T.N. Alloy
Therefore, an application for amendment of the pleading should not be
disallowed merely because it is opposed on the ground that the same is barred
by limitation, on the contrary, application will have to be considered bearing
in mind the discretion that is vested with the Court in allowing or disallowing
such amendment in the interest of justice.
Factually in this case, in regard to the stand of the defendant that the
declaration sought by the appellants is barred by limitation, there is dispute
and it is not an admitted fact. While the learned counsel for the
defendant-respondents pleaded that under Entry 58 of the Schedule to the Limitation Act,
the declaration sought for by the appellants in this case ought to have been
done within 3 years when the right to sue first accrued, the
appellant-plaintiff contends that the same does not fall under the said Entry
but falls under Entry 64 or 65 of the said Schedule of the Limitation Act
which provides for a limitation of 12 years, therefore, according to them the
prayer for declaration of title is not barred by limitation, therefore, both
the courts below have seriously erred in not considering this question before
rejecting the prayer for amendment. In such a situation where there is a
dispute as to the bar of limitation this Court in the case of Ragu Thilak D.
John "The amendment sought could not be declined.
The dominant purpose of allowing the amendment is to minimise the
litigation. The plea that the relief sought by way of amendment was barred by
time is arguable in the circumstances of the case. The plea of limitation being
disputed could be made a subject-matter of the issue after allowing the
amendment prayed for." We think that the course adopted by this Court in
Ragu Thilak D. John's case (supra) applies appropriately to the facts of this
case. The courts below have proceeded on an assumption that the amendments
sought for by the appellants is ipso facto barred by the law of limitation and
amounts to introduction of different relief than what the plaintiff had asked
for in the original plaint. We do not agree with the courts below that the
amendments sought for by the plaintiff introduces a different relief so as to
bar the grant of prayer for amendment, necessary factual basis has already been
laid down in the plaint in regard to the title which, of course, was denied by
the respondent in his written statement which will be an issue to be decided in
a trial. Therefore, in the facts of this case, it will be incorrect to come to
the conclusion that by the amendment the plaintiff will be introducing a
We have already noted, hereinabove, that there is an arguable question
whether the limitation applicable for seeking the relief of declaration on
facts of this case falls under Entry 58 of the Limitation Act
or under Entries 64 or 65 of the Limitation Act
which question has to be decided in the trial, therefore, in our view,
following the judgment of this Court in the case of Ragu Thilak D. John
(supra), we set aside the impugned orders of the courts below, allow the
amendment prayed for, direct the Trial Court to frame necessary issue in this
regard and decide the said issue in accordance with law bearing in mind the law
laid down by this Court in the case of L.J. Leach and Co. Ltd. & Anr.
For reasons stated above these appeals succeed and same are allowed.