IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CIVIL REVISION NO.1444 OF 2007 DATE OF DECISION: March 03 ,2008 Chanan Singh .....Petitioner VERSUS Babu Singh etc. ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Manish Kumar Singla, Advocate, for the petitioner. Mr. Rakesh Chopra, Advocate, for the respondents. **** RANJIT SINGH, J. The petitioner has filed this revision petition being aggrieved against the order dated 17.2.2007 whereby the respondents are granted permission to amend the plaint. Respondent, Babu Singh, filed a suit for recovery of damages for malicious prosecution against the petitioner. This suit was instituted on 19.7.2001 and pertains to the allegation dated 15.2.2000. Notice was issued and the petitioner has appeared and filed his written statement. The petitioner has raised a plea of suit being barred by limitation in the form it was filed. The suit is being prosecuted ever since that day. The parties have led their respective evidence and the case was fixed for CIVIL REVISION NO.1444 OF 2007 :{ 2 }: arguments on 6.6.2006. During the course of arguments before the trial Court, plea of limitation was raised stating that suit was not maintainable. The submission was that the suit for damages due to malicious prosecution could have been filed within one year from the date of cause of action and since the suit was filed after the expiry of one year, the same would be barred by limitation. On request of the counsel for the respondent-plaintiff, the case was adjourned to 12.6.2006. No argument in rebuttal could be made by counsel for the respondents and the case was adjourned to 15.6.2006. The case was again adjourned to 19.7.2006 and oral submissions were made on the point of malicious prosecution and limitation etc. These, however, remained inclusive and the case was adjourned to 7.8.2006. The respondent-plaintiff then moved an application dated 1.8.2006 for amendment of the plaint. The amendment sought is for substituting the words “malicious litigation” for “malicious prosecution”. The petitioner has filed reply, opposing this amendment. The amendment is specifically objected to on the ground that the proposed amendment would take away the valuable right, which has accrued to the petitioner in regard to the plea of limitation as raised. It is further urged that this amendment is sought mainly to get out of the objection of limitation as raised by the petitioner. The trial Court found that the amendment, as sought, would neither change nature of suit nor is inconsistent in any manner CIVIL REVISION NO.1444 OF 2007 :{ 3 }: and thus would help in resolving the real controversy between the parties. It is further observed that no new case is set up by the plaintiff by way of this amendment and this is merely to clarify the case of the plaintiff. Amendment was accordingly allowed subject to payment of Rs.1,000/- as costs by noticing that the respondent did not wish to lead any further evidence, even after the amendment. Counsel for the petitioner submits that the order, permitting the amendment of the suit can not be sustained as it would not only amount to inserting a time barred claim of the respondent but would also allow him to circumvent a serious objection which is raised by the petitioner in regard to suit being barred as pleaded. Learned counsel seeks support from the case of Hari Singh Vs. Dalip Singh, 2002 (3) RCR (Civil) 49 in this regard. This Court has observed that time barred claim can not be allowed to be inserted by way of amendment. Counsel for the petitioner would submit that the suit filed by the respondents was barred by limitation. In order to escape this objection raised during the course of arguments, the respondents have resorted to the amendment of the plaint. It is further pleaded that the amendment of the plaint, as permitted, would bring in another infirmity. This suit, even as pleaded, would also be barred at the time of allowing the amendment. The suit for seeking damages on account of malicious litigation could also be filed within a period of three years from the date of cause of action and the amendment would certainly amount to inserting a time barred claim, which is not permissible as is held in CIVIL REVISION NO.1444 OF 2007 :{ 4 }: Hari Singh's case (supra). Reliance is also placed on an observation made in T.L.Muddukrishana and another Vs. Lalitha Ramchandra Rao (Smt.), 1997 (2) RCR (Civil) 154 (SC), where it is held 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 contract. 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.” It is, thus, noticeable that where application for amendment of a plaint is filed after expiry of three years, then it may CIVIL REVISION NO.1444 OF 2007 :{ 5 }: be required to be seen if it will change the cause of action as required to be specified in the plaint. The cause of action sought to be prosecuted in the original suit related to malicious prosecution which is now sought to be substituted by “malicious litigation”. On the date of application, the suit for malicious litigation is barred by limitation. Following the ratio of law laid down in the case of T.L.Muddukrishana (supra), it can be said that permission for amendment of the plaint under such circumstances can be refused. Learned counsel would also refer to the case of Ajendraprasadji N.Pande & Anr. Vs. Swami Keshavprakeshdasji N. & Ors., 2007 (1) RCR (c) 481 to say that the amendment in the pleadings can not be allowed when the trial has commenced and trial is deemed to commence when the issues are settled and the case is set down for recording evidence. On the other hand, counsel for the respondents has relied upon Deepali Vs. Pankaj Gupta, 2006 (4) RCR (c) 684. It is urged that while allowing the amendment, it is not open for the Court to go into the merits of the case of respective parties and accordingly the plea that amendment can not be allowed being barred would not be sustainable. The counsel has also referred to the case Ragu Thilak D.John Vs. S.Rayappan, 2001 (1) RCR (c) 726. In this case also, it is observed that the plea that the relief sought by way of amendment is barred by time is arguable and it being a disputed plea could be made subject matter of the issue after allowing amendment prayed for. The appellants in this case were permitted to amend the plaint subject to payment of costs. The CIVIL REVISION NO.1444 OF 2007 :{ 6 }: counsel has referred to number of judgments in support of his contention, which may be noticed here to be fair to the counsel. The counsel has referred to Smt.Harjit Grewal & others Vs. Dr.Vinod Kumar Batra and another, 1991 Civil Court Cases 813 (P&H), where the amendment was allowed, observing that amendment sought is purely legal and no evidence is sought. Reference is also made to Joginder Kaur Vs. Ravi Kumar, 2006 (4) RCR (c) 539 to urge that the amended provisions of C.P.C. Will not apply to the proceedings to the suits filed prior to the amendment. In this case only, it is held that amendment can not be said to be time barred where sale deed was challenged in the original plaint and by way of amendment the plaintiff wanted to plead her ownership on the basis of power of attorney. The counsel has then referred to number of other judgments like Ragu Thilak D.John Vs. S.Rayappan, 2001(1) RCR 727, Rajesh Kumar Aggarwal & Ors. s. K.K.Modi & Ors., 2006 (2) RCR (Civil) 577 and Sampath Kumar Vs. Ayyakannu & Anr., 2002 (2) Apex Court Judgments 361 (S.C.) to urge that merits of the amendment are not to be touched and question of limitation could be made subject matter of the issue. I have considered the rival contentions raised before me by the learned counsel appearing for the parties. The facts in this case are somewhat different from the cases which are cited by the counsel for the respondents. There is no dispute that the courts are expected to adopt liberal approach in granting the amendment of pleadings and that merits of the plea is not to be gone into at the time CIVIL REVISION NO.1444 OF 2007 :{ 7 }: of considering the plea of amendment, yet some other consideration like injury to opponent which may not be compensated by an order, costs or likelihood of irretrievable prejudice being caused are to be kept in view. Here suit was instituted on 19.7.2001 and pertains to an allegation dated 15.2.2000. The recording of evidence is complete in this case and the suit was being argued. The plea of limitation was raised during the course of arguments, which was required to be adjudicated. Instead of answering this plea, the respondents sought amendment, which apparently was to circumvent the plea of limitation raised during the course of arguments. It is, thus, not a case where the plea of limitation is being considered at the time of considering the amendment of the pleadings. Rather the amendment of the pleadings is sought to get out of the plea of limitation raised on behalf of the petitioner. The other infirmity, which this amendment would lead to, is that even amended plaint, though may not need any further evidence, is prima-facie barred by limitation as well. This amendment obviously would also substitute the original cause of action as prosecuted in the plaint. Suit for damages on account of malicious prosecution and malicious litigation certainly is not one and the same cause. This amendment is sought when certain right had accrued to the petitioner and this amendment certainly would prejudice the right of the petitioner and may cause injury which can not be compensated. It is in this background that the ratio of law laid down in Hari Singh's case (supra) and in the case of CIVIL REVISION NO.1444 OF 2007 :{ 8 }: T.L.Muddukrishana (supra) would more aptly apply to this case, rather than large number of other judgments referred to by the counsel for the respondents. It is, thus, seen that the Courts may be required to be liberal in granting the prayer for amendment but this is with a rider and can be declined where there is a chance of serious injustice or irreparable loss being caused to the other side. The judgments relied upon by counsel for the respondents are not applicable to the facts of the present case. In this view of the matter, the impugned order can not be sustained. The same is set-aside. The trial Court would proceed with the case further in accordance with law. The petition is accordingly allowed. March 03 ,2008 ( RANJIT SINGH ) khurmi JUDGE