Plaintiff sought to amend a declaration and injunction suit to claim preferential purchase rights over sold land under Section 22 Hindu Succession Act. Trial court dismissed the amendment application as barred by limitation and changing the suit's nature. The High Court upheld dismissal, holding time-barred amendments cannot be allowed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
2024:HHC:3200
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CMPMO No. 114 of 2024 Reserved on : 23.05.2024 Date of decision :10.06.2024
Vijay Kumar
....Petitioner/Plaintiff
Versus
Rattan Lal & another
....Respondents/Defendants
Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting? Yes
For the Petitioner : Mr. Tara Singh Chauhan, Advocate. For the Respondents : Mr. Dheeraj Thakur, Advocate.
Rakesh Kainthla,Judge
The present petition is directed against the order dated
07.12.2023, passed by learned Civil Judge, Court No.II, Ghumarwin, H.P., vide which an application under Order 6 Rule 17 of the Code of Civil Procedure (CPC) filed by the petitioner (plaintiff before the learned Trial Court) was dismissed. ( Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience ).
_________________________ 1. Whether reporters of the local papers may be allowed to see the judgment? Yes
2
3
plaintiff not being entitled to preferential rights. The contents of the application were admitted to the extent that Pohlo Ram was the owner of the suit land and the suit land was inherited by all the legal heirs in equal shares. It was asserted that the Sale Deed was executed on 30.08.2016 and the plaintiff did not plead the preferential rights under Section 22 of the Hindu Succession Act, 1956. The plaintiff started raising a structure over the suit land to deprive defendant no.3 of his valuable rights over the suit land. The proposed amendment is not necessary and will change the nature of the suit. The application was barred by limitation. Hence, it was prayed that the same be dismissed.
4 A rejoinder denying the contents of the reply and affirming those of the application was filed.
4
5
626 and Mohinder Kumar Mehra Vs. Roop Rani Mehra and Ors. AIR 2017 SC 5822 in support of his submission.
15. Having heard the counsel for the parties, we are clearly of
the view that the impugned order [ Prakash Chand Goel v. Garment Craft , 2019 SCC OnLine Del 11943 ] is contrary to
6
law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, or reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal. [ Celina Coelho Pereira v. Ulhas Mahabaleshwar Kholkar, (2010) 1 SCC 217: (2010) 1 SCC (Civ) 69 ] The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice.
16. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd. [Estralla Rubber v. Dass Estate (P) Ltd., (2001) 8 SCC 97 ] has observed: (SCC pp. 101-102, para 6)
“ 6 . The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of
7
duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this Article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to.”
30.08.2016. The application for amendment was filed on 21.02.2019, after the lapse of more than 2½ years. Article 97 of the Limitation Act, provides one year for filing the suit to claim a preferential right under Section 22 of the Hindu Succession Act; hence, the suit for claiming the preferential right would have been barred on the date of filing the application.
Prano Devi , (2008) 15 SCC 610 , wherein an application for amendment claiming a preferential rights of pre-emption under Section 22 of the Hindu Succession Act was filed after 13 years of filing the suit. The Hon’ble Supreme Court held that a civil suit claiming such right would be barred after 13 years and an
8
amendment could not be sought after the lapse of 13 years. It was observed:
12. A right claiming preference over a property in terms of a statute ordinarily is a weak right.
13. The Limitation Act, 1963, by Article 97, provides for one year's limitation for claiming such a right. The suit was filed in the year 1990. The sale deeds, during the pendency of the suit, were executed on 8-6-1990 and 186-1990. The application for amendment was filed 13 years after the filing of the suit. A suit claiming preferential rights was required to be filed ordinarily within the prescribed period of limitation.
16. In T.N. Alloy Foundry Co. Ltd. v. T.N. Electricity Board [(2004) 3 SCC 392] this Court upon taking into consideration its earlier decisions in L.J. Leach and Co. Ltd. v. Jardine Skinner and Co. [AIR 1957 SC 357: 1957 SCR 438] held that as a rule, the court will decline to allow an amendment for a fresh suit on the amended claim if it had become barred by limitation on the date of application. (See also State Bank of Hyderabad v. Town Municipal Council [(2007) 1 SCC 765 : (2006) 13 Scale 332]
17. In Bhola Nath Rastogi v. Santosh Prakash Arya [AIR 1975 Pat 336 ] L.M. Sharma, J. (as the learned Chief Justice of India then was), opined: (AIR pp. 338-39, paras 8-9)
“ 8 . … The general rule of survivorship applying to Hindu Mitakshara families still holds good subject of course to cases which are covered by the provisions of Section 6 of the Act. The provision of proviso to Section 6 will be applicable only to such cases where the deceased left behind him surviving a female relative specified in Class I of the Schedule or a male relative specified in that Class who claims through such female relatives. It is not suggested by the appellants in the present case that Dhanu Lal died
9
leaving behind any heir other than his two sons. I am, therefore, of the opinion that the proviso to Section 6 does not apply to the present case so as to defeat the rule of survivorship being applied to the parties. When Dhanu Lal died, his two sons took the entire interest by survivorship and as is admittedly the case now there has been separation between the two sons before the sale deed by Defendants 25 to 28 was executed. Defendant 1 or his sons, therefore, cannot be permitted to invoke the benefit of Section 22 of the Act.
9 . There appears to be another difficulty in the way of the appellants in raising this question. Sub-section (2) of Section 22 of the Hindu Succession Act indicates that a party can enforce a right of pre-emption by making an application to that effect in a court which has been explained in the Explanation to this section. If a party intending to take the benefit of the right given under Section 22(1), files an application, the court has to determine the amount of consideration for the intended transfer and the party is again given an option to get such a transfer from the co-sharer on such consideration or to refuse the same. If the party declines to purchase the property for the same amount, he has to bear the cost of the proceeding. No such application has ever been filed by any of the parties anywhere. This plea was not even raised in the court below. It was for the first time in this appeal that the appellants have raised this point. Even in this Court, no application has been filed for enforcement of such a right. In these circumstances, the plea has to be rejected.”
18. In Muralidhar Das v. Bansidhar Das [AIR 1986 Ori 119] upon taking into consideration the decisions of the Calcutta and Kerala High Courts, the High Court stated the law in the following terms: (AIR p. 121, para 3)
10
“ 3 . Sub-section (2) provides for determination of consideration when there is a difference between the parties, namely, the one intending to acquire and the other proposing to transfer. The provision does not go any further. Section 22 does not lay down any other procedure. The scope of the application is limited hence the jurisdiction of the court. The section does not lay down the procedure for the enforcement of the right conferred under subsection (1). Only one aspect of the controversies that might arise pursuant to the right conferred by subsection (1) has been taken care of and no other. The provision being clear and categorical and there being no ambiguity in it, it is not open to the Court to so interpret the provision which would amount to legislating on its part. Ordinarily, the courts do not make law but interpret it.”
19. The decision of the Kerala High Court also provides for a right upon a co-sharer to file a suit for enforcing such a right, stating: ( Subhadra Devi case [AIR 1976 Ker 19 ], AIR p. 21 para 6)
“ 6 . …The object of sub-section (1) as we understand it is that in cases where by intestate succession under the Act any interest in immovable property has devolved upon two or more heirs specified in Class I of the Schedule and any one of such heirs proposes to transfer his interest in the property the other heirs should have a preferential right to acquire the interest which is so proposed to be transferred. The said intention of Parliament can be effectuated only if we consider the section as conferring an enforceable right on the heirs other than the one who proposes to transfer his interest. The section confers on such coheirs a preferential right to acquire the interest which is proposed to be transferred by the other co-heirs. In case the proposed transfer is effected by one of the
11
co-heirs in violation of the right conferred on his coheirs by sub-section (1) the latter cannot certainly be without a remedy because every legal right must necessarily carry with it a remedy for enforcing the same. The remedy of the non-alienating co-heirs, in such circumstances, will, in our opinion, be to seek the intervention of the Court to enable them to acquire the right which has been transferred away by the other co-heir in violation of sub-section (1) of Section 22. Inasmuch as the section does not provide any special procedure for seeking the said remedy, the ordinary procedure for enforcement of any civil right has to be resorted to by the co-heirs who wish to enforce their rights under Section 22(1); in other words, the remedy is by way of a regular civil suit before the competent court. Where the properties have been already alienated in favour of strangers there is all the more reason why there should be a full and fair adjudication of the entire matter in a suit tried before a competent civil court because various factual questions are bound to arise for determination in such a suit wherein the principal issue would be whether the transfer complained of was effected in violation of sub-section (1) of Section 22. The main purpose of such a suit instituted by the co-heir will necessarily be the enforcement of the right conferred by Section 22(1) of the Act. The question of invalidity of the transfer effected by the other co-heir in favour of strangers becomes relevant in such an action as an incidental matter which has necessarily to be gone into for the purpose of determining whether the plaintiff is entitled to the relief sought by him against his co-heirs in enforcement of the right conferred by Section 22(1).”
20. The only remedy which was, thus, available to the appellant might be to file a suit. But as the same itself being
12
barred by limitation, we are of the opinion that the Court would not exercise its discretionary jurisdiction to allow the amendment of the plaint .” (Emphasis supplied)
violation of the order passed by the Court and the plaintiff had a right to seek an amendment. A similar plea was taken in Ashutosh (supra). It was held that the execution of the sale deeds in violation of the order of injunction would not confer a right upon the plaintiff to seek an amendment. It was observed:
“14. The contention of Mr Pandey that two deeds of sale were executed in violation of the order of injunction and in that view of the matter, the deeds of sale must be held to be invalid in law, in our opinion, cannot be a ground for allowing the amendment of the plaint. If the deeds of sale are held to be bad in law, that would not mean that by reason thereof, the co-sharer of the plaintiff would propose to execute a sale deed giving a cause of action for filing a fresh suit. The plaintiff was required to exercise his right under Section 22 of the Hindu Succession Act within the period prescribed therefor. The said deeds of sale either would be declared valid or invalid. In either way, the appellant cannot take any benefit of the provisions of Section 22 of the Hindu Succession Act.”
Dilboo versus Dhanraji Devi, 2000 (7) SCC 702 , that the registration
of the deed amounts to deemed knowledge and a party cannot be allowed to extend the period of limitation by saying that it had no knowledge. It was observed: -
13
“Whenever a document is registered the date of registration becomes the date of deemed knowledge. In other cases where a fact could be discovered by due diligence then deemed knowledge would be attributed to the plaintiff because a party cannot be allowed to extend the period of limitation by merely claiming that he had no knowledge.
OnLine SC 1128, that when the amendment was barred by limitation it would be declined as a general rule. It was observed: -
29. In Pankaja v. Yellappa (dead) by LRs . , (2004) 6 SCC 415 , this Court held that it was in the discretion of the court to allow an application under Order VI Rule 17 of the CPC seeking amendment of the plaint even where the relief sought to be added by amendment was allegedly barred by limitation. The Court noticed that there was no absolute rule that the amendment in such a case should not be allowed. It was pointed out that the court's discretion in this regard depends on the facts and circumstances of the case and has to be exercised on a judicial evaluation thereof. It would be apposite to notice the observations of this Court in this pronouncement in extenso. The principles were laid down by this Court thus:
“12. So far as the court's jurisdiction to allow an amendment of pleadings is concerned, there can be no two opinions that the same is wide enough to permit amendments even in cases where there has been substantial delay in filing such amendment applications. This Court in numerous cases has held that the dominant purpose of allowing the amendment is to minimise the litigation, therefore, if the facts of the case so permit, it is always open to the court to allow applications in spite of the delay and laches in moving such amendment application.
14
13. But the question for our consideration is whether in cases where the delay has extinguished the right of the party by virtue of the expiry of the period of limitation prescribed in law, can the court in the exercise of its discretion take away the right accrued to another party by allowing such belated amendments.
14. The law in this regard is also quite clear and consistent that there is no absolute rule that in every case where relief is barred because of limitation, an amendment should not be allowed. Discretion in such cases depends on the facts and circumstances of the case. The jurisdiction to allow or not allow an amendment being discretionary, the same will have to be exercised on a judicious evaluation of the facts and circumstances in which the amendment is sought. If the granting of an amendment really subserves the ultimate cause of justice and avoids further litigation the same should be allowed. There can be no straitjacket formula for allowing or disallowing an amendment of pleadings. Each case depends on the factual background of that case.
xxxxxxxxxxxx
16. This view of this Court has, since, been followed by a three-Judge Bench of this Court in the case of T.N. Alloy Foundry Co. Ltd. v. T.N. Electricity Board [(2004) 3 SCC 392] . Therefore, an application for amendment of the pleading should not be disallowed merely because it is opposed on the ground that the same is barred by limitation, on the contrary, the application will have to be considered bearing in mind the discretion that is vested with the court in allowing or disallowing such amendment in the interest of justice.
xxxxxxxxx
18. We think that the course adopted by this Court in Ragu Thilak D. John case [(2001) 2 SCC 472] applies appropriately to the facts of this case. The courts below have proceeded on an assumption that the amendment sought by the appellants is ipso facto barred by the law of
15
limitation and amounts to the 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.”
30. 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.
31. In Ragu Thilak D. John v. S. Rayappan , (2001) 2 SCC 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 like the one made by the High Court in the case on hand.
32. In a decision in Vishwambhar v. Laxminarayan (Dead) through Lrs . , (2001) 6 SCC 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.
16
33. Again, in Vineet Kumar v. Mangal SainWadhera, (1984) 3 SCC 352: AIR 1985 SC 817 , this Court held that if a prayer for amendment merely adds to the facts already on record, the amendment would be allowed even after the statutory period of limitation.
17 . The conclusions were summed up as under: -
70. Our final conclusions may be summed up thus:
(i) Order II Rule 2 CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. The plea of the amendment being barred under Order II Rule 2 CPC is, thus, misconceived and hence negatived.
(ii) All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word “shall”, in the latter part of Order VI Rule 17 of the CPC.
(iii) The prayer for amendment is to be allowed
(i) If the amendment is required for effective and proper adjudication of the controversy between the parties, and
(ii) to avoid multiplicity of proceedings, provided
(b) by the amendment, the parties seeking amendment do
17
not seek to withdraw any clear admission made by the party which confers a right on the other side and
(c) the amendment does not raise a time-barred claim, resulting in the divesting of the other side of a valuable accrued right (in certain situations).
(iv) A prayer for amendment is generally required to be allowed unless
(i) by the amendment, a time-barred claim is sought to be introduced, in which case the fact that the claim would be time-barred becomes a relevant factor for consideration,
(ii) the amendment changes the nature of the suit,
(iii) the prayer for amendment is malafide , or
(iv) by the amendment, the other side loses a valid defence.
(v) In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach and is ordinarily required to be liberal especially where the opposite party can be compensated by costs.
(vi) Where the amendment would enable the court to pinpointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed.
18
(vii) Where the amendment merely sought to introduce an additional or a new approach without introducing a time-barred cause of action, the amendment is liable to be allowed even after the expiry of limitation. (viii) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint.
(ix) Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision.
(x) Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed.
(xi) Where the amendment is sought before the commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in the amendment. As such, where the amendment does not result in irreparable prejudice to the opposite
19
party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed. (See Vijay Gupta v. Gagninder Kr. Gandhi , 2022 SCC OnLine Del 1897 )
Hon’ble Supreme Court that an amendment cannot be allowed when a suit would be barred by limitation on the date of the amendment. In the present case, the amendment was barred by limitation and cannot be allowed.
20
(supra) as well as the judgment rendered in Ashutosh Chaturvedi’s case (supra) on identical facts.
18. We may now take into consideration as to whether the High Court, in the exercise of its power under Article 227 of the Constitution, was justified in rejecting the application for amendment of the plaint, which, in the discretion of the trial court, was allowed. We are of the view that the High Court ought not to have interfered with the order of the trial court when the order of the trial court was passed on sound consideration of law and facts and when it cannot be said that the order of the trial court was either without jurisdiction or perverse or arbitrary.
passed by the learned Trial Court. Hence, the present petition fails and the same is dismissed. Pending miscellaneous applications, if any, also stand disposed of.
21
learned Court below. Parties through their learned Counsel are directed to appear before the learned Trial Court on 25.06.2024
confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.
(Rakesh Kainthla) Judge
10th June , 2024. (Ravinder)
2 issues framed by the court
Whether an amendment to the plaint seeking preferential rights under Section 22 of the Hindu Succession Act can be allowed when such a suit would be barred by limitation on the date of application.
Whether the High Court under Article 227 should interfere with the trial court's dismissal of an amendment application.
Colour shows how this judgement treated each authority
Garment Craft v. Prakash Chand GoelRelied on¶11
Garment Craft v. Prakash Chand Goel, (2022) 4 SCC 181 : (2022) 2 SCC (Civ) 424: 2022 SCC OnLine SC 29 · Who else cites this
Ashutosh Chaturvedi v. Prano DeviApplied¶13
Ashutosh Chaturvedi v. Prano Devi, (2008) 15 SCC 610 · Who else cites this
Dilboo v. Dhanraji DeviRelied on¶15
Dilboo versus Dhanraji Devi, 2000 (7) SCC 702 · Who else cites this
LIC v. Sanjeev Builders (P) Ltd.Applied¶17
LIC v. Sanjeev Builders (P) Ltd., 2022 SCC OnLine SC 1128 · Who else cites this
Surender Kumar Sharma v. Makhan SinghDistinguished¶19
Surender Kumar Sharma vs. Makhan Singh, 2009, 10 SCC 626 · Who else cites this
Mohinder Kumar Mehra v. Roop Rani MehraDistinguished¶19
Mohinder Kumar Mehra Vs. Roop Rani Mehra and Ors. AIR 2017 SC 5822 · Who else cites this
Puran Ram v. BhaguramRelied on¶20
Puran Ram v. Bhaguram, (2008) 4 SCC 102: 2008 SCC OnLine SC 407 · Who else cites this
4 provisions across 4 enactments
Vijay Kumar
Rattan Lal
Rakesh Kainthla
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
