IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 1131 of 2005 (M/S) Sri B. K. Mittal S/o Sri M. K. Mittal ..……… Petitioner. Versus Sakya Centre Society and others ……… Respondents Mr. Pankaj Miglani, Advocate for the petitioner. Mr. Sharad Sharma, Senior Advocate assisted by Mr. Kovid Bhatt, Advocate for the respondents. Hon’ble Tarun Agarwala, J. Heard Shri Pankaj Miglani, the learned counsel for the petitioner and Shri Sharad Sharma, the learned senior counsel duly assisted by Shri Kovid Bhatt, the learned counsel for the respondents. The plaintiff filed a suit for permanent injunction praying that the defendant should be restrained from interfering in the possession of the plaintiff on the property in question. During the pendency of the proceedings, the plaintiff filed an application under Order 6 Rule 17 of the C.P.C. for amendment of his plaint alleging that by a typographical error, the date of the sale deed has wrongly been mentioned as 17th April, 1994 whereas it should be 17th June, 1994. Certain other clerical errors were also pointed out. It was also alleged that during the pendency, the plaintiff has been ousted from the premises known as Hawa Mahal and, consequently, this fact was also sought to be brought on record. The plaintiff, consequently, prayed for the amendment in paragraph 2, 6, 8, 12, 34, 39 and 41 as well as in the schedule to the plaint and further sought incorporation of paragraph 19-D and 19A, 36-A and 36-B. An amendment was also sought in the relief clause as well as in the paragraph relating to court fee. The said application was resisted by the opposite party. The trial court, after considering the matter, partly allowed the amendment application and directed the plaintiff to amend the plaint as per the application made under Order 6 Rule 17 of the C.P.C. The trial 2 court further declined to allow the plaintiff to incorporate the relief Nos. 1/1 and 1/3 as well as the clause relating to the amendment in the Court fee. The plaintiff, being aggrieved by the said order, filed a revision before this Court u/S 115 of the C.P.C. which was subsequently converted into a writ petition under Article 227 of the Constitution of India. The trial court refused to allow the amendment in the relief clause contending that the said relief had become barred by limitation and, consequently, such amendment could not be allowed. The learned counsel for the plaintiff contended that the question as to whether the relief sought to be included in the plaint was barred by limitation or not was a question of fact which is required to be adjudicated after issues were framed and evidence was led and, consequently, at this stage of amendment, such relief could not be refused and the claim of the plaintiff could not be rejected on the ground that it was barred by limitation. In support of his submission, the learned counsel placed reliance upon a decision of the Supreme Court in Ragu Thilak D. John Vs. S. Rayappan and others, [2001 (42) ALR 582], wherein the Supreme Court held as under:- “We feel that in the circumstances of the case, the plea of limitation being disputed could be made a subject matter of the issue after allowing the amendment prayed for.” On the other hand, the learned counsel for the respondents contended that the amendment sought in the relief clause was clearly barred by limitation under Article 58 of the Limitation Act and that the plaintiff had knowledge of the execution of the sale deed and, deliberately did not choose to question the veracity and legality of the sale deed for almost seven years. The learned 3 counsel submitted that the relief for the quashing of the sale deed at this belated stage could not be allowed which was barred by Article 58 of the Limitation Act. In support of his submission, the learned counsel placed reliance upon a decision in K. Raheja Constructions Ltd. Vs. Alliance Ministries and others, AIR 1995 SC 1768, wherein the Suprme Court held as under :- “Having allowed the period of seven years elapsed from the date of filing of the suit, and the period of limitation being three years under Article 54 of the Schedule to the Limitation Act, 1963, any amendment on the grounds set out, would defeat the valuable right of limitation accrued to the respondent.” The learned counsel further submitted that the suit was one of mandatory injunction and the nature of the suit has also now been changed and is being converted into a suit for declaration which could not be allowed to be done at this belated stage. In order to appreciate the submission of the learned counsel for the parties, it would be appropriate if the relief which is sought to be added in the application for amendment is extracted hereunder. For facility, the said relief is quoted hereunder:- “1/2 That a decree for declaration be passed declaring sale deed dated 17.06.1994 registered in the office of Sub-Registrar, Dehradun be declared void, inoperative and not binding on the plaintiff to the extent of right which have already been transferred to him vide Sale Deed dated 29.12.1989 and coupled with subsequent arrangement dated 2.6.1990, 8.3.1991 and 23.05.1992. 1/2 That a decree for possession be passed in favour of the plaintiff and possession of property detailed in Schedule B, be got delivered to the plaintiff by evicting the Defendant no.1 there from. 1/3 That a mandatory injunction, a seal deed in respect of property detailed in Schedule B of the property, be executed in favour of the plaintiff, and on failure to do so, the same be got executed by the Court.” 4 The learned counsel for the respondents submitted that the said reliefs could not be allowed to be incorporated at this stage since the plaintiff knew about the execution of the sale deed which was clearly mentioned in the paragraph 34 of the plaint. For facility, the said paragraph is quoted hereunder:- “34/ That defendant no. 2 and 3 and some residents of defendant no.1 came to the house of the plaintiff and started alleging that a sale deed has been executed by defendant no.2 in favour of defendant no.1 and that in furtherance of the sale deed they will not allow the plaintiff to use the portion known as Hawa Mahal and not allow the drain which is already existing in the property of defendant no.2. A copy of the sale deed was given to the plaintiff for reading. The plaintiff noted down certain details from the said sale deed. From the sale deed dated 17.4.94, it is apparent that defendant no.1 and 2 without having any right to execute sale deed in respect of portion known as Hawa Mahal has sold the same. The portion shown as lawn has also been sold without specifying that it will remain intact.” The purpose of Order 6 Rule 17 of the C.P.C. is to allow either party to amend their pleadings in such manner and on such terms as may be just. The power to allow the amendment is not only discretionary but is also wide and could be exercised at any stage of the proceedings in the interest of justice. The Supreme Court in a catena of decisions has consistently held that the Court should adopt a liberal approach and allow a party to take all kinds of stand which they may choose and that the Court should not adopt a hyper-technical approach. The Supreme Court held that a liberal approach should be adopted and, as far as possible, amendment should be allowed, especially, when the other side could be compensated with cost. In the light of the aforesaid, the Court finds that the plaintiff had taken a plea that the extract of the sale deed was read by him which he noted and, subsequently, when he got hold of the copy 5 of the sale deed, he filed the amendment application seeking the relief for declaration that the said sale deed should be declared void. Since the essential facts had already been stated in the plaint, the Court below should have allowed the amendment and should not have taken a view that the amendment sought was barred by limitation. The question whether the relief sought to be incorporated in the plaint was barred by limitation or not was a question of fact which was required to be adjudicated and, for that purposes, a necessary issue was required to be framed. At the stage of considering the amendment, such question could not have been adjudicated since this Court is of the opinion that it was a question of fact which required evidence. In view of the aforesaid, the Court is of the opinion that the Court below committed an error in not allowing the amendment application with regard to the relief clause and with regard to the clause relating to the court fees and to that extent the impugned order cannot be sustained and is quashed. The writ petition is allowed. The amendment sought by the plaintiff is accordingly allowed which shall be incorporated in the plaint within three weeks from today on payment of cost of Rs.5000/- which the plaintiff shall deposit by means of a demand draft in favour of the opposite party No.1-Sakya Centre Society. The amount so deposited can be withdrawn by the said respondent. (Tarun Agarwala, J.) Dated 17th September, 2010 Shiv