Or. VI , Rule 17 of C.P.C. - Amendment of plaint in suit for partition - allowing of previous amendments not to be considered for denial - when the bar of limitation is a disputed fact can not be considered for denial - when there is no lack of due diligence nor negligence , commencement of trial can not be considered for denial - since the acquisition notification date , award date, reference op not known to the plaintiff by the date of filing of suit ,nor the defendants furnished any information about the same though parties to the acquisition proceedings in their written statement, it can not be said that plaintiff failed to prove due diligence simply because he got issued a notice before acquisition on vague information and in such an event searching for information is nothing but searching for a needle in Hayrick - Lower court failed to consider these aspects and as such lower court orders are set aside and High court allowed the revision = Smt.Waheeda Begum and Ors.....Petitioners Md.Yakub and and Ors....Respondents = 2014 ( JANUARY - VOL - 1 ) JUDIS.NIC.IN / JUDIS _ANDHRA / FILE NAME = 10710

1    Or. VI , Rule 17 of C.P.C. - Amendment of plaint in suit for partition - allowing of previous amendments not to be considered for denial - when the bar of limitation is a disputed fact can not be considered  for denial - when there is no lack of due diligence nor negligence , commencement of trial can not be considered for denial  - since the acquisition notification date ,  award date, reference op not known to the plaintiff  by the date of filing of suit ,nor the defendants furnished any information about the same though parties to the acquisition proceedings in their written statement, it can not be said that plaintiff  failed to prove due diligence simply because he got issued a notice before acquisition on vague information and in such an event searching for information is nothing but searching for a needle in Hayrick - Lower court failed to consider these aspects and as such lower court orders are set aside and High court allowed the revision =

whether the petitioners were

able to establish that inspite of "due diligence", they could not have raised
the issues now raised in the amendment application before the commencement of  
trial, since they are seeking amendment of the plaint after the trial has
commenced.   =
21. From the facts narrated above, it is clear that the suit is filed in the
year 2004; written statement was filed by the respondent in 2005; issues were
framed in 2006 and on 12-09-2007, affidavit in lieu of chief examination had
been filed by P.W.1 on behalf of the petitioners. Thus there is no dispute that
the trial had commenced by the time the I.A.1009/2013 was filed.  It is also
clear that prior to filing of I.A.No.1009 of 2013, the petitioners had filed
I.A.No.405 of 2009 seeking amendment of the plaint in respect of the extent and
I.A.No.269 of 2011, in respect of door number and boundaries of the plaint
schedule property and these applications were allowed.
22. It is also true that in the plaint at para-5 in page-5, it is stated by 1st
petitioner/original plaintiff as under:
"While so, prior to the issuance of notice to Smt. Marium Begum the plaintiffs
were informed through reliable sources that some land acquisition proceedings
were going on Birla Planetarium authorities acquired some part of the land for
the purpose of road widening, by taking notice of the above events through
reliable sources the plaintiffs herein were constrained to issue a legal notice
to Birla Planetariums authorities on
08-07-2004 etc.........."
23. Order VI Rule 17 CPC states as follows:
"17. Amendment of pleadings:  The Court may at any stage of the proceedings 
allow either party to alter or amend his pleadings in such manner and on such
terms as may be just, and all such amendments shall be made as may be necessary   
for the purpose of determining the real questions in controversy between the
parties:
Provided that no application for amendment shall be allowed after the trial has
commenced, unless the Court comes to the conclusion that is spite of due
diligence, the party could not have raised the matter before the commencement of
trial."=

Therefore, in view of the above decisions, merely because it is contended by

the respondents that the suit on the amended claim would be barred by
limitation, the application for amendment of the plaint cannot be rejected.  In
the present case, there is a dispute as to whether the claim sought to be made
by way of amendment is barred by limitation or not.  Therefore, the Court below
can frame an issue on the point of bar of limitation to grant the said relief in
the suit and then decide it.
42. I am also of the opinion that the decisions in T. Bai Ammal (13 supra) and
Sat Bhan Singh (14 supra), cited by the counsel for the respondents which held
that Article 113 of the Limitation Act, 1963 is attracted, need not be
considered in this Revision. The court below, after allowing the amendment
sought by the petitioners, and after allowing the respondents to file additional
written statement, shall frame an issue on the point of bar of limitation of the
relief claimed by the petitioners, and then decide it keeping in view the
circumstances in which the amendment had been sought by the petitioners and  
Section 17 of the Limitation Act, 1963.
43. The petitioners have also sought to amend the plaint by adding a relief
claiming 7/14th share in mesne profits for alleged illegal use and occupation of
the suit schedule property by the defendants and for deriving rents from the
commercial portion of the suit schedule property by letting it out to a hotel by
name "Sukh Sagar" at the rate of Rs.1,00,000/-. The trial court did not advert
to this at all in it's order. In the counter filed by  respondents, they have
merely denied the allegation that they had let out the non-residential portion
of the plaint schedule property to the Hotel "Sukh Sagar" on a monthly rent of
Rs.1,00,000/-.  While it is true that the petitioners have not stated in their
application when they came to know about the alleged letting out of the
commercial portion of the suit schedule property to the said Hotel, the
respondents have also not pleaded that the petitioners were aware of the said
fact by the date of filing of the suit.  As stated supra, their plea is one of
total denial.  In this view of the matter, I am inclined to hold that the
application for amendment of the plaint claiming the further relief as to share
in rents/mesne profits  can also be allowed. Like in the case of the first
relief sought by petitioners, the court below shall frame an issue as to bar of
limitation for claiming this relief also, after the respondents file additional
written statement.
44. For the above reasons, Civil Revision Petition is allowed and the order
dt.05-10-2013 in I.A.No.1009 of 2013 in O.S.No.450 of 2004 is set aside and
I.A.No.1009 of 2013 is allowed subject to the above directions.

22014 ( JANUARY - VOL - 1 ) JUDIS.NIC.IN / JUDIS _ANDHRA / FILE NAME = 10710

HON'BLE SRI JUSTICE M.S.RAMACHANDRA RAO          

CIVIL REVISION PETITION No. 4683 of 2013  

03-01-2014

Smt.Waheeda Begum and Ors.....Petitioners              

Md.Yakub and and Ors....Respondents  

Counsel for the Petitioners:Sri Vedula Srinivas

Counsel for the Respondents:Sri Ashok Kumar Agarwal

<GIST:

>HEAD NOTE:  

?Cases referred:

1.  AIR 1957 S.C. 357
2.  (2008) 14 S.C.C. 632
3.  (2004) 6 S.C.C.415
4.  (2002)7 SCC 559,
5.  (2008) 5 SCC 117
6.  (2008) 14 SCC 364
7.  (2006) 4 S.C.C. 385
8.  AIR 2009 S.C. 1433
9.  AIR 2011 S.C. 41
10. 2012 AIR SCW 1035  
11. AIR 1957 SC 444 (1)
12. 2012 (1) ALT 644
13.  LAWS(MAD) -2011-7-260  
14.  LAWS(DLH) -2012-8-354

THE HON'BLE SRI JUSTICE M.S.RAMACHANDRA RAO          
C.R.P.No.4683 of 2013

ORDER:

        This Revision petition is filed challenging the order
dt.05-10-2013 in I.A.No.1009 of 2013 in O.S.No.450 of 2004 of the
X Additional Chief Judge (F.T.C.), City Civil Court, Hyderabad.
2. The said suit was filed by petitioners herein for partition of the plaint
schedule property into 14 equal shares and to allot 7 shares to them and for
separate possession of the said share.  Written statement was filed in the year
2005.  Issues were framed in the year 2006 and on 12-09-2007, an affidavit in
lieu of chief examination was filed by 2nd petitioner.
3. The petitioners filed application I.A.No.405 of 2009 for amendment of the
plaint schedule to correct the extent of the property shown in the plaint
schedule as 4200 sq. yds. instead of 1000 sq. yds mentioned in the plaint
originally.  It was allowed and the plaint schedule was amended.
4. The petitioners thereafter filed I.A.No.269 of 2011 again for amendment of
the plaint for correction of the plaint schedule by changing the door number and
the boundaries thereto.  This was opposed by the respondents.  But the trial
Court allowed the application and this amendment was carried out.
5. When petitioners had filed the suit, they had paid
ad volerem Court Fee of Rs.1,80,026/- as they were not in joint possession of
the plaint schedule property. On 04-02-2011, seven years after filing of the
suit, a docket order was passed by the Court below requiring its office to
address a letter to the concerned Sub-Registrar to furnish the valuation of the
property as on 04-05-2004.  In response to it, the Joint Sub Registrar addressed
a letter dt.31-03-2011 taking a view that the valuation of the property should
be  Rs.19,800/- per square yard.  Taking this into account, the trial Court
passed order dt.28-07-2011 calculating court fee payable on the said basis and
directing payment of deficit Court fee by the petitioners.
6. This was challenged in C.R.P.No.3472 of 2011 by the petitioners 2 to 4.  Stay
of the said order was granted.  Ultimately the Revision was allowed on 15-07-
2013 setting aside the order of the trial Court and directing it to dispose of
the suit expeditiously.
7. The case of the petitioners is that 1st petitioner is the first wife of one
Md. Ishaque, petitioner no.s 2-4 are their children, on the death of her husband
, she and other petitioners are entitled to 7/14 share in the plaint schedule
property. The respondents are the children of Late Md.Ishaque through another
wife Mrs. Mariam Begum and respondents 1-4 are their children. The respondents
deny the relationship of 1st petitioner with Md.Ishaque and contend that
1st petitioner is a stranger to the family and she is not entitled to any share
in the plaint schedule property. Pending suit, the 1st petitioner died and the
other petitioners, who are her legal representatives, are contesting it.
8. It is alleged by the petitioners that part of the land which is subject
matter of the suit was acquired under the provisions of the Land Acquisition
Act, 1894 by the Greater Hyderabad Municipal Corporation for laying road leading
to Birla Planetarium; that on 
06-02-2006 an award No.B/1147/2004 was passed by the competent authority apart  
from a subsequent award dt.18-05-2009 in proceedings in File No.E/793/87; that
in the former award, a sum of Rs.63,16,755/- was awarded and in the latter
award, a sum of Rs.6,17,93,352/- was awarded apart from interest; that against
the former award, O.P.No.6 of 2006 was filed before the 1st Senior Civil Judge,
City Civil Court, Hyderabad, and against the later award, O.P.No.2541 of 2010
was filed under Section 30 of the Land Acquisition Act, 1894.
9. The petitioners filed I.A.No.1009 of 2013 to amend the plaint by inserting
certain paragraphs in the body of the plaint and also to amend the relief
portion in the plaint by claiming (i) a share in the above compensation and (ii)
also a share in the mesne profits from a portion of the plaint schedule property
allegedly in occupation of respondents and for share in rents from a portion of
the said property allegedly let out to a Hotel 'Sukh Sagar'.
10. In the affidavit filed along with the said I.A, they alleged that they were
not aware of the awards passed in the above referred proceedings since the
respondents had deliberately not informed the acquisition authority about their
interest in the acquired property; that they are also entitled to 7/14th share
in this compensation amounting to Rs.3,40,55,053/-; had they known about these
proceedings, they would have made a claim in the suit itself; but as the awards
were passed subsequent to the filing a suit in respect of property covered by
the plaint schedule in the suit and the respondents did not disclose about these
proceedings in their pleadings in the suit, the plaint be permitted to be
amended once again by inserting certain paragraphs in the body of the plaint and
also to amend the relief portion in the plaint by claiming share in the above
compensation. They also pleaded that they are entitled to the said reliefs as
legal heirs of Md.Ishaque and also as legal heirs of Smt.Bilkis Jahan Begum.
11. It is also stated that they had to file a third party petition in
O.P.No.2541 of 2010 pending before the Chief Judge, City Civil Court, Hyderabad
for issuance of certified copies of the pleadings, and on receiving the
pleadings, they filed applications to reopen O.P.No.2541 of 2010 and to implead
them as parties on
04-09-2013.  It is also stated that even in O.P.No.6 of 2006, applications to
implead them have been filed and they are pending adjudication. It is contended
that the respondents did not disclose these facts to the Courts where the O.Ps
were pending or to the trial Court in this suit with a mala fide intention to
knock away the entire compensation running into crores of rupees, depriving them
of their rightful share.
12. Counter affidavit was filed by the respondents opposing this application.
They contended that the petitioners have nothing to do with the family of Md.
Ishaque, that they are total strangers and have no connection with the property
of the family.  They also contended that the suit itself is a luxury litigation
filed only to usurp some of the compensation awarded to the respondents on
account of the acquisition proceedings mentioned supra.  It is also alleged that
previously two amendment petitions have been filed and the present one is a
third application and this indicates the speculative nature of the litigation
embarked by the petitioners in respect of the plaint schedule property.  It is
pointed out that at para 5 in page 5 of the plaint itself, 1st petitioner on her
own, stated that she came to know through relevant sources that some land
acquisition proceedings were going on at the instance of Birla Planetarium
authorities, that some part of the land was acquired for the purpose of road
widening, that she had also issued a notice to the Birla Planetarium authorities
on
08-07-2004 and a copy of the said notice had also been filed by
1st petitioner, wherein she requested to pay compensation.  It is therefore
contended that 1st petitioner/plaintiff was aware of the land acquisition
proceedings even at the time of filing of the suit and therefore the contention
of the petitioners that they came to know about these proceedings after filing
of the suit cannot be believed.  It is also pointed out that the affidavit in
lieu of chief examination was filed on 12-09-2007 itself by P.W.1, but in stead
of proceeding with the trial, petitioners are trying to drag on the matter on
one pretext or other by filing repeated applications for amendments of the
plaint.  They also denied that they had let out the non-residential portion of
the plaint schedule property to a 'Hotel Sukh Sagar' on a monthly rent of
Rs.1.00 lakh.
13. Before the Court below, it was also submitted that the application for
amendment is barred by limitation as the limitation for filing a suit for
partition is three years from the date of accrual of the cause of action under
Article 113 of the Limitation Act, 1963, and that the cause of action for the
partition suit arises on the date when the demand for partition was made and was
denied by the defendants.
14. By order dt.05-10-2013, the Court below dismissed the I.A.No.1009 of 2013.
It recorded in detail the respective contentions of the parties and held that
the petitioners ought to have enquired about all the land acquisition
proceedings and then filed the suit.  It also held that amendment of the plaint
after commencement of the trial is not permissible under Order VI Rule 17 CPC
and that the petitioners failed to establish that in spite of due diligence,
they could not have raised these aspects before the commencement of the trial.
It also held that the petitioners had not contended that these are all
subsequent events which necessitated the proposed amendment.   
15. Challenging the same, this Civil Revision Petition is filed.
16. Heard Sri V.Srinivas, learned counsel for the petitioners and Sri Ashok
Kumar Agarwal, learned counsel for the respondents.
17. The  learned counsel for the petitioners contended that the petitioners had
no doubt some information that acquisition proceedings were going on in respect
of a portion of a plaint schedule property for purpose of laying a road of the
Birla Planetarium by Greater Hyderabad Municipal Corporation, but the
notification under Section.4 of the land Acquisition Act,1894 itself was issued
admittedly in 2005  ( as per para 6 of the counter of the respondents in the
I.A) and the awards in respect of property acquired had been passed on 06-02-
2006 and 18-05-2009 respectively after the filing of the written statement by
the respondents; that the respondents had not been able to establish that the
petitioners were given any notice under Section 9 or Section 12 of the Land
Acquisition Act,1894 or had knowledge otherwise of the filing of L.A.O.P.Nos.6
of 2006 and 2541 of 2010; therefore, proviso to Order 6 Rule 17 CPC has no
application to the facts of the case available; it would be impossible for the
petitioners to ascertain  when the notification under the said Act was issued,
when the award was passed or whether the O.Ps were filed and if so, when and
where they were filed, since neither the GHMC nor Birla Planetarium nor the
respondents have disclosed these facts by issuing any notice to the petitioners.
He also contended that mere fact that earlier two applications for amendment
filed by the petitioners had been allowed does not mean that the petitioners, if
circumstances warranted, cannot seek further amendment of the plaint seeking a
share in the compensation amount.  As regards the plea of bar of limitation
raised by the respondents before the Court below, he contended that the
amendment is not barred by limitation and that it is only one of the factors to
be taken into account by the Court in exercising it's discretion as to whether
the amendment was to be allowed or refused, and it did not affect the power of
the Court to allow the amendment if the amendment is required in the interest of
justice.  He also contended that Art.113 of the Limitation Act, 1963 has no
application and the contentions of the respondents that it applies, is not
tenable. 
He relied on L.J.Leach and Co. Ltd., and Another Vs. Messrs Jairdine
Skinner and Co.,1, South Konkan Distilleries and Another v. Prabhakar Gajanan
Naik and Others2 and Pankaja and Another Vs. Yellapa (D) by L.Rs. and Others3, 
Sampath Kumar v. Ayyakannu and another4, Chander Kanta Bansal v. Rajinder Singh   
Anand5, Rajkumar Gurawara (dead) through LRs v. S.K.Sarwagi and Company Pvt.    
Ltd.6 He contended that even if the said plea is tenable, there is no absolute
rule that in every case where relief is barred because of limitation, amendment
should not be allowed and it is always open to the Court to allow the amendment
to serve the ultimate cause of justice and to avoid further litigation.  He also
contended that the Court should not go into the correctness or falsehood of the
case pleaded in the amendment application nor record any finding about it's
merits, at the time of considering an application for amendment. He pleaded that
Courts should take notice of subsequent events in order to shorten the
litigation.
He relied on Rajesh Kumar Agarwal and Others Vs. K.K.Modi and
Others7.
18. The learned counsel for the respondents on the other hand contended that the
Court below had rightly dismissed the application for amendment of the plaint;
that 1st petitioner was aware of the land acquisition proceedings as can be seen
from the averments made in para 5 in page 5 of the plaint and the petitioners
should have made enquiries and ascertained the details of the land acquisition
proceedings and then filed the suit.  He also pleaded that respondents had no
obligation or duty to disclose that petitioners have interest in land to the
acquisition authorities. He contended that  and as the petitioners had not acted
with due diligence, proviso to Or VI R.17 CPC would be attracted and therefore
the order of the trail court dismissing the I.A does not warrant any
interference in this Revision Petition.  He relied upon Rajkumar Gurawara (6
Supra), Vidyabai and Others Vs. Padmalatha and Another8, Van Vibhag Karamchari   
Griha Nirman Sahakari Sanstha Maryadit (Regd) Vs. Ramesh Chander and Others9,    
J.Samuel and Others Vs. Gattu Mahesh and Others10,  Harish Chandra Bajpai v.  
Triloki Singh and Another 11and Ramoji Rao and Another Vs. M.A.E.Kumar Krishan   
Varma and Another12. He also relied on T.Bai Ammal v. T.Sampath13 and Sat Bhan   
singh v. Mahipat singh14 to contend that Art.113 of the Limitation Act, 1963
would apply.
19. I have noted the submissions of both sides.
20. The crucial question in the present case is
whether the petitioners were
able to establish that inspite of "due diligence", they could not have raised
the issues now raised in the amendment application before the commencement of  
trial, since they are seeking amendment of the plaint after the trial has
commenced.   
21. From the facts narrated above, it is clear that the suit is filed in the
year 2004; written statement was filed by the respondent in 2005; issues were
framed in 2006 and on 12-09-2007, affidavit in lieu of chief examination had
been filed by P.W.1 on behalf of the petitioners. Thus there is no dispute that
the trial had commenced by the time the I.A.1009/2013 was filed.  It is also
clear that prior to filing of I.A.No.1009 of 2013, the petitioners had filed
I.A.No.405 of 2009 seeking amendment of the plaint in respect of the extent and
I.A.No.269 of 2011, in respect of door number and boundaries of the plaint
schedule property and these applications were allowed.
22. It is also true that in the plaint at para-5 in page-5, it is stated by 1st
petitioner/original plaintiff as under:
"While so, prior to the issuance of notice to Smt. Marium Begum the plaintiffs
were informed through reliable sources that some land acquisition proceedings
were going on Birla Planetarium authorities acquired some part of the land for
the purpose of road widening, by taking notice of the above events through
reliable sources the plaintiffs herein were constrained to issue a legal notice
to Birla Planetariums authorities on
08-07-2004 etc.........."
23. Order VI Rule 17 CPC states as follows:
"17. Amendment of pleadings:  The Court may at any stage of the proceedings 
allow either party to alter or amend his pleadings in such manner and on such
terms as may be just, and all such amendments shall be made as may be necessary   
for the purpose of determining the real questions in controversy between the
parties:
Provided that no application for amendment shall be allowed after the trial has
commenced, unless the Court comes to the conclusion that is spite of due
diligence, the party could not have raised the matter before the commencement of
trial."
24. In Raj Kumar Gurawara (6 supra), the Apex Court considered this provision
and held that  it confers jurisdiction on the Court to allow either party to
alter or amend his pleadings at any stage of the proceedings and on such terms
as may be just, provided such amendment seeks determination of the real question
and controversy between the parties; that pre-trial amendments are to be allowed
more liberally than those amendments sought to be made after commencement of the  
trial; since the opposite party would not be prejudiced if an amendment were to
be allowed before the commencement of the trial, and he would have an
opportunity of meeting the amendment sought to be made, pre-trial amendments
would normally be allowed liberally; but if amendments are allowed after
commencement of the trial, normally prejudice may be caused to the opposite
party, and that is why post-trial amendments are restricted unless they satisfy
the conditions prescribed in the proviso.
25. In Vidyabai (8 supra), it was held that for the purpose of proviso to Order
VI Rule 17 CPC, the trial is deemed to have commenced on the date of the issues
were framed.  This decision was followed by this Court in Ramoji Rao (12 supra).
26. In J.Samuel (10 supra), considering the proviso to Order VI Rule 17 CPC, the
Supreme Court held that no application for amendment shall be allowed after the
trial has commenced, unless the Court has come to the conclusion that in spite
of due diligence, the party could not raise the matter before the commencement
of the trial.  It held that due diligence is the idea that reasonable
investigation is necessary before certain kinds of relief are requested and duly
diligent efforts are a requirement for a party seeking to use the adjudicatory
mechanism to attain the anticipated relief.  It held that due diligence is a
critical factor to be considered in determining whether or not an amendment
sought after commencement of trial is to be allowed.
27. From the facts narrated above, it is no doubt true that petitioners had
mentioned in the plaint that they had information through reliable sources that
"some" land acquisition proceedings were going on at the instance of the Birla
Planetarium authorities in respect of part of the plaint schedule properties for
the purpose of road widening and that they had issued a legal notice to the
Birla Planetarium authorities on 08-07-2004.  The petitioners had also filed a
copy of the said notice and also mentioned about it in the plaint.  In the said
notice, petitioners had requested the Birla Planetarium to pay compensation.
28. It is not the case of the respondents that in the notification issued under
section 4 of the Land Acquisition Act, 1894, the names of petitioners were
mentioned. It is also not their case that a notice under Section 9 had been
issued to the petitioners to appear in the proceedings for determination of
compensation under Section 11 of the Act or that a notice was given to them of
passing of the award under Section 12 of the Act.  It has also not been stated
by the respondents that the information regarding the details of the acquisition
were furnished to her by the Birla Planetarium authorities in response to the
notice dt.08-07-2004 issued by her.
29. In the counter filed by the respondents in para 6, it is categorically
stated by them that initially possession of the land was taken without any
proceedings under the Land Acquisition Act, 1894 and that the notification under
Section 4 (1) of the said Act had been issued by the GHMC in the year 2005 after
the litigation in C.R.P.Nos.6886 and 6994 of 2003 in E.P.No.4 of 1983 in
O.S.No.75 of 1965.  When the notification under Section 4 (1) of the Act itself
was issued in the year 2005 in respect of the acquired land and there is no
evidence to show that the said notification mentioned the name of   petitioners,
it is absurd in my opinion to expect the petitioners to give the details of all
these proceedings, which occurred after the issuance of notification under
Section 4 (1) of the Act in the year 2005, in a plaint which was filed in the
year 2004.  In my opinion, the Court below ignored these pleadings of the
respondents and practically placed an impossible burden on the petitioners to
discharge.
30. Admittedly, the two awards fixing the compensation in respect of lands
acquired under the above notification were passed on 06-02-2006 and 18-05-2009
after the framing of the issues by the trial Court.  It is not the case of the
respondents that in the written statement filed by them in 2005 in the present
suit, they had given any details about the acquisition proceedings to enable the
petitioners to know about them.  Therefore to expect the petitioners to have
details at the time of filing of the suit or at any rate prior to the framing of
the issues, is asking them to do the impossible.  The law does not impose such
an impossible obligation on a party. Without having any information even as
regards the date of acquisition of the property, to expect the petitioners to
mention the details about the  notification, awards or the O.Ps filed by
respondents, would not be fair. It would not also be possible for the
petitioners to get this information in the office of the Municipal Corporation
of Hyderabad either, as they would not furnish it to them. It would be like
asking the petitioners to look for a needle in a haystack.
31. It is also pertinent to note that proceedings in the suit had been stayed in
C.R.P.No.3472 of 2011 (filed by petitioners challenging the order of the Court
below dt.28-07-2011 asking them to pay certain amount as the deficit Court Fee)
and the said Revision was allowed only on 15-07-2013.  After securing the
details relating to the awards passed and the O.Ps filed, petitioners have filed
the application for amendment on 20-09-2013.  In the affidavit filed in support
of this application, it is specifically stated that petitioners were not aware
of these details prior to the commencement of the trial.  I see no reason to
disbelieve the said plea of the petitioners.  The mere fact that there was a
mention about acquisition proceedings in the plaint cannot be construed as
indicative of the petitioners having full knowledge about all the facts relating
to the acquisition at the time of filing of the suit or prior to the
commencement of the trial, without either the Municipal Corporation or the Birla
Planetarium or the respondents issuing any notice to them or informing them
about the details of the acquisition or about the awards determining
compensation. 
32. Considering the facts set out supra, I am fully satisfied that the
petitioners had established that in spite of due diligence they could not have
raised these matters before the commencement of trial.  Therefore the bar of
proviso to Or VI R.17 CPC is not attracted.
33. It is pertinent to note that the trial Court, in spite of the issue of bar
of limitation having been raised by the respondents, did not deal with it in the
impugned order.
34. While the petitioners assert that the proposed amendments do not attract the
bar of limitation, the respondents assert that they are barred. There is some
controversy whether Art.113 of the Limitation Act, 1963 is attracted or
Art.64/65 of the said Act.
35. As regards the plea of limitation, in L.J.Leach and Co. Ltd (1 supra), cited
by Counsel for the petitioners, a 4 Judge Bench of the  Supreme Court held:
"16. It is no doubt true that courts would, as a rule, decline to allow
amendments, if a fresh suit on the amended claim would be barred by limitation
on the date of the application. But that is a factor to be taken into account in
exercise of the discretion as to whether amendment should be ordered, and does
not affect the power of the court to order it, if that is required in the
interests of justice."
36. In South Konkan Distilleries (2 supra), also cited by Counsel for the
petitioners, the Court reiterated this principle and held that where the
amendment was barred by time or not was a disputed question of fact,  prayer for
amendment could not be rejected and in those circumstances, the issue of
limitation can be made an issue in the suit itself. It observed:
         "14. From the above, therefore, one of the cardinal principles of law
in allowing or rejecting an application for amendment of the pleading is that
the courts generally, as a rule, decline to allow amendments, if a fresh suit on
the amended claim would be barred by limitation on the date of filing of the
application. But that would be a factor to be taken into account in the exercise
of the discretion as to whether the amendment should be ordered, and does not
affect the power of the court to order it, if that is required in the interest
of justice.
15. In Ragu Thilak D. John v. S. Rayappan
((2001) 2 S.C.C. 472) this Court also observed that where the amendment was
barred by time or not, was a disputed question of fact and, therefore, that
prayer for amendment could not be rejected and in that circumstances the issue
of limitation can be made an issue in the suit itself. In a decision in
Vishwambhar v. Laxminarayan ((2001) 6 S.C.C. 163,  this Court held that the
amendment though properly made cannot relate back to the date of filing of the
suit, but to the date of filing of the application. Again, in Vineet Kumar v.
Mangal Sain Wadhera (AIR 1985 S.C. 817) this Court held that if a prayer for
amendment merely adds to facts already on record, the amendment would be allowed
even after statutory period of limitation."(emphasis supplied)
37. In Pankaja (3 supra), cited by Counsel for the petitioners also the Supreme
Court held:
"17. Factually in this case, in regard to the stand of the defendants that the
declaration sought by the appellants is barred by limitation, there is dispute
and it is not an admitted fact. While the learned counsel for the defendant-
respondents pleaded that under Entry 58 of the Schedule to the Limitation Act,
the declaration sought for by the appellants in this case ought to have been
done within 3 years when the right to sue first accrued, the appellant-plaintiff
contends that the same does not fall under the said entry but falls under Entry
64 or 65 of the said Schedule of the Limitation Act which provides for a
limitation of 12 years, therefore, according to them the prayer for declaration
of title is not barred by limitation, therefore, both the courts below have
seriously erred in not considering this question before rejecting the prayer for
amendment. In such a situation where there is a dispute as to the bar of
limitation this Court in the case of Ragu Thilak D. John v. S. Rayappan ((2001)2
S.C.C 472) has held:
"The amendment sought could not be declined. The dominant purpose of allowing
the amendment is to minimise the litigation. The plea that the relief sought by
way of amendment was barred by time is arguable 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."
18. We think that the course adopted by this Court in Ragu Thilak D. John case
((2001)2 S.C.C 472) applies appropriately to the facts of this case. The courts
below have proceeded on an assumption that the amendment sought for by the
appellants is ipso facto barred by the law of limitation and amounts to
introduction of different relief than what the plaintiff had asked for in the
original plaint. We do not agree with the courts below that the amendment sought
for by the plaintiff introduces a different relief so as to bar the grant of
prayer for amendment, necessary factual basis has already been laid down in the
plaint in regard to the title which, of course, was denied by the respondent in
his written statement which will be an issue to be decided in a trial.
Therefore, in the facts of this case, it will be incorrect to come to the
conclusion that by the amendment the plaintiff will be introducing a different
relief."                         (emphasis supplied)
38. In Sampath Kumar (4 supra), the amendment of the plaint was sought prior to
the commencement of trial.  Therefore, the said decision cited by the counsel
for petitioners, is not applicable to the present case.  In Chander Kanta Bansal
(5 supra), cited by the counsel for the petitioners, the Supreme Court held that
the proviso to Order VI Rule 17 only limits the scope of jurisdiction of the
court to permit amendment of pleadings after the commencement of the trial and
the proviso does not create an absolute bar or shut out the entertaining of an
application for amendment, post commencement of trial, but only permits it to be
allowed if the party seeking amendment shows that, in spite of due diligence, he
could not raise the plea previously.  In Rajesh Kumar Agarwal and others (7
supra), the Supreme Court held that the Court should not go into the correctness
or falsehood of the case set up in the amendment, nor record a finding on the
case set up in the amendment, at the time of considering an application for
amendment.
39. In Van Vibhag Karamchari Griha Nirman Sahakari Sanstha Maryadit (Regd.) (9
supra), cited by the counsel for respondents, the Supreme Court held that an
amendment of the plaint in a suit for declaration of title and injunction by
seeking the relief of specific performance cannot be granted after a lapse of
eleven years, and such amendment cannot be allowed in view of the bar of
limitation under Article 54 of the Limitation Act.  In that case, on the facts,
the court found that inclusion of the plea of specific performance by way of
amendment virtually altered the character of the suit also and as the said
relief was not sought in the plaint when originally filed, it would amount to
relinquishment of that relief since the cause of action to claim specific
performance was available on the date of filing of the suit itself.  The facts
of the said case are totally different from the present case.  Moreover, the
two-Judge Bench of the Supreme Court in that case cannot be said to have
dissented from the four-Judge Bench decision of the said Court in L.J. Leach and
Co. Ltd. (1 supra), which had taken a view that a Court is not bound to reject
an application for amendment if a fresh suit on the amended claim would be
barred by limitation.
40. The decision in Harish Chandra Bajpai (11 supra), cited by the counsel for
the respondents, also does not apply to the present case because the said case
dealt with amendment to an election petition under the Representation of The
People Act, 1951, where admittedly the law is particularly strict when compared
to ordinary civil suits.  On the facts of that case, there was also a finding by
the court that no explanation was given why application for amendment was made
after long delay and why the new allegations were not made in the original
petition.  Therefore, the said decision is clearly distinguishable.
41. Therefore, in view of the above decisions, merely because it is contended by
the respondents that the suit on the amended claim would be barred by
limitation, the application for amendment of the plaint cannot be rejected.  In
the present case, there is a dispute as to whether the claim sought to be made
by way of amendment is barred by limitation or not.  Therefore, the Court below
can frame an issue on the point of bar of limitation to grant the said relief in
the suit and then decide it.
42. I am also of the opinion that the decisions in T. Bai Ammal (13 supra) and
Sat Bhan Singh (14 supra), cited by the counsel for the respondents which held
that Article 113 of the Limitation Act, 1963 is attracted, need not be
considered in this Revision. The court below, after allowing the amendment
sought by the petitioners, and after allowing the respondents to file additional
written statement, shall frame an issue on the point of bar of limitation of the
relief claimed by the petitioners, and then decide it keeping in view the
circumstances in which the amendment had been sought by the petitioners and  
Section 17 of the Limitation Act, 1963.
43. The petitioners have also sought to amend the plaint by adding a relief
claiming 7/14th share in mesne profits for alleged illegal use and occupation of
the suit schedule property by the defendants and for deriving rents from the
commercial portion of the suit schedule property by letting it out to a hotel by
name "Sukh Sagar" at the rate of Rs.1,00,000/-. The trial court did not advert
to this at all in it's order. In the counter filed by  respondents, they have
merely denied the allegation that they had let out the non-residential portion
of the plaint schedule property to the Hotel "Sukh Sagar" on a monthly rent of
Rs.1,00,000/-.  While it is true that the petitioners have not stated in their
application when they came to know about the alleged letting out of the
commercial portion of the suit schedule property to the said Hotel, the
respondents have also not pleaded that the petitioners were aware of the said
fact by the date of filing of the suit.  As stated supra, their plea is one of
total denial.  In this view of the matter, I am inclined to hold that the
application for amendment of the plaint claiming the further relief as to share
in rents/mesne profits  can also be allowed. Like in the case of the first
relief sought by petitioners, the court below shall frame an issue as to bar of
limitation for claiming this relief also, after the respondents file additional
written statement.
44. For the above reasons, Civil Revision Petition is allowed and the order
dt.05-10-2013 in I.A.No.1009 of 2013 in O.S.No.450 of 2004 is set aside and
I.A.No.1009 of 2013 is allowed subject to the above directions.  As the suit is
an old suit of the year 2000, endeavour shall be made by the trial Court to
dispose it of as expeditiously as possible preferably within a period of six
months from the date of receipt of a copy of this order.  No costs.
45. As a sequel, the miscellaneous petitions, if any pending, shall stand
closed.
__________________________________    
JUSTICE M.S.RAMACHANDRA RAO        
Date: 03-01-2014