The High Court set aside the Trial Court's order dismissing an amendment application for declaration and possession on grounds of limitation, holding the limitation issue was debatable and required resolution after trial.
Impugned order dated 09.10.2012 set aside; Civil Revision Petition allowed; no costs.
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C.R.P.(NPD) No.3456 of 2014 & M.P.No.1 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 09.08.2019
C O R A M
THE HON'BLE Mr.JUSTICE ABDUL QUDDHOSE
C.R.P.(NPD) No.3456 of 2014 &
M.P.No.1 of 2014
1.Thangaraj
2.Mallika ... Petitioners
Vs.
Chinnammal ... Respondent
PRAYER: Civil Revision Petition filed under Section 115 of the Code of Civil Procedure against the fair and decreetal order passed in I.A.No.1046 of 2011 in O.S.No.517 of 2004 dated 09.10.2012 passed by the learned District Munsif at Perambalur.
For Petitioners ... Mr.G.Ilamurugu For Respondent ... No appearance
ORDER
The instant civil revision petition has been filed challenging
the order dated 09.10.2012 passed by the learned District Munsif at
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Perambalur in I.A.No.1046 of 2011 in O.S.No.517 of 2004.
Brief facts leading to the filing of the instant revision under Section
115 of the Code of Civil Procedure:
under Order VI Rule 17 CPC to amend the plaint to include the relief of declaration and possession.
by the respondent stating that the amendment cannot be sought for as it
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is barred by law of limitation. By order dated 09.10.2012, the learned District Munsif, Perambalur, dismissed I.A.No.1046 of 2011 in O.S.No.517 of 2004 on the ground that the application filed by the petitioners is barred by law of limitation. Aggrieved by the dismissal of I.A.No.1046 of 2011 in O.S.No.517 of 2004, the instant Civil Revision Petition has been
filed under Section 115 of the Code of Civil Procedure.
Even though a counsel has entered appearance on behalf of the respondent, there is no representation on the side of the respondent today. Even on the last hearing date, i.e., on 08.08.2019, there was no representation on the side of the respondent.
Discussion:
this Court to the judgment of the Hon'ble Supreme Court in the case of Ghewarchand & others vs. Mahendra Singh & Others reported in 2018 (3) MWN (Civil) 212 . In particular, he referred to paragraph 18 of the
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said judgment which reads as follows:
“18.The Plaintiffs, therefore, filed a Civil Suit on 19.12.1978 for claiming a Declaration of their title on the Suit property, Injunction and Possession against the Defendants. Since the Suit was for Declaration, Permanent Injunction and Possession, Article 65 of the Limitation Act was applicable, which provides a limitation of 12 years for filing the Suit which is to be counted from the date when the possession of the Defendant becomes adverse to the Plaintiffs.”
As seen from the aforesaid judgment, the suit filed for declaration of title, injunction and possession will fall under Article 65 of the Limitation Act and therefore, the period of limitation is 12 years for filing the said suit and it has to be counted from the date when the possession of the defendant becomes adverse to the plaintiffs.
petitioners have taken a categorical stand that they are in possession of the suit schedule property. But however, in the written statement filed
on Aug 2004, the respondent has alleged that she is in possession of the
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suit schedule property. The suit was filed in the year 2004 and the application for amendment filed by the petitioners under Order VI Rule 17 CPC was filed on 11.08.2011 to include the reliefs of declaration of
title and possession, apart from injunction relief already sought for under the original plaint.
been considered by the Trial Court before dismissing the application I.A.No.1046 of 2011 in O.S.No.517 of 2004. The limitation issue, in the instant case, being a debatable issue, the Trial Court ought to have allowed the amendment application and decide the limitation issue one way or the other only after trial.
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8. For the foregoing reasons, this Court is of the considered
view that the impugned order passed by the Trial Court is an erroneous order and it has to be set aside.
Conclusion:
9. In the result, the impugned order dated 09.10.2012 passed
by the learned District Munsif at Perambalur in I.A.No.1046 of 2011 in
O.S.No.517 of 2004 is hereby set aside and the Civil Revision Petition is
allowed. No costs. Consequently, connected miscellaneous petition is
closed.
09.08.2019
nl
Index : Yes / No
Internet: Yes/No
Speaking/Non-Speaking orders
To
1. The District Munsif at Perambalur.
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ABDUL QUDDHOSE. J,
nl
CRP (NPD) No.3456 of 2014
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09.08.2019
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2 issues framed by the court
Whether the dismissal of the amendment application under Order VI Rule 17 CPC by the trial court due to limitation was erroneous given the dispute arose in the written statement after the suit was fil
Whether the limitation issue regarding the amendment application for declaration and possession had to be decided only after the trial commenced.
Colour shows how this judgement treated each authority
Ghewarchand & others vs. Mahendra Singh & OthersExplained¶31
2018 (3) MWN (Civil) 212
2 provisions across 1 enactments
Thangaraj
Mallika
Chinnammal
Abdul Qudhose
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
Abdul Qudhose
Parties & counsel
