Case Note & Summary
The petitioner, Nitesh Suresh Jain, original plaintiff, filed Special Civil Suit No. 73 of 2014 against the Jalgaon City Municipal Corporation seeking declaration of ownership and permanent injunction in respect of a property. During the pendency of the suit, the plaintiff filed applications at Exhibits 28, 29, and 30 seeking amendment of the plaint to incorporate a plea of adverse possession and to correct certain descriptions. The 5th Joint Civil Judge (Senior Division), Jalgaon, by order dated 19th August 2017, rejected the applications on two grounds: first, that the trial had commenced as issues were framed, and second, that the amendment was barred by limitation. The plaintiff challenged this order by way of writ petition before the Bombay High Court, Aurangabad Bench. The High Court examined the record and found that although issues were framed on 30th June 2017, the trial had not actually commenced as no evidence had been led. The court held that the amendment was necessary for the determination of the real controversy between the parties and that the question of limitation was a mixed question of law and fact which could not be decided at the stage of amendment. The High Court allowed the writ petition, set aside the impugned order, and permitted the plaintiff to amend the plaint subject to payment of costs of Rs. 5,000 to the defendant. The court directed the trial court to expedite the suit and dispose it of within one year.
Headnote
A) Civil Procedure Code - Amendment of Pleadings - Order VI Rule 17 CPC - Commencement of Trial - The trial court rejected the plaintiff's amendment application holding that trial had commenced and the amendment was barred by limitation. The High Court held that the trial had not commenced as issues were framed but evidence was not yet led, and the amendment sought to incorporate a plea of adverse possession which was necessary for determination of the real controversy. The court allowed the amendment subject to payment of costs. (Paras 1-10) B) Civil Procedure Code - Amendment of Pleadings - Order VI Rule 17 CPC - Limitation - The trial court rejected the amendment on the ground that the plea of adverse possession was barred by limitation. The High Court held that the question of limitation is a mixed question of law and fact and cannot be decided at the stage of amendment. The amendment was allowed. (Paras 7-9) C) Civil Procedure Code - Rejection of Plaint - Order VII Rule 11 CPC - The trial court rejected the plaint under Order VII Rule 11(d) CPC on the ground that the suit was barred by limitation. The High Court set aside the order, holding that the question of limitation requires trial and cannot be decided summarily. (Paras 8-9)
Issue of Consideration
Whether the trial court was justified in rejecting the plaintiff's application for amendment of the plaint on the ground that the amendment was barred by limitation and that the trial had commenced.
Final Decision
Writ petition allowed. Impugned order set aside. Petitioner permitted to amend plaint subject to payment of Rs. 5,000 costs to respondent. Trial court to expedite suit and dispose within one year.
Law Points
- Amendment of pleadings
- Order VI Rule 17 CPC
- commencement of trial
- due diligence
- limitation for amendment
- rejection of plaint
- Order VII Rule 11 CPC
