Limitation period must be followed strictly by parties to suit: Bombay High Court

 on 01 06 2021 on 22 03 civil wp 7436 17.docR.M. AMBERKAR(Private Secretary) IN THE HIGH COURT OF JUDICATURE AT BOMBAYCIVIL APPELLATE JURISDICTIONWRIT PETITION NO. 7436 OF 2017Eknath Nivrutti Hegadkar(since deceased through his legal heirs)Mainabai Lakshman Tanjave & Ors...Petitioners VersusAagatrao Dyanu Ghodake(since deceased through his legal heirs)Kondabai Aagatrao Ghodake & Ors...Respondents ...................Mr. Surel S. Shah for the PetitionersMr. Prasad Kulkarni for the Respondents ................... CORAM : MILIND N. JADHAV J. RESERVED ON : MARCH 03 2021. PRONOUNCED ON : JUNE 01 2021.JUDGMENT: Heard Mr. Shah learned counsel appearing for thepetitioners and Mr. Kulkarni learned counsel appearing forthe respondents.2. By the present Writ Petition the petitioners haveprayed for following reliefs: "(B)After calling for the records and proceedings from the Court oflearned Civil Judge Junior Division Madha in respect of theRegular Civil Suit No. 22 2008 this Hon ble Court may be pleasedto examine the legality validity and or propriety of the impugnedJudgments and Orders dated 17.11.2016 passed by the learnedCivil Judge Junior Division Madha in respect of Regular Civil Suitno.22 2008 below Exhibit 35 and 39After examining the legality validity and or propriety of the same this Hon ble Court may be pleased to quash and set aside the on 01 06 2021 on 22 03 civil wp 7436 17.docseparate impugned Judgment and Orders dated 17.11.2016 passedby the learned Civil Judge Junior Division Madha and further bepleased to reject the applications below Exh. 35 and 39 preferred inthe Regular Civil Suit No. 22 2008." 3. Petitioners are aggrieved by the twin orders bothdated 17.11.2016 passed by the Civil Judge Junior Division Madha in two applications namely Exh. 35 and Exh. 39 filedby the respondents in Regular Civil Suit No. 208.4. Briefly stated the facts are as under: 4.1 Petitioners are the original defendants andrespondents are the legal heirs of the original plaintiff. Thesuit property for which entitlement is claimed by theplaintiffs is Gat No. 139 admeasuring 0.69 acres situated inVillage Chandaj Taluka Madha District Solapur. The originalplaintiff i.e respondent herein filed Regular Civil Suit No. 22of 2008 against the defendants for permanent injunction inrespect of the suit property. The original plaintiff expired on16.04.2015. His legal heirs are the present respondents.4.2 Respondents i.e plaintiffs filed application Exh. 35stating that original defendant No. 1 had expired on27.03.2014 and his legal heirswererequired to be brought on record. Petitioners objected to thisapplication on the ground of maintainability. Respondents on 01 06 2021 on 22 03 civil wp 7436 17.docplaintiffs thereafter filed an application Exh. 39 for seekingamendment of the suit plaint. This Application was filed on25.10.2016. The petitioners objected to the proposedamendment application on the ground of maintainability andlimitation inter alia contending that the proposedamendment if allowed would change the nature of the suitand a completely different relief would be introduced andgranted by the Court. On the aspect of limitation it wascontended that the cause of action to seek the relief hadarisen in 2008 immediately on filing the written statementand the application was filed after a period of 8 years. 4.3 The Trial Court allowed both the aforesaidapplications Exh. 35 and Exh. 39 by two separate orderswhich are annexed as “Exh. J” and “Exh. K” to the paperbook.5. Mr. Shah learned counsel appearing for thepetitioners has assailed both the orders in the present writpetition. In respect of the order below Exh. 35 it issubmitted that the same was filed beyond limitation after aperiod of almost 2 years and 3 months and therefore notmaintainable. He submitted that in the year 2016 therespondents had filed a similar application Exh. 26 to on 01 06 2021 on 22 03 civil wp 7436 17.docimplead the legal heirs of the deceased original plaintiff.That application was allowed even though it was filed beyondthe period of 90 days there was a delay of 10 months. Thepresent application has been delayed by more than 2 yearsand 3 months. Hence on the ground of limitation thepresent application was required to be dismissed rather thanallowed by the trial Court.6. In respect of Application under Exh. 39 Mr. Shahcontended that the petitionershad filed writtenstatement dated 07.08.2008 inter alia denying the right ofthe plaintiff as the owner of the suit property. He submittedthat as a complete afterthought after reading the writtenstatement respondents filed application Exh. 39 in the year2016 for amendment of the plaint and the amendment wasto the effect that the respondents sought declaration of titlein the name of the original deceased plaintiff as the owner ofthe suit property on the basis of a deed of purchase dated25.07.1979. Thus he submitted that though the original suitwas filed for seeking injunction by way of the proposedamendment application Exh. 39 the respondents now soughtto completely alter the nature of the suit by seekingdeclaratory title of the suit property. It was further on 01 06 2021 on 22 03 civil wp 7436 17.doccontended that the amendment application was filed inOctober 2016 whereas the original suit was of the year 2008 thus the said application altering the entire nature of thesuit filed after a period of 8 years from the date of the causeof action and therefore was not maintainable and deservedto be dismissed. He has therefore submitted that both theimpugned orders dated 17.11.2016 passed by the trial Courtin Exh. 35 and Exh. 39 be dismissed with costs.7. PER CONTRA Mr. Kulkarni learned counselappearing for the respondents original plaintiffs hassupported the two impugned orders dated 17.11.2016 andcontended that the amendment which is sought by theplaintiffs is before commencement of the trial and the trialcourt has taken a liberal view while deciding the amendmentapplication and allowed the same. He submitted that forconsideration of the amendment application the merits ofthe amendment would not be gone into and further if thepetitioners are aggrieved on the issue of limitation thepetitioners can always approach the trial court and seekframing of the issue of limitation. He contended that sinceamendment application Exh. 39 has been allowed it relatesback to the date of institution of the suit i.e 2008 under the on 01 06 2021 on 22 03 civil wp 7436 17.docdoctrine of “relate back”. Finally it was submitted thatseeking declaration regarding ownership in the suit propertyalongwith permanent injunction prayed for in the original suitplaint did not alter the nature of the suit.8. I have heard the learned counsel for therespective parties and perused the pleadings. Submissionsmade by the parties are on the pleaded lines.9. Before we advert to the respective submissions provisions of Order 6 Rule 17 relating to amendment arerelevant for consideration in the present case. Order VI Rule17 is extracted as under: "17.Amendment of pleadings. The Court may at anystage of the proceedings allow either party to alter or amendhis pleadings in such manner and on such terms as may bejust and all such amendments shall be made as may benecessary for the purpose of determining the real questions incontroversy between the parties:Provided that no application for amendment shall beallowed after the trial has commenced unless the Courtcomes to the conclusion that in spite of due diligence theparty could not have raised the matter before thecommencement of trial."10. It is stated that though the courts have a verywide discretion in the matter of amendment of pleadings Courts power must be exercised judiciously and with greatcare while deciding the applications for amendment. One ofthe principal conditions required to be considered by the on 01 06 2021 on 22 03 civil wp 7436 17.docCourt is whether grant of amendment is necessary fordetermination of the real controversy in the suit. If thiscondition is not satisfied the amendment cannot be allowed.This is a basic test which should govern the Court’sdiscretion in granting or refusing amendment. The SupremeCourt in a decision in the case of Revajeetu Builders andDevelopers Vs. Narayanswamy and Sons & Ors1 haslaid down some basic principles which ought to be taken intoconsideration while allowing or rejecting the application foramendment. Paragraph numbers 39 and 63 are relevant andextracted as under: "39. The rule however is not a universal one and under certaincircumstances such an amendment may be allowed by the courtnotwithstanding the law of limitation. The fact that the claim isbarred by law of limitation is but one of the factors to be taken intoaccount by the court in exercising the discretion as to whether theamendment should be allowed or refused but it does not affect thepower of the court if the amendment is required in the interests ofjustice.Whether the amendment sought is imperative forproper and effective adjudication of the caseWhether the application for amendment is bona fideor mala fideThe amendment should not cause such prejudice tothe other side which cannot be compensatedadequately in terms of money Refusing amendment would in fact lead to injustice or1(2009) 10 SCC 842(1974) 2 SCC 3933(1994) 2 SCC 29 on 01 06 2021 on 22 03 civil wp 7436 17.doclead to multi ple litigationWhether the proposed amendment constitutionally orfundamentally changes the nature and character ofthe case andas a general rule the court shoulddecline amendments if a fresh suit on the amendedclaims would be barred by limitation on the date ofapplication.These are some of the important factors which may be kept in mindwhile dealing with application filed under Order 6 Rule 17. Theseare only illustrative and not exhaustive."11. Mr. Shah learned counsel appearing for thepetitioners has laid emphasis on clauseandofparagraph No. 63 herein above in support of his challenge tothe order passed below Exh. 39 and vehemently stated thatthe proposed amendment of seeking declaratory title isunconstitutional and would fundamentally change the natureand character of the original suit. He has further argued thatif the principle enunciated in clauseabove is applied tothe facts of the present case then in that case the trialcourt ought to have considered the fact that the amendmentapplication was moved 8 years after the cause of action andwas therefore barred by limitation on the date of theapplication.12. On a careful reading of the provisions of Order 6Rule 17 of the Code of Civil Procedure and the decision in the on 01 06 2021 on 22 03 civil wp 7436 17.doccase of Revajeetu Builders and DevelopersI have nohesitation in accepting the submissions made on behalf ofthe petitioners in the present petition in respect of challengeto the order under Exh. 39. It is an admitted position in thepresent case that the predecessor in title of the petitionershas challenged the title of the predecessor in title of therespondents by filing his written statement on 07.08.2008 therefore the cause of action for seeking declaratory relief oftitle to the suit property arose on 07.08.2008. Theamendment is now sought after more than 8 years from thedate of denial of the title. Under the provisions of Article 58of the Limitation Act 1963 in such a case the maximumperiod of limitation allowed is 3 years and thus the action onthe part of the respondentswas clearly barred bythe law of limitation. The amendment sought for to seekdeclaratory relief of title could not have been allowed andgranted in view of the aforesaid provisions because theoriginal suit was a suit simpliciter seeking injunction.Petitioners have relied on the decision of the Apex Court inthe case of Anathula Sudhakar Vs. P. Buchy Reddy(dead) by LRs. & Ors.4 and more specifically paragraph 21thereof. There is a very categorical summarization of theposition in regard to suits for perpetual injunction relating to4(2008) 4 SCC 594 on 01 06 2021 on 22 03 civil wp 7436 17.docimmovable property viz a viz. claiming title. For the sake ofconvenience the summarization as stated in paragraph 21 ofthe above judgment is extracted herein below forconvenience: "21.To summarize the position in regard to suits for prohibitoryinjunction relating to immovable property is as under :(a) Where a cloud is raised over plaintiff s title and hedoes not have possession a suit for declaration andpossession with or without a consequential injunction is theremedy. Where the plaintiff s title is not in dispute or under acloud but he is out of possession he has to sue forpossession with a consequential injunction. Where there ismerely an interference with plaintiff s lawful possession orthreat of dispossession it is sufficient to sue for an injunctionsimpliciter.(b) As a suit for injunction simpliciter is concerned onlywith possession normally the issue of title will not be directlyand substantially in issue. The prayer for injunction will bedecided with reference to the finding on possession. But incases where de jure possession has to be established onthe basis of title to the property as in the case of vacantsites the issue of title may directly and substantially arise forconsideration as without a finding thereon it will not bepossible to decide the issue of possession.(c) But a finding on title cannot be recorded in a suit forinjunction unless there are necessary pleadings andappropriate issue regarding titleWhere there are necessary pleadings regarding title and appropriate issue relating to title on which parties leadevidence if the matter involved is simple and straight forward the court may decide upon the issue regarding title even in a suit for injunction. But such cases are theexception to the normal rule that question of title will not bedecided in suits for injunction. But persons having clear title1 on 01 06 2021 on 22 03 civil wp 7436 17.docand possession suing for injunction should not be driven tothe costlier and more cumbersome remedy of a suit fordeclaration merely because some meddler vexatiously orwrongfully makes a claim or tries to encroach upon hisproperty. The court should use its discretion carefully toidentify cases where it will enquire into title and cases whereit will refer to plaintiff to a more comprehensive declaratorysuit depending upon the facts of the case."13. Reliance is placed on clauseandquotedherein above. Applying the principles laid down in clauseto the facts of the present case it can besummarized that the respondents applicationExh. 39 filed on 25.10.2016 after a time gap of almost 8years is far beyond the allowable limitation period and isclearly barred by the law of limitation. More importantly theamendment sought for by Exh. 39 on the basis of a deed ofsale pertaining to the year 1979 will involve complicatedquestions of facts and law which are required to be provedby the concerned party by leading evidence. This relief ofseeking declaratory title alters the nature of the original suitfor injunction. Therefore the order dated 17.11.2016 passedbelow Exh. 39 allowing the amendment application filed bythe respondentsis required to be interfered withand is hereby quashed and set aside.14. In so far as the order passed below Exh. 35 isconcerned it is stated that application is filed on 28.06.20161 on 01 06 2021 on 22 03 civil wp 7436 17.docstating that defendant No. 1 had expired on 27.03.2014 andtherefore his legal heirs are required to be brought onrecord. It is stated in the application that Shyarmao EknathHegadkarhas already beenimpleaded as a defendant in the suit hence the other legalheirs of the deceased be impleaded as defendants. By orderdated 17.11.2016 passed below Exh. 35 the application forbringing the legal heirs of deceased defendant No. 1 onrecord is allowed. Though there is a delay in filing theapplication for bringing the legal heirs on record in theinterest of justice and equity the delay is condoned. Thoughthere is no formal prayer for condonation of delay nor hasthe trial Court considered the same however in the interestof justice and the reasons mentioned in paragraph 4 of theorder passed below Exh. 35 the said order is upheld. Hencethe challenge to the order dated 17.11.2016 passed belowExh. 35 in the present writ petition fails.15. In view of the above discussion and findings Ipass the following order: 1 on 01 06 2021 on 22 03 civil wp 7436 17.doc(i) Order dated 17.11.2016 passed below Exh.39 by the learned Civil Judge Junior Division Madha in Regular Civil Suit No. 208 isquashed and set asideOrder dated 17.11.2016 passed below Exh.35 by the learned Civil Judge Junior Division Madha in Regular Civil Suit No. 208 isupheldRegular Civil Suit No. 208 is expeditedand learned Trial Court shall make anendeavour to complete the trial and disposeof the suit within a period of six months fromtoday.16. Writ petition is partly allowed in the above terms.However there shall be no order as to costs.17. Parties shall act on an authenticated copy of thisjudgment. 1 

Summary: Limitation period must be strictly adhered to while filing a suit. Suit filed beyond the allowable limitation period and is clearly barred by the law of limitation. A single judge bench of Justice Milind N Jadhav; while adjudicating the matter in Eknath Nivrutti Hegadkar v. Aagatrao Dyanu Ghodake; [WRIT PETITION NO. 7436 OF 2017], dealt with filing of suits post the limitation period as prescribed by law. Petitioners are the original defendants and respondents are the legal heirs of the original plaintiff. The suit property for which entitlement is claimed by the plaintiffs situated in District Solapur. The original plaintiff i.e., respondent herein filed a civil suit against the defendants for permanent injunction in respect of the suit property. The original plaintiff expired on 16.04.2015. His legal heirs are the present respondents. Respondents i.e., plaintiffs filed application stating that original defendant No. 1 had expired on 27.03.2014 and his legal heirs (present petitioners) were required to be brought on record. Petitioners objected to this application on the ground of maintainability. Respondents -plaintiffs thereafter filed an application for seeking amendment of the suit plaint. This Application was filed on 25.10.2016. The petitioners objected to the proposed amendment application on the ground of maintainability and limitation, inter alia, contending that the proposed amendment if allowed would change the nature of the suit and a completely different relief would be introduced and granted by the Court. On the aspect of limitation, it was contended that the cause of action to seek the relief had arisen in 2008 immediately on filing the written statement and the application was filed after a period of 8 years. The learned counsel appearing for the petitioner stated that the application was filed beyond limitation after a period of almost 2 years and 3 months and therefore not maintainable. He also vehemently stated that the proposed amendment of seeking declaratory title is unconstitutional and would fundamentally change the nature and character of the original suit. The amendment sought for to seek declaratory relief of title could not have been allowed and granted in view of the aforesaid provisions because the original suit was a suit simpliciter seeking injunction.