Case Note & Summary
The dispute arose from a partition suit filed by the appellant in the Court of Subordinate Judge, Aurangabad, seeking partition of certain properties. During the suit, respondents 16 to 20 filed a written statement on June 15, 1988, pleading that a gift deed dated July 28, 1978 had been executed and registered by Ramdeo Singh in their favour, making them owners of the lands. The appellant subsequently filed an application under Order 6 Rule 17 of the Code of Civil Procedure, 1908 on November 11, 1992, seeking to amend the plaint to declare that the gift deed was obtained illegally and fraudulently and therefore ineffective. The trial court allowed the amendment on November 24, 1992, but the High Court in Revision No. 1657/92 set aside that order on August 13, 1993, holding that the declaration was barred by limitation. The appellant contended that she had no knowledge of the gift deed and that the amendment did not change the nature of the suit or the relief sought, namely partition. The respondents argued that the appellant lost the right to seek the declaration due to limitation, as the registered gift deed constituted notice to all, and despite the written statement filed in 1988, no steps were taken until 1992. The Supreme Court referred to Laxmidas Dahyabhai Kabarwala v. Nunabhai Chunilal Kabarwala, (1964) 2 SCR 567, which held that leave to amend should ordinarily be refused when the amendment would take away a legal right accrued by lapse of time, except where the amendment merely clarifies existing pleading without adding new allegations or reliefs. The Court found that the gift deed was executed and registered as early as July 28, 1978, which served as notice to everyone, and that even after the written statement was filed, no steps were taken for three years. Therefore, permitting the amendment would defeat the accrued right in favour of the respondents. The Supreme Court held that the High Court was right in refusing permission to amend the plaint and dismissed the appeal without costs.
Headnote
A) Civil Procedure - Amendment of Pleadings - Order 6 Rule 17 Code of Civil Procedure, 1908 - Accrued Right by Limitation - In a partition suit, appellant sought to amend the plaint to declare a registered gift deed fraudulent after the limitation period had expired; the amendment would defeat respondents' accrued right. The High Court's refusal was upheld, as amendment which takes away a legal right accrued by lapse of time should ordinarily be refused unless merely clarificatory and not adding fresh allegations or reliefs (Paras 1-2).
Issue of Consideration
Whether the High Court was right in setting aside the trial court's order allowing the amendment of the plaint to seek a declaration that the gift deed was obtained by fraud, when such declaration was barred by limitation
Final Decision
Appeal dismissed without costs. The High Court's refusal to permit amendment of the plaint was upheld.
Law Points
- Amendment of plaint under Order 6 Rule 17 CPC
- accrued right by limitation
- registered gift deed as notice
- clarificatory amendment exception
