Aravind Kumar, J.
1. This is plaintiffs writ petition calling in question order dated 25-2-2017 passed by the Principal Civil Judge, Bangalore Rural District, Bangalore in O.S. No. 843 of 2004 - Annexure-L dismissing the application - I.A. No. 5 for amendment of the plaint filed by plaintiff.
2. Petitioner herein instituted a suit in O.S. No. 843 of 2004 against defendant for the relief of permanent injunction in respect of suit schedule property which is described as land bearing Sy. No. 139/1E measuring 1 acre 7 guntas which is more fully described in the schedule.
3. On service of suit summons, defendant appeared and filed his written statement apart from contending that suit property and the adjacent property bearing No. 142/1A4 was purchased by the defendant's mother under a registered sale deed dated 9-11-1972. It was also contended that plaintiff is busy body in the village and has no manner of right, title or interest in respect of suit schedule property and plaintiff along with other illegal elements of the society, is forcibly trying to grab land belonging to others. It was also contended that on account of certain documents having been created, revenue appeals had been filed by defendant before revenue authorities and in a writ petition filed by defendant before this Court, this Court is stated to have recorded a finding that order passed in LRF No. 3429/75-76 relied upon by plaintiff is a bogus document. It is also contended by defendant that writ appeal came to be dismissed and on account of Court records having been tampered, suo motu contempt proceedings were initiated against plaintiff and he was sentenced to un
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ergo one day imprisonment for tampering of Court records, apart from relying upon various documents and denying claim of the plaintiff to the suit property.4. During the pendency of suit, plaintiff filed an application under Order6, Rule17of Civil Procedure Code, 1908 seeking amendment of plaint by incorporating two prayers and it reads as under:"(a) declare that the plaintiff is the absolute owner in possession of the suit schedule property.(b) consequently, pass a judgment and decree of perpetual injunction restraining the defendant herein, their workers, agents, legal heirs, representatives or any other person or persons claiming through or under him from interfering with the peaceful possession and enjoyment of the suit schedule property by the plaintiff herein.(c) pass such other reliefs or orders as deemed fit in the end of justice and award along with costs of this suit in the ends of justice."5. Said application came to be resisted by the defendant by filing a detailed statement of objections as per Annexure-K and Trial Court after considering rival contentions, by impugned order has rejected application on the ground that defendant had filed written statement on 5-6-2006 and title, ownership as well as possession claimed by plaintiff had been seriously disputed by defendant and inspite of plaintiff having knowledge of these facts, did not choose to amend the pleading by seeking declaration of title over suit schedule property. It is further opined by the Trial Court under the impugned order that when the application for amendment had been filed on 14-9-2012 to convert the suit for injunction to the suit for declaration and under Article 58 of the Limitation Act, 1963 which provides for limitation of three years in respect of suits relating to declaration from the date when the right sue accrues and said application having been filed after six years from the date of filing of written statement, plaintiff had slept over his right and said claim is hopelessly barred by limitation. Trial Court was also of the view that plaintiff has filed one more suit in O.S. No. 476 of 1997 whereunder defendant had seriously disputed the title of plaintiff over suit property and these facts were well within the knowledge of plaintiff and as such, application filed by the plaintiff is belated and barred by limitation and on these grounds, it has dismissed the application for amendment of plaint.6. It is the contention of learned Advocate appearing for petitioner that issue of limitation cannot be gone into at the stage of application for amendment of plaint is being considered and there is no embargo under Rule17Order6of CPC for such amendments being allowed and issue regarding limitation would be mixed question of fact and law and as such, Trial Court erred in rejecting the application for amendment of plaint. He would also submit that even if the relief sought for by way of amendment is barred by limitation, there is no absolute rule that amendment of such cases should not be permitted and in support of his submission, he has relied upon judgment of Hon'ble Apex Court in the case ofPankaja and another v. Yellappa (deceased) by L.Rs and Others, (2004) 6 SCC 415.7. Having heard the learned Advocate appearing for the petitioner and on perusal of records, this Court is not inclined to accept the contention of learned Advocate appearing for petitioner for reasons more than one. Firstly, it requires to be noticed that plaintiff is not a person who can be stated as not being conversant with the Court craft or procedural aspects. As could be seen from the records, petitioner has been prosecuting/litigating before various forums. In the suit in question which has been filed by him i.e., O.S. No. 843 of 2004 on 31-7-2004 he has specifically contended that he is in possession of the suit property and as such, he has sough for relief of permanent injunction to restrain the defendant from interfering with his alleged peaceful possession and enjoyment of suit schedule property. Defendant on service of suit summons as observed hereinabove, has appeared and filed his written statement and not only denied the entire averments made in the plaint but has also specifically asserted that his mother had purchased the suit property under a registered sale deed dated 9-11-1972 along with adjacent property bearing No. 142/1A4 and she has been in possession. In other words, plaintiff was put on notice about denial of his title to the suit property. To put it differently, plaintiff was fully aware that his title to the suit property has been denied by the defendant.8. In this background, when the affidavit filed in support of the application for amendment is perused, it would clearly disclose that averments made in support for grant of prayer for amendment is as vague, vagueness could be. There are no reasons assigned as to why amendment is necessitated or cause for delay. Post amendment of CPC an embargo is placed under proviso to Rule 17 which indicates that after commencement of trial, amendments are not to be allowed until and unless it is just and necessary to resolve the dispute between the parties or for any other reason which has been assigned by the party or as to why such a plea could not be raised before commencement of trial and said reason is within the proximity of truth or such plea for delay is susceptible to acceptance, then only amendment post trial can be allowed as otherwise not. In the affidavit filed in support of the application in question, as already noticed hereinabove, there is not even a whisper as to why application for amendment could not be filed earlier or reason as to why said plea could not be raised before commencement of trial. Due diligence as indicated in the proviso would indicate as the test to be adopted to determine whether discretion to allow amendment should be exercised or not. While seeking amendment of pleading, applicant has to explain the delay in not raising such plea at an earlier point of time or show cause for delay in raising such plea.9. In the instant case, at paragraph 2 of the affidavit filed in support of the application, plaintiff has not whispered a word as to why he could not raise the proposed plea at earlier point of time, though written statement had been filed by the defendant on 5-6-2006 denying the title of plaintiff. On the other hand, plaintiff seeking amendment of the pleading is required to be allowed by Trial Court as a matter of right. The tone, tenor and language of the plea put forth in the affidavit at paragraph 2 would suggest this fact. Plaintiff only contends that to prove his ownership and to avoid multiplicity of proceedings, amendment is necessary. However, in paragraph 3 of the affidavit, his only plea is that non-filing of application for amendment at an early point of time was unintentional. In other words no reason has been assigned for delay or cause for delay in not raising such plea.10. Hon'ble Apex Court in the case ofVan Vibhag Karamchari Griha Nirman Sahkari Sanstham Maryadit (Regd.) v. Ramesh Chander and Others, AIR 2011 SC 41has held that omission to claim a relief which party is entitled to and allows the said prayer to lapse by virtue of passage of time, would not be entitled to claim such relief by way of amendment and held where a plea sought to be incorporated or pleaded by way of amendment, if on the date of application filed for amendment is prima facie barred by limitation, then, in such circumstances, application should not be allowed. It has been held by Hon'ble Apex Court to the following effect :"24. If the appellant had filed such a suit, it could in the said suit, have questioned the action of the first respondent as blowing hot and cold. But it has not filed such a suit within the period of limitation prescribed for filing such a suit.25. Therefore, the principles of the law of election, discussed in C. Beepathumma (supra) in a totally different factual context, is of no assistance to the appellant in this case.26. The other decision on which reliance was placed by the learned Counsel for the appellant was rendered in the case ofNew Bihar Biri Leaves Company and Others v. State of Bihar and Others, (1981) 1 SCC 537 : AIR 1981 SC 679.The same principles of approbation and reprobation have been discussed in paragraph 48. In the said case, this Court invoked the said principles to disapprove the actions of the petitioner who participated in a public auction by accepting its terms but later on sought to impugn them as violative of Articles 14 and 19(1)(g) of the Constitution of India. 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.27. 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.28. 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 clearly made its intentions clear about refusing the performance of the agreement and cancelled the agreement.29. The appellant, on noticing the same, filed a suit on 11-2-1991 but he did not include the plea of specific performance. The appellant wanted to defend this action by referring to two facts : (i) there was an acquisition proceeding over the said land under the Land Acquisition Act, 1894; and (ii) in view of the provisions of the Urban Land (Ceiling and Regulation) Act, 1976, the appellant could not have made the prayer for specific performance.30. The aforesaid purported justification of the appellant is not tenable in law. If the alleged statutory bar referred to by the appellant stood in its way to file a suit for specific performance, the same would also be a bar to the suit which it had filed claiming declaration of title and injunction."11. In the case ofRevajeetu Builders and Developers v. Narayanaswamy and Sons and Others, 2009 AIR SCW 6644, Hon'ble Apex Court has explained the contours which ought to be taken into consideration while allowing or rejecting the application for amendment and it reads :"67. On critically analysing 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."As indicated by Hon'ble Apex Court hereinabove are illustrative and not exhaustive. Where proposed amendment fundamentally does not change nature of the suit or character of the suit, application can be allowed; where application for amendment is bona fide and not mala fide, it can be allowed; refusing to allow amendment would lead to gross injustice or miscarriage in the administration of justice can also be allowed; if on the date of seeking amendment, claim as sought to be put forth is expressly barred by limitation, in such circumstances, application is liable to be rejected.12. Keeping these principles in mind, Trial Court has examined the application of plaintiff and has rightly arrived at a conclusion that even though defendant had filed written statement on 5-6-2006 and had expressly denied title of the plaintiff to suit schedule property not only in the said suit but also in other different suits filed by him against defendant namely, O.S. Nos. 10468 of 1996 and 476 of 1997 amongst others, yet, plaintiff did not wake up from his slumber to agitate his so-called rights.13. Yet another fact which cannot be lost sight of, is the fact that by virtue of plaintiff not having sought for the relief which he would otherwise be entitled to (though not admitted by defendant), such claim should have made within a reasonable time and in the instant case, as rightly observed by Trial Court, no explanation whatsoever has been offered and no reasons are assigned in the affidavit supporting the application as to why said amendment was not sought for at earliest point of time.14. Article 58 of the Limitation Act, 1963 provides for limitation of three years in respect of suits relating to declaration and in the instant case, defendant in his written statement filed on 5-6-2006 - Annexure-H had specifically denied title of the plaintiff to the suit property and had also asserted his title to the suit property by virtue of a registered sale deed dated 9-11-1972. Hence, plaintiff cannot be heard to contend that he was not aware of such plea or he has a right to seek for declaration for all time to come and whenever he choose to raise such plea.15. Insofar as judgment relied upon by the learned Advocate appearing for petitioner in the case ofPankaja and Another v. Yellappa (dead) by L.Rs and Others, (2004) 6 SCC 415, it can be noticed that in the said judgment, amendment which was rejected by Trial Court related to pre-amendment of CPC. Hon'ble Apex Court noticed that factual basis having already been laid in regard to the title though denied by defendant in his written statement would be an issue which requires to be adjudicated and as such, whether Article 58 of the Limitation Act is applicable or Article 64 or Article 65 of the Limitation Act is attracted as pleaded by plaintiff in the said case was held to be disputed questions of fact and law. In the facts obtained in the said case, Hon'ble Apex Court held that Trial Court as well as High Court was in error in rejecting the application.16. In the light of discussion made hereinabove, facts obtained in the present case would clearly indicate that there has been specific denial of title to suit schedule property by defendant and plaintiff being aware of this fact way back on 5-6-2006, did not seek for amendment of the prayer. In that view of the matter, this Court finds that there is no error committed by Trial Court in rejecting the application filed by plaintiff for amendment of plaint. No grounds to entertain this writ petition. Hence, writ petition stands rejected.
"2017 (5) KantLJ 58,"