Mr. Ajay Batra Vs Mr. Y.P. Batra and Others

Kailash Gambhir

IA No. 130/2012

1. By this application filed under Order 6 Rule 17 of CPC the plaintiff seeks to amend the present plaint. Through this amendment the plaintiff primarily seeks to incorporate the relief of claiming a decree of partition by metes and bounds in respect of the alleged joint family properties which are already subject matter of the existing suit. The plaintiff further seeks declaration that he be declared as owner of the 25% of the first suit property i.e C-173, Defence Colony, New Delhi in his individual capacity and for partition of remaining 75% amongst the coparceners. The present application has been contested by the defendants and the stand taken by the defendants in their reply is that the present amendment has been sought by the plaintiff with a view to frustrate the application filed by the defendants under Order 7 Rule 11 of CPC. The defendants have further stated that the amendment as sought by the plaintiff, if allowed, might change the nature of the suit. The main ground for opposing the present application as canvassed by the defendants in their reply as well as through oral arguments was that the amendments as sought by the plaintiff, if allowed at this stage, then the reliefs claimed by the plaintiff would be time barred as the suit for claiming partition in the joint family properties can be filed within a period of three years from the date of the refusal of the same by the defendants.

2. Arguing the present application, Mr. Abhinav Vashisht, learned Senior Advocate representing the plaintiff submitted that by the present application the plaintiff seeks to amend the present suit by adding the relief of partition and possession and also by claiming an additional share in the joint family properties. Counsel also submitted that the present amendment being sought by the plaintiff will not change the basic nature of the suit on which the case of the plaintiff rests and it will remain the same. Counsel further submitted that the objection raised by the defendants with regard to limitation cannot be appreciated at this stage as the question of limitation is a mixed question of law and fact and the same can only be decided at the time of trial. In support of his arguments counsel placed reliance on the following judgments:

i. Bajaba alias Bajirao Vishvanath Oke Vs. Trimbak Vishvanath Oke

ii. Ramesh B. Desai and Others Vs. Bipin Vadilal Mehta and Others,

iii. Gurubachan Singh Gill Vs. J.S. Bagga(2005) 13 SCC 381

iv. Union of India (UOI) and Others Vs. V.N. Singh,

v. Balasaria Construction (P) Ltd. Vs. Hanuman Seva Trust & Ors. (2006) 5 SCC 658.

3. Counsel also submitted that the children of the plaintiff have already filed a partition suit claiming partition in respect of the same properties and therefore also the present amendment will not cause prejudice to the rights of the defendants who are otherwise contesting the partition suit filed by the children of the plaintiff.

4. On the other hand, Mr. Ravi Gupta, learned Senior advocate for the defendants submitted that the application seeking amendment of plaint is clearly barred by time. Elaborating his arguments, counsel submitted that the plaintiff had filed the present suit on 23.10.2007 seeking relief of declaration and injunction and the present suit was earlier amended by the plaintiff but at the time of first amendment the plaintiff never claimed any such amendment now being sought by him. Counsel thus argued that the time period of three years as prescribed under the residuary Article 113 of the Limitation Act came to an end from the date of filing of present suit or at the most from the date of filing of the written statement by the defendant wherein the defendants have claimed exclusion of the plaintiff from the HUF. Counsel further submitted that the present amendment application has been moved by the plaintiff to fill up the lacunas as pointed by the defendant in the application moved under Order 7 Rule 11 of CPC and therefore the plaintiff cannot be allowed to seek amendment in the existing plaint. In support of his arguments, counsel for the defendants relied upon the following judgments:

i.A.F.Investment Ltd. Vs. M/s. Raja Ram Bhasin & Co.,2006 IV AD(Delhi) 620.

ii. Shriram Bhartiya Kala Kendra Vs. Shubha Mudgal, 2010 AD (Delhi) 643.

iii. Rajkumar Gurawara (Dead) thr. L.Rs. Vs. S.K. Sarwagi and Co. Pvt. Ltd. and Another,

iv. Kenchegowda Vs. Siddegowda, (1994) 4 SCC 294.

v. Mohit Kumar Vs. Himalayan Institute Hospital Trust,

vi. Rajkumar Gurawara Vs. M/s S.K. Sarwagi & Co., AIR 2008 SCC 2303.

5. Counsel also submitted that it is a settled legal position that the amendment claimed by the plaintiff, if time barred, then such amendment cannot be allowed.

6. In response to the said contention of the counsel for the defendants, counsel for the plaintiff submitted that the relevant articles of Limitation Act as applicable to the facts of the present case are Articles 109 and 110 and not Article 113. Counsel thus stated that the limitation period is 12 years from the date of the alleged exclusion as claimed by the defendants.

7. I have heard learned counsel for the parties at considerable length and given my thoughtful consideration to the arguments advanced by them.

8. Before I deal with the respective contentions raised by the counsel for the defendants it would be necessary to give brief facts of the case as set out by the plaintiff in the existing plaint.

9. A suit for declaration and injunction is filed by the plaintiff in respect of various immovable properties on the ground that he has undivided interest as coparcener in all such properties which were acquired by the defendant No.1 from the nucleus of the ancestral funds. In the unamended suit the plaintiff has prayed for declaration of his status qua the suit properties being a member of Hindu Undivided Family. The plaintiff has further claimed that he continues to have an undivided interest in the suit properties comprising of various lands and buildings and the defendants have no right to impede or take away such rights of the plaintiff to their sole advantage or benefit. The plaintiff in the existing suit also sought relief of declaration that the gift deed dated 11.1.2007 executed by the defendant no.1 in favour of the defendant no.4 gifting away the entire property bearing No. C-173, Defence Colony, New Delhi be declared as void and non est. In the written statement filed by the defendants, the alleged right of the plaintiff in the said properties was seriously refuted on the ground that nothing was acquired by the defendant no.1 through the nucleus of ancestral funds and all the properties as were claimed by the plaintiff to be HUF properties were self acquired properties of defendant no.1 and it was only for the purpose of tax planning that the income from some of the properties was assigned to the HUF bank account opened only in 1983.

10. From the aforesaid narration of facts, it would be manifest that the whole controversy between the parties revolves around the issue as to whether the immovable properties as disclosed in the suit are the joint family properties acquired by the defendant no.1 through the nucleus of ancestral funds or the same are self acquired properties of the defendant no.1. During the pendency of the present suit another suit bearing no. 581/2007 was also preferred by none else but the children of the plaintiff herein, wherein they have also claimed the decree of partition and separate possession in respect of the same very properties, besides challenging the said gift deed dated 11.1.2007.

11. Before considering the present application, it will be important herein to reproduce order 6 rule 17 as under:

"17. Amendment of pleadings.-

The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties.

Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."

As is manifest from a bare reading of the above provision, the above rule confers a discretionary jurisdiction on the court exercisable at any stage of the proceedings to allow either party to alter or amend his pleadings in such a manner and on such terms as may be just. The rule goes on to provide that all such amendments as may be necessary for determining the real questions in controversy between the parties may be allowed. The Apex Court in Pirgonda Hongonda Patil Vs. Kalgonda Shidgonda Patil and Others, while interpreting the said provision held that two conditions need to be satisfied to allow the amendment sought which are (a) 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. Hence to disallow the amendment the court has to be satisfied that the other party would be so affected by the amendment that it cannot be placed in the same position as before. It has also been held time and again that the an amendment would generally not be disallowed except where a time barred claim is sought to be introduced. Another guiding principle for allowing the amendment is that it has to be seen whether through the amendment the nature of the suit is sought to be altered. In Laxmidas Dahyabhai Kabarwala Vs. Nanabhai Chunilal Kabarwala and Others, it was held that an amendment can be refused when the effect of it would be to take away from a party a legal right which had accrued to him by lapse of time, it may be so when fresh reliefs are added or fresh allegations put by way of an amendment, but where an amendment just clarifies an existing pleading and does not in any substance add to or alter to it, there is no good reason not to allow it. Capitulating, the aforesaid, the Supreme Court in Revajeetu Builders and Developers Vs. Narayanaswamy and Sons and Others, laid down the broad factors to be taken into consideration while dealing with such a situation. The relevant para of the same is reproduced as under:

"67 On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment.

(1) Whether the amendment sought is imperative for proper and effective adjudication of the case?

(2) Whether the application for amendment is bona fide or mala fide?

(3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

(4) Refusing amendment would in fact lead to injustice or lead to multiple 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.

68. These are some of the important factors which may be kept in mind while dealing with application filed under Order VI Rule 17. These are only illustrative and not exhaustive."

Furthermore, it is also ingeminated that amendments cannot be claimed as a matter of right and under all circumstances, but the courts while granting such amendments cannot adopt a hypertechnical approach. However, the delay in filing the application for amendment can be compensated in terms of costs.

12. Now applying the aforesaid legal principles to the facts of the case at hand, one of the main objections raised by the counsel for the defendants was that the amendment as sought by the plaintiffs, if allowed would be barred by the law of limitation. Here it would be worthwhile to refer to the judgment of the Apex Court in the case of South Konkan Distillers & Anr. vs. Prabhakar Gajanan Naik & Ors. (2008)14SCC632 wherein it was held that there is no absolute rule that in every case where a relief is time barred the amendment should not be allowed and it is open to the court to allow the amendment if it is of the view that the it can save multiplicity of proceedings. It would be apt to refer here to the relevant paras of the said judgment here as under:

"8. Before we deal with the orders of the courts below, as to whether the application for amendment of the written statement and the counter claim was rightly rejected or not, let us consider the laws on the question of allowing or rejecting a prayer for amendment of the pleadings when the plea of limitation was taken by one of the parties in the suit. It is well settled that the court must be extremely liberal in granting the prayer for amendment, if the court is of the view that if such amendment is not allowed, a party, who has prayed for such an amendment, shall suffer irreparable loss and injury. It is also equally well settled that there is no absolute rule that in every case where a relief is barred because of limitation, amendment should not be allowed. It is always open to the court to allow an amendment if it. is of the view that allowing of an amendment shall really sub-serve the ultimate cause of justice and avoid further litigation. In L.J. Leach & Co. Ltd. and Anr. v: Jardine Skinner & Co. [1957]1SCR438, this Court at paragraph 16 of the said decision observed as follows: 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 interest of justice.

9. Again in T.N. Alloy Foundry Co. Ltd. Vs. T.N. Electricity Board and Others, this Court observed as follows: The law as regards permitting amendment to the plaint, is well settled in

L.J. Leach and Co. Ltd. v. Jardine Skinner and Co., it was held that the Court 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 this 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. It is not disputed that the appellate court has a coextensive power to the trial court. We find that the discretion exercised by the High Court in rejecting the plaint was in conformity with law.

10. From the above, therefore, one of the cardinal principles of law allowing or rejecting an application for amendment of the pleading is that the courts generally, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of filing of the application. But that would be a factor to be taken into account in the exercise of the discretion as to whether the amendment should be ordered, and does not affect the power of the Court to order it, if that is required in the interest of justice. In Ragu Thilak D. John Vs. S. Rayappan and Others, , this Court also observed that where the amendment was barred by time or not, was a disputed question of fact and, therefore, that prayer for amendment could not be rejected and in that circumstances the issue of limitation can be made an issue in the suit itself. In a decision in Vishwambhar and Others Vs. Laxminarayana (Dead) through L.Rs. and Another, this Court held that the amendment though properly made cannot relate back to the date of filing of the suit, but to the date of filing of the application .Again in Vineet Kumar v. :Mangal Sain Wadhera [1984]2SCR333 this Court held that if a prayer for amendment merely adds to facts already on record, the amendment would be allowed even after statutory period of limitation."

Hence as would be evident from the above that to disallow amendment in case the plea of limitation is taken up is not a straitjacket formula. Adverting to the plea of limitation raised by the counsel for the defendant that the amendment in the present case should not be allowed as the remedy of the plaintiff to file the suit has become time barred in view of Article 113 of the Limitation Act. To be more precise the contention raised was that as per Article 113, limitation of three years period would be applicable for filing a partition suit from the date of refusal by the defendants to such claim of the plaintiffs. Counsel for the plaintiff on the other hand placed reliance on Article 110 of the Limitation Act to urge that it is Article 110 which is the relevant article applicable to a partition suit and under the said Article the plaintiff has a right to enforce his claim in the joint Hindu Family properties. Counsel further submitted that Articles 109 and 110 of the Limitation Act provide 12 years period from the date when the plaintiff gets the knowledge that he has been excluded from the share of the joint Hindu Family properties. The plaintiff in para 3 of the unamended plaint has claimed cause of action for filing the suit from March 2007, when as per the plaintiff, the defendants had threatened to dispose of the suit properties without the consent of the plaintiff and also when the defendant no.1 had gifted the property bearing no. C-173, Defence Colony, New Delhi in favour of defendant no.4 as back as on 11th January 2007. Going by the dates of events as mentioned above, the claim of the plaintiff does not seem to be time barred in view of the legal principles enunciated above. However, if required, the court can always frame a separate issue with regard to limitation.

13. Another contention of the counsel for the defendant was that the plaintiff by way of the present amendment seeks to change the nature of the suit. There is no dispute with the legal position that where the amendment seeks to set up a new case or a new cause of action, it ought not to be allowed. However in the case of A.K. Gupta and Sons Vs. Damodar Valley Corporation, an exception to the said rule was carved out wherein it was held that where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts merely to a different or additional approach to the same facts, the amendment is to be allowed even after the expiry of the statutory period of limitation. In the facts of the case at hand, what weighs in support of the claim of the plaintiff is that the plaintiff has not introduced any new facts to seek this amendment as the basic facts continue to remain the same, even for his claim to seek partition in the alleged joint Hindu Family properties. The genesis of the claim of the plaintiff even in the existing plaint is that the suit properties have the status of ancestral properties in the hands of the plaintiff and the defendant no.1 and therefore based on the same facts the plaintiff through the present application seeks the relief of partition of the alleged joint Hindu Family properties. It also cannot be lost sight of the fact that the children of the plaintiff have also filed a suit for partition and declaration in respect of these very properties and therefore also this court has to decide the status of the said properties; whether the same belong to the ancestral funds having the status of joint family properties or the same are self acquired properties of defendant no.1.

14. It is a settled legal position that pre trial amendments are allowed liberally then those sought to be raised after the commencement of the trial. Seeking post trial amendment is no more an easy task as after the introduction of a proviso to the main provision of Rule 17 the party seeking post trial amendment has to satisfy the court that inspite of due diligence it could not seek the amendment before the commencement of the trial. Here it would be relevant to refer to the judgment of the Apex Court in the case of Rajkumar Gurawara (Dead) thr. L.Rs. Vs. S.K. Sarwagi and Co. Pvt. Ltd. and Another, wherein it was held as under:

"The first part of the rule makes it abundantly clear that at any stage of the proceedings, parties are free to alter or amend their pleadings as may be necessary for the purpose of determining the real questions in controversy. However, this rule is subject to proviso appended therein. The said rule with proviso again substituted by Act 22 of 2002 with effect from 01.07.2002 makes it clear that after the commencement of the trial, no application for amendment shall be allowed. However, if the parties to the proceedings able to satisfy the court that in spite of due diligence could not raise the issue before the commencement of trial and the court satisfies their explanation, amendment can be allowed even after commencement of the trial. To put it clear, Order VI Rule 17 C.P.C. confers jurisdiction on the Court to allow either party to alter or amend his pleadings at any stage of the proceedings on such terms as may be just. Such amendments seeking determination of the real question of the controversy between the parties shall be permitted to be made. Pre-trial amendments are to be allowed liberally than those which are sought to be made after the commencement of the trial. As rightly pointed out by the High Court in the former case, the opposite party is not prejudiced because he will have an opportunity of meeting the amendment sought to be made. In the latter case, namely, after the commencement of trial, particularly, after completion of the evidence, the question of prejudice to the opposite party may arise and in such event, it is incumbent on the part of the Court to satisfy the conditions prescribed in the proviso."

In the present case the suit is at the pre trial stage and the dictum of law states that liberal approach should be adopted to allow an amendment at the pre trial stage if such an amendment is found necessary to determine the real controversy between the parties.

15. There is no dispute with the legal position set by the judgments cited by the counsel for the defendant but the same are not applicable to the facts of the case at hand and are clearly distinguishable.

16. In the present case the parties are brothers and sisters and the subject matter lucrative and hence led the defendants to relentlessly oppose the present application on grounds of gross delay, reincarnating the present nature of the suit and limitation. The power under the said rule is discretionary to be exercised on sound judicial principles and multiplicity of proceedings to be avoided is one of the touchstones to exercise this judicial discretion. Exercising the said discretion, in my considered view, the present amendment deserves to be allowed. The grievance of delay of the defendant can be remedied by the panacea of all delay, lapses and pretermissions on the part of such parties, i.e. imposing heavy costs. Hence, this court is of the view that no prejudice would be caused to the rights of the defendants if the present amendment being sought by the plaintiff is allowed. In the light of the aforesaid discussion, the present amendment application moved by the plaintiff is allowed subject to the plaintiff depositing a cost of Rs.50,000/-with Delhi High Court Bar Association Lawyer''s Social Security and Welfare Fund within a period of four weeks from the date of this order.