Gujarat High Court
Patel Naginbhai Atmaram vs Karsandas Kalidas Panchal on 17 October, 2023
NEUTRAL CITATION
C/SCA/780/2020 ORDER DATED: 17/10/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 780 of 2020
==========================================================
PATEL NAGINBHAI ATMARAM
Versus
KARSANDAS KALIDAS PANCHAL
==========================================================
Appearance:
MR. HARDIK J JANI(6497) for the Petitioner(s) No. 1
for the Respondent(s) No. 1
DECEASED LITIGANT for the Respondent(s) No. 3.3
MR RUTVIJ R PATEL(10615) for the Respondent(s) No. 1
NIMISHA J PAREKH(8015) for the Respondent(s) No.
3.1,3.3.1,3.3.2,3.3.3,3.3.4
NOTICE SERVED BY DS for the Respondent(s) No.
2.1,2.2,3.2,3.4,3.5,4.1,4.2,4.3
==========================================================
CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 17/10/2023
ORAL ORDER
1. Heard learned advocate Mr.Hardik Jani for the petitioner, learned advocate Mr.Rutvij Patel for respondent No.1 and learned advocate Ms.Nimisha Parekh for respondent Nos. 3.1 and 3.3/1 to 3.3/4. Though served, none appears for other respondents.
2. By way of this petition, the petitioner - original defendant No.4 has challenged the impugned order dated Page 1 of 27 Downloaded on : Fri Oct 20 20:37:32 IST 2023 NEUTRAL CITATION C/SCA/780/2020 ORDER DATED: 17/10/2023 undefined 09.12.2019 passed below Exhibit-55 in Special Civil Suit No.381 of 1995 by the learned Principal Senior Civil Judge, Gandhinagar.
3. Before adverting to the controversy, some briefs facts are required to be noted down:-
3.1 The present respondent No.1 (original plaintiff) had filed suit being Special Civil Suit No.381 of 1995 before the learned Principal Senior Civil Court, Gandhinagar, for specific performance of agreement to sale dated 24.08.1994. Exhibit-5 Injunction Application came to be dismissed by the learned trial Court. Thereafter, the suit was placed for final adjudication. However, due to absence of the plaintiff, the said suit came to be dismissed on 19.06.2002 and the said suit was restored on 22.03.2016. In between, defendant Nos.2 to 4 executed a registered sale deed in favour of the present petitioner on 07.05.2004 and the entry was mutated in the revenue record vide Entry No.1232. There are number of litigations pending at the relevant point of time between the Page 2 of 27 Downloaded on : Fri Oct 20 20:37:32 IST 2023 NEUTRAL CITATION C/SCA/780/2020 ORDER DATED: 17/10/2023 undefined parties for the said suit properties.
3.2 So far as application for amendment at Exhibit-55 is concerned, the relevant suits are Regular Civil Suit Nos.668 of 1995, which was filed by the present respondent No.1 for the relief of permanent injunction. Thereafter, the present respondent No.1 i.e. original plaintiff had filed Special Civil Suit No.207 of 2016 on 22.08.2016. Wherein, the sale deed dated 07.05.2004 came to be challenged. The said suit was filed against the present petitioner as well as against respondent Nos.2 to 4. The said suit came to be dismissed under Order VII Rule 11 of the Civil Procedure Code preferred vide order dated 19.02.2018 on the ground of limitation and the said order is not challenged by the present respondent No.1.
3.3 An application under Order-1 Rule-10 of the Civil Procedure Code was filed by the present petitioner seeking to be joined as defendant No.4 in Special Civil Suit No.381 of 1995. The application was contested by respondent No.1 and Page 3 of 27 Downloaded on : Fri Oct 20 20:37:32 IST 2023 NEUTRAL CITATION C/SCA/780/2020 ORDER DATED: 17/10/2023 undefined ultimately, the learned Court below allowed the application of the present petitioner and was joined as defendant No.4.
Thereafter application Exhibit-55 under Order VI Rule 17 of the Civil Procedure Code came to be allowed by learned Principal Senior Civil Judge, Gandhinagar Judge on 09.12.2019. Learned advocate for the petitioner has submitted that the order impugned is not a seeking order.
4. Learned advocate for the petitioner has submitted that the amendment application filed by respondent No.1 is nothing but an abuse of process of law. It is further submitted that while allowing the application under Order VI Rule 17 an important right of limitation has been lost. It is submitted that by allowing the application, the nature of suit is changed as the suit is for specific performance of the agreement to sell dated 24.08.1994. By amendment is converted into a suit challenging the sale deed dated 07.05.2004. It is further submitted that the date of registration of sale deed is a deemed knowledge and in view of the settled principles of Page 4 of 27 Downloaded on : Fri Oct 20 20:37:32 IST 2023 NEUTRAL CITATION C/SCA/780/2020 ORDER DATED: 17/10/2023 undefined law, the amendment, sought for, was clearly barred by limitation.
4.1 Learned advocate for the petitioner has submitted that by allowing an amendment, the present petitioner has suffered loss as the claim of setting aside the sale deed dated 07.05.2004 has already been denied by the competent Court in the year 2018, whereby the Special Suit No.207 of 2016 came to be dismissed. Once the claim of respondent No.1 was not allowed, the respondent No.1 has no right to amend the plaint, it would lead to miscarriage of justice. Cause of action of original suit and cause of action by way of seeking amendment leads to misjoinder of causes of action. 4.2 Learned advocate for the petitioner has relied upon the following decisions in support of his submissions:-
(i) In the case of Shiv Gopal Shah alias Shiv Gopal Sahu Vs. Sita Ram Saraugi and Others, reported in (2007)14, SCC 120;
(ii) In the case of B.S.Prakash Vs. T. Gnaneshwar Rao and Ors. reported in 2016 LawSuit (Kar) 2476;
(iii) In the case of Rameeza Beevi Vs. S. Mohammed Ibrahim reported in 2005 LawSuit (Mad) 967;Page 5 of 27 Downloaded on : Fri Oct 20 20:37:32 IST 2023
NEUTRAL CITATION C/SCA/780/2020 ORDER DATED: 17/10/2023 undefined
(iv) In the case of Gajanan Jaikishan Joshi Vs. Prabhakar Mohanlal Kalwar reported in 1989(0) AIJEL-SC 9164;
(v) In the case of Asian Hotels (North) Ltd. Vs. Alok Kumar Lodha & Ors. reported in 2022 LiveLaw (SC) 585;
(vi) Dilboo (Smt.) (Dead) by LRS and Ors. Vs. Dhanraji (Smt.) (Dead) and Ors. reported in (2000)7 SCC 702;
(vii) In the case of Patel Dhanjibhai Ambaram Vs. Navinchandra Vrajlal Ved & 2 others passed by this Hon'ble Court in Civil Revision Application No.122 of 2016 on 01.10.2021;
(viii) In the case of Poonambhai Shanabhai Valand (Decd.) & Ors. Vs. Hasmukhbhai Bachubhai Parsana & Anr. reported in (2017) 3 GLR, 2511;
(ix) In the case of Liliben Wd/o. Gabubhai Narsinbhai through Power of Attorney & Ors. Vs. Ramilaben W/o. Of Mohanbhai Govindbhai Patel reported in (2012) 2 G.L.H. 308;
(x) In the case of Ram Niranjan Kajaria Vs. Sheo Prakash Kajaria and Ors. reported in 2016 SAR(Civil) 57.
5. Learned advocate for respondent No.1 has mainly relied on the averments made in the Affidavit-in-reply, which is placed on record.
5.1 Learned advocate for respondent No.1 has submitted the fact that Special Civil Suit No.381 of 1995 came to be dismissed for default on 19.06.2005 and the said suit came to Page 6 of 27 Downloaded on : Fri Oct 20 20:37:32 IST 2023 NEUTRAL CITATION C/SCA/780/2020 ORDER DATED: 17/10/2023 undefined be restored on 22.03.2016, and in between, the questioned sale deed dated 07.05.2004 came to be executed between the petitioner and respondent Nos.2 to 4. Since, the suit was not in existence, respondent No.1 could not prefer necessary application for amendment in the plaint. 5.2 Learned advocate for respondent No.1 has further submitted that the present petitioner moved an application under Order-I Rule 10(2) of the Civil Procedure Code to impled as defendant in the suit and when application came to be allowed, in which, thereafter within a period of two months, application under Order VI Rule 17, was preferred. It is further submitted that the question of limitation does not arise as the suit is restored in the year 2016 and the amendment application was preferred in 2019. Hence, the suit challenged to sale deed is within the limitation.
5.3 Learned advocate for respondent No.1 has heavily placed reliance upon the following decisions:
(i) Pankaja and Others Vs. Yellappa (dead) by Irs.
And Others reported in (2004) 6 SCC 415: 2004 SCC Page 7 of 27 Downloaded on : Fri Oct 20 20:37:32 IST 2023 NEUTRAL CITATION C/SCA/780/2020 ORDER DATED: 17/10/2023 undefined OnLine SC 804;
(ii) Ragu Thilak D. John Vs. S. Rayappan & Ors. reported in (2001) 2 SCC 472 : 2001 SCC OnLine SC 294;
(iii) Surender Kumar Sharma Vs. Makhan Singh reported in (2009) 10 SCC 626: (2009) 4 SCC (Civ) 294: 2009 SCC OnLine SC 1672 and
(iv) Salem Advocate Bar Association (2) Vs. Union of India reported in (2005) 6 SCC 344.
6. Learned advocate for respondent Nos.3.1 and 3.3/1 to 3.3/4 has stated that, respondents are formal party, therefore did not submit anything on merits.
7. To address to the real questions in controversy between the parties, this Court would refer under Order VI Rule 17, which is reproduced hereinunder:-
"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 :
Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due Page 8 of 27 Downloaded on : Fri Oct 20 20:37:32 IST 2023 NEUTRAL CITATION C/SCA/780/2020 ORDER DATED: 17/10/2023 undefined diligence, the party could not have raised the matter before the commencement of trial."
8. The said provisions gives a right to the property either to alter or amend in the plaint which may be necessary for the purpose of determining the real question of controversy between the parties. Keeping this purpose of law, it is observed that the Special Civil Suit No.381 of 1995 was only for relief of specific performance and agreement to sale dated 24.08.1994. When the suit came to be dismissed for default on 19.06.2002, the plaintiff is present. Respondent No.1 did not take any step to restore the suit, until 2016. When the suit came to be restored on 22.03.2016 and during the intervening period, in absence of any suit, the original defendants executed a registered sale deed in favour of defendant No.4 on 07.05.2004. It is equally to observe that the mutation entry of the said registered sale deed has also been reflected in the record of rights vide Entry No.1232 in the year 2004 itself.
9. As on fact, the date of registration is a deemed Page 9 of 27 Downloaded on : Fri Oct 20 20:37:32 IST 2023 NEUTRAL CITATION C/SCA/780/2020 ORDER DATED: 17/10/2023 undefined knowledge to the party about the document. Applying the same principles when the registered sale deed executed on 07.05.2004, amendment was sought for in the year 2019. There is no explanation forthcoming from the plaintiff's side regarding want of knowledge and delay in seeking amendment. The suit was non existence between 2002 to 2016 is not a valid excuse an the same is rejected.
10. The Division Bench of this Court in the case of Liliben Wd/o. Gabubhai Narsinbhai ( supra), passed in Letters Patent Appeal No2193 of 2010 in Special Civil Application No.11627 of 2008 on 15.06.2011. In paras 9, 10, 11 and 18, this Court has observed as under:-
"9. We have given our anxious consideration and thoughts to the submissions of the learned Counsel for the appellants.
10. We are of the view that the learned Single Judge has not committed any error in rejecting the petition, declining to permit the appellants (original plaintiffs to amend the plaint and introduce the new relief praying for cancellation of the sale deed.
11. In order to consider whether the appellants/plaintiffs have made out a case for amendment of their plaint, seeking permission to challenge the sale deed of the year Page 10 of 27 Downloaded on : Fri Oct 20 20:37:32 IST 2023 NEUTRAL CITATION C/SCA/780/2020 ORDER DATED: 17/10/2023 undefined 1993, it is useful to refer Order 6 Rule 17 of the Code of Civil Procedure, which reads as under:
"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 :
Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."
18. It is settled law that grant of application for amendment be subject to certain conditions, namely, (I) when the nature of it is changed by permitting amendment, (ii) when the amendment would result introducing new cause of action and intends to prejudice the other party, (iii) when allowing amendment application defeats the law of limitation."
11. While granting the application for amendment, the Division Bench of this Court has considered three conditions (i) when the nature of it is changed by permitting amendment,
(ii) when the amendment would result introducing new cause of action and intends to prejudice the other party, (iii) when allowing amendment application defeats the law of limitation.
12. In the case of Niranjan Kajaria (supra), the Hon'ble Page 11 of 27 Downloaded on : Fri Oct 20 20:37:32 IST 2023 NEUTRAL CITATION C/SCA/780/2020 ORDER DATED: 17/10/2023 undefined Apex Court has given the guidelines which ought to be taken into account while allowing and rejecting the application for amendment of pleadings. In para 21, the Hon'ble Apex Court has observed as under:-
"21 On amendments generally, in the decision reported in Revajeetu Builders and Developers vs. Narayanswamy and Sons and others, after referring to Gautam Sarup (supra), the principles on amendment have been summarized at Paragraph-63. It has been held as follows:-
"63. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment:
(1) whether the amendment sought is imperative for proper and effective adjudication of the case;
(2) whether the application for amendment is bona fide or mala fide;
(3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;
(4) refusing amendment would in fact lead to injustice or lead to multiple litigation;
(5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.Page 12 of 27 Downloaded on : Fri Oct 20 20:37:32 IST 2023
NEUTRAL CITATION C/SCA/780/2020 ORDER DATED: 17/10/2023 undefined These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive."
13. Taking into consideration the principles on amendment, the Hon'ble Apex Court has held that the Court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.
14. In the present case, sale deed in favour of the petitioner was executed in the year 2004, whereas the suit of respondent No.1 bearing Special Civil Suit No.207 of 2016 came to be dismissed in the year 2018 on the ground of limitation by invoking under Order 7 Rule 11D of the Code of Civil Procedure.
15. In the case of Shiv Gopal Shah alias Shiv Gopal Sahu (supra), in paras 11, 12, 13 and 14, the Hon'ble Apex Court has observed as under:-
Page 13 of 27 Downloaded on : Fri Oct 20 20:37:32 IST 2023
NEUTRAL CITATION C/SCA/780/2020 ORDER DATED: 17/10/2023 undefined "11. We have gone through the amendment application carefully where we do not find any explanation whatsoever for this towering delay. We would expect some explanation, atleast regarding the delay since the delay was very substantial. The whole amendment application, when carefully scanned, does not show any explanation whatsoever. This negligent complacency on the part of the plaintiffs would not permit them to amend the plaint, more particularly when the claim has, apparently, become barred by time.
12. It is quite true that this Court in a number of decisions, has allowed by way of an amendment even the claims which were barred by time. However, for that there had to be a valid basis made out in the application and first of all there had to be bona fides on the part of the plaintiffs and a reasonable explanation for the delay.
It is also true that the amendments can be introduced at any stage of the suit, however, when by that amendment an apparently time barred claim is being introduced for the first time, there would have to be some explanation and secondly, the plaintiff would have to show his bona fides, particularly because such claims by way of an amendment would have the effect of defeating the rights created in the defendant by lapse of time. When we see the present facts, it is clear that no such attempt is made by the plaintiffs anywhere more particularly in the amendment application.
13. In Dondapati Narayana Reddy vs. Duggireddy Venkatanarayan Reddy & Ors. [(2001) 8 SCC 115] this court observed:
"The amendment should, generally, be allowed unless it is shown that permitting the amendment would be unjust and result in prejudice against the opposite side which cannot be compensated by costs or would deprive him of a right which has accrued to him with the lapse of time."
14. In T.N. Alloy Foundry Co. Ltd. vs. T.N. Electricty Board & Others [(2004) 3 SCC 392] a three Judge Bench Page 14 of 27 Downloaded on : Fri Oct 20 20:37:32 IST 2023 NEUTRAL CITATION C/SCA/780/2020 ORDER DATED: 17/10/2023 undefined of this Court relying on L.J. Leach & Co. Ltd. vs. Jardine Skinner and Co. [AIR 1957 SC 357] reiterated as under:
"The law as regards permitting amendments to the plaint is well settled. In L.J. Leach & Co. Ltd. v. Jardine Skinner and Co. it was held that the court 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."
The situation is no different in this appeal and as such a suit as described above would be clearly barred by limitation.
16. In the case of Surendra Kumar Sharma (supra), in paras 1, 5 to 9, the Hon'ble Apex Court has observed as under:-
1. Leave granted. In our view, this is a case in which the High Court, in its revisional jurisdiction, and the trial Court had fallen in grave error in refusing amendment of the plaint filed in a suit for eviction on the ground of arrears of rent.
5. As noted hereinearlier, the prayer for amendment was refused by the High Court on two grounds. So far as the first ground is concerned i.e. the prayer for amendment was a belated one, we are of the view that even if it was belated, then also, the question that needs to be decided is to see whether by allowing the amendment, the real controversy between the parties may be resolved. It is well settled that under Order 6 Rule 17 of the Code of Civil Procedure, wide powers and Page 15 of 27 Downloaded on : Fri Oct 20 20:37:32 IST 2023 NEUTRAL CITATION C/SCA/780/2020 ORDER DATED: 17/10/2023 undefined unfettered discretion have been conferred on the Court to allow amendment of the pleadings to a party in such a manner and on such terms as it appears to the Court just and proper. Even if, such an application for amendment of the plaint was filed belatedly, such belated amendment cannot be refused if it is found that for deciding the real controversy between the parties, it can be allowed on payment of costs. Therefore, in our view, mere delay and latches in making the application for amendment cannot be a ground to refuse amendment.
6. It is also well settled that even if the amendment prayed for is belated, while considering such belated amendment, the Court must bear in favour of doing full and complete justice in the case where the party against whom the amendment is to be allowed, can be compensated by cost or otherwise. [See B.K. N. Pillai Vs. P. Pillai and another [AIR 2000 SC 614 at Page 616].
Accordingly, we do not find any reason to hold that only because there was some delay in filing the application for amendment of the plaint, such prayer for amendment cannot be allowed.
7. So far as the second ground is concerned i.e. the prayer for amendment of plaint, if allowed, shall change the nature and character of the suit, we are unable to accept this view of the High Court. We have carefully examined the amendment prayed for and after going through the application for amendment of the plaint, we are of the view that the question of changing the nature and character of the suit, if amendment is allowed, cannot arise at all. The suit has been filed for eviction inter alia on the ground of arrears of rent. It cannot be disputed that even after the amendment, the suit would remain a suit for eviction. Therefore, we are unable to agree that if the amendment of the plaint is allowed, the nature and character of the suit shall be changed. Accordingly, the High Court was not justified in holding that the nature and character of the suit shall be changed, if such prayer for amendment is allowed. Page 16 of 27 Downloaded on : Fri Oct 20 20:37:32 IST 2023
NEUTRAL CITATION C/SCA/780/2020 ORDER DATED: 17/10/2023 undefined
8. For the reasons aforesaid, the orders of the High Court as well as of the trial Court are set aside. The application for amendment of the plaint filed by the appellant stands allowed, subject to the payment of costs of Rs.10,000/- to the opposite party, which shall be deposited/paid within a period of six weeks from the date of supply of a copy of this order. In default of deposit/payment of such costs, the application for amendment of the plaint shall stand rejected.
9. For the reasons aforesaid, this appeal is allowed to the extent indicated above. There will be no order as to costs.
17. In the case of Rameeza Beevi (supra), the High Court of Madras on 03.08.2005 has observed in paras 13, 14, 17, 18, 29 and 30 as under:-
13. The proposed amendment being one for cancellation or setting aside the sale dated 16.06.1986, this prayer should come under Article 59 of the Limitation Act. Article 59 of the Limitation Act reads:
Description of suit Period of Time from which period Limitation begins to run 59. To cancel or set Three When the facts entitling the aside an instrument years plaintiff to have the or decree or for the instrument or decree cancelled rescission of a or set aisde or the contract. Rescinded first become known to him.
Article 59 of the Limitation Act, prescribe the commencement of period of limitation, for this kind of the suit, begnning from the date of knowledge. In case of registered sale deed, the registration should be taken as knowledge to one and all. Therefore, ordinarily, unless it is shown otherwise, the date of registration should be taken, as the starting point of limitation.
14. In this case, the sale deed, now sought to be Page 17 of 27 Downloaded on : Fri Oct 20 20:37:32 IST 2023 NEUTRAL CITATION C/SCA/780/2020 ORDER DATED: 17/10/2023 undefined cancelled, is dated 16.6.1986 and that date also has been given as the date of cause of action in the plaint, thereby showing that the plaintiffs had knowledge. It is not specifically stated, in the plaint that the registration of the sale deed came to the knowledge of the plaintiffs, subsequently on a particular date, though in paragraph 5, at the end, it is stated, that the registration of the sale deed, dated 16.8.1986, came to the knowledge of the plaintiffs, recently. In paragraph 7 of the plaint also, the date of knowledge is not given, whereas the cause of action is given as 10.4.1997, i.e. the date of application for obtaining registration copy of the sale deed, after coming to know about the sale deed, wherein also it is not stated, on which date the plaintiffs had knowledge about the registration of sale deed, or its existence, as the case may be. In this view, if the date of sale is taken, as the date first become known to the plaintiffs, then it should be held, that the prayer now sought to be introduced, is clearly barred by limitation.
17. Admittedly, the proposed amendment petition was filed only in 2002, which is beyond the period of three years and therefore there cannot be any doubt, to say concretely and conclusively, that the proposed amendment, on the date of filing of the application is barred by limitation.
18. As adverted to above, if the plaintiffs were diligent, in prosecuting their right, which they want to now include in the plaint, they should have taken the strain, to amend the plaint, when this fact was brought to their notice by the return of the plaint, by the Court.
There also, when the plaintiffs were specifically informed in the month of July 1997, that the plaintiffs should seek the prayer for setting aside the sale, they were adamant, reiterating that the fraudulent sale deed need not be set aside, since in their view, in the eye of law, it is not in existence or non est. If that is the stand to continue, it is not known, why the prayer is sought for now, after three years, from the date of filing of the plaint, or return of the plaint, which is clearly barred by limitation. Therefore, on the facts established, it should be held, Page 18 of 27 Downloaded on : Fri Oct 20 20:37:32 IST 2023 NEUTRAL CITATION C/SCA/780/2020 ORDER DATED: 17/10/2023 undefined conclusively that the prayer sought for to cancel or to set aside the sale deed, is beyond the period of limitation, as envisaged under Article 59 of the Limitation Act, 1963 and therefore, it is doubtful, whether such a prayer could be inserted in the plaint by way of amendment. This doubt, entertained as per the submission of the learned Counsel for the plaintiffs, has no legs to stand, in view of the law declared by the Apex Court.
29.In the case involved in the above decision, an amendment was sought for almost after 11 years, after the date of institution of the suit, for declaration of title and possession. The Apex Court has held, on the date of filing the amendment, 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. Therefore, the Apex Court held, 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 and gave a protection to the defendant also, observing:
"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."
Thereby relegating the question of limitation, to a later stage, because of the fact, the amendment application was filed within the period of limitation, available for declaration and possession.
30. As adverted above, in the case on hand, on the date of application for amendment, the prayer sought to be introduced, by the proposed amendment is clearly barred by limitation, and therefore, even if it is to be observed that the amendment shall be deemed to have been made on the date of which the application for amendment is filed, it will not serve any earthly purpose, because of Page 19 of 27 Downloaded on : Fri Oct 20 20:37:32 IST 2023 NEUTRAL CITATION C/SCA/780/2020 ORDER DATED: 17/10/2023 undefined the admitted position that the declaration sought for is clearly barred by limitation. In this view, I am declined to allow the amendment application, even giving effect the amendment application, on the date on which the same has been filed.
18. In the case of Gajanan Jaikishan Joshi (supra), the Hon'ble Court has observed in para 4 as under:-
"4. in the leading case of Pirgonda Hongonda Patil V/s. Kalgonda Shidgonda Patil and Others AIR 1957 S.C. 363, a Bench comprising three learned Judges of this Court laid down the principles which should govern the question of granting or disallowing amendment. It was held by this Court that all amendments ought to be allowed which satisfy the two conditions; (a) 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. 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.
19. In the case of Asian Hotels (North) Ltd. (supra), the Supreme Court has observed in para 8 as under:- Page 20 of 27 Downloaded on : Fri Oct 20 20:37:32 IST 2023
NEUTRAL CITATION C/SCA/780/2020 ORDER DATED: 17/10/2023 undefined "8. The High Court while allowing the amendment application in exercise of powers under Order 6 Rule 17 of the Code of Civil Procedure has not properly appreciated the fact and/or considered the fact that such, by granting such an amendment and permitting plaintiffs to amend the plaints incorporating the prayer clause to declare the respective charges/mortgages void ab-initio, the nature of the suits will be changed. As per the settled proposition of law, if, by permitting plaintiffs to amend the plaint including a prayer clause nature of the suit is likely to be changed, in that case, the Court would not be justified in allowing the amendment. It would also result in misjoinder of causes of action.
20. In the case of Dilboo (Smt.) (dead) by LRS (supra), the Hon'ble Supreme Court has observed in para 20 as under:-
"20. This suit was governed by the Limitation Act of 1908, ..................
Whenever a document is registered the date of registration becomes the date of deemed knowledge. In other cases where a fact could be discovered by due diligence then deemed knowledge would be attributed to the Plaintiff because a party cannot be allowed to extend period of limitation by merely claiming that he had no knowledge...............
21. This Hon'ble Court in the case of Patel Dhanjibhai Ambaram Vs. Navinchandra Vrajlal Ved & 2 others passed in Civil Revision Application No.122 of 2016 01.10.2021.Page 21 of 27 Downloaded on : Fri Oct 20 20:37:32 IST 2023
NEUTRAL CITATION C/SCA/780/2020 ORDER DATED: 17/10/2023 undefined In the above case, the Co-ordinate Bench has referred the case of Dilboo (Smt.) (dead) by LRS (supra) and has also observed in para 13 which is as under:-
13. Thus, from the aforesaid decisions rendered by this Court as well as by the Hon'ble Supreme Court, it can be registered said that document, when date the of transfer registration is by becomes deemed knowledge and in cases where fact could be discovered by due diligence, plaintiff would be deemed to have the necessary knowledge. In the fact of the present case, it is not in dispute that the Sale Deeds dated 14.10.1992 and 02.08.1995 are duly registered and, therefore, date of registration becomes date of deemed knowledge. The plaintiff has filed Suit in the year 2008. However, it is pertinent to note that the plaintiff has alleged fraud and stated that he came to know about the registration of the Sale deeds only in the year 2007. However, as observed by the Hon'ble Supreme Court and this Court, in the facts of the present case, by clever drafting, the plaintiff has tried to bring the Suit within the period of limitation which is otherwise barred by law of limitation."
22. In the case of Poonambhai Shanbhai Valand (Decd) and Ors., this Hon'ble Court has observed in para 17 as under:-
"17. A useful reference can also be made to the judgment of the Hon'ble Apex Court reported in 2000(7) SCC 702 in the case of Dilboo (Smt.) (Dead) by L.Rs. V. Dhanraji (Smt.) (Dead), wherein also observations have been made in Para 25 referring tot he registration of the document and the knowledge about the same. Thus, it has been clearly observed that the dte of registration will be the date of deemed knowledge. It is in this background the concurrent finding of facts on appreciating of Page 22 of 27 Downloaded on : Fri Oct 20 20:37:32 IST 2023 NEUTRAL CITATION C/SCA/780/2020 ORDER DATED: 17/10/2023 undefined material and evidence by both the Courts below cannot be said to be erroneous as no substantial question of law can be said to have been involved.
23. In all the above decisions, ratio is that while considering the question of limitation, in a case registered sale deed, date of registration of the documents, becomes the date of the deemed knowledge.
Here, in the present case, it cannot be said that the plaintiff had no knowledge about the execution of the sale deed. Since, the plaintiff had filed Special Suit No.207 of 2016 for cancellation of sale deed which eventually was dismissed by the Court and thereafter the plaintiff sought amendment in Special Civil Suit No.381 of 1995.
24. Learned advocate for respondent No.1 has vehemently relied upon the decision of Pankaja and Others (supra), Ragu Thilak D. John (supra) and Surender Kumar Sharma (supra).
Page 23 of 27 Downloaded on : Fri Oct 20 20:37:32 IST 2023
NEUTRAL CITATION C/SCA/780/2020 ORDER DATED: 17/10/2023 undefined In the case of Salem Advocate Bar Association (2) Vs. Union of India, the Hon'ble Apex Court has observed that the object for granting the amendment application is to prevent frivolous application which can delay the trial.
In the present case, the amendment application Exhibit 55 itself, is false and frivolous application as observed earlier that this is a second attempt by the plaintiff to add the prayer of cancellation of registered sale deed.
25. In all these cases referred and relied upon by the learned advocate for respondent No.1 are not applicable to the facts of the present case. As in the case of Pankaja and another (supra), the Hon'ble Apex Court has observed that the Court's discretion in allowing the amendment application depends on the facts and circumstances of the case, and this is not a fit case, where the discretion of the Court can be exercised in favour of respondent No.1.
In the case of Ragu Thilak D. John (supra), is on totally on different set of facts wherein the appellant entered Page 24 of 27 Downloaded on : Fri Oct 20 20:37:32 IST 2023 NEUTRAL CITATION C/SCA/780/2020 ORDER DATED: 17/10/2023 undefined the house unauthorisedly and demolished the compound wall. In those set of facts an amendment in the plaintiff under Order VI Rule 17 was sought for.
In the case of Surender K.Sharma (supra), if the nature and character of the suit is not changed belated application for amendment could be allowed subject to the payment of cost to the other party. The said principle does not fit in the present set of facts looking to the frivolous conduct of plaintiff.
In the present case, the suit is for specific performance of an agreement to sale dated 24.08.1994 and suit was dismissed for default in 2002, the sale deed of 07.05.2004 came to be executed and respondent No.1 came out of the slumber and applied for restoration of the suit and the suit was restored in the year 2016.
26. All these facts and conducts of respondent No.1 debars him from claiming a discretion to be exercised in favour of respondent No.1.
Page 25 of 27 Downloaded on : Fri Oct 20 20:37:32 IST 2023
NEUTRAL CITATION C/SCA/780/2020 ORDER DATED: 17/10/2023 undefined
27. Learned trial Court has not dealt with the vital issue that Special Civil Suit No.207 of 2016 which was for the cancellation of sale deed dated 07.05.2004 came to be dismissed by the competent Court on 19.02.2018 under Order VII Rule 11D of the Code of Civil Procedure. This Court is of the view that the conduct of the plaintiff is highly deprecated and this is nothing but attempt to misguide the Court when Special Civil Suit No.207 of 2016 came to be dismissed on 19.02.2018. Thereafter, within a short period of time, amendment is sought for and the same prayer challenging in the sale deed dated 07.05.2004. The plaintiff has not come with the clean hands and has misguided the Court by making such false and frivolous attempt to have a back door entry. On this ground also, the amendment application deserves to be dismissed.
28. The order impugned dated 09.12.2018 passed by Principal Senior Civil Judge, Gandhinagar, is hereby quashed and set aside. Amendment Application Exhibit 55 is dismissed. Page 26 of 27 Downloaded on : Fri Oct 20 20:37:32 IST 2023
NEUTRAL CITATION C/SCA/780/2020 ORDER DATED: 17/10/2023 undefined
29. Respondent No.1 herein, is saddled with cost of Rs.5,000/- for making false and frivolous application before the Court below.
30. The learned trial Court is directed to see that if the order dated 09.12.2019 of granting the amendment is complied with, the same shall be deleted from the record with immediate effect and the plaintiff may be directed to place on record the unamended plaint so that in future, the learned trial Court would not be misguided.
31. If any application is moved by either of the parties for expeditious hearing of the suit as the suit is of 1995, the learned trial Court shall consider that request in accordance with law.
32. With this observations and directions, the present petition stands disposed of.
Direct service is permitted.
(D. M. DESAI,J) MANOJ Page 27 of 27 Downloaded on : Fri Oct 20 20:37:32 IST 2023