Bombay High Court: Milind N. Jadhav, J., addressed a matter with regard to the amendment of pleadings.
Petitioners have submitted that they are aggrieved with the Orders passed by Civil Judge, Junior Division on 17-11-2016.
Factual Matrix
Petitioners were the original defendants and respondents the legal heirs of the original plaintiff. Original Plaintiff had filed the Civil Suit against the defendants for permanent injunction in respect of the suit property. Since the original plaintiff expired in 2015, his legal heirs are present respondents.
Petitioners objected to the amendment proposed in regard to the fact that since the original defendant had expired in 2014, hence his legal heirs (present petitioners) were required to be brought on record.
The said amendment was objected to on the ground of maintainability and limitation.
It was added that, if the amendment would be allowed it would change the nature of the suit and a completely different relief would be introduced.
With regard to the limitation, it was stated that the cause of action to see the relief arose in the year 2008 and the application was filed after a period of 8 years.
Analysis, Law and Decision
Bench referred to the provision of Order 6 Rule 17 related to the amendment.
Order VI Rule 17:
“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 questions 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.”
Court’s Power regarding Amendment of Pleadings
Court noted that though the Courts have very wide discretion in the matter of amendment of pleadings, Court’s power must be exercised judiciously and with great care while deciding the applications for amendment.
What does the Court need to consider while granting amendment?
Principal Condition: It is required to be considered by the Court, whether the grant of the amendment is necessary for the determination of the real controversy in the suit.
The above condition is the basic test to govern the Court’s discretion on granting or refusing amendment.
With respect to refusal or grant, the Supreme Court’s decision in Revajeetu Builders & Developers v. Narayanswamy & Sons (2009) 10 SCC 84, has to be taken into consideration.
Bench in view of the above discussion accepted the petitioner’s submissions.
Barred by Law of Limitation
Amendment has been sought after 8 years from the denial of the title. Under the provisions of Article 58 of the Limitation Act, 1963, 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.
Since the original suit was a suit simpliciter seeking an injunction, the amendment sought to seek declaratory relief of title could not have been allowed and granted.
Applying the principles laid down in clause (c) and (d) of the Supreme Court decision in Anathula Sudhakar v. P. Buchy Reddy (dead) by LRs., (2008) 4 SCC 594, it can be summarized that respondents’ (plaintiffs) application filed on 25-10-2016 after a time gap of almost 8 years was far beyond the allowable limitation period and was clearly barred by law of limitation.
Adding to the above, it was stated that relief of seeking declaratory title alters the nature of original suit for injunction. Hence the application being allowed for amendment needs to be set aside.[Eknath Nivrutti Hegadkar v. Aagatrao Dyanu Ghodake, 2021 SCC OnLine Bom 770, decided on 01-6-2021]
Advocates before the Court:
Mr. Surel S. Shah for the Petitioners
Mr. Prasad Kulkarni for the Respondents
in a suit for declaration that has been filed by the Original plaintiff. after his death, whether his legal heirs can file application for amendment of the Plaint and prayer.