Madhya Pradesh High Court
Bholanath vs Smt. Kamlesh Gupta on 25 June, 2015
1 W.P.No. 515/2013
(Bholanath Vs. Smt. Kamlesh Gupta & Ors.)
25/06/2015
Shri Sarvesh Sharma, Advocate for the
petitioner/plaintiff.
Shri Sanjeev Jain, Advocate for the respondent No.
2/defendant.
Shri R.K.Soni, Advocate for respondent No. 4/defendant.
By this writ petition under Article 227 of the Constitution of India, petitioner has challenged the legality, validity and proprietary of the order dated 13/9/2012 passed by trial Court dismissing the application of the petitioner/plaintiff under Order VI Rule 17 CPC.
With the consent of parties, matter is heard finally. It is consider apposite to describe the family genealogy before addressing on relevant facts necessary for disposal of this petition.
One Late Jagannath Gupta was the nucleus of the family married to one Mayadevi who died in year 1995. Late Jagannath Gupta was survived by his wife Late Mayadevi and four sons namely D.K.Gupta, Bholanath (petitioner/plaintiff), Ashok Gupta and Bharat (died unmarried). D.K. Gupta died in year 1990. He survived by wife Smt. Kamlesh and sons Prameer and Naveen , who are defendants No. 1 to 3.
2 W.P.No. 515/2013Plaintiff has filed a suit for declaration, rendition of accounts and permanent injunction seeking the relief that he be declared owner of 1/3 share of undivided property of joint Hindu Family described in para 1 of the plaint including House No. 42, Old Halka No. 24, New Halka No. 26 /754, Ward No. 31 situated at Gurudwara Chauraha, MLB Road, Gwalior and for rendition of account of rent, realized by defendants No. 1 to 3, of the Joint Family Property as well as mandatory injunction to deposit the said amount in his account and petitioner/plaintiff be held entitled for 1/3 thereof with further relief that defendants No. 1 to 4 be restrained from raising any construction over suit property, alienating or creating any third party rights in respect of suit property.
Defendants filed separate written statement. Petitioner/plaintiff filed an application under Order VI Rule 17 CPC for amendment inter alia contending that upon perusal of written statement, documents filed therewith and affidavits, he came to know that defendants have claimed title over house No. 42 Old Halka No. 24, New Halka No. 26 / 754, Ward No. 31 situated at Gurudwara Chauraha, MLB Road, Gwalior on the strength of sale deed dated 23/4/1988 allegedly executed by Late Smt. Mayadevi (the mother) in favour of husband of defendant No. 1 and father of 3 W.P.No. 515/2013 defendants No. 2 and 3, Shri D.K.Gupta. The suit property was in possession of Late Shri D.K.Gupta and after his death defendants No. 1 to 3 continued to be in possession thereof. It is further pleaded that in fact suit property devolved upon Late Smt. Mayadevi by way of Will executed by Late Jagannath Gupta on 21/3/1972, thereafter, though Late Smt. Mayadevi executed a power of attorney dated 23/12/1987 in favour of defendant No. 1, but on the basis of same, sale deed was got registered by defendant No. 1 on 23/4/1988. Plaintiff submitted that thus for the first time the aforesaid facts came to his knowledge in respect of aforementioned suit property which alleged to have been of the ownership , title and possession of defendants No. 1 to 3. Therefore, the amendment in the plaint was sought to the effect that the alleged Will dated 21/3/1972 is a forged document prepared in connivance and collusion of Late D.K.Gupta and defendants No. 1 to 3. Further the alleged sale deed dated 23/4/1988 is a forged and fabricated document got executed and registered with the strength of alleged power of attorney in favour of his wife Smt. Kamlesh by his mother Mayadevi, therefore, the documents have been interfered with calculated intention to deprive the plaintiff from his share in the joint family property. Further without partition being executed 4 W.P.No. 515/2013 between the members of Joint Family neither Late D.K.Gupta nor defendants No. 1 to 3 could claim to have any title and/or exclusive possession over the suit property to the exclusion of the plaintiff. Amendments sought in detail to the aforesaid effect are in paragraph 10 (v) and (c) with the further amendment in the prayer clause that sale deed dated 23/4/1988, partition deed dated 27/8/1997 between defendants No. 1 to 3 and sale deed dated 20/2/2001 be declared as null and void against the petitioner/plaintiff. In para 7 of the application, the plaintiff has specifically submitted that aforesaid amendment application has been filed as the facts narrated therein came to his knowledge only after having perused the averments made in written statement and documents filed therewith by defendants.
Defendants filed reply to the aforesaid application and denied the averments made in the application by inter alia contending that plaintiff had full knowledge of the house constructed by defendants No. 1 to 3 and therefore, since no challenge to the sale deed was made after its execution on 23/4/1988 for a considerable long period and amendment so sought are not bona fide and barred by limitation, therefore, such amendments cannot be allowed.
Trial Court by the impugned order has dismissed the 5 W.P.No. 515/2013 application having found the same to be barred by time as according to trial Court the suit should have been filed within three years in terms of Article 59 of the Indian Limitation Act, 1963.
Being aggrieved thereby, the instant writ petition has been filed.
Learned counsel for the petitioner submits that the trial Court has committed grave error of law while dismissing the application on the ground of limitation. Trial Court has failed to appreciate that the facts proposed to be incorporate came to the knowledge of the plaintiff only after written statements were filed alongwith documents and affidavits by defendants. As such, three years period has to be calculated from the date of knowledge of the fact. Hence, the impugned order on the face of it is palpably wrong and suffers from patent illegality as well as the jurisdictional error. It is further submitted that the trial Court in the teeth of specific statement made in para 7 of the amendment application as regards knowledge of proposed facts to be incorporated, on the date of filing of written statement, therefore, amendment application could not be said to be beyond three years of the date of knowledge of the facts. Said conclusion of the trial Court without any conclusive material is wholly without jurisdiction and this 6 W.P.No. 515/2013 issue could at the best be addressed after parties adduces evidence in that behalf. With the aforesaid submissions, it is prayed that impugned order be set aside.
On the contrary, learned counsel for the respondents/defendants No. 2 and 4 have supported the impugned order by submitting that it is a settled law that leave to amendment under Order VI Rule 17 CPC ordinarily be refused when the effect of amendment would be to take away from a party a legal right which accrued to him by lapse of time. It is also submitted that as the sale deed is dated 23/4/1988 and challenge to the sale deed is made by amendment application in the year 2009, hence, same is clearly barred by time. Learned counsel for the defendants has cited following judgments in support of their submissions:-
(i) T.N.Alloy Foundry Co. Ltd. Vs. T.N.Electricity Board and Ors., (2004) 3 SCC 392;
(ii) Usha Devi Vs. Rijwan Ahmad & Ors., 2008 (3) MPLJ 460.
Heard learned counsel for the parties.
Judicial opinion as regards nature of power under Order VI Rule 17 CPC dealing with amendment of pleadings 7 W.P.No. 515/2013 has so far been consistent since beginning. Principle of law in that behalf has been laid down by Privy Council in case of Charan Das Vs. Amir Khan, AIR 1921 PC 50, which reads as under:-
"though there was full power to make the amendment, such a power should not as a rule be exercised where the effect was to take away from a defendant a legal right which had accrued to him by lapse of time; yet there were cases where such considerations were outweighed by the special circumstances of the case."
Further Hon'ble Supreme Court in the case of Revajeetu Builders and Developers Vs. Narayanaswamy and sons and Ors., (2009) 10 SCC 84, after having reviewed the entire law on the issue, in para 63 had held as under:-
"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;8 W.P.No. 515/2013
(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.
These are some of the important factors which may be kept in mind while dealing with application filed under Order VI Rule 17. These are only illustrative and not exhaustive." Now turning to the facts in hand, undisputedly, plaintiff has filed the suit for declaration, rendition of accounts and permanent injunction. Plaintiff and defendants No. 1 to 4 are not only related but also members of same family nucleus whereof was Late Jagannath Gupta. Defendant No. 1 is wife and defendants No 2 and 3 are sons of Late D.K.Gupta, real brother of plaintiff and defendant No. 4. Relief of declaration is sought to the effect that plaintiff be held entitled for 1/3 share of the suit property described in plaint with further relief of partition of his share and the relief of permanent injunction against defendants No. 1 to 4 not to alienate or create third party rights in respect of suit property and maintain status quo.
Suit property is described in para 1 of the plaint under various heads. The suit property in respect whereof 9 W.P.No. 515/2013 amendment is sought is well described in para 1 (d) and by amendment application proposed amendments are for incorporation of certain facts which came to the knowledge of the plaintiff after filing of written statements by defendants No. 1 to 3; which are as follows:-
"(a), that the alleged will dated 21/3/1972 claimed to have been executed by Late Jagannath Gupta in favour of his wife Late Smt. Mayadevi is forged and fabricated document;
(b), the alleged sale deed dated 23/4/1988 claimed to have been registered by Smt. Mayadevi in favour of Late Shri D.K.Gupta in respect of aforesaid property described in para 1
(d) alleged to have been got registered by defendant No. 1 Smt. Kamlesh on the strength of power of attorney allegedly executed by Late Smt. Mayadevi in favour of defendant No. 1 dated 23/12/1987 are forged and fabricated documents; and
(c) , the alleged partition amongst defendants No. 1 to 3 dated 27/8/1997 is forged and illegal as well as the subsequent sale deed executed on 20/2/2001 in favour of tenants is also illegal."
Aforesaid amendments are in relation to the suit property already described in the plaint. Plaintiff has specifically pleaded that knowledge of those amendments were only after written statements were filed. There is nothing on record to suggest that plaintiff had knowledge of alleged will dated 23/12/1987 and sale deed dated 23/4/1988 10 W.P.No. 515/2013 except the assertions on the part of defendants that house so constructed is recorded in Municipal record and therefore, plaintiff had knowledge of the house being constructed by defendants as indicated in reply to application under Order VI Rule 17 CPC. Such assertion by itself cannot suggest that plaintiff had knowledge of these facts before the same were pleaded in the written statement. Considering the sequence of facts narrated by defendant in written statement, in the opinion of this Court amendments sought are bona fide and relevant for proper and effective adjudication of the case and does not change the nature of the suit. If the amendments are refused, it would lead to prejudice and may further lead to multiple of litigation.
The contention of defendants that proposed amendments are barred by limitation cannot be countenanced at this stage as there is a specific averment in the application under Order VI Rule 17 CPC that the fact sought to be brought on record, came to the knowledge of plaintiff only after the written statements were filed by defendants (Para 4 and 7). Question of limitation is essentially a question of fact and without affording opportunity to either party, same cannot be addressed by the Court in the facts and circumstances of the instant case. Therefore, trial Court has 11 W.P.No. 515/2013 committed error of law and fact while rejecting the application holding that the amendment are barred by time, without taking into consideration the averments made in the application under Order VI Rule 17 CPC. Accordingly, impugned order is set aside. Application under Order VI Rule 17 CPC is allowed. Plaintiff is directed to carry out the amendment in the plaint. All question related to amendments including question of limitation shall be open to either party to be addressed before the trial Court during trial by leading oral and documentary evidence.
With the aforesaid observation and direction, petition stands allowed and disposed of.
(Rohit Arya) Judge jps/-