Andhra HC (Pre-Telangana)
Jangili Venkateswarlu And Ors. vs Bandaru Omkaraiah And Anr. on 11 November, 2002
Equivalent citations: 2003(2)ALD259, 2003(3)ALT612
Author: G. Rohini
Bench: Bilal Nazki, G. Rohini
JUDGMENT G. Rohini, J.
1. The defendants are the appellants in this Letters Patent Appeal which is preferred against the judgment and decree dated 3.9.1996 in (Tr.) A.S. No. 2132 of 1984 whereunder the learned single Judge set aside the judgment and decree dated 30.3.1981 in O.S.No. 61 of 1970 on the file of the Court of the Subordinate Judge, Chirala, and remitted the matter to the Trial Court.
2. O.S.No. 61 of 1970 on the file of the Court of the Subordinate Judge, Chirala, was filed by the 1st respondent herein (Bandaru Omkarayya) along with two others seeking a decree for permanent injunction restraining the sole defendant by name Jangili Bala Kotaiah from interfering with the possession of the plaintiffs over the plaint schedule land. We shall refer the parties as they were arrayed in the Trial Court in O.S.No. 61 of 1970.
3. The case of the plaintiffs who are three in number was that they purchased Ac.4.84 cents of land situated at Kothapet from the defendant under a registered sale deed dated 7.6.1961 (marked as Ex.B1) and that since then they have been in continuous possession and enjoyment of the same. According to them though the said sale deed contains a condition of reconveyance by the plaintiffs to the defendant on repayment of the consideration of Rs. 2,400/-with interest at 9% per annum within three years from the date of sale, the defendant failed to obtain the reconveyance deed within the stipulated period and consequently the sale in favour of the plaintiffs has become final. Out of the land purchased by them subsequently in the year 1962 they sold Ac. 1.06 cents in favour of one Sajja Tataiah under a registered sale deed which was also attested by the defendant Bala Kotaiah. However, subsequently the defendant demanded reconveyance and obstructed the plaintiffs from cultivating Ac.1.64 cents of land, which is part of the land purchased by them and has been in their possession and enjoyment. Hence they filed the suit for permanent injunction in respect of the said Ac.1.64 cents of land. The said suit, originally field as O.S.No. 448 of 1966 in the Court of District Munsif, Bapatla was subsequently renumbered as O.S.No. 83 of 1968 on transfer to Sub-Court, Bapatla. Again it was transferred to the Court of Subordinate Judge, Chirala and numbered as O.S.No. 61 of 1970.
4. The said suit was contested by the defendant. In the written statement it was contended that the document dated 7.6.1961 was executed by the defendant under the impression that it is a mortgage deed. He contended that he did not receive any consideration and that the plaintiffs obtained the said sale deed by playing fraud, undue influence and misrepresentation and therefore the same is not binding on the defendant. He also denied delivery of possession to the plaintiffs under the alleged sale deed. The defendant further denied the sale deed executed by the plaintiffs in favour of Sajja Tataiah in respect of Ac.1.06 cents and contended that the said sale is not valid and binding on the defendant. Thus the case of the defendant was that the plaintiffs have neither title nor possession in respect of the suit schedule land and therefore they are not entitled to the relief of permanent injunction.
5. It is pertinent to note that the two undivided sons of the sole defendant in O.S.No. 61 of 1970 instituted a separate suit being O.S.No. 51 of 1970 on the file of the Sub-Court, Chirala (originally O.S.No. 45 of 1968 on the fife of Sub-Court, Bapatla) seeking a decree for partition. In the said suit the plaintiffs in O.S.No. 61 of 1970 were made defendants 1 to 3. The sole defendant in O.S.No. 61 of 1970 Bala Kotaiah was the 6th defendant. While contending that the 6th defendant and the two plaintiffs constitute Hindu Joint Family owning ancestral property and that the plaintiffs together are entitled to an undivided 2/3rd share, the plaintiffs in O.S.No. 51 of 1970 alleged that the 6th defendant was addicted to vices and he executed sale deed dated 7.6.1961 in favour of the defendants 1 to 3 and another sale deed dated 9.7.1964 in favour of the 4th defendant with false recitals and without any consideration. The said sales were without any legal necessity and therefore they are not binding on the plaintiffs and liable to be set aside. While seeking a declaration that the said sale deeds dated 7.6.1961 and 9.7.1964 executed by the 6th defendant are not binding on the plaintiffs, they also sought a decree for partition of the plaint schedule properties into three equal shares and for allotment of separate share with possession to the plaintiffs and also for mesne profits past and future. The said suit was contested by the defendants 1 to 3 as well as the other defendants by filing separate written statements.
6. Separate issues were framed in O.S.No. 61 of 1970 and O.S.No. 51 of 1970, however, both the suits were clubbed together and tried jointly recording evidence in O.S.No. 51 of 1970.
7. Before the Trial Court, three witnesses were examined on behalf of the plaintiffs and Exs.A1 and A2 documents were marked. On behalf of the defendants, 14 witnesses were examined and 25 documents were marked. The Trial Court on appreciation of the evidence on record, both oral and documentary, disposed of both the suits by a common judgment dated 30.3.1981. The learned Trial Judge partly decreed O.S.No. 51 of 1970 declaring that the sale deed dated 9.7.1964 (marked as Ex.B2) executed by the 6th defendant in favour of the 4th defendant is not binding on the plaintiffs to the extent of 2/3rd share. A preliminary decree was granted accordingly to that extent and in respect of the other reliefs the suit was dismissed.
8. So far as O.S. No. 61 of 1970, the trial Court though accepted the title of the plaintiffs under Ex.B1 sale deed dated 7.6.1961, held that the plaintiffs failed to prove that they obtained possession under Ex.B1 and accordingly, the suit was dismissed.
9. Aggrieved by the judgment in O.S. No. 51 of 1970, setting aside the sale under Ex.B2 in favour of defendant No. 4 and granting a preliminary decree for partition in respect of the property covered by Ex.B2 sale deed, A.S. No. 1469 of 1981 was filed in this Court by the legal representatives of the 4th defendant. The said appeal was dismissed on contest on 26.4.1988 and even LPA No. 437 of 1989 filed against the said judgment was dismissed on 29.11.1995. Thus, the decree in O.S.No. 51 of 1970 has become final.
10. So far as the dismissal of O.S. No. 61 of 1970 is concerned, the plaintiffs therein preferred an appeal in the District Court, Ongole, which was subsequently transferred to this Court for being heard along with A.S. No. 1469 of 1981 and numbered as Transfer A.S. No. 2132 of 1984.
11. However, it appears that by mistake it was not heard along with A.S.No. 1469 of 1981, which was heard and dismissed on 26.4.1988. Pending Tr. A.S.No. 2132 of 1984, the 2nd appellant died and appellant No. 4 was brought on record as legal representative of the deceased 2nd appellant. The sole respondent/defendant Jangili Bala Kotaiah also died and his legal representatives were brought on record as respondents 2 to 5 in Tr.A. S.No. 2132 of 1984.
12. It is relevant to note that pending the said appeal, the appellants who are the plaintiffs in O.S. No. 61 of 1970 filed C.M.P. No. 11904 of 1996 under Order 6 Rule 17 of Code of Civil Procedure seeking amendment of the plaint by adding the alternative relief of recovery of possession, in case it is found that they failed to establish their possession. In the affidavit filed in support of the said petition, it was pleaded that they are in possession and enjoyment of the suit properties under Ex.B1 registered sale deed, the validity of which was upheld by the Trial Court, however, their suit was dismissed by the Trial Court only on the ground that they failed to establish their possession by the date of filing of the suit and therefore they are entitled to seek recovery of possession by way of alternative relief. The said application was opposed by the respondents in the appeal. They filed counter contending inter alia that the relief of recovery of possession is barred by limitation and that it would also amount to introducing a new cause of action and alters the nature of the suit.
13. The learned Single Judge framed the following points for determination in the appeal.
"1. Whether Ex.B1 registered sale deed executed in favour of the appellants by the sole defendant in O.S. No. 61 of 1970 is valid and binding on the executant and his legal representatives who are the present respondents?
2. Whether the appellants were in possession of the suit property by the date of filing of the suit and whether the lower Court has erred in dismissing the suit for permanent injunction?
3. Whether the appellants are entitled for seeking the amendment of the plaint as prayed for in CMP No. 11904 of 1996 for seeking alternative relief of recovery of possession of the suit property?
4. To what relief the parties are entitled?"
14. The learned single Judge held on Point No. 1 that the title of the appellants-plaintiffs over the suit property covered by Ex.B1 sale deed is clearly established and the same cannot be questioned by the respondents. On point No. 2 the learned Judge confirmed the finding of the trial Court that the appellants/plaintiffs failed to established their possession by the date of the suit and as such, they are not entitled for the relief of permanent injunction. However, on Point No. 3 the learned Judge concluded that there is every justification for allowing the petition filed for amendment of the plaint to seek the relief of recovery of possession especially as the title of the appellants/ plaintiffs is upheld. The learned Judge held that in order to avoid multiplicity of proceedings by driving the plaintiffs to file a fresh suit for the relief of recovery of possession on the basis of their title, the amendment of plaint shall be allowed. Accordingly CMP No. 11904 was allowed permitting the plaintiffs to amend the plaint on payment of required additional Court fee. The learned Judge accordingly allowed Tr. A.S. No. 2132 of 1984 by setting aside the judgment and decree of the Trial Court and the matter was remitted to the Trial Court for proceeding according to law after permitting the plaintiffs to amend the plaint. The said judgment of the learned appellate Judge dated 3-9-1996 is questioned in this Letters Patent Appeal by the defendants in OS No. 61 of 1970.
15. We have heard Sri K. Harinath, the learned Counsel for the appellants/ defendants. The learned Counsel vehemently contended that in the facts and circumstances of the case the relief of recovery of possession was barred by limitation during the pendency of the suit itself and therefore, the plaintiffs cannot be permitted to amend the plaint for the alternative relief of recovery of possession. According to the learned Counsel the learned appellate Judge having confirmed the findings of the Trial Court that the plaintiffs are not entitled to the relief of injunction sought in O.S.No. 61 of 1970 is not at all justified in allowing the proposed amendment of the plaint and remitting the matter to the Trial Court for deciding the issue relating to recovery of possession.
16. Sri T. Seshagiri Rao, Advocate whose name appeared in the cause list for the respondents/plaintiffs, reported no instructions to continue in the Letters Patent Appeal. In the circumstances, we proceeded to decide the appeal on the basis of the material on record and the submissions made by the learned Counsel for the appellants.
17. On a perusal of the judgments of the Courts below and the other material on record, it is clear that the judgment and decree in O.S.No. 51 of 1970 upholding the sale in favour of the respondents herein under Ex.B1 sale deed has become final. Similarly the finding recorded in O.S.No. 61 of 1970 that the plaintiffs/respondents herein were not in possession of the suit schedule property by the date of suit has also become final since the plaintiffs did not choose to challenge the said finding as upheld by the learned Single Judge in Tr.A.S.No. 2132 of 1984.
18. This Letters Patent Appeal is at the instance of the defendants and having regard to the contentions raised by the learned Counsel, the only question that arises for determination is whether the learned Single Judge is justified in allowing the amendment of the plaint for seeking the relief of recovery of possession as an alternative relief.
19. The scope of Order 6 Rule 17 of Code of Civil Procedure, which deals with amendment of pleading, is well settled. While considering an application for amendment of pleadings, the Court has to take into consideration whether such amendment is necessary for the purpose of determining the real questions in controversy between the parties. Though it is true that the Court while exercising the discretion under Order 6 Rule 17 is entitled to permit amendment of pleadings which it thinks just at any stage of the proceedings, it is always essential for the Court to bear in mind that such an amendment shall not cause prejudice to the other side, which cannot be compensated in costs. It is also well-settled that an amendment which would defeat the valuable right of defence accrued to the opposite party by lapse of time shall not be normally allowed, However, the Court in exercise of its discretion can permit even such amendment taking into consideration the special circumstances of the case and to meet the ends of justice. Particularly, where the proposed amendment does not alter the character of the suit nor introduce a new cause of action and the fresh relief sought is nothing but an alternative relief based on the allegations which are already pleaded in the plaint, it is open for the Court to permit even a claim barred by limitation to meet the ends of justice. In other words, a relief barred by limitation can be allowed to be sought only by way of amendment of pleadings only in special circumstances and where no injustice is caused to the opposite party.
20. In Leach and Company Ltd v. Jardine Skinner & Co., , the Supreme Court held 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 interest ofjustice.
21. In P.H. Patil v. K.S. Patil, , the Apex Court approved the following observations made by Bachelor, J. in Kisandas Rupchand v. Rachappa Vithoba (33 Bombay 644). --
"AH 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 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. The ultimate test therefore still remains the same: can the amendment be allowed without injustice to the other side, or can it not?"
22. Again in Laxmidas Dahyabhai Kabarwala v. Nanabhai Chunilal Kabarwala, , the Supreme Court held as under:
"It is, no doubt, true that, save in exceptional cases, leave to amend under Order 6, Rule 17 of the Code will ordinarily be refused when the effect of the amendment would be to take away from a party a legal right which had accrued to him by lapse of time. But this rule can apply only when either fresh allegations are added or fresh reliefs sought by way of amendment. Where, for instance, an amendment is sought which merely clarifies an existing pleading and does not in substance add or to alter it, it has never been held that the question of a bar of limitation is one of the questions to be considered in allowing such clarification of a matter already contained in the original pleading.
23. In Muni Lal v. Oriental Fire and General Insurance Co. Ltd. , the Supreme Court was dealing with a case where the claim of the appellant dated 9.7.1984 for payment of the insured amount was rejected by the Insurance Company on 31.12.1984. The appellant instituted a suit in 1986 seeking a declaration that he was entitled to the total loss caused to him. The trial Court by its judgment dated 23.7.1988 dismissed the suit holding that the suit for mere declaration without consequential relief for payment of compensation for the loss of the truck or specified amount of compensation from the respondent was not maintainable. The appellant filed an application under Order 6 Rule 17 of Code of Civil Procedure in the Appellate Court seeking consequential relief, which was rejected holding that the suit was barred by limitation during the pendency of the appeal. The High Court confirmed the judgment and decree of the 1st Appellate Court.
24. The Supreme Court while considering the question whether the claim was barred by limitation, held as follows:
"Section 3 of Limitation Act speaks of bar of limitation providing that subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted, after the prescribed period shall be dismissed, although limitation has not been set up as the defence. In other words, unless there is a power for the Court to condone the delay, as provided under Sections 4 to 24 (inclusive), every suit instituted after the prescribed period shall be dismissed, although limitation has not been set up as the defence. Order 6 Rule 17 of Code of Civil Procedure envisages amendment of the pleadings. The Court may at any stage of the proceedings allow either parties 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 question of controversy between the parties. Therefore, granting of amendment on such terms is also a condition for the purpose of determining the real question in controversy between the parties. The amendment to grant consequential relief sought for in this case, is as envisaged in proviso to Section 34 of the Special Relief Act, 1963. That relief was, however, available to him, to be asked for, when the suit was filed."
Taking into consideration the facts of the case the Supreme Court further held "admittedly by the date of the application for amendment the relief stood barred by limitation....... The alternative relief was available to be asked for when the suit was filed but not made. Therefore, the appellant cannot be permitted to amend the plaint after the suit was barred by limitation during the pendency of the proceeding in the appellate Court of the second Appellate Court."
25. In the light of the above principles laid down by the Apex Court, we shall now proceed to examine whether in the facts and circumstances of the present case the plaintiffs can be permitted to seek amendment of the plaint by adding the alternative relief of recovery of possession.
26. The suit was initially filed on 13.12,1966 seeking a decree for permanent injunction. The simple case of the plaintiffs was that they purchased the suit schedule land under Ex.B1 sale deed dated 7.6.1961 and since then they have been in possession and enjoyment of the same and that the defendant attempted to interfere with their possession on 11.12.1966 on which date the cause of action for filing the suit for injunction arose. In the written statement filed on 10.2.1967 the defendant denied the plaint averments and pleaded that Ex.B1 sale deed is not valid and under the said sale deed the possession of the suit schedule land was never delivered to the plaintiffs. The defendant specifically pleaded that the possession has been retained with him even after Ex.B1 sale deed. Both the parties adduced oral and documentary evidence in support of their respective pleas. On appreciation of the evidence on record the learned Trial Judge recorded a finding that the plaintiffs failed to prove that they obtained possession of the suit schedule property under Ex.B1 sale deed and that they were not in possession of the suit land as on the date of the suit. Accordingly the suit was dismissed on 30.3.1981. Against the said judgment the plaintiffs though preferred appeal, kept quite till 1996 and at the fag end of the appeal on 4.8.1996 filed application for amendment of the plaint by adding the alternative relief of recovery of possession in case it is found that they failed to establish their possession by the date of the suit. The question is whether such a fresh claim made by the plaintiffs is barred by limitation and whether allowing the amendment would cause the defendant an injury, which could not be compensated in costs.
27. As can be seen, the basis for the application for amendment of the plaint as pleaded by the plaintiffs is the finding of the Trial Court that they established their title under Ex.B1 sale deed. As per Article 65 of Schedule to the Limitation Act, 1963 the time prescribed for instituting a suit for possession of immovable property or any interest therein based on title is 12 years, which begins to run when the possession of the defendant becomes adverse to the plaintiff. It is clear from the pleadings that in the written statement the defendant pleaded that Ex.B1 sale deed is not valid and the possession of the suit schedule property has never been delivered to the plaintiffs under Ex.B1 sale deed. Consequently, the possession of the defendant, who is the vendor under Ex.B1 shall be treated as adverse to the plaintiffs from the date of sale deed or at least from the date of the written statement i.e., 10.2.1967. Thus during the pendency of the proceedings in the Trial Court itself the limitation for the relief of recovery of possession expired.
28. Even otherwise the suit was dismissed by the Trial Court on 30.3.1981 holding that the plaintiffs failed to establish their possession. It is pertinent to note that even the learned Single Judge confirmed the said finding. Hence as rightly contended by the learned Counsel for the appellants, even from the date of dismissal of the suit the relief of recovery of possession is barred by limitation as on the date of the application for amendment of plaint.
29. We are unable to agree with the learned Single Judge that the proposed amendment does not change the nature of the suit nor a new cause of action is introduced. Whereas the suit for injunction was based on the cause of action of the alleged interference with the possession of the plaintiffs in December, 1966, the cause of action for the suit for recovery of possession is entirely different. The plaintiffs instituted the suit for mere injunction asserting that they were in possession of suit schedule land, but they could not establish the same. Once the suit was dismissed holding that they were not in possession as on the date of the suit, a different cause of action arose and it cannot be said that the new relief of recovery of possession sought by way of amendment is based on the original cause of action pleaded in the suit. As a matter of fact, the alternative relief of possession was available to be asked for when the suit was filed or at least when the defendants filed written statement asserting that the possession of suit land was never delivered to the plaintiffs under Ex.A1 sale deed. In our considered opinion, the plaintiffs who failed to seek appropriate relief either pending the suit or immediately after the dismissal of the suit in which there is a clear finding against them cannot be permitted to seek the relief of recovery of possession by way of amendment of pleading after a long lapse of 20 years after the dismissal of the suit. Allowing such an amendment would be nothing but extending the period of limitation to an unsuccessful plaintiff. Certainly the amendment seriously prejudices the defendants, which cannot be compensated in costs, since the valuable right accrued to them to raise the plea of adverse possession would be defeated.
30. It may also be pointed out that there is absolutely no explanation for the inordinate delay on the part of the plaintiffs to seek the relief of recovery of possession in spite of the dismissal of the suit in the year 1981. Such an application cannot be allowed as a matter of course. It is also well-settled that unexplained delay is a ground for refusing amendment.
31. Viewed from any angle, in our considered opinion granting the relief of amendment of plaint seeking to introduce relief of recovery of possession is bad in law and the plaintiffs cannot be permitted to amend the plaint after the proposed relief of recovery of possession was barred by limitation during the pendency of the proceedings in the Trial Court itself.
32. For the aforesaid reasons, we are of the view that the judgment under appeal permitting the plaintiffs to amend the plaint by adding the relief of recovery of possession as an alternative relief is erroneous and contrary to the settled principles of law. In the circumstances, the impugned judgment to the extent of allowing C.M.P.No. 11904 of 1996 and remitting the matter to the Trial Court for deciding the question relating to the relief of recovery of possession as per the amended plaint is set aside. The findings of the learned Single Judge that the plaintiffs were not in possession of the suit schedule land by the date of filing of O.S.No. 61 of 1970 and therefore they are not entitled for the relief of permanent injunction is upheld since the said finding has not been challenged by the plaintiffs. Consequently the judgment and decree of the Trial Court in O.S.No. 61 of 1970 dismissing the suit is confirmed.
33. In the result, the Letters Patent Appeal is allowed. In the circumstances there shall be no order as to costs.