Chamber Summons No.106 of 2010,Suit No.2256 of 1998

7th December, 2011

Petitioner Counsel: Ms. SONAL i/b RAVI GOENKA
Respondent Counsel: Mr. S.U.KAMDAR, Sr. Advocate with SANDEEP PARIKH, Mr. G.B. KEDIA, Mr. MANOJ ARGE and Ms. POOJA PATIL i/b G.B.KEDIA

Cases Cited:
Didwania and Co.(P) Ltd Vs. Jagdish Narain Indranarain, AIR 1971 Allahabad 407 [Para 5,10]
Kerala State Electricity Board Vs. T.P. Kunhaliumma, (1976) 4 SCC 634 [Para 8]
Town Municipal Council, Athani Vs. Presiding Officer, Labour Court, Hubli, (1969) 1 SCC 873 [Para 8]
Nityananda M. Joshi Vs. Life Insurance Corporation of India, 1969(1) SCC 199 [Para 8]
Kunvarjeet Singh Khandpur Vs. Kirandeep Kaur and others, 2008 ALL SCR 1221=(2008) 8 SCC 463 [Para 8]
Revajeetu Builders and Developers Vs. Narayanaswamy and Sons and others, 2009(6) ALL MR 986 (S.C.) =(2009) 10 SCC 84 [Para 9]
Jai Jai Ram Manharlal Vs. National Building Material Supply, 1969 (1) SCC 869 [Para 13]
State of Maharashtra Vs. Hind Construction Co., (2010) 4 SCC 518 [Para 13]

JUDGMENT

JUDGMENT :- Heard learned counsel for the applicants (defendant nos.1, 2 4 and 5) and the plaintiffs. Other defendants are absent when called.

2. This chamber summons has been taken out by defendant nos. 1,2, 4 and 5 (hereinafer referred to as "the defendants") for amendment of the written statement. The chamber summons is seriously opposed by the plaintiffs interalia on the grounds that the chamber summons is barred by limitation as it is made beyond the period prescribed by Article 137 of the Limitation Act and that the chamber summons is not bonafide and has been taken out only for the purpose of delaying the trial. The written statement was filed on 20 November 2006 and the suit was posted for framing of issues in December 2009. After the draft issues were tendered, apprehending that the issues would be framed and the trial would begin, the defendants have taken out this chamber summons for delaying the trial and denying the plaintiff no.1 who is a senior citizen, the fruits of the litigation. Counsel for the plaintiffs further submits that amendment is not at all necessary for deciding the real issues in controversy between the parties and therefore, the chamber summons should be dismissed.

3. Per contra, learned counsel for the defendants submitted that courts always adopt a liberal approach for allowing an amendment of pleadings. The allegation that the chamber summons has been taken out for delaying the trial is not true. The defendants have raised a substantial defence in the original written statement. The necessary facts have already been pleaded. Amendment is sought only for elaborating the facts already mentioned in the written statement and no new grounds are proposed to be added by the amendment. As regards the question of limitation, counsel for the defendants submitted that no period of limitation has been prescribed by the Limitation Act, 1963, for making an application for amendment of a pleading. An application for amendment of a pleading can be made at any time. Article 137 of the Limitation Act does not apply to an application (chamber summons) for amendment of a plaint or a written statement.

4. In view of the submissions of the parties, following points arise for my consideration.

(i) Whether Article 137 of the Limitation Act applies to an application for amendment of pleadings?

(ii) If yes, whether the present application (chamber summons) is barred by Limitation?

(iii) Whether in the facts and circumstances of the case, the amendment should or should not be allowed?

5. Counsel for the defendants fairly stated that the question whether Article 137 of the Limitation Act applies to an application for amendment of pleadings has not so far been considered by this Court or any other court, save and except by the Allahabad High Court in Didwania and Co.(P) Ltd Vs. Jagdish Narain Indranarain, AIR 1971 Allahabad 407. In my view, the decision in Didwania & Co. also is not directly on the point and the issue is res nova.

6. Section 3 of the Limitation Act provides that subject to the provisions contained in sections 4 to 24, every suit instituted, appeal preferred, and application made after the prescribed period (of limitation) shall be dismissed although limitation has not been set up as a defence. Section 2(j) of the Limitation Act provides that "period of limitation" means the period of limitation prescribed for any suit, appeal or application by the Schedule. Schedule to the Limitation Act which prescribes the period of limitation for suits, appeals and application is divided into three divisions. The first division relates to the suits and consists of Articles 1 to 113 which are divided into 10 parts. The second division relates to appeals and consists of Articles 114 to 117. The third division relates to applications and is divided into two parts. Part-1 speaks of application in specified cases and consists of Articles 118 to 136. Part-2 of the third division consists of only one article viz. Article 137 which reads thus:

Description of application	Period of Limitation	Time from which period begins to run
137. Any other application for which no period of limitation is pro- vided elsewhere in this division.	Three years	When the right to apply accures.

Article 137 is a residuary article relating to applications and applies to all applications other than those which have been specified in Articles 118 to 136 of the Limitation Act. Any application to be made to any court for which a period of limitation is not specified in Articles 118 to 136 is governed by Article 137 of the Limitation Act. In my view, there is no warrant for excluding application of Article 137 of the Limitation Act to an application for amendment of pleadings. As period of limitation for making an application for making an amendment of pleadings is not specified in Articles 118 to 136 of the Limitation Act, it would be governed by Article 137 of the Limitation Act. There is no reason to hold that Article 137 does not cover or does not apply to an application for amendment of pleadings. Of course, the starting point from which the period is to be reckoned is "when the right to apply" for amendment accrued.

7. Learned counsel for the defendants however invited my attention to Order 6 Rule 17 of the Code of Civil Procedure (for short "the Code") which prior to its amendment in the year 2002 read as follows:

"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:

Relying upon the words "at any stage of the proceedings" appearing in Order 6 Rule 17 of the Code, the learned counsel submitted that these words exclude the operation of Article 137 of the Limitation Act, to an application for amendment of pleadings made under Order 6 Rule 17 of the Code. If the law permits an application for amendment of pleadings to be made at any stage of the proceedings, counsel submitted, it cannot be held to be barred by limitation at all as that would be contrary to the intent of the legislature that such application can be made at any stage of the proceedings. I am unable to agree. The expression "at any stage of the proceedings" only denotes the stage of the proceedings, be it before the framing of the issues or after framing of the issues, before commencement of the trial or after the commencement of the trial or even after conclusion of the trial. There are several instances when an application for amendment of pleadings is made and allowed in an appeal. This is because appeal is regarded as continuation of the proceedings. This position has now altered because of an addition of a proviso to Order 6 Rule 17 of the Code which requires an application for amendment is required to be made before the commencement of the trial and an application made after the commencement of the trial cannot be allowed unless the court is satisfied that in spite of the due diligence the party applying could not have raised the matter before the commencement of the trial. Order 6 Rule 17 of the Code confers a right on a party to apply for amendment of the pleadings. However, the remedy for this right to apply for an amendment may get barred by the Limitation Act. A party to a suit would have a right to apply for amendment at any stage subject to law of limitation. The remedy will be barred after the period prescribed under Article 137 of the Limitation Act elapses. Order 6 Rule 17 of the Code of Civil Procedure cannot be held to be an exception to section 3 of the Limitation Act which requires the court to dismiss a suit, an appeal or an application made after expiry of the period of limitation. An application for amendment of pleadings must be made within the period prescribed by Article 137 of the Limitation Act.

8. In Kerala State Electricity Board Vs. T.P. Kunhaliumma, (1976) 4 SCC 634, the Supreme Court was considering whether a petition filed before the District Judge under section 16(3) of the Indian Telegraph Act, 1885 claiming an enhancement of compensation was barred by Article 137 of the Limitation Act, 1963. Relying upon a decision of a two Judge Bench of the Supreme Court in the case of Town Municipal Council, Athani Vs. Presiding Officer, Labour Court, Hubli (1969) 1 SCC 873, it was contended before the court that Article 137 does not apply to the applications which were presented before any tribunal bodies or authorities other than a civil court. Following the decision in Nityananda M. Joshi Vs. Life Insurance Corporation of India, 1969(1) SCC 199, the three Judge Bench of the Supreme Court held that Article 137 of the Limitation Act applies to any petition or application filed before a civil court under any Act. In paragraph no.22 of the decision, the Supreme Court observed :

"The conclusion we reach is that Article 137 of the 1963 Limitation Act will apply to any petition or application filed under any Act to a civil court. With respect we differ from the view taken by the two-judge bench of this Court in Athani Municipal Council case and hold that Article 137 of the 1963 Limitation Act is not confined to applications contemplated by or under the Code of Civil Procedure"

The decision in the case of Kerala State Electricity Board (supra) was followed by the Supreme Court in Kunvarjeet Singh Khandpur Vs. Kirandeep Kaur and others, (2008) 8 SCC 463 : [2008 ALL SCR 1221]. After extracting the above quoted passage from the decision of Kerala State Electricity Board (supra), the court held:

"In terms of the aforesaid judgment (Kerala State Electricity Board) any application to civil court under the Act is covered by Article 137". (underlining supplied)

In view of the clear enunciation of law by the Supreme Court that every application made to a civil court is covered by Article 137 of the Limitation Act, it must be held that Article 137 applies even to an application made for amendment of the pleadings

9. Mr.Kamdar, learned counsel appearing for the defendants referred to and relied upon a decision of the Supreme Court in Revajeetu Builders and Developers Vs. Narayanaswamy and Sons and others (2009) 10 SCC 84 : [2009(6) ALL MR 986 (S.C.)] and invited my attention to the observations in paragraph no.39 which reads thus:

"39. The rule, however, is not a universal one and under certain circumstances, such an amendment may be allowed by the court notwithstanding the law of limitation. The fact that the claim is barred by the law of limitation is but one of the factors to be taken into account by the court in exercising the discretion as to whether the amendment should be allowed or refused, but it does not affect the power of the court if the amendment is required in the interests of justice (see Ganga Bai Vs. Vijay Kumar and Arundhati Mishra Vs. Ram Charitra Pandey)"

The observations cannot be read out of context. It is settled principle of law that judgments of court are not to be read as statute but the observations made in a judgment must be read in the context in which they are made. The above quoted observations were made while dealing with an argument that the amendment should not be allowed as it sought to add a claim which was barred by limitation on the date on which the application for amendment was made. It was in this context that the Supreme Court held that the court has a discretion whether the amendment should be allowed or refused. In a given case, the question whether the claim which is sought to be introduced by an amendment in the plaint is barred by limitation or not would be a mixed question of law and facts and in that case it would be inappropriate to shut out an amendment without the trial and without knowing whether the claim made is really barred by limitation. The decision on the question of limitation as to a claim often requires appreciation of evidence. The distinction between a claim sought to be introduced by an amendment being barred by limitation and the application for amendment being barred by limitation must be borne in mind. The starting point for computing period of limitation for making an application for amendment of the plaint is the date when the right to apply for amendment accrues. In a given case, the right to apply for amendment may accrue on a day which is different than the date on which the cause of action for the claim sought to be made by amendment accrues. Article 137 of the Limitation Act provides that the period of limitation for making of an application is to be computed from "when the right to apply accrues". The court would therefore, have to see when the right to apply for the amendment of pleadings accrued to the plaintiff and compute the period of limitation from the date when the right accrued.

10. As regards the decision of the Allahabad High Court in Didwania and Co.(P) Ltd Vs. Jagdish Narain Indranarain, Air 1971 Allahabad 407, the facts therein were that Didwania and Co.Pvt.Ltd. (hereinafter referred to as "the company") went in liquidation. Two liquidators acting on behalf of the company filed a suit. The application for amendment was made on 3 November 1965 praying for amendment to the title of the plaint deleting the name of the liquidator who had died and substituting it by another name. The trial court held that the suit had abated as the heirs of the liquidator were not brought on record within the prescribed period of limitation. The High Court held that the company was a juristic personality and the suit cannot abate even if the liquidator died. Liquidator acted only as vehicle on behalf of the company. Death of a liquidator in a suit filed by a company cannot be equated with the death of a party to a suit. It was in this context that the High Court observed that an application for amendment was not governed by any law of limitation. This decision is not an authority on the applicability of Article 137 of the Limitation Act to an application for amendment. The observation in the decision to the effect "such an application was not governed by any law of limitation" is at best a casual observation not deciding the issue whether Article 137 of the Limitation Act applies to an application for amendment of the plaint.

11. For these reasons, it must be held that Article 137 of the Limitation Act applies to all applications to be made to a civil court including an application for amendment made under Order 6 Rule 17 of the Code.

12. The second question is: whether the application for amendment in the present case is barred by limitation. As stated earlier, starting point of limitation is "when the right to apply accrued". Counsel for the plaintiff in the present case fairly stated that cause of action for applying for the amendment arose on the day following the day when the written statement was filed. No new facts were sought to be pleaded but only explanation regarding the existing facts was sought to be added by the proposed amendment. The explanation should have been added in the first place but for some reason had not been added. Therefore, the cause for addition of the explanation which was sought to be introduced by an amendment arose on the day following the day on which written statement was filed. The written statement was filed on 20 November 2006. The right to apply for amendment therefore accrued on 21 November 2006. The chamber summons has been taken out on 19 January 2010 i.e after lapse of three years from the day when the right to apply for amendment accrued. Chamber Summons is thus barred by limitation.

13. As regards the third question framed above, in my view, the amendment cannot be refused but for the fact that it is barred by limitation. It is settled principle of law that rules of procedure are handmaid to the administration of justice. An amendment cannot be refused merely because of mistake, negligence, inadvertence or even infraction of the rules of procedure. The court always gives leave to amend pleadings to a party unless it is satisfied that the party applying was acting malafide or that by his blunder he had caused injury to his opponent which may not be compensated by an order of costs. (see Jai Jai Ram Manharlal vs. National Building Material Supply, 1969 (1) SCC 869). The decision in the case of Jai Jai Ram has been consistently followed and has recently been applied in the case of State of Maharashtra vs. Hind Construction Co, (2010) 4 SCC 518. But for the limitation, I would have allowed the chamber summons.

14. For these reasons, the chamber summons is dismissed but in the facts and circumstances of the case without any order as to costs.

Chamber summons dismissed.