Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6595 OF 2015

(arising out of S.L.P. (Civil) No. 15513 of 2015)

L.C. HANUMANTHAPPA (SINCE DEAD) …Appellant(s)

REPRESENTED BY HIS LRS.

VERSUS

H.B. SHIVAKUMAR ...Respondent

J U D G M E N T

R.F. Nariman, J.

1. Leave granted.

2. The present case arises out of cross suits filed by the

parties. On 9

th

March, 1990, one L.C. Hanumanthappa filed a

suit against one H.B. Shivakumar for permanent injunction

restraining the defendants, his servants and agents from

disturbing the peaceful possession and enjoyment of the suit

schedule property. In this suit, namely, O.S. No. 1386 of 1990

filed before the City Civil Court, Bangalore, the plaintiff averred

that he is the absolute owner, and in lawful possession and

1

Page 2 enjoyment of the suit property. He also averred in the said suit

that the schedule property is clearly distinguishable and could be

identified without difficulty. According to the plaintiff, the cause of

action arose when the defendant tried to trespass on the

schedule property two days before the suit was filed.

3. Within a few days from the filing of this suit, the defendant

in the first suit filed a suit being suit number O.S. 1650 of 1990 in

the City Civil Court at Bangalore against one L.C. Ramaiah and

the said Shri Hanumanthappa stating that the defendants had

attempted to trespass into the suit schedule property about 15

days prior to the suit being filed, and asked for a permanent

injunction against the said defendants restraining them from

interfering with the peaceful possession and enjoyment of the

suit schedule property. The plaintiff also claimed to be the owner

in possession of the suit schedule property.

4. In the written statement to O.S. No. 1386 of 1990 dated

16

th

May, 1990, the defendant not only referred to his own suit

which had by then already been filed, but specifically stated as

follows:-

“4.The boundaries furnished by the plaintiff to old

survey site No.13, in the plaint schedule is totally

2

Page 3 false and that has nothing to do with the boundaries

mentioned in his document.

5.The Plaintiff has failed to established any

relationship between old site No.13 and Corporation

No.12/2, as claimed by him in the plaint.

6.The allegations that at the time of the

purchase of the schedule property by the plaintiff,

western boundary was a building site bearing No.14

and however subsequently the said portion left for

building site has been converted as road and is

being used as such since several years are false

and further it is false to state that the east of the

schedule property bearing building site No. 12 is

situate and the same was belonging to one H.

Venkataramanappa and however, the said site has

been sold by him and now the said property is

owned by one Sri Ahmadullah khan and he has

constructed a building thereon, as alleged in para 2

of the plaint.

7.The plaintiff has purposefully distorted the

boundary of his old site No. 13 to bring

substantially the boundaries of site No.15, old 3,

C.T.S. No. 1157 (city Survey) which exclusively

belongs to the defendant.

13.The suit for injunction is not maintainable in

that, he has failed to establish title with possession

over site No. old 13, and that is not establishing any

connection between old site No.13, and new No.

12/2, alleged to be assigned by Bangalore City

Corporation or about 6-6-1989.”

5. It can thus be seen that on 16

th

May, 1990 itself the

plaintiff in O.S. No. 1386 of 1990 was put on notice that his suit

3

Page 4 for injunction was not maintainable as he had failed to establish

title over the suit schedule property.

6. Both suits were tried together, and by a judgment dated

10

th

March, 1999, the Court of Additional City Civil Judge at

Bangalore decreed O.S. No. 1650 of 1990 and dismissed O.S.

No. 1386 of 1990. In the first appeals filed against the said

judgment, the High Court of Karnataka by its judgment dated 28

th

March, 2002 allowed R.F.A. No. 415 of 1999, and dismissed

R.F.A. No. 456 of 1999, and remanded the matter back to the

trial court for fresh consideration. The High Court while

remanding the matter observed as follows:-

“10.The trial Court had also appointed the

Commissioner. The Commissioner after inspecting

the properties has given his report. The

commissioner has also been examined as PW.2.

From looking into the pleadings and the evidence

adduced by the parties, it is crystal clear that the

dispute is in respect of the identity of two properties

and to declare right and title over the properties.

The respondent in this case has not disputed the

sale deed which stands in the name of the

appellant. Since the defendant is disputing and

existence of the suit schedule property, the present

application is filed for declaration of his title. The

respondent has resisted the application, contending

that the relief sought for by the appellant is barred

by limitation and that relief sought by way of

limitation. However, such a plea can be raised by

the respondents by filing additional written

4

Page 5 statement. Considering the fact that the dispute in

respect of an immovable property and question of

identification of two properties have been involved,

as the defendant is also not disputing the sale deed

of the appellant, this court to allow the application

filed by the appellant for amendment of plaint

seeking additional evidence.

11.Accordingly, R.F.A. No. 415/99 is allowed. The

judgment and decree passed in O.S. No. 1386/90,

is set aside. The matter is remanded to the Trial

Court to hold fresh enquiry after giving reasonable

opportunities for both the parties. The defendant is

entitled to file additional written statement and also

entitled to raise the question of limitation. The Trial

Court shall dispose of the suit within six (6) months

from to-day in accordance with law. The judgment

and decree passed in O.S. 1650/90, which is the

subject matter of RFA 415/99 is concerned, there is

no need for this court to disturb the decree of

injunction and that the decree that may be passed

in O.S. 1386/90 by the Trial Court will have a

bearing on the judgment and decree in O.S. No.

1650/90. In the event of appellant succeeding in

O.S. 1386/90, the judgment and decree passed in

O.S. 1650/90 in favour of Shivakumar for bare

injunction will be unenforceable against the

appellant – Hanumathappa. However, it is made

clear till the disposal of O.S. 1386/90, the

respondent/plaintiff-shivakumar in O.S. 1650/90 is

hereby directed to maintain status-quo. If such an

order is not passed, the

respondent/plaintiff-Shivakumar may proceed with

the construction and if he is allowed to construct

and in the event of appellant succeeds in O.S. No.

1386/90, than it will lead to multiplicity of

proceedings. Therefore it is necessary to direct the

respondents to maintain status-quo.”

5

Page 6 7. On 1

st

April, 2002, the plaintiff in O.S. No. 1386 of 1990

then sought to amend the plaint in terms of the said judgment by

adding para 5A to the plaint in which the plaintiff stated:-

“5A.“The Plaintiff submit that the Defendant has

no manner of right title and interest in the plaint

Schedule Property. The Defendant has denied the

title of the plaintiff in respect of the suit Schedule

Property. Hence it is just and essential to declare

that the plaintiff is absolute owner in possession of

the Schedule property. If the declaration as sought

is not granted the Plaintiff who is the absolute owner

from 05/05/1956 and enjoying the property as

absolute owner thereof, will be put great loss and

prejudice. On the other hand no hardship or

prejudice will be caused to the defendant if the

declaration as sought is granted.”

8. A decree for declaration of title to the suit schedule

property was then added as a prayer to the amended plaint. On

1

st

August, 2002, the defendant filed an additional written

statement in which the defendant stated that the said plea based

on a new cause of action, namely, declaration of title, was

time-barred.

9. After remand, by its judgment and decree dated 16

th

April,

2009, the City Civil Court at Bangalore decreed the suit O.S. No.

1386 of 1990. It turned down the plea of limitation by stating that

since in the original written statement the defendant had admitted

6

Page 7 the title of plaintiff Hanumanthappa, and only in the written

statement dated 1

st

August, 2002 was title denied for the first time

after the amendment of the plaint was moved, the relief of

declaration claimed by the plaintiff would be within the period of

limitation.

10. In R.F.A. No. 796 of 2009, by the impugned judgment

dated 5

th

March, 2015, the High Court reversed the said

judgment on limitation stating that the original written statement

filed on 16

th

May, 1990 had clearly stated that the plaintiff did not

have the necessary title to the suit schedule property, and as the

amendment of the plaint was moved long after three years from

16

th

May, 1990, it was clear that it was time-barred. O.S. No.

1386 of 1990 was thus dismissed on limitation alone. The High

Court also turned down the plea with reference to Section 22 of

the Limitation Act, 1963 stating that on the facts of the present

case limitation could not be extended because the wrong in the

present case was not a continuing wrong.

11.Learned counsel for the appellant has argued that once

an amendment to the plaint is allowed, it necessarily relates back

to the date on which the plaint was originally filed, and since the

amendment was allowed in the present case by the judgment

7

Page 8 dated 28

th

March, 2002, the said amendment related back to 9

th

March, 1990 when the suit was originally filed. He further argued

that the suit was based on title, and the title of the plaintiff was

admitted in paragraph 2 of the original written statement, as was

held by the trial court in its judgment dated 16

th

April, 2009. He

therefore submitted that the impugned judgment ought to be set

aside. However, he did not press the plea of continuing wrong on

the facts of the present case.

12.Learned counsel for the respondent, on the other hand,

argued that the plaintiff’s title was clearly denied in the original

written statement and three years having elapsed from the said

date, the amendment was obviously time-barred. Further, the

judgment dated 28

th

March, 2002 itself made it clear that the

amendment was allowed subject to the plea of limitation being

raised. He further argued that the amendment made introduced a

completely new cause of action based on fresh facts and

therefore any amendment made could not possibly relate back

as such amendment would be clearly time-barred.

13. We have heard learned counsel for the parties. It is not

disputed that Article 58 of the Limitation Act would apply to the

8

Page 9 amended plaint inasmuch as it sought to add the relief of

declaration of title to the already existing relief for grant of

permanent injunction. In Khatri Hotels Private Limited & Anr.

v. Union of India & Anr., (2011) 9 SCC 126, this Court while

construing Article 58 of the Limitation Act held as follows:-

“Article 58 of the Schedule to the 1963 Act, which

has a bearing on the decision of this appeal, reads

as under:

“THE SCHEDULE

Period of Limitation

[See Section 2(j) and 3]

First Division-Suits

Description of suit Period of Time from which period

limitation begins to run

* * *

Part III- Suits Relating To Declarations

* * *

58. To obtain any other Three Years When the right to sue first accrues.

declaration.

Article 120 of the Schedule to the Limitation Act,

1908 (for short “the 1908 Act”) which was

interpreted in the judgment relied upon by Shri

Rohatgi reads as under:

“Description of suit Period of Time from which period begins to run

limitation

* * *

120. Suit for which no period Six years When the right to sue accrues.”

of limitation is provided

elsewhere in this Schedule.

9

Page 10 The differences which are discernible from the

language of the above reproduced two articles are:

(i) The period of limitation prescribed under

Article 120 of the 1908 Act was six years whereas

the period of limitation prescribed under the 1963

Act is three years and,

(ii) Under Article 120 of the 1908 Act, the period

of limitation commenced when the right to sue

accrues. As against this, the period prescribed

under Article 58 begins to run when the right to sue

first accrues.

Article 120 of the 1908 Act was interpreted by the

Judicial Committee in Bolo v. Koklan [(1929-30) 57

IA 325 : AIR 1930 PC 270] and it was held: (IA p.

331)

“There can be no ‘right to sue’ until there is an

accrual of the right asserted in the suit and its

infringement, or at least a clear and unequivocal

threat to infringe that right, by the defendant

against whom the suit is instituted.”

The same view was reiterated in Annamalai

Chettiar v.Muthukaruppan Chettiar [ILR (1930) 8

Rang 645] andGobinda Narayan Singh v. Sham Lal

Singh [(1930-31) 58 IA 125].

In Rukhmabai v. Lala Laxminarayan [AIR 1960 SC

335 : (1960) 2 SCR 253] , the three-Judge Bench

noticed the earlier judgments and summed up the

legal position in the following words: (Rukhmabai

case [AIR 1960 SC 335 : (1960) 2 SCR 253] , AIR

p. 349, para 33)

“33. … The right to sue under Article 120 of

the [1908 Act] accrues when the defendant has

clearly or unequivocally threatened to infringe

the right asserted by the plaintiff in the suit.

10

Page 11 Every threat by a party to such a right, however

ineffective and innocuous it may be, cannot be

considered to be a clear and unequivocal threat

so as to compel him to file a suit. Whether a

particular threat gives rise to a compulsory

cause of action depends upon the question

whether that threat effectively invades or

jeopardizes the said right.”

While enacting Article 58 of the 1963 Act, the

legislature has designedly made a departure from

the language of Article 120 of the 1908 Act. The

word “first” has been used between the words “sue”

and “accrued”. This would mean that if a suit is

based on multiple causes of action, the period of

limitation will begin to run from the date when the

right to sue first accrues. To put it differently,

successive violation of the right will not give rise to

fresh cause and the suit will be liable to be

dismissed if it is beyond the period of limitation

counted from the day when the right to sue first

accrued.” [at paras 25 – 30]

14.Given this statement of the law, it is clear that the present

amendment of the plaint is indeed time-barred in that the right to

sue for declaration of title first arose on 16

th

May, 1990 when in

the very first written statement the defendant had pleaded, in

para 13 in particular, that the suit for injunction simpliciter is not

maintainable in that the plaintiff had failed to establish title with

possession over the suit property. The only question that remains

to be answered is in relation to the doctrine of relation back

11

Page 12 insofar as it applies to amendments made under Order VI Rule

17 of the Code of Civil Procedure.

15.As early as in the year 1900, the Bombay High Court in

Kisandas Rupchand v. Rachappa Vithoba, ILR 33 Bom 644

(1900), held as follows:-

“ ... 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 amendments 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?” [at p. 655]

16. This statement of the law was expressly approved by a

three Judge Bench of this Court in Pirgonda Hongonda Patil

12

Page 13 v. Kalgonda Shidgonda Patil, 1957 SCR 595, at pages 603 to

604.

17.Twenty years later, the Privy Council in Charan Das v.

Amir Khan, 47 IA 255 (1920), stated the law as follows:-

“That there was full power to make the amendment

cannot be disputed, and though such a power

should not as a rule be exercised where the effect is

to take away from a defendant a legal right which

has accrued to him by lapse of time, yet there are

cases where such considerations are out-weighed

by the special circumstances of the case.”

18.This statement of the law was cited with approval in L.J.

Leach & Co. Ltd. v. Jardine Skinner & Co., 1957 SCR 438, at

pages 450 to 451.

19.The facts in the aforesaid case were that the plaintiffs

had, on the basis of the material facts stated in the plaint,

claimed damages on the basis of the tort of conversion. It had

been held by the courts below that on the pleading and on the

evidence such claim must fail. At the stage of arguments in the

Supreme Court, the plaintiff applied to the Supreme Court for

13

Page 14 amendment of the plaint by raising an alternative plea on the

same set of facts, namely, a claim for damages for breach of

contract for non-delivery of the goods. The respondents in that

case resisted the said plea for amendment, stating that a suit

based on this new cause of action would be barred by limitation.

This Court, while allowing the said amendment, stated that no

change needs to be made in the material facts pleaded before

the court all of which were there in support of the amended

prayer. In any case, the prayer in the plaint as it originally stood

was itself general and merely claimed damages. Thus, all the

allegations which were necessary for sustaining a claim of

damages for breach of contract were already there in the plaint.

The only thing that was lacking was the allegation that the

plaintiffs were in the alternative entitled to claim damages for

breach of contract. In the facts of the said case, this Court held:-

“It is no doubt true that courts would, as a 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.” [at page 415]

14

Page 15 20. It is clear that this case belonged to an exceptional class

of cases where despite the fact that a legal right had accrued to

the defendant by lapse of time, yet this consideration was

outweighed by the special circumstances of the case, namely,

that no new material fact needed to be added at all, and only an

alternative prayer in law had necessarily to be made in view of

the original plea in law being discarded.

21.Similar is the case with Pirgonda Hongonda Patil,

reported in 1957 SCR 595. Here again it was held that the

amendment did not really introduce a new fact at all, nor did the

defendant have to meet a new claim set up for the first time after

the expiry of the period of limitation.

22.In K. Raheja Constructions Ltd. & Anr. v. Alliance

Ministries & Ors., 1995 Supp. (3) SCC 17, this Court was

seized with a belated application to amend a plaint filed for

permanent injunction. Seven years after it was filed, an

amendment application was moved seeking to amend the plaint

to one for specific performance of contract. In turning down such

amendment on the ground that it was time-barred, this Court

held:-

15

Page 16 “It is seen that the permission for alienation is not a

condition precedent to file the suit for specific

performance. The decree of specific performance

will always be subject to the condition to the grant of

the permission by the competent authority. The

petitioners having expressly admitted that the

respondents have refused to abide by the terms of

the contract, they should have asked for the relief

for specific performance in the original suit itself.

Having allowed the period of seven years to elapse

from the date of filing of the suit, and the period of

limitation being three years under Article 54 of the

Schedule to the Limitation Act, 1963, any

amendment on the grounds set out, would defeat

the valuable right of limitation accruing to the

respondent.” [at para 4]

23.Similarly, in Vishwambhar & Ors. v. Laxminarayan

(Dead) through LRs & Anr., (2001) 6 SCC 163, in a suit

originally filed for recovery of possession, an amendment was

sought to be made after the limitation period had expired, for a

prayer of declaration that certain sale deeds be set aside. This

was repelled by this Court as follows:-

“On a fair reading of the plaint, it is clear that the

main fulcrum on which the case of the plaintiffs was

balanced was that the alienations made by their

mother-guardian Laxmibai were void and therefore,

liable to be ignored since they were not supported

by legal necessity and without permission of the

competent court. On that basis, the claim was made

that the alienations did not affect the interest of the

plaintiffs in the suit property. The prayers in the

plaint were inter alia to set aside the sale deeds

16

Page 17 dated 14-11-1967 and 24-10-1974, recover

possession of the properties sold from the

respective purchasers, partition of the properties

carving out separate possession of the share from

the suit properties of the plaintiffs and deliver the

same to them. As noted earlier, the trial court as

well as the first appellate court accepted the case of

the plaintiffs that the alienations in dispute were not

supported by legal necessity. They also held that no

prior permission of the court was taken for the said

alienations. The question is, in such circumstances,

are the alienations void or voidable? In Section 8(2)

of the Hindu Minority and Guardianship Act, 1956, it

is laid down, inter alia, that the natural guardian

shall not, without previous permission of the court,

transfer by sale any part of the immoveable property

of the minor. In sub-section (3) of the said section, it

is specifically provided that any disposal of

immoveable property by a natural guardian, in

contravention of sub-section (2) is voidable at the

instance of the minor or any person claiming under

him. There is, therefore, little scope for doubt that

the alienations made by Laxmibai which are under

challenge in the suit were voidable at the instance

of the plaintiffs and the plaintiffs were required to get

the alienations set aside if they wanted to avoid the

transfers and regain the properties from the

purchasers. As noted earlier in the plaint as it stood

before the amendment the prayer for setting aside

the sale deeds was not there, such a prayer

appears to have been introduced by amendment

during hearing of the suit and the trial court

considered the amended prayer and decided the

suit on that basis. If in law the plaintiffs were

required to have the sale deeds set aside before

making any claim in respect of the properties sold,

then a suit without such a prayer was of no avail to

the plaintiffs. In all probability, realising this difficulty

the plaintiffs filed the application for amendment of

the plaint seeking to introduce the prayer for setting

17

Page 18 aside the sale deeds. Unfortunately, the realisation

came too late. Concededly, Plaintiff 2 Digamber

attained majority on 5-8-1975 and Vishwambhar,

Plaintiff 1 attained majority on 20-7-1978. Though

the suit was filed on 30-11-1980 the prayer seeking

setting aside of the sale deeds was made in

December 1985. Article 60 of the Limitation Act

prescribes a period of three years for setting aside a

transfer of property made by the guardian of a ward,

by the ward who has attained majority and the

period is to be computed from the date when the

ward attains majority. Since the limitation started

running from the dates when the plaintiffs attained

majority the prescribed period had elapsed by the

date of presentation of the plaint so far as Digamber

is concerned. Therefore, the trial court rightly

dismissed the suit filed by Digamber. The judgment

of the trial court dismissing the suit was not

challenged by him. Even assuming that as the suit

filed by one of the plaintiffs was within time the

entire suit could not be dismissed on the ground of

limitation, in the absence of challenge against the

dismissal of the suit filed by Digamber the first

appellate court could not have interfered with that

part of the decision of the trial court. Regarding the

suit filed by Vishwambhar, it was filed within the

prescribed period of limitation but without the prayer

for setting aside the sale deeds. Since the claim for

recovery of possession of the properties alienated

could not have been made without setting aside the

sale deeds the suit as initially filed was not

maintainable. By the date the defect was rectified

(December 1985) by introducing such a prayer by

amendment of the plaint the prescribed period of

limitation for seeking such a relief had elapsed. In

the circumstances, the amendment of the plaint

could not come to the rescue of the plaintiff.

From the averments of the plaint, it cannot be said

18

Page 19 that all the necessary averments for setting aside

the sale deeds executed by Laxmibai were

contained in the plaint and adding specific prayer for

setting aside the sale deeds was a mere formality.

As noted earlier, the basis of the suit as it stood

before the amendment of the plaint was that the

sale transactions made by Laxmibai as guardian of

the minors were ab initio void and, therefore, liable

to be ignored. By introducing the prayer for setting

aside the sale deeds the basis of the suit was

changed to one seeking setting aside the

alienations of the property by the guardian. In such

circumstance, the suit for setting aside the transfers

could be taken to have been filed on the date the

amendment of the plaint was allowed and not earlier

than that.” [at paras 9 and 10]

24.In Siddalingamma and Anr v. Mamtha Shenoy, (2001)

8 SCC 561, this Court held while allowing an amendment of the

plaint in a case of bona fide requirement of the landlord that the

doctrine of relation back would apply to all amendments made

under Order VI Rule 17 of the Code of Civil Procedure, which

generally governs amendment of pleadings, unless the court

gives reasons to exclude the applicability of such doctrine in a

given case. No question of limitation was argued on the facts in

that case which would therefore be in the category of cases

which would follow the line of judgments which state that costs

can usually compensate for an amendment that is made

19

Page 20 belatedly but within the period of limitation, it not being an

exceptional case such as those contained in the two judgments

L.J. Leach & Co. Ltd. and Pirgonda Hongonda Patil cited

above.

25. In Sampath Kumar v. Ayyakannu and Anr ., (2002) 7

SCC 559, this Court was faced with an application for

amendment made 11 years after the date of the institution of the

suit to convert through amendment a suit for permanent

prohibitory injunction into a suit for declaration of title and

recovery of possession. This Court held:-

“In our opinion, the basic structure of the suit is not

altered by the proposed amendment. What is

sought to be changed is the nature of relief sought

for by the plaintiff. In the opinion of the trial court, it

was open to the plaintiff to file a fresh suit and that

is one of the reasons which has prevailed with the

trial court and with the High Court in refusing the

prayer for amendment and also in dismissing the

plaintiff's revision. We fail to understand, if it is

permissible for the plaintiff to file an independent

suit, why the same relief which could be prayed for

in a new suit cannot be permitted to be incorporated

in the pending suit. In the facts and circumstances

of the present case, allowing the amendment would

curtail multiplicity of legal proceedings.

Order 6 Rule 17 CPC confers jurisdiction on the

20

Page 21 court to allow either party to alter or amend his

pleadings at any stage of the proceedings and on

such terms as may be just. Such amendments as

are directed towards putting forth and seeking

determination of the real questions in controversy

between the parties shall be permitted to be made.

The question of delay in moving an application for

amendment should be decided not by calculating

the period from the date of institution of the suit

alone but by reference to the stage to which the

hearing in the suit has proceeded. Pre-trial

amendments are allowed more liberally than those

which are sought to be made after the

commencement of the trial or after conclusion

thereof. In the former case generally it can be

assumed that the defendant is not prejudiced

because he will have full opportunity of meeting the

case of the plaintiff as amended. In the latter cases

the question of prejudice to the opposite party may

arise and that shall have to be answered by

reference to the facts and circumstances of each

individual case. No straitjacket formula can be laid

down. The fact remains that a mere delay cannot be

a ground for refusing a prayer for amendment.

An amendment once incorporated relates back to

the date of the suit. However, the doctrine of

relation-back in the context of amendment of

pleadings is not one of universal application and in

appropriate cases the court is competent while

permitting an amendment to direct that the

amendment permitted by it shall not relate back to

the date of the suit and to the extent permitted by it

shall be deemed to have been brought before the

court on the date on which the application seeking

the amendment was filed. (See observations in

Siddalingamma v. Mamtha Shenoy [(2001) 8 SCC

561] .)

21

Page 22 In the present case the amendment is being sought

for almost 11 years after the date of the institution of

the suit. The plaintiff is not debarred from instituting

a new suit seeking relief of declaration of title and

recovery of possession on the same basic facts as

are pleaded in the plaint seeking relief of issuance

of permanent prohibitory injunction and which is

pending. In order to avoid multiplicity of suits it

would be a sound exercise of discretion to permit

the relief of declaration of title and recovery of

possession being sought for in the pending suit. The

plaintiff has alleged the cause of action for the

reliefs now sought to be added as having arisen to

him during the pendency of the suit. The merits of

the averments sought to be incorporated by way of

amendment are not to be judged at the stage of

allowing prayer for amendment. However, the

defendant is right in submitting that if he has already

perfected his title by way of adverse possession

then the right so accrued should not be allowed to

be defeated by permitting an amendment and

seeking a new relief which would relate back to the

date of the suit and thereby depriving the defendant

of the advantage accrued to him by lapse of time,

by excluding a period of about 11 years in

calculating the period of prescriptive title claimed to

have been earned by the defendant. The interest of

the defendant can be protected by directing that so

far as the reliefs of declaration of title and recovery

of possession, now sought for, are concerned the

prayer in that regard shall be deemed to have been

made on the date on which the application for

amendment has been filed.” [at paras 7, 9, 10 and

11]

26.It is clear that on the facts in the above case the

amendment was allowed subject to the plea of limitation which

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Page 23 could be taken up by the defendant when the trial in the case

proceeds.

27.In Van Vibhag Karamchari Griha Nirman Sahkari

Sanstha Maryadit (Registered) v. Ramesh Chander and Ors.,

(2010) 14 SCC 596, this Court considered a suit which was

originally filed for declaration of ownership of land and for

permanent injunction. The suit had been filed on 11

th

February,

1991. An amendment application was moved under Order VI

Rule 17 of the Code of Civil Procedure on 16

th

December, 2002

for inclusion of the relief of specific performance of contract. This

Court in no uncertain terms refused the midstream change made

in the suit, and held:-

“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. 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.

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

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Page 24 clearly made its intentions clear about refusing the

performance of the agreement and cancelled the

agreement.

Even though the prayer for amendment to include

the relief of specific performance was made about

11 years after the filing of the suit, and the same

was allowed after 12 years of the filing of the suit,

such an amendment in the facts of the case cannot

relate back to the date of filing of the original plaint,

in view of the clear bar under Article 54 of the

Limitation Act. Here in this case, the inclusion of the

plea of specific performance by way of amendment

virtually alters the character of the suit, and its

pecuniary jurisdiction had gone up and the plaint

had to be transferred to a different court. This Court

held in Vishwambhar v. Laxminarayan [(2001) 6

SCC 163] , if as a result of allowing the amendment,

the basis of the suit is changed, such amendment

even though allowed, cannot relate back to the date

of filing the suit to cure the defect of limitation (SCC

at pp. 168-69, para 9). Those principles are

applicable to the present case.” [at paras 24, 25 and

32]

28.In Prithi Pal Singh and Anr. v. Amrik Singh and Ors.,

(2013) 9 SCC 576, this Court was concerned with a suit

claiming pre-emption under the Punjab Pre-emption Act, 1913.

An amendment was sought to the plaint claiming that the

plaintiff was entitled to relief as a co-sharer of the suit property.

This Court after considering some of its earlier judgments held:-

24

Page 25 “In our opinion, there is no merit in the submissions

of the learned counsel. A reading of the order

passed by this Court shows that the application for

amendment filed by Respondent 2 was allowed

without any rider/condition. Therefore, it is

reasonable to presume that this Court was of the

view that the amendment in the plaint would relate

back to the date of filing the suit. That apart, the

learned Single Judge has independently considered

the issue of limitation and rightly concluded that the

amended suit was not barred by time.” [at para 11]

29.Applying the law thus laid down by this Court to the facts

of this case, two things become clear. First, in the original written

statement itself dated 16

th

May, 1990, the defendant had clearly

put the plaintiff on notice that it had denied the plaintiff’s title to

the suit property. A reading of an isolated para in the written

statement, namely, para 2 by the trial court on the facts of this

case has been correctly commented upon adversely by the High

Court in the judgment under appeal. The original written

statement read as a whole unmistakably indicates that the

defendant had not accepted the plaintiff’s title. Secondly, while

allowing the amendment, the High Court in its earlier judgment

dated 28

th

March, 2002 had expressly remanded the matter to

the trial court, allowing the defendant to raise the plea of

25

Page 26 limitation. There can be no doubt that on an application of

Khatri Hotels Private Limited (supra), the right to sue for

declaration of title first arose on the facts of the present case on

16

th

May, 1990 when the original written statement clearly denied

the plaintiff’s title. By 16

th

May, 1993 therefore a suit based on

declaration of title would have become time-barred. It is clear

that the doctrine of relation back would not apply to the facts of

this case for the reason that the court which allowed the

amendment expressly allowed it subject to the plea of limitation,

indicating thereby that there are no special or extraordinary

circumstances in the present case to warrant the doctrine of

relation back applying so that a legal right that had accrued in

favour of the defendant should be taken away. This being so, we

find no infirmity in the impugned judgment of the High Court. The

present appeal is accordingly dismissed.

……………………J.

(A.K. Sikri)

……………………J.

(R.F. Nariman)

New Delhi;

August 26, 2015.

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