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Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • For the Petitioner :- Shri Arvind Moudgil
  • Advocate. For the Respondent No. 1 :- Shri Arvind Rajotia
  • Advocate.
Judges
  • M.M Kumar, J.
Acts
  • provisions of Limitation Act, 1963 as Article. 59 of the Schedule of the Limitation Act, 1963
  • Order 6, Rule 17 read with Section 151 of the Code of Civil Procedure
  • Order 6, Rule 17 read with Section 151 of the Code
  • Order 6, Rule 17 of the Code,
  • Section 115 of the Code.12.
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • For the Petitioner :- Shri Arvind Moudgil
  • Advocate. For the Respondent No. 1 :- Shri Arvind Rajotia
  • Advocate.
Judges
  • M.M Kumar, J.
Acts
  • provisions of Limitation Act, 1963 as Article. 59 of the Schedule of the Limitation Act, 1963
  • Order 6, Rule 17 read with Section 151 of the Code of Civil Procedure
  • Order 6, Rule 17 read with Section 151 of the Code
  • Order 6, Rule 17 of the Code,
  • Section 115 of the Code.12.
See more information ...
Smart Summary

Judicial Summary: Revision Petition — M.M. Kumar, J.

Factual and Procedural Background

This revision arises from an order dated 21.11.2000 of the Additional District Judge, Bhiwani dismissing an application by the plaintiff-petitioner to amend his plaint at a stage when his suit had already been dismissed and an appeal was pending.

Relevant procedural and factual points (as recorded in the opinion):

  • On 30.8.1995 the plaintiff-petitioner filed Civil Suit No. 431 of 1995 seeking a declaration that he and the defendant-respondents were owners in possession of the suit land as heirs (sons and daughters) of Smt. Balma, relying on a registered will dated 27.9.1994.
  • The plaintiff sought that an earlier judgment and decree dated 1.8.1991 in Civil Suit No. 586 of 1991 and mutation No. 1015 dated 31.1.1994 (allegedly sanctioned by fraud and misrepresentation) be set aside.
  • The suit was dismissed with costs by the trial court. The plaintiff filed Civil Appeal No. 163 of 1997 challenging the judgment and decree dated 31.7.1997.
  • While the appeal was pending before the Additional District Judge, the plaintiff filed an application under Order 6, Rule 17 read with Section 151 of the Code of Civil Procedure to amend the plaint to enable challenge to two further judgments/decrees dated 26.10.1993 and 1.2.1995, which he said had not been challenged earlier by mistake.
  • The defendant-respondents opposed the application, asserting that those judgments/decrees were within the plaintiff's knowledge (having been produced in the trial court and relied upon in the defendant's written statement), that amendment would be barred by limitation, and that allowing it would be prejudicial and tantamount to improving the plaintiff's case at the appellate stage.
  • The Additional District Judge dismissed the application (order dated 21.11.2000), relying on a Supreme Court authority (K. Raheja Constructions Ltd. v. Alliance Ministries) and reasoning that permitting the amendment would defeat the defence of limitation and reopen the concluded proceedings.
  • The present revision petition challenges that order of 21.11.2000. The revisional court (M.M. Kumar, J.) heard counsel for both parties, reviewed the record and the authorities cited, and dismissed the revision.

Legal Issues Presented

  1. Whether an amendment of the plaint under Order 6, Rule 17 read with Section 151 of the Code of Civil Procedure can be permitted at the appellate stage (when the suit has been dismissed and an appeal is pending) to introduce a challenge to prior judgments and decrees.
  2. Whether permitting such an amendment would defeat the right of limitation (in particular Article 59 of the Schedule to the Limitation Act, 1963) and therefore must be refused.
  3. Whether the proposed amendment would change the cause of action and prejudice rights already accrued to the defendant-respondents, thereby rendering the amendment impermissible.

Arguments of the Parties

Appellant (Plaintiff-Petitioner)'s Arguments

  • The learned counsel for the plaintiff-petitioner argued that the Additional District Judge erred in holding that the judgments/decrees dated 26.10.1993 and 1.2.1995 were within the plaintiff's knowledge because, according to counsel, those judgments were not mentioned in the plaint (the plaint placed on record with CM No. 5141-CII of 2001).
  • It was submitted that delay alone cannot be the basis to refuse amendment under Order 6, Rule 17.
  • Specific factual submissions were made regarding the 26.10.1993 judgment: that it arose in a suit filed by Lekh Ram in which the plaintiff was a proforma defendant and was proceeded against ex parte, and that the plaintiff (as proforma defendant) was never served; therefore the plaintiff did not have knowledge of that judgment earlier.
  • It was further argued that the plaintiff only acquired knowledge of the two judgments and decrees when he went to file the appeal that gave rise to the present revision.

Respondent (Defendant-Respondent No. 1)'s Arguments

  • The learned counsel for the defendant-respondent contended that the judgments/decrees dated 26.10.1993 and 1.2.1995 could not now be challenged because the statutory period of three years for challenging such judgments/decrees had expired.
  • It was argued that no amendment can be allowed which, on the date of filing the amendment application, would give rise to a fresh cause of action that itself would be barred by limitation if a suit were to be filed on that date.
  • Accordingly, the respondent urged that the Additional District Judge's order refusing the amendment should not be interfered with.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
K. Raheja Constructions Ltd. v. Alliance Ministries, 1995 (3) RCR (Civil) 425 (SC) : 1996 (1) Civil Court Cases 80 (SC) Amendment of plaint cannot be allowed if it would defeat a valuable right of limitation accrued to the opposite party. The Additional District Judge relied on this authority to refuse the amendment; the revisional court held that reliance was appropriate and that the principle applied to the facts (i.e., permitting amendment would defeat limitation).
Vishwambhar v. Laxminarayan (dead) through Lrs., 2001 (3) RCR (Civil) 815 (SC) : (2001) 6 SCC 163 Supported the view that amendment cannot be permitted where it would be barred by limitation or improperly change the cause of action. The revisional court treated this Supreme Court decision as supporting the conclusion that the proposed amendment was time-barred and thus not permissible.
T.L. Muddukrishana v. Lalitha Ramchandra Rao (Smt.), 1997 (2) RCR (Civil) 154 (SC) : (1997) 2 SCC 611 Principle on limitation: limitation runs from the date fixed by parties for performance; amendment filed after expiry of limitation that changes cause of action cannot be permitted because the suit is barred. The opinion quotes this authority and applies its principle to conclude that because the amendment would introduce a cause of action that was already time-barred, the amendment must be refused.

Court's Reasoning and Analysis

The court's analysis proceeds in a series of factual and legal steps applying the cited authorities to the record before it:

  1. Record review and factual finding on knowledge: The court examined the plaint (as on record with CM No. 5141-CII of 2001) and noted that the two judgments/decrees (26.10.1993 and 1.2.1995) did not appear in the plaint. However, the court identified that the trial judgment dated 31.7.1997 and the defendant's written statement explicitly referred to Civil Suit No. 379 of 1991 (dismissed vide judgment dated 26.10.1993, exhibited as Ex. D3) and the appeal dismissed on 1.2.1995 (Ex. D4). The trial court's judgment (marked 'A') records these matters, including a paragraph asserting res judicata and referencing Ex. D3 and Ex. D4.
  2. Rejection of the plaintiff's knowledge denial: On that basis the court rejected the plaintiff's argument that he had no knowledge of those judgments/decrees until filing the appeal. The court also observed that the Additional District Judge had slightly erred in stating the judgments were discussed in the plaint (they were discussed in the defendant's written statement), but held that this misstatement did not assist the plaintiff because the defendant had indeed placed the judgments before the trial court and relied on them.
  3. Limitation analysis under Article 59: The court applied Article 59 of the Schedule to the Limitation Act, 1963 (which prescribes three years to cancel or set aside a decree from the date it first became known). The court found nothing on record to show that the plaintiff acquired knowledge of the judgments/decrees on a date triggering a fresh three-year period that would validate the proposed amendment; the plaintiff's version that knowledge arose only when the appeal was filed was found to be falsified by the record.
  4. Application of Supreme Court authorities: The court accepted and applied the principle from K. Raheja Constructions Ltd. that an amendment cannot be permitted if it would defeat the right of limitation. It also relied on the similar reasoning in Vishwambhar and T.L. Muddukrishana to the effect that an amendment that changes the cause of action and is introduced after the expiry of the limitation period must be refused.
  5. Prejudice and accrued rights: The court reasoned that allowing the amendment at the appellate stage, after dismissal of the suit and after rights in favour of the defendant had accrued, would fundamentally change the nature of the cause of action and seriously prejudice those rights.
  6. Conclusion on interference: Given the factual findings and the governing legal principles, the court concluded that the Additional District Judge's order dismissing the amendment application did not suffer from any legal infirmity warranting interference under Section 115 of the Code of Civil Procedure.

Holding and Implications

Holding: The revision petition is dismissed and the order of the Additional District Judge dated 21.11.2000 refusing the amendment stands. Revision dismissed.

Implications:

  • Direct effect on the parties: The plaintiff-petitioner is not permitted to amend his plaint at the appellate stage to challenge the judgments/decrees dated 26.10.1993 and 1.2.1995; those judgments/decrees cannot be introduced into the litigation by the proposed amendment because the amendment would be time-barred and would prejudice rights already accrued to the defendants.
  • No new legal precedent was proclaimed by the court; the decision applies established Supreme Court principles (as cited) to the facts and upholds the refusal to permit an amendment that would defeat limitation and alter the cause of action at a late stage.

This summary is compiled strictly from the text of the provided opinion and does not add or infer facts beyond what the opinion itself states.

Show full summary ...

    Hari Singh v. Dalip Singh

    M.M Kumar, J.:— This is a civil revision directed against the order dated 21.11.2000 passed by the Additional District, Judge, Bhiwani dismissing the application filed by the plaintiff-petitioner for amendment of his plaint at the stage when his suit stands dismissed and the appeal is pending.

    2. Brief facts of the case necessary to decide the issues raised in the present revision petition are that the plaintiff-petitioner has filed Civil Suit No. 431 of 1995 on 30.8.1995 seeking declaration to the effect that the plaintiff-petitioner and the defendant-respondents are owners in possession of the suit land being the sons and daughters of Smt. Balma. The claim was based on a registered will dated 27.9.1994 It was further claimed that the judgment and decree dated 1.8.1991 passed in Civil Suit No. 586 of 1991 by the Sub Judge Ist Class, Bhiwani and mutation No. 1015 dated 31.1.1994 sanctioned on that basis by fraud and misrepresentation are liable to be set aside. The suit of the plaintiff-petitioner was dismissed with costs. The plaintiff-petitioner thereafter filed Civil Appeal No. 163 of 1997 challenging the judgment and decree dated 31.7.1997

    3. It is during the tendency of the appeal before the Additional District Judge, Bhiwani that an application under Order 6, Rule 17 read with Section 151 of the Code of Civil Procedure (for brevity, the Code) was filed by the plaintiff-petitioner for amendment of the plaint. By way of amendment, the plaintiff-petitioner intended to challenge the judgments and decrees dated 26.10.1993 and 1.2.1995 on the ground that by mistake the aforementioned judgments and decrees could not be challenged. In the reply filed by the defendant-respondents, it was asserted that both the judgments and the decrees dated 26.10.1993 and 1.2.1995 were well within the knowledge of the plaintiff-petitioner and were also produced by him in the trial Court while leading his evidence. It was pleaded that apart from estoppel, by his act and conduct, those judgments and decrees could not be made the subject matter of challenge as the suit if filed on the date of the application under Order 6, Rule 17 of the Code, it would be hit by law of limitation. Therefore, the bar of limitation cannot be permitted to be ignored by allowing the amendment and implying that the judgments and decrees were challenged on the date of filing of the original suit i.e 30.8.1995 The Additional District Judge dismissed the application by relying upon a judgment of the Supreme Court in K. Raheja Constructions Ltd. v. Alliance Ministries, 1995 (3) RCR (Civil) 425 (SC) : 1996 (1) Civil Court Cases 80 and that order dated 21.11.2000 reads as under:—.

    “It is not disputed that the aforesaid judgments and decrees were within the knowledge of the plaintiff-appellant and have been discussed in the original plaint, in evidence led by the plaintiff as well as in the judgment by the trial court. The plaintiff has lost his case before the trial court and now if he is allowed to challenge these judgments and decrees, which are apparently now time barred, also will reopen the case from the beginning. Since these documents were within the knowledge of the plaintiff-appellant, the amendment sought at this stage will amount to fill up the lacuna and to assist the plaintiff-appellant in improving his case. The amendment on account of mistake of the counsel in the lower court, which was already in his knowledge, cannot be allowed at the appellate stage. However, it has been held by the Hon'ble Supreme Court in case K. Raheja Constructions Ltd. v. Alliance Ministries, 1996 (1) Civil Court Cases 80 that if amendment of the plaint is allowed to defeat the valuable right of limitation accrued to the party, the same cannot be allowed.”

    4. I have heard Shri Arvind Moudgil, learned counsel for the plaintiff-petitioner and Shri Arvind Rajotia, learned counsel for the defendant-respondent No. 1 and have perused the record with their assistance.

    5. Shri Arvind Moudgil, learned counsel for the plaintiff-petitioner has argued that the findings recorded by the learned Additional District Judge, Bhiwani are vitiated inasmuch as it has been held by him that the judgments and decrees dated 26.10.1993 and 1.2.1995 were within the knowledge of the plaintiff-petitioner because both the judgments find mentioned in the plaint. According to the learned counsel a bare perusal of the plaint would show that there is no mention of both the judgments in the plaint which has been produced with CM. No. 5141-CII of 2001. Therefore, it cannot be said that both the judgments v/ere in the knowledge of the plaintiff-petitioner. He has further argued that delay in itself cannot constitute the basis for allowing an amendment under Order 6, Rule 17 of the Code. It is claimed by the learned counsel that the civil suit in which the judgment and decree dated 26.10.1993 was passed, in fact was filed by one Lekh Ram wherein the plaintiff-petitioner was impleaded as proforma defendant. He was proceeded against ex parte. It is further claimed that the plaintiff-petitioner as proforma defendant in that suit was never served and, therefore, the question of his knowledge of passing the judgment and decree on 26.10.1993 would not arise. The judgment and decree dated 1.2.1995 was passed in the appeal. It has further been argued that the plaintiff-petitioner acquired knowledge of those judgments and decrees when he went to file the appeal from which the present revision petition has arisen.

    6. Shri Arvind Rajotia, learned counsel for the defendant-respondent on the other hand urged that the judgment and decree dated 26.10.1993 and 1.2.1995 could not be challenged as the period of 3 years which is prescribed for challenging such judgments and decrees has expired. According to the learned counsel, no amendment can be allowed which on the date of filing of the application for amendment would not be within limitation if a suit is to be filed on that date. Therefore, the learned counsel argued that the order passed by the learned Additional District Judge refusing to incorporate the amendment to enable the plaintiff-petitioner to challenge the judgments and decrees dated 26.10.1993 and 1.2.1995 cannot be interfered with.

    7. I have thoughtfully considered the respective submissions of the learned counsel for the parties and regret my inability to agree with the contentions raised by the learned counsel for the plaintiff-petitioner. It is clear from perusal of the plaint placed on record with CM. No. 5141-CII of 2001 that no reference to the judgments and decrees dated 26.10.1993 and 1.2.1995 has been made, yet a perusal of judgment and decree dated 31.7.1997 passed by the Additional Civil Judge (Sr. Division), Loharu shows that the defendant-respondent has taken objection in his written statement asserting that the suit was hit by the principle of res judicata because Civil Suit No. 379 of 1991 was dismissed vide judgment dated 26.10.1993 which has been exhibited as Ex. D3. In paragraph 4 of the judgment which is subject matter of appeal before the Additional District Judge (which has been taken on record as Mark ‘A’), the following observations have been made:—

    “Written statement was filed by the contesting defendant, in which a number of preliminary objections were taken up to the effect that the plaintiff had no cause of action and no locus standi to file the suit, that the suit was hit by the principle of res judicata because earlier Lekh Ram, brother of the plaintiff had filed a civil suit No. 379 of 1991 which was dismissed vide judgment dated 26.10.1993 (Ex. D. 3). Hari Singh, present plaintiff, was a proforma defendant therein. The appeal preferred by Lekh Ram etc. was dismissed by the court of Id. Additional District Judge, Bhiwani on 1.2.1995 vide judgment (copy Ex. D. 4). Therein also the validity and legality of the judgment (Ex.D 1) and decree (Ex.D 2) passed in the civil suit No. 586 of 1991 was assailed. Thus he has not come to court with clean hands and the suit is liable to be dismissed with special costs.”

    8. Therefore, the first argument of the learned counsel for the plaintiff-petitioner is liable to be rejected that the judgments and decrees were not in his knowledge till the time the appeal in the Court of Additional District Judge was instituted. It is true that the Additional District Judge in his order has committed a mistake a mentioning that the judgments and decrees were discussed by the plaintiff-petitioner in his plaint whereas a reference has been made of the same in the written statement filed by the defendant-respondents. However, that mistake would not benefit the plaintiff-petitioner because his basic argument that he has no knowledge of the judgments and decrees stands defeated.

    9. The impugned order, therefore, proceeds on the correct assumption that if the judgments and decrees dated 26.10.1993 and 1.2.1995 are allowed to be challenged, then it would be hit by the provisions of Limitation Act, 1963 as Article. 59 of the Schedule of the Limitation Act, 1963 provides that to cancel or set aside a decree, a suit has to be filed within a period of 3 years from the date it has first become known to him. There is nothing on the record to show that the judgments and decrees dated 26.10.1993 and 1.2.1995 became known to the plaintiff-petitioner on a particular date and the application for amendment was filed within 3 years of the knowledge. However, the version that it came to his knowledge when the appeal was filed in the Appellate Court stands already falsified.

    10. The judgment of the Supreme Court in the case of K. Raheja Constructions Ltd. (supra) has-been rightly relied upon by the Additional District Judge and is fully applicable to the facts of this case. Similar view has been taken by the Supreme Court in Vishwambhar v. Laxminarayan (dead) through Lrs., 2001 (3) RCR (Civil) 815 (SC) : (2001) 6 SCC 163 and T.L Muddukrishana v. Lalitha Ramchandra Rao (Smt.), 1997 (2) RCR (Civil) 154 (SC) : (1997) 2 SCC 611. The observations of their Lordships in T.L Muddukrishana's case (supra) read as under:—

    “Under these circumstances, it must be held that for the purpose of limitation, what is material is that the limitation begins to run from the date the parties have stipulated for performance of the con-tract; The suit is required to be filed within three years from the date fixed by the parties under the contract. Since the application for amendment of the plaint came to be filed after the expiry of three years, certainly it changed the cause of action as required to be specified in the plaint. The suit for mandatory injunction is filed and the specific performance was sought for by way of an amendment. The cause of action is required to be stated initially in the plaint but it was not pleaded. It was sought to be amended, along with an application for specific performance which, as stated earlier, was rejected, under these circumstances, even by the date of filing of the application, namely, 5.11.1992, the suit was barred by limitation. The High Court, therefore, was right in refusing to permit the amendment of the plaint.”

    11. The principles laid down by the Supreme Court when applied to the facts of the present case, then no doubt is left that the amendment sought to be incorporated to enable the plaintiff-petitioner to challenge the judgments and decrees dated 26.10.1993 and 1.2.1995 is time barred. Moreover, the amendment is sought at the stage when the suit of the plaintiff-petitioner has already been dismissed and a right in favour of the defendant-respondent has come into existence. Allowing the amendment at such a stage could completely change the nature of the cause of action and would seriously prejudice the rights which have already Accrued to the defendant-respondents. Therefore, for these additional reasons also, the amendment under Order 6, Rule 17 read with Section 151 of the Code could not be allowed. The order passed by the Additional District Judge does not suffer from any legal infirmity warranting interference of this Court under Section 115 of the Code.

    12. For the reasons recorded about, this revision petition fails and is accordingly dismissed.

    Revision dismissed.

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    Comments

    Hari Singh v. Dalip Singh
    (Apr 22, 2002)