Civil Revision Application No.767 of 2002

18th July, 2002

Petitioner Counsel: Shri. N. P. SHIMPI
Respondent Counsel: Shri. A. K. PATIL

Cases Cited:
Ragu Thilak D. John Vs. S. Rayappan, 2001(1) ALL MR 853 (S.C.)=2001(2) SCC 472 [Para 3,7]
B. K. Narayana Pillai Vs. Parameswaran Pillai, (2000)1 SCC 712 [Para 8]

JUDGMENT

JUDGMENT :- Heard the learned Advocates for the parties. Rule, By consent, rule is made returnable forthwith.

2. The petitioner challenges the order dated 1st March, 2002, passed by the trial Court rejecting the application for amendment of the plaint filed by the petitioner on the ground that the facts which are sought to be introduced by way of amendment and the relief based on such facts having been barred by law of limitation, the petitioner is not entitled to amend the plaint as proposed by the petitioner.

3. While challenging the impugned order, it was sought to be contended that issue of limitation can very well be raised in the suit itself and the amendment could not have been refused on that count in view of the decision of the Apex Court in the matter of Ragu Thilak D. John Vs. S. Rayappan and others reported in 2001(2) SCC 472 : [2001(1) ALL MR 853 (S.C.)].

4. Undisputedly, the suit is for partition of the property filed by the co-owner. By the proposed amendment, the petitioner has sought to add two more properties to be the subject matter of partition and certain facts relating to a deed of partition, dated 6th January, 1982 and for relief for declaration that the said partition-deed being not binding upon the petitioner. It is the case of the petitioner that he came to know about the sale-deed in the course of hearing of the matter and, therefore, there was no delay on the part of the petitioner in seeking the amendment to the plaint and relief in relation to the said sale deed.

5. The suit being for partition, merely because the plaintiff has two more properties, and those properties are not made the subject matter of the suit for partition, that cannot be justifiable objection for proposed inclusion of the two properties. Apparently, therefore, the impugned order as far as it relates to rejection of the application for inclusion of two more properties in para 1 of the plaint, cannot be sustained and to that extent the impugned order deserves to be set aside and the application for amendment seeking inclusion of two more properties in para 1 is to be allowed.

6. As far as the other amendments are concerned, undisputedly they relate to the document dated 6th January, 1982. The document has been duly registered and has also been acted upon by the authorities for the purpose of carrying out the mutation entries and the revenue entries based on such document. All these facts are borne out from the application for amendment itself. Undisputedly, the application was filed on 12th September, 2001. The application on the face of it, does not disclose any specific date on which the petitioner came to know about the deed for partition dated 6th January, 1982. The suit for declaration regarding the validity or illegality in respect of any document can be filed within three years from the date of the knowledge of such document. In the absence of disclosure about a specific date pertaining to the knowledge of the said document to the petitioner, the date of registration of such document would be presumed to be the date of the knowledge of the document to the petitioner. Undisputedly, the document was registered in the year 1982. Being so, the application is hopelessly barred by the law of limitation.

7. The decision of the Apex Court in Ragu Thilak D. John's case was in the matter that the party to the proceedings had filed an application under Order 6, Rule 17 of C.P.C. for the amendment of the plaint, in view of development subsequent to the institution of the proceedings in the said case, and this is apparent from the observation of the Apex Court in para 4 of the Judgment in Ragu Thilak D. John's case (supra) and the same reads thus :

" In view of subsequent developments, the appellant filed an application under Order 6 Rule 17 for the amendment of the plaint for adding paras 8 (a) to 8 (f) in his plaint. The trial court rejected his prayer and the revision petition filed against that order was dismissed by the High Court vide order impugned in this appeal, mainly on the ground that the amendment, if allowed, would result in introducing a new case and cause of action. It was further held that as the appellant was seeking recovery of damages, the amendment could not be allowed as it would allegedly change the nature of the suit. It was also observed that the amendment sought was barred by limitation."

8. After taking note of the observation of the Apex Court in B. K. Narayana Pillai Vs. Parameswaran Pillai reported in (2000)1 SCC 712, and applying the test laid down by the Apex Court in Pillai Case to the case of Ragu Thilak, it was held that the amendment sought could not have been declined and the plea that the relief sought by way of amendment was barred by limitation was arguable one in the circumstances of the case, and it was specifically ruled thus :

"If the aforesaid test is applied in the instant case, 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, as is evident from the perusal of averments made in paras 8(a) to 8(f) of the plaint which were sought to be incorporated by way of amendment. We feel that 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."

The expression "in the circumstances of the case" apparently relates to "subsequent development" referred to by the Apex Court in para 4 of the Judgment, as being the ground for seeking amendment to the plaint. Apparently, if the amendment relates to the subsequent events, the same cannot relate to the date of the institution of the suit, merely because they are introduced in the plaint by way of amendment. Being so, in such circumstances, certainly the point of limitation being arguable point, it could be made the subject matter of issue in the suit itself. The decision in Ragu Thilak D. John's case can be of no help to the petitioner in the facts of the case in hand in as much as it relates to the execution of partition-deed on 6th January, 1982, the event which had occurred much prior to the filing of the suit and therefore would relate back to the date of institution of suit pursuant to grant of application for amendment and inclusion of the pleadings in that regard in the plaint, and being so the point of limitation in that regard cannot be a subject matter of the suit and has to be decided at time of consideration of the application for amendment itself. Viewed from this angle, no fault can be found with the observation by the trial Court that the relief which is sought to be introduced by way of amendment to the plaint, was barred by law of limitation.

9. In the result, therefore, the petition partly succeeds. The impugned order as far as it relates to the rejection of amendment to the plaint in para 1 by inclusion of two more properties is set aside and the application for amendment in that regard is allowed. No further interference is required in the impugned order and the order rejecting other amendment to the plaint is not interfered with. Rule is made absolute in above terms with no order as to costs.

Petition partly allowed.