Karnataka High Court
T.S. Raju vs S. Anil Kumar And Another on 2 March, 2000
Equivalent citations: 2001(3)KARLJ336
ORDER
1. The petitioner being aggrieved by the order dated 25-11-1998 passed by the Principal Civil Judge (Jr. Dn.), Mandya on I.A. No. 4 in O.S. No. 214 of 1996, has preferred the above revision petition.
2. The impugned order is one under which the amendment sought for by the plaintiff was dismissed not only on limitation but also on the ground that it is not based on the admitted facts.
3. The Trial Court has considered the objection of the defendant that the plaintiff should have filed a suit for cancellation of the sale deed dated 29-11-1993 and the suit for cancellation of an instrument is to be filed within a period of three years from the date of such instrument. The present application for amendment having been filed on 25-6-1998, which is beyond the period of limitation. The objection to such contention by the plaintiff was that he need not ask for cancellation of the sale deed and those sale deeds are void ab initio and therefore there is no necessity to seek for cancellation of the same. Section 31 of the Specific Relief Act was relied upon. The Trial Court found that the plaintiff has clearly stated that the sale deed in question was executed before 24-11-1993 and the plaintiff was well-aware of the existence of the sale deed on 29-11-1993 itself and therefore he should have filed a suit on or before 29-11-1996. However, the plaintiff has not chosen to seek cancellation of such sale deed in question and on the other hand in order to overcome the stipulation is trying to convert the suit for declaration. The dictum in Muni Lal v Oriental Fire and General Insurance Company Limited and Another, was relied upon to the effect that the relief which becomes barred by time during the pendency of the proceeding cannot be permitted to be claimed by the amending plaint. Though not directly the plaintiff is trying to introduce the relief with regard to the cancellation of the document in question which relief is barred by time.
4. The dictum relied upon by the plaintiff before the Trial Court in Haridas Aildas Thadani and Others v Godrej Rustom Kermani, is to the effect that test for allowing the amendment is to find whether the proposed amendment works any serious injunction to the other side. In other words, when the amendment is going to cause injustice to the other side, such amendment should not be allowed. If the proposed amendment is not going to cause any harm or injury to the other side, the Court should allow such amendment. But, in the present case, the proposed amendment is going to take away the admissions made by the plaintiff as well as it is going to introduce a relief which is time barred. The dictum in 1995 Supp. (3) SCC 577, wherein it was held that amendment of the plaint even in second appeal is permissible. In that case the pre-emption suit filed by the co-sharer brother of the vendor only on the ground of relationship as brother, decreed by the Trial Court and affirmed in first appeal. At this stage of defendant's second appeal, the plaintiff-respondent sought amendment of the plaint to claim pre-emption on the additional ground based upon admitted facts of co-sharer-ship. In those circumstances, the Supreme Court held that such amendment can be granted. But, that case is not applicable to the facts of the present case. The plaintiff also relied upon the dictum in Government of Karnataka and Others v M.B. Patil, to the effect that in a suit for injunction, amendment seeking relief of declaration and possession based on facts also given in the plaint is permissible. But, again the amendment now prayed for here is certainly hit by limitation and consequently the same is not to be granted.
5. The learned Counsel for the petitioner relied upon the following decisions: E.K. Govindaraj v Naria Bee2, J.C. Rudrasharma v H.K. Subramanyam and Others , M.B. Patil's case, supra, and Hanaman-tagouda (deceased) by L.Rs v Parasanagouda. Reliance also was placed upon a Division Bench (Kenchawwa v Amagonda) ruling of this Court in Kenchawwa's case, supra, to the effect that if the sale transaction in question was void then it does not come in the way and therefore cancellation of void transaction does not arise. But by no stretch of imagination a registered sale deed can be declared void, it may at best be voidable on any other ground known to law.
6. On the other hand, the Counsel for the respondent brought to my notice the dictum of the Supreme Court in Muni Lal's case, supra, which is to the following effect:
"Section 34 of the Specific Relief Act provides that any person entitled to a 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 such declaration and the plaintiff need not ask for such relief. However, proviso to the said section puts the controversy beyond pale of doubt that "no Courts shall make any such declaration where the plaintiff, being able to ask for further relief than a mere declaration of title, omits to do so". Declaration without consequential relief does not provide the needed relief in the suit, it would be for the plaintiff to seek both the reliefs. The omission thereof mandates the Court to refuse to grant the declaratory relief. In this appeal, the appellant has merely asked for a declaration that he is entitled to the payment for the loss of the truck in terms of the contract but not consequential relief of payment of the quantified amount. The amendment of plaint to grant consequential relief sought for in this case, is as envisaged in proviso to Section 34 of the Specific Relief Act, 1963. That relief was, however, available to him, to be asked for, when the suit was filed. Admittedly, by the date of the application for amendment filed, the relief stood barred by limitation. The question, therefore, is whether the Court would be justified in granting amendment of the pleadings in such manner so as to defeat valuable right of defence of bar of limitation given to the defendant. The alternative relief was available to be asked for when the suit was filed but not made. He cannot be permitted to amend the plaint after the suit was barred by the limitation during the pendency of the proceeding in the Appellate Court or the second Appellate Court".
On the facts it is clear that the amendment that is sought to be introduced is hopelessly barred by limitation as pointed by the Court below.
7. In this view, following dictum of the Supreme Court, the revision petition is dismissed.