Holding

The amendment of the plaint was refused as it would defeat a right that had vested by limitation, and the appeal was dismissed.

Summary

The appellant filed a partition suit in 1988, after which the respondents claimed ownership of the property by virtue of a gift deed executed and registered in 1978. In 1992 the appellant sought to amend the plaint under Order 6 Rule 17 of the CPC to obtain a declaration that the gift deed was fraudulent and therefore ineffective. The trial court allowed the amendment, but the Patna High Court set it aside, holding that the respondents' right had vested by limitation and could not be taken away by amendment. On appeal, the Supreme Court affirmed the High Court, observing that amendment is ordinarily refused when it would extinguish a right that has accrued by lapse of time, and that the present amendment was not merely clarificatory but sought to defeat an accrued right. Consequently, the appeal was dismissed without costs.

Issues considered

Whether an amendment of the plaint under Order 6 Rule 17 can be allowed when it seeks to set aside a right that has vested by operation of the limitation period.
Whether the limitation period bars the appellant's declaration that the 1978 gift deed is fraudulent and ineffective.
Whether the proposed amendment merely clarifies the existing pleading or introduces fresh allegations/relief that would affect the respondents' accrued rights.

Legislation cited

Code of Civil Procedure, 1908s. Order 6 Rule 17

Subjects

amendment of plaintlimitationbar of limitationgift deedpartition suitcivil procedureOrder 6 Rule 17accrued rightsclarificatory pleading

Judgment

(
A RADHIKA DEVI
v.
BAJRANGI SINGH AND ORS.

JANUARY 18, 1996

B [K. RAMASWAMY AND G.B. PATIANAIK, JJ.]

Code of Civil Procedure 1908 :

Order 6 Rule 17-Ame11dme11t of plai11t-Pa1ty acquires right by bar of
C limitation-ff it is solight to be taken away by amendme11t of the pleading,
such amendment should be refused.

Laxmidas Dahyabhai Kabmwala v. Nanabhai Chunilal Kaba1wala,
[1964] 2 SCR 567, held applicable.
•
D CIVIL APPELLATE JURISDICTION: Civil Appeal No. 27l9 of
1996.

From the Judgment and Order dated 13.8.93 of the Patna High Court
in C.R. No. 1657 of 1992.

S.K. Sinha for the. Appellant.
E
S.B. Sanyal, Anil K. Jha and Mrs. Alka Jha for the Respondents.

The following Order of the Court was delivered :

We have heard learned counsel for both sides.
F
Leave granted.

The appellant has instituted Partition Suit No. 24/88 in the Court of
Subordinate Judge, Aurangabad for partition of certain properties.
Respondents 16 to 20 herein filed written statement on June 15, 1988
G wherein they pleaded that Ramdeo· Singh had executed and registered a
gift deed in their favour on July 28, 1978 bequeathing the properties
,.. .
covered thereunder. They became owners of those lands and the appellant'
is bound by the same. Pending the suit, the appellant filed an application
under Order 6 Rule 17, CPC on November 11, 1992 seeking declaration
H that the gift deed was obtained by the respondents illegally and fraudulently
768
RADHIKADEV!v. BAIRANGISINGH 769

and, therefore, it was ineffective and does not bind the appellant. Though A

- the trial Court by order dated November 24, 1992 allowed the petition, the
High Court in Revision No. 1657/92 by order dated August 13, 1993
allowed the petition and set aside the order directing amendment of the
plaint. Thus, this appeal by special leave.

Shri S.K. Sinha, learned counsel for the appellant has contended that
B
the appellant had no knowledge of the execution of the gift deed by
t
Ramdeo Singh and by the amendment of the plaint, the appellant is not
defeating the right of the respondents but is merely ~eeking to avoid the
gift deed executed which was detrimental to appellant's right, title and
interest in the property. Therefore, the amendment does not alter either c
the character of the suit or the nature and the relief already sought, viz.,
partition of the property. Shri Sanyal, the learned senior counsel for the
respondents, contended that the appellant< had lost the right to seek the
above declaration as being barred by limitation. The registration of the
document is a notice to everyone claiming any right, title and interest D
therein; even otherwise, the respondents in the written statement filed on
June 15, 1988 has specifically pleaded about the gift being made by Ram-
deo Singh in their favour. Despite that, the appellant had not taken any
steps till November 1992 by which time even the suit for declaration within
the limitation of three years from the date of knowledge had got time-
barred. Therefore, the appellant is not entitled to amend the plaint which E
would prejudicially affect the rights of the respondents.

We find no force in the contention of the appellant. No doubt, the
amendment of the plaint is normally granted and only in exceptional cases
where the accrued rights are taken away by amendment of the pleading, F
the Ceurt would refuse the amendment. This Court in Laxmidas Dahyabhai
Kaba1wala v. Nanabhai Chwzilal Kabarwala, [(1964) 2 SCR 567 at 582] held
thus:

It is, no doubt, true that, save in exceptional cases, leave to amend
11

under 0.6, r.17 of the Code will ordinarily be refused when the G
effect of the amendment would be to take away from a party a
legal right which had accrued to him bay lapse of time. But this
rule can apply only when either fresh allegations added or fresh
reliefs sought by way of amendment. Where, for instance, an
amendment is sought which merely clarifies an existing pleading H
(

(
770 SUPREME COURT REPORTS

A and does not in substance add to or alter it, it has never been held
that the question of a bar of limitation is one of the questions to
be considered in allowing such clarification of a matter already
contained in the original pleading. The present is a fortiori so. The
defendants here were not seeking lo add any allegation nor to claim
any fresh relief which they had prayed for in the pleading already
B
filed."

In that case this Court considered the cross-objections to be treated
as a cross suit since no alteration was being made in the written statement
to treat it was a plaint originally instituted. The amendment which was
C ~ough'.: tv be made was treated to be clarificatory and, therefore, this Court
had upheld the amendment of the written statement and trnated it to be a
cross suit. The ratio therein squarely applies to a fact situation where the
party acquires right by bar of limitation and if the same is sought to be
taken away by amendment of the pleading, amendment in snch circumstan-
ces would be refused. In .the present case, the gift deed was executed and
D registered as early as July 28, 1978 which is a notice; to everyone. Even after
filing of the written statement, for 3 years no steps were taken' to file the
application for amendment of the plaint. Thereby the accrued right in
favour of the respondents would be defeated by permitting amendment of
the plaint. The High Court, therefore, was right in refusing to grant
E · permission to amend the plaint.
The appeal is accordingly dismissed but without costs.

G.N. Appeal dismissed.