2010(2) ALL MR 569
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(PANAJI BENCH)
NARESH H. PATIL AND N.A. BRITTO, JJ.
Smt. Rajashri Alias Rajani U. Bhakta & Ors.Vs.Smt. Maria Elsa De Noronha Wolfango Da Silva
First Appeal No.224 of 2009
5th February, 2010
Petitioner Counsel: Shri. J. J. MULGAONKAR
Respondent Counsel: Shri. V. R. TAMBA ,Shri. D. D. ZAVERI
(A) Civil P.C. (1908), S.105 - Appeal from final decree - Challenge to interlocutory order - Interlocutory order which had not been appealed from either because no appeal lay or even though an appeal lay an appeal was not taken, could be challenged in an appeal from the final decree or order. AIR 1960 SC 941 - Rel. on. (Para 12)
(B) Civil P.C. (1908), S.96 - Appeal - Plea not taken before trial Court - Plea cannot be allowed to be taken for the first time in appeal. (Para 15)
(C) Civil P.C. (1908), O.7, R.11 - Rejection of plaint - Application for - For the purpose of deciding an application for rejection of the plaint what is relevant are the averments in the plaint and for that matter, the plaint has got to be read as a whole - Averments in written statement wholly irrelevant. 2007 ALL SCR 18 and 2008 ALL SCR 2104 - Ref. to. (Para 18)
Achal Misra Vs. Rama Shanker Singh, (2005)5 SCC 531 [Para 11,12]
Smt. Chamarin Vs. Ms. Budhiyarin, AIR 1975 M.P. 74 [Para 12]
Satyadhyan Ghosal Vs. Smt. Deorajin Debi, AIR 1960 SC 941 [Para 12]
Amar Chand Butail Vs. Union of India, AIR 1964 SC 1658 [Para 12]
Jabar Singh Vs. Shadi, AIR 1975 P & H 373 [Para 16]
Phalton Bank Ltd. Vs. Baburao Appajirao, AIR 1954 Bombay 43 [Para 16]
P. K. Palaniswamy Vs. N. Arumugham, 2009(5) ALL MR 957 (S.C.)=(2009)9 SCC 173 [Para 17,25]
State Bank of Hyderabad Vs. Town Municipal Council, 2007 ALL SCR 18 : (2007)1 SCC 765 [Para 18,19]
Rajkumar Gurawara Vs. S. K. Sarwagi and Company Private Limited, 2008 ALL SCR 2104 : (2008)14 SCC 364 [Para 18,19]
L. J. Leach and Co. Ltd. Vs. Jardine Skinner and Co., AIR 1957 SC 357 [Para 19]
Pirgonda Hongonda Patil Vs. Kalgonda Shidgonda Patil, AIR 1957 SC 363 [Para 20]
Anant Tukaram Patil Vs. Lata Eknath Patil, 2004(4) ALL MR 182=2004(3) Mh.L.J. 376 [Para 21]
A. K. Gupta and Sons Pvt. Ltd. Vs. Damodar Valley Corporation, AIR 1967 SC 96 [Para 21]
Ganesh Trading Co. Vs. Moji Ram, (1978)2 SCC 91 [Para 21]
Mst. Rukhmabai Vs. Lala Laxminarayan, AIR 1960 SC 335 [Para 23,25]
Prem Lala Nahata Vs. Chandi Prasad Sikaria, 2007 ALL SCR 1254 : (2007)2 SCC 551 [Para 24]
Saleem Bhai Vs. State of Maharashtra, 2003(1) SCC 510 [Para 25]
Muni Lal Vs. Oriental Fire & General Insurance Co. Ltd., (1996)1 SCC 90 [Para 25]
N. V. Srinivasa Murthy Vs. Mariyamma, 2005(5) ALL MR 838 (S.C.)=2005(5) SCC 548 [Para 25]
Vinay Krishna Vs. Keshav Chandra, AIR 1993 SC 957 [Para 25]
2. This appeal is filed by the plaintiffs in Special Civil Suit No.220/1993/A and is directed against a common Order dated 7-10-2009 of the learned Civil Judge, Senior Division, Panaji by which the application for amendment filed by the plaintiffs dated 22-4-2009 has been dismissed and the plaint in the suit has been rejected in terms of Order 7, Rule 11(d), C.P.C..
3. Some more facts are required to be stated to dispose of the present appeal and for that, the parties hereto shall be referred to in the names as they appear in the cause title of the said civil suit.
4. The plaintiffs filed the suit on or about 27-9-1993 styling the same as a suit for "declaration and injunction" and with the allegation that the plaintiffs' predecessor Shri. Manohar Hiru Parulekar had purchased the suit property by deed dated 10-1-1964, and, thereafter the property was inscribed in the Land Registration Office in the name of the said Manohar Hiru Parulekar, and was also recorded in city survey in his name and upon his death, in inventory proceedings held, it was allotted to plaintiff nos.1, 3 and 5 in equal shares, the plaintiff nos.2 and 4 being the spouses of plaintiff nos.1 and 3, and plaintiff no.4 being the nephew of the late Manohar Hiru Parulekar who is the attorney of plaintiff nos.1, 3 and 5 and who knew the facts even prior to the death of the said Manohar Hiru Parulekar. The case of the plaintiffs was that they were in possession of the suit premises either through self or through their predecessors for the last 29 years and with an allegation that the defendant had trespassed into the said house on or about 19-9-1993. The plaintiffs filed the suit with the following reliefs :-
(a) It may be declared that the Plaintiffs are lawful owners of the suit property;
(b) The Defendant, her agents, servants or any other person acting through her be restrained by temporary injunction from interfering with possession of Plaintiffs in respect of suit property or attempting to dispossess the Plaintiffs therefrom;
(c) Pending hearing and final disposal of the suit, interim relief in terms of prayer (b) be granted;
(d) Prayer (c) be granted ex-parte as the service of notice will defeat the ends of justice.
5. The defendants contested the suit and also filed a counterclaim, for recovery of possession of the suit property from the plaintiffs, and for mesne profits. Written Statement to the counterclaim was filed on 20-8-1994. Issues were framed on 22-9-1997. Undervaluation, or consequently, payment of inadequate court fees was not a plea taken by the defendant. There was no issue framed as regards undervaluation. Plaintiffs application for temporary injunction was granted by the learned Civil Judge, Senior Division on 22-2-1996 by confirming the ex-parte Order dated 7-10-1993. There was also no plea raised at that time that there was no prayer for permanent injunction in the suit filed by the plaintiffs and therefore no temporary injunction could be granted.
6. On 13-4-2009, the defendant filed an application, styling the same to be an application for rejection of the plaint under Order 7, Rule 11(a) and/or (d) of C.P.C., and stating that the suit filed by the plaintiffs was for declaration simpliciter and further stating that the incidental prayers in the plaint were only in the nature of interim reliefs and no prayer by way of further relief was sought, rendering the suit as a suit for declaration simpliciter only. The defendant stated that it was incumbent upon the plaintiffs to have asked for relief of permanent injunction by way of further relief and since the plaintiffs had not sought for a relief which was available and as the same could not be granted specially when further relief was barred by law of limitation, the suit was not maintainable and trying such a suit would only consume the precious time of the Court, and as such the plaint ought to be rejected in terms of Clause (d), Rule 11, of Order 7, C.P.C..
7. On 22-4-2009, the plaintiffs filed a reply to the said application and on the same day filed another application for amendment of the plaint. The case of the plaintiffs in the amendment application was that in prayer Clause (b) relief of perpetual injunction was applied for but by typographical error it was wrongly stated as temporary injunction. The plaintiffs further stated that in para 22 the plaintiffs had stated that they were entitled for an injunction and declaration, and in para 25 there was an averment about court fees payable for relief of injunction, and thus reading the aforesaid pleadings with the other averments in the plaint it was abundantly clear that the suit was for perpetual injunction and the defendant had also understood it as such. The plaintiffs therefore sought to substitute the word "temporary" with the word "perpetual" in prayer clause (b), which mistake according to the plaintiffs, was patent and obvious. In other words by the said application for amendment the plaintiffs sought leave to substitute the word "temporary" with the word "perpetual", in prayer clause (b) of the plaint.
8. The learned trial Court by common Order dated 7-10-2009 observed and, in our view rightly, that in case the plaintiffs succeeded in their amendment application then the application for rejection of the plaint would be liable to be dismissed. The learned trial Court came to the conclusion that the plaintiffs had filed the application for amendment after a lapse of 16 long years, and that the said amendment application was filed after the defendant had raised the controversy that the suit was hit by the proviso below Section 34 of the Specific Relief Act, 1963. The learned trial Court did not accept the explanation given by the plaintiffs, observing that in case there was a typographical error in the prayer clause in the plaint, the plaintiffs would have stated so in para 22 of the plaint which was an entitlement clause and further held that it was a post trial amendment and as such could not be allowed. The learned trial Court further held that it was incumbent on the plaintiffs to have sought for permanent injunction by way of further relief as the same was available to be asked for at the time of filing of the suit and the same could not be granted specially when it was barred by law of limitation and as such proceeded to dismiss the application for amendment filed by the plaintiffs, and allow the application for rejection of the plaint, filed by the defendants.
9. As already stated, in case the application filed by the plaintiffs for amendment was allowed, the plaint could not have been rejected. Admittedly, this is an appeal filed against the order of rejection of plaint which in terms of Section 2(2), C.P.C. is deemed to be a decree against which an appeal is otherwise maintainable.
10. The first objection taken by Shri. V. R. Tamba, learned Counsel appearing on behalf of the defendants, is that the appeal may be maintainable against that part of the order rejecting the plaint but it is not maintainable as regards that part of the order by which the application for amendment, has been rejected for according to the learned Counsel, the remedy against the latter part of the order would lie elsewhere and not before this Court. Learned Counsel submits that the impugned Order is in two parts.
11. On the other hand, Shri. J. J. Mulgaonkar, learned Counsel on behalf of the plaintiffs submits that the plaintiffs are left with no remedy against the order of rejection of amendment application and that even a writ petition will not be maintainable now as against the said order as the suit itself has been dismissed. Learned Counsel has referred to Section 105, C.P.C. and has submitted that the order rejecting amendment application can be challenged in an appeal against the order rejecting the plaint and in support thereof learned Counsel has placed reliance on the case of Achal Misra Vs. Rama Shanker Singh and others ((2005)5 SCC 531).
12. We are unable to accept the submission of Shri. V. R. Tamba, learned Counsel. The impugned Order is in two parts. The order rejecting the plaint is entirely dependent on the Order rejecting the application for amendment. The defendants have invited an Order under Rule 11(c), Order 7, C.P.C. which position now learned Counsel fairly concedes and therefore it is not permissible for the defendants now to contend that the suit could be dismissed for various reasons, including for not seeking further relief in terms of the proviso below Section 34 of the Specific Relief Act. A Division Bench of Madhya Pradesh High Court in Smt. Chamarin Vs. Ms. Budhiyarin and another (AIR 1975 Madhya Pradesh 74) has held that an order, rejecting a plaint under Order 7, Rule 11 only amounts to Decree whereas rejection of a plaint on other grounds does not amount to a decree. Section 105, C.P.C. provides that save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction, but, where a decree is appealed from, any error, or defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground for objection in the memorandum of appeal. Section 105(2) precludes the appellant from taking, in an appeal from the final decree, an objection that might have been urged by way of an appeal from an order of remand. Where a decree is appealed from, any error, defect, etc. in any order affecting the decision of the case may be set forth as a ground of objection against the decree. The words "any order" postulate that an interlocutory order which had not been appealed from either because no appeal lay or even though an appeal lay, an appeal was not taken, can be challenged in an appeal from final decree or order. The words "affecting the decision of the case" are also important. Orders which affect the ultimate decision of the case alone can be challenged in the appeal filed against the original decree. Even if there is any error, defect or irregularity in any other order, the aggrieved party is not entitled to challenge it against an appeal filed against the original decree unless it affects the decision appealed against. This position of law is no longer res integra. Way back in Satyadhyan Ghosal and others Vs. Smt. Deorajin Debi and another (AIR 1960 SC 941) the Apex Court had ruled that an interlocutory order which had not been appealed from either because no appeal lay or even though an appeal lay an appeal was not taken could be challenged in an appeal from the final decree or order. The Apex Court had further stated that a special provision was made as regards orders of remand and that was to the effect that if an appeal lay and still the appeal was not taken the correctness of the order of remand could not be later challenged in an appeal from a final decision. The Apex Court in Achal Misra Vs. Rama Shanker Singh and others (supra) has stated in para 12 that a party is not bound to appeal from every interlocutory order which is a step in the procedure that leads to a final decree. It is open on appeal from such final decree to question an interlocutory order. The Apex Court reiterated the decision of Satyadhyan Ghosal and others Vs. Deorajin Debi and another (supra) and further held that the same principle was reiterated in Amar Chand Butail Vs. Union of India (AIR 1964 SC 1658). Admittedly, the present appeal is filed against the order rejecting the plaint which order is deemed to be a decree. There is also no dispute, as stated by the trial Court and reiterated by this Court that the order rejecting the plaint is entirely dependent on the order rejecting amendment application. Being so, the plaintiffs are entitled to challenge the said order of rejection of amendment application in an appeal filed against the order of rejection of plaint, in terms of Section 105, C.P.C. and the law laid down by the Apex Court in Satyadhyan Ghosal and others Vs. Smt. Deorajin Debi and another (supra). We are therefore not inclined to accept the first objection of the learned Counsel on behalf of the defendants.
13. The next objection taken on behalf of the defendants, by the learned Counsel, is that the present appeal is liable to be rejected in terms of Order 41, Rule 3, r/w. Order 7, Rule 11(b) since inspite of having pointed out that advalorem court fees payable on the appeal based on valuation of the suit at Rs.89,00,000/- has not been paid nor an application under Section 149, C.P.C. filed for enlargement of time. On the other hand, it has been submitted by Shri. Mulgaonkar, learned Counsel on behalf of the plaintiffs that the plea of improper valuation or undervaluation was not raised by the defendants in their written statement before the learned trial Court inasmuch as no issue was also framed. It is also submitted that the trial Court has also not determined the said issue and as such the question of payment of advalorem court fees based on valuation of the suit, on the memorandum of appeal does not arise.
14. We are unable to accept the second objection raised on behalf of the defendants, as well. There is no dispute that court fees have been paid by the plaintiffs on the memorandum of appeal on the basis of the valuation done by the plaintiffs of the plaint regarding which the defendants had so far not raised an issue. According to the defendants, the plaintiffs were required to pay a minimum court fees of Rs.3,000/- which have not been paid.
15. Section 149, C.P.C. provides that where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to court fees has not been paid, the Court may, in its discretion, at any stage, allow the person, by whom such fee is payable, to pay the whole or part, as the case may be, of such court fee; and upon such payment the document, in respect of which such fee is payable, shall have the same force and effect as if such fee had been paid in the first instance. Order 7, Rule 11(b), C.P.C. further provides that where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so, the plaint shall be rejected. As already stated whether the reliefs claimed by the plaintiffs were undervalued is not an objection taken by the defendants before the trial Court inasmuch as the same has also not been decided by the Court below. In fact, Shri. Mulgaonkar, learned Counsel on behalf of the plaintiffs has submitted that in case such a point is raised by the defendant and the Court calls upon the plaintiffs to correct the valuation the plaintiffs will be ready and willing to correct the same. We are conscious of the fact that an appeal is a continuation of the suit. However, in our view since no issue of undervaluation was raised by the defendant before the learned trial Court nor a finding given by the learned trial Court on that aspect, the plaintiffs were bound to pay court fees on the memorandum of appeal on the basis of the valuation done by them before the learned trial Court. The defendants are always at liberty to raise such an issue if permissible in law before the trial Court. It is well settled that a plea which is not taken before the trial Court cannot be allowed to be taken for the first time in appeal.
16. The case of Jabar Singh and others Vs. Shadi and others (AIR 1975 P & H 373) stood on its own facts. Although it was observed therein that the provisions of Order 7, Rule 11 do not apply to appeals, what was held therein is that the appellant could not be given opportunity to make up the deficiency in court fees after expiry of the period of limitation in preferring the appeal. In the case of Phalton Bank Ltd. Vs. Baburao Appajirao and another (AIR 1954 Bombay 43) a Division Bench of this Court observed that under Order 41, Rule 3, an appellate Court is expressly empowered to reject a memorandum of appeal if it is satisfied that the memorandum is not drawn up in the manner as prescribed. But this does not mean that the appellate Court's power to reject the memorandum of appeal is confined only to the cases falling within Rule 3, Order 41. It is well settled that reading the provisions of Section 107, Sub-Section(2), and Order 7, Rule 11, together, the Court of appeal would be entitled to reject the memorandum of appeal on any of the grounds mentioned in Order 7, Rule 11. Amongst the grounds on which a memorandum of appeal can thus be rejected under Order 7, Rule 11, failure of the appellant to pay the requisite court fee is included, and, therefore the Phaltan High Court had jurisdiction to reject the memorandum of appeal on the ground that it was written upon an insufficiently stamped paper, and the order which was passed while rejecting this memorandum must be construed as an order of rejection inspite of the fact that in form it purported to be an order of dismissing the appeal and though a formal decree including the said decision has been drawn.
17. Considering the facts of the case, and the view we have taken in our opinion, the case of P. K. Palaniswamy Vs. N. Arumugham and another ((2009)9 SCC 173 : [2009(5) ALL MR 957 (S.C.)]) is of no assistance to the case of the plaintiffs as rightly pointed out on behalf of the defendants. That was a case where a suit for recovery of money was filed on 5-10-1998 with a court fee of Re.1/- only, and then an application was filed under Section 148 r/w Section 151, C.P.C. seeking six weeks' time to pay the deficit court fee which time was granted and then again on 8-11-2008, another application was filed for extension of time by eight weeks which was also granted and deficit court fee was paid on 17-2-1999, which was accepted by the trial Court. Thereafter, it appears that the plaint was re-presented with an application for condonation of delay of 272 days which was allowed by the trial Court by Order dated 2-11-2000. The re-presentation of the plaint was done with an application for attachment. The defendants had put their appearance on 10-1-2001 but in the written statement filed on 17-2-2003, no objection was raised with regard to delay in payment of court fees inasmuch as no issue in that behalf was also framed, and thereafter as the defendants remained absent and an ex-parte decree followed on 29-9-2004. Then came an application on behalf of the defendants to set aside the ex-parte order after a gap of 289 days which was allowed by the trial Court but the plaintiffs preferred a revision under Article 227 of the Constitution and the suit was revived by Order dated 8-6-2007 on a condition that the defendants paid a sum of Rs.3,00,000/-. Even at that stage, no objection was taken as regards non deposit of court fee within a reasonable time. Thereafter, the defendants filed an application after the plaintiffs evidence was over seeking rejection of the plaint in terms of Order 7, Rule 11, C.P.C. claiming that the suit was barred by time and the extension of time granted was without notice to the defendants. That application was dismissed by the learned trial Court but that order came to be reversed by the High Court and the High Court Order in turn came to be reversed by the Apex Court and in doing that the Apex Court, inter alia, observed as follows:-
17. Payment of court fee furthermore is a matter between the State and the suitor. Indisputably, in the event a plaint is rejected, the defendant would be benefited thereby, but if an objection is to be raised in that behalf or an application is to be entertained by the court at the behest of a defendant for rejection of the plaint in terms of Order 7, Rule 11(c) of the Code, several aspects of the matter are required to be considered. Once an application under Section 149 is allowed, Order 7, Rule 11(c) of the Code will have no application. It is for that additional reason, the orders extending the time to deposit deficit court fee should have been challenged.
18. Filing of an application for rejection of plaint in a case of this nature as also having regard to the events which have taken place subsequent to registration of the suit appears to us to be mala fide. If the learned trial Judge did not entertain the said plea, the High Court should not have interfered therewith.
19. The respondents in their written statement did not raise any issue with regard to the correctness or otherwise of the orders dated 7-10-1998, 8-11-1998, 20-11-1998 and 21-1-1999. Rightly or wrongly, the plaint was accepted. The deficit court fee has been paid. The court was satisfied with regard to the bona fide of the plaintiff. Hearing of the suit proceeded; not only issues were framed but the witnesses on behalf of the parties were also examined by both the parties.
20. It is difficult to believe that from 10-1-2001 to 4-1-2008, the respondents or their counsel did not have any occasion to inspect the records. Any counsel worth itself would not only do so but even without doing so would address himself a question as to why a suit filed on 4-10-1998 was entertained in the year 2000. The suit was at one point of time decreed ex parte. The same was set aside on certain conditions. Evidently, the conditions laid down had been satisfied only upon obtaining an extension of time.
30. An application for rejection of the plaint was filed only in the year 2008. Evidently, that was not the stage for entertaining the application. Order 7, Rule 11(c) of the Code could not have been invoked at that point of time.
37. The abovesaid dicta were reiterated by a three-Judge Bench of this Court in Ganapathy Hegde Vs. Krishnakudva in the following words :(SCC pp.539-40, para 5).
"5. In our opinion, the High Court was not right in forming the opinion which it did. The proviso to Order 7, Rule 11, CPC is attracted when the time for payment of court fee has been fixed by the court and the court fee is not supplied within the time appointed by the court. In the case at hand, though the plaint as originally filed was not affixed with the requisite court fee stamps, but before the suit was registered, the deficit court fee was supplied. The present one is not a case where the court had fixed the time for payment of requisite stamp paper which was not done within the time fixed and thereafter the plaintiff was called upon to seek an extension of time. Had that been the case, then, under the proviso, the plaintiff would have been called upon to assign and show the availability of any cause of an exceptional nature for delay in supplying the requisite stamp paper within the time fixed by the court. The trial Court was also empowered under Section 149, CPC to extend the time. In the present case, the order passed by the trial Court accepting the deficit court fee paid on 23-2-2000, thereafter registering the suit on 10-4-2000 and consequently the order dated 3-11-2001 rejecting the respondent-defendants' application under Order 7, Rule 11, CPC were perfectly in accordance with law and within the discretion conferred on the trial court with which the High Court ought not to have interfered in exercise of the jurisdiction vested in the High Court under Section 115, CPC. The order of the High Court, if allowed to stand, is likely to occasion failure of justice."
18. It is now well settled law that for the purpose of deciding an application for rejection of the plaint what is relevant are the averments in the plaint and for that the plaint has got to be read as a whole, the averments in the written statement being wholly irrelevant. Returning to the merits of the case, the new proviso below Order 6, Rule 17 which came in force from 1-7-2002 was not at all applicable to the case of the plaintiffs as otherwise held, and in our view wrongly, by the learned trial Court, the suit of the plaintiffs having been filed much prior to that date, as held by the Apex Court in State Bank of Hyderabad Vs. Town Municipal Council ((2007)1 SCC 765 : [2007 ALL SCR 18]). The Apex Court in Rajkumar Gurawara Vs. S. K. Sarwagi and Company Private Limited and another ((2008)14 SCC 364 : [2008 ALL SCR 2104]) has also explained the rationale behind the said proviso and has stated that in case of amendments after the commencement of the trial, particularly, after completion of evidence, the question of prejudice to the opposite party may arise and in such an event, it is incumbent upon the part of the Court to satisfy the conditions prescribed under proviso to Order 6, Rule 17, C.P.C. If the parties to the proceedings are able to satisfy the Court that inspite of due diligence they could not raise the issue before the commencement of trial and then Court is satisfied with their explanation, amendment can be allowed even after commencement of the trial and not otherwise. The Apex Court also observed that the first part of Order 6, Rule 17, C.P.C. makes it abundantly clear that at any stage of the proceedings, parties are free to alter or amend their pleadings on such terms as may be just and as may be necessary for the purpose of determining the real questions in controversy.
19. The law as regards amendment of pleadings is otherwise now well settled. As stated by the Apex Court in the case of Rajkumar Gurawara Vs. S. K. Sarwagi and Company Private Limited and another, [2008 ALL SCR 2104] (supra) an amendment would be refused namely, (i) when the nature of the suit will be changed by permitting amendment; (ii) when the amendment would result in introducing new cause of action and intends to prejudice the other party; (iii) when allowing amendment application defeats the law of limitation. The same position was earlier reiterated by the Apex Court in the case of State Bank of Hyderabad Vs. Town Municipal Council, [2007 ALL SCR 18] (supra) by observing that "it is one thing to say that the application for amendment suffers from delay or laches but it is another thing to say that thereby the defendant was prejudiced". Even in a case where relief could not be granted on account of law of limitation the Court is not powerless but whether the relief sought for would be otherwise barred by limitation is a relevant factor to determine the issue. The Hon'ble Apex Court referred to L. J. Leach and Co. Ltd. Vs. Jardine Skinner and Co. (AIR 1957 SC 357) and observed :-
"16. It is no doubt true that courts would, as 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."
"All amendments ought to be allowed which satisfy the two conditions (a) of 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 ... but I refrain from citing further authorities, as, in my opinion, they all lay down precisely the same doctrine. That doctrine, as I understand it, is that amendment should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. It is merely a particular case of this general rule that where a plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused; to allow it would be to cause the defendant an injury which could not be compensated in costs by depriving him of a good defence to the claim. The ultimate test therefore still remains the same : can the amendment be allowed without injustice to the other side, or can it not ?"
21. This Court in Anant Tukaram Patil Vs. Lata Eknath Patil (2004(3) Mh.L.J. 376 : [2004(4) ALL MR 182]) referring to the decision of the Apex Court in A. K. Gupta and Sons Pvt. Ltd. Vs. Damodar Valley Corporation (AIR 1967 SC 96) observed that it is well recognized rule that where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts to no more than a different or additional approach to the same facts, the amendment will be allowed even after the expiry of the statutory period of limitation and the principal reasons that have led to the rule last mentioned are, first, that the object of Courts and rule of procedure is to decide the rights of the parties and not to punish them for their mistakes and a party is strictly not entitled to rely on the statute of limitation when what is sought to be brought in by the amendment can be said in substance to be already in the pleading sought to be amended. Referring to Ganesh Trading Co. Vs. Moji Ram ((1978)2 SCC 91), it was noted that even if a party or its counsel is inefficient in setting out its case initially the shortcoming can certainly be removed generally by appropriate steps taken by a party which must no doubt pay costs for the inconvenience or expense caused to the other side from its omission. The error is not incapable of being rectified so long as remedial steps do not unjustifiably injure the rights accrued.
22. In our view, the case at hand, was a clear case where the plaintiffs had sought an amendment to correct a typographical or clerical mistake in mentioning the word "temporary" instead of the word "permanent" in prayer clause (b). The plaintiffs, as already stated, had filed the suits styling the same as a suit for declaration and injunction. Again, the plaintiffs had stated in para 22 that they were entitled to an injunction and declaration. Here, we may observe that nobody files a suit for declaration and temporary injunction and as common knowledge goes suits are filed for declaration and permanent injunction. The plaintiffs had also valued tentatively the prayer for injunction at Rs.1,000/- and court fee at Rs.75/- was paid thereon. It may be true that there is no prohibition under the Court Fees Act to pay court fees on temporary injunction as contended on behalf of the defendants but the fact remains that nobody pays fees when it is not required and fees are paid only when they are required. Going by the reverse order of the prayer clauses, it can be seen from prayer (d) that the plaintiffs had prayed for ad-interim ex-parte injunction in terms of prayer clause (c) which again shows that interim relief was prayed in terms of prayer clause (b), and, therefore there was no question of the plaintiffs praying for interim relief by way of prayer clause (c) in case it was already prayed for in terms of prayer clause (b). Interim means temporary. Nobody prays for temporary relief twice. In other words, the prayer clause (b) was meant to be a prayer for permanent injunction and in terms thereof the plaintiffs had sought temporary injunction in terms of prayer clause (c) and ad-interim injunction in terms of prayer clause (d). It was but an obvious or patent mistake, namely a clerical or typographical error in typing the word "temporary" in prayer clause (b) instead of "permanent" and in such a situation the learned trial Court ought to have granted the prayer for amendment and in the light of that, rejected the application of the defendants, for rejection of the plaint. The learned trial Court committed a grave error invoking the principle of limitation in such a situation, when it was not applicable at all and what was sought to be corrected was a typographical or clerical mistake in typing a word.
"Section 34 :- Discretion of the Court as to declaration of Status or Rights :-
Any person entitled to any legal character, or to any right as to any property may institute a suit against any person, denying, or interested to deny, his title to such character or right; and the Court may in its discretion make therein a declaration that he is so entitled and the Plaintiff need not in such suit ask for any further relief;
Provided that no Court shall make any such declaration where the Plaintiff being able to seek further relief than a mere declaration of title, omits to do so." (underlining supplied).
The submission is that the proviso to Section 34 of the Specific Relief Act does not bar the filing of the suit and if there is such a defect the same ought to be allowed to be cured in case a plea to that effect is taken at the earliest opportunity. In support of the said submission, Shri. Mulgaonkar has placed reliance on the case of Mst. Rukhmabai Vs. Lala Laxminarayan and others (AIR 1960 SC 335) wherein the Apex Court observed that :-
"The proviso to Section 42 of the said Act (Specific Relief Act) enacts that "no Court shall make any such declaration when the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so"."
24. Learned Counsel has also submitted that the objection taken could not be dealt with under clause (d), Rule 11, Order 7, C.P.C. and in support thereof has relied on Prem Lala Nahata and another Vs. Chandi Prasad Sikaria ((2007)2 SCC 551 : [2007 ALL SCR 1254]) wherein the Apex Court has stated as follows :-
"Thus, when one considers Order 7, Rule 11 of the Code with particular reference to clause (d), it is difficult to say that a suit which is bad for misjoinder of parties or misjoinder of causes of action, is a suit barred by any law. A procedural objection to the impleading of parties or to the joinder of causes of action or the frame of the suit, could be successfully urged only as a procedural objection which may enable the court either to permit the continuance of the suit as it is or to direct the plaintiff or plaintiffs to elect to proceed with a part of the suit or even to try the causes of action joined in the suit as separate suits."
25. In Saleem Bhai Vs. State of Maharashtra (2003(1) SCC 510) the Apex Court did state that the power of the Court under Order 7, Rule 11, can be exercised at any stage of the suit even before the conclusion of trial but in P. K. Palaniswamy Vs. N. Arumugham and another [2009(5) ALL MR 957 (S.C.)] (supra) the Apex Court did not approve the exercise of such power after plaintiff's evidence was completed. In Mst. Rukhmabai Vs. Lala Laxminarayan and others (supra) the Apex Court then proceeded to state that it is a well settled rule of practice not to dismiss suits automatically but to allow the plaintiff to make necessary amendment if he seeks to do so. In case there was no amendment application filed by the plaintiffs and such a defect was brought to the notice of the Court by the defendants, the Court ought to have allowed the plaintiffs to rectify the said defect and ought not to have dismissed the suit. This on the assumption that the plaintiffs had not sought a further relief in terms of proviso to Section 34 of the Specific Relief Act. But, in the case at hand, as we have seen, such a defect being pointed out, the plaintiffs had immediately filed an application for amendment which was wrongly rejected by the learned trial Court. The decision in the case of Muni Lal Vs. Oriental Fire & General Insurance Co. Ltd. and another ((1996)1 SCC 90) stood on its own facts and has no application to the facts of the case. In that case the suit was filed for a mere declaration without seeking consequential relief and the suit was dismissed by the trial Court as being not maintainable under the proviso to Section 34 of the Specific Relief Act. An application under Order 6, Rule 17, was filed before the appellate Court for seeking consequential relief by amendment after the suit was barred by limitation during the pendency of the appeal and the Hon'ble Supreme Court held that such an amendment was not permissible. That is not the case herein where the absence of further relief having been pointed out, the plaintiffs immediately filed an application for amendment with a view to clarify that indeed they had complied with the said proviso by seeking a prayer for permanent injunction but there was a mistake namely that the word "temporary" was wrongly typed instead of the word "permanent". The case of N. V. Srinivasa Murthy Vs. Mariyamma (2005(5) SCC 548 : [2005(5) ALL MR 838 (S.C.)]) is also not applicable as in that case it was held that from the averments in the plaint, the suit was apparently barred by law within the meaning of clause (d), Rule 11 of Order 7. Likewise, the case of Vinay Krishna Vs. Keshav Chandra (AIR 1993 SC 957) is of no assistance to the defendants as what was held therein is that a prayer for such other relief could not be considered as a relief for possession.
26. Considering the facts of the case and the submissions made, in our view, this appeal deserves to succeed. Consequently, the impugned Order is hereby set aside and as a result the application for amendment is granted and that for rejection of the plaint is rejected and the suit is restored to the file of the learned trial Court, to proceed in accordance with law. Costs by the defendants.
27. Learned Counsel on behalf of the defendants prays for the stay of this Judgment. Considering the facts and circumstances of the case, we find that this is not a fit case to grant a stay. Prayer rejected.