Andhra HC (Pre-Telangana)
Shaik Omer Bin Ali Umodi Rep. By His Gpa ... vs Syed Yousuf Ali And Ors. on 20 November, 1996
Equivalent citations: 1997(1)ALT560
Author: P. Venkatarama Reddi
Bench: P. Venkatarama Reddi
ORDER P. Venkatarama Reddi, J.
1. This revision petition is filed by the 1st defendant in the suit against the order passed by the IX Assistant Judge, City Civil Court allowing the amendment of plaint by the plaintiffs, who are respondents 1 to 8 herein.
2. The suit - O.S. No.3238 of 1979 was filed seeking permanent injunction against the 1st (sic.2nd) defendant (Municipal Corporation) restraining demolition of the building and for declaration that the plaintiffs are entitled to construct house over the suit land and for permanently restraining the 2nd defendant from raising any objection. By means of the amendment petition, the 1st respondent-plaintiff wants to add the relief of declaration that the plaintiff shall be declared as owner, possessor and occupier of the suit plot in Sy. No. 187/1 ad measuring 215 sq. yards situate at Talab Chanchalam, Imambada in Ward No. 17, Block No. 3, Hyderabad. The suit which was filed 17 years back was dismissed for default in the year 1984.
3. This Court by an order dt.15-4-1993 in C.R.P.No. 4005 of 1992 set aside the order of dismissal. The suit was therefore restored to file. Nearly three years later, after the trial of the suit started, the petition for amendment was filed by the 1st plaintiff. The trial Court allowed the application subject to payment of costs while observing that the cause of action is not changed on account of the amendment and that the question of limitation does not arise as the plaintiff is claiming only title over the suit schedule property. It may be mentioned that the trial Court did not even make it a condition precedent for the filing of amended plaint that the suit should be revalued and the additional Court fee should be paid thereon.
4. First of all, the reason for filing the highly belated application seeking a new relief by way of amendment of plaint is not at all convincing. The reason given is that some admission was made by the petitioner herein (1st defendant) in an earlier suit - O.S. No. 117 of 1968 on the file of IVth Additional Judge, City Civil Court. That suit was filed by Mallepally Co-operative Housing Society against the plaintiff and 1st defendant in the present suit. It is the contention of the petitioner that in that suit, the petitioner admitted the title of Ghulam Samdani who is said to be the predecessor in title to the respondents-plaintiffs; but it is contended by the Respondents' Counsel that a finding was given in that suit that the sale deed executed by Sri Ghulam Samdani was a forged and fabricated document. In the counter filed in the IA the petitioner has also made reference to various other suits between the same parties, viz., O.S. No. 3603 of 1980, O.S. No. 3604 of 1980, O.S. No. 4413 of 1980 and O.S. No. 4445 of 1987, in all of which the respondents 1 to 8 or some of them failed. With this background of litigation, it is not known how the plaintiffs-respondents refrained from seeking the relief of declaration of title all these years. The alleged admission of the petitioner was made even at the time of filing the suit. Thus, there is no convincing explanation for the belated move to amend the plaint. Nevertheless, on this short ground I am not inclined to set at naught the amendment allowed by the Trial Court keeping in view the principle that the amendment can be permitted at any stage and in view of the further fact that the trial has not yet" commenced.
5. The learned Counsel for petitioner has contended that the nature of the suit itself is changed by allowing the amendment and therefore the amendment shall not be permitted. Reliance is placed on the decision of this Court in Konduru Suri v. Konduru Ramulamma, 1989 (3) ALT 601. In that case the suit was filed for perpetual injunction claiming that the plaintiff is in possession of the property and the respondents were trying to dispossess him. In the written statement the defendant set up title in themselves, during the pendency of the trial the plaintiff filed an application for amendment of the plaint to assert his title, interest and possession over the plaint schedule land by tracing the title to a document executed by his sister-in-law. It was observed by the learned Judge that "if the amendment is allowed, in effect, it will be converting the suit into one of title without any such relief having been asked for. Thereby it changes the cause of action on the basis of which the suit is originally founded". With these observations, the learned Judge found that the refusal of amendment by the lower Court is not vitiated by any material irregularity or error of jurisdiction. Earlier the learned Judge himself observed:
"But the question as argued by the learned Counsel for the defendants before the Court below is that when it is a suit for mere injunction the question of going into title is irrelevant and if the amendment is allowed, it changes the cause of action and therefore it cannot be permitted. The stand taken by the defendants is well justified for the obvious reason that in a case where the suit is for mere injunction, it is open to the defendants to come forward with the plea that the plaintiff has no title to the suit property and assert title or possession in themselves. In such circumstances, the only course open to the plaintiff if they assert title in them, is to seek for a declaration of title."
6. There is some difficulty in reconciling the ultimate conclusion reached with the observations made in the above passage. Whether those observations are correct in the light of various other decisions is a matter on which I do not propose to express any view. As far as the present case is concerned, a perusal of the plaint makes it clear that even in the original plaint the plaintiffs did assert title to the suit schedule property. Moreover, the suit was filed not merely for an injunction but also for a declaration that the plaintiffs are entitled to construct the houses on the suit land and the 2nd defendant (MCH) (tie) permanently restrained from raising any objection. Thus, short of seeking a formal declaration of title over the suit land, the plaintiffs made necessary averments in the plaint itself claiming their rights not only of possession but also of ownership. What is sought to be done now is to pray for a specific declaration of plaintiffs' ownership and possession of the suit schedule property. Therefore, the lower Court cannot be said to have been committed any illegality in observing that no new case or cause of action is sought to be introduced by the proposed amendment.
7. The next and more important point raised by the learned counsel is that the relief for declaration of title is barred by time and if the amendment is allowed, it amounts to permitting a time barred claim to be agitated by the plaintiffs. In this context, I cannot but disapprove the observation made by the trial Court that the question of limitation does not arise "as the plaintiffs are claiming only title over the plaint schedule property and no new cause of action or new set of facts are introduced". The learned Assistant Judge failed to note that the introduction of a new cause of action or new set of facts which has the effect of changing the nature and complexion of the suit is quite different from the plea of limitation.
8. If an authority is needed for the proposition that the application for amendment shall be filed within the period of limitation prescribed for the amended claim or relief, the recent decision of the Supreme Court in K. Raheja Constructions Limited v. Alliance Ministries, 1995 (2) An.W.R. 10 (SC) = 1995 (2) APLJ 67 (SC) = 1995 (2) ALT 14 (D.N.) can be referred to. But then, it is difficult without ascertainment of further facts to give a finding at this stage whether by the date of amendment application, the relief for declaration of title became barred by limitation. The starting point of limitation for the purpose of Article 58 is when the right to sue first accrues. It was held by the Supreme Court in Mohd. Yunus v. Syed Unnissa, AIR 1961 SC 808 that the right to sue arises when there is an infringement or at least clear threat to infringement of the right by the defendant. From this perspective, the Court has to say from which date the limitation had started running against the plaintiff. From the pleadings alone it cannot be definitely said that the right to sue accrued on a particular date; that has to be decided in the light of the evidence if any emerging in the course of trial. It would, therefore, be more appropriate if the amendment application is taken up along with main suit and decided together. In case the trial Court holds that the amendment application was filed within time and within 3 years from the date of the accrual of right to sue and the issue with regard to declaration of title is found in favour of the plaintiffs, the amendment shall be allowed subject to the condition of payment of the additional Court fee within a particular time and the passing of the decree shall be made conditional on such payment.
9. Accordingly, I set aside the impugned order and allow the CRP subject to the above direction. I shall not be understood as having expressed anything on the merits of the plaintiffs' case. I make no order as to costs.
10. The learned counsel for the petitioner has stated that the amount of Rs. 1,000/- received by the petitioner towards costs will be refunded to the respondents within 2 weeks. The same is recorded.