Dismissed

Smt Badikhajamma (died) v. Moddin Sab

Telangana HC26 Dec 2013CRP/4915/2013

Case brief

AI extract

What is this about?

In this Civil Revision Petition, the High Court dismissed the plaintiffs' application to amend their plaint. The Court held that the proposed amendment would change the suit's nature from partition to a money decree and that the relief was barred by limitation as the plaintiffs were aware of the property acquisition since 2003.

What did the court decide?

The trial court's order dismissing the amendment prayer was affirmed; the amendment prayer is barred by limitation and changes the nature of the suit.

Smt Badikhajamma (died) Vs Moddin Sab — Partition | Telangana HC (2013)

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HON’BLE DR. JUSTICE K.G. SHANKAR

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CIVIL REVISION PETITION NO. 4915 OF 2013

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ORDER:

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The petitioners are the plaintiffs. They sought for the amendment of the plaint through I.A.No. 111 of 2013. The learned Trial Judge dismissed the same through orders dated 26.8.2013 inter alia on the ground that the same is barred by limitation. Assailing the same, the present Civil Revision Petition is laid.

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It is the contention of the learned counsel for the plaintiffs-revision petitioners that the plea of limitation is not to be considered at this stage and that the question whether the amendment is prima facie permissible or otherwise shall decide the merits of the case. In support of his contention, he placed reliance upon RAGU THILAK D. JOHN V. S. RAYAPPA N^[1] . In that case a suit was laid for perpetual injunction to restrain the defendants from demolishing compound wall of suit property. During the

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pendency of the suit, the defendants demolished the compound wall. Plaintiff sought for amendment of the pleadings to include the relief of damages. A question of limitation arose. The Supreme Court held that the question of limitation could be considered, in the facts and circumstances at the time of trial and also declared that the Courts should adopt liberal approach while considering the applications under Order 6 Rule 17 CPC. It is the contention of the learned counsel for the plaintiffs that the plaintiffs were also handicapped regarding the relief that they are seeking through the amendment, as they were not aware about the acquisition of the property by the Government.

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The facts leading to the filing of the petition under Order 6 Rule 17 may be briefly be stated. Two plaintiffs laid the suit for partition of the plaint schedule property. The first plaintiff was the mother of the second plaintiff. Subsequent to the filing of the suit, the first plaintiff died. The second plaintiff consequently sought for amendment of the pleadings to change the quantum of share that she would be entitled to. That amendment petition was allowed. Evidence on both sides was recorded.

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It would appear that the defendants, by way of

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additional evidence stated that the property, which is sought to be partitioned was acquired by Government through an award dated 29.5.2003 and compensation was also paid. They further would appear to have claimed that the entire amount was so received by the defendants 4 to 7. It is the case of the learned counsel for the plaintiffs that the second plaintiff is entitled to share in the awarded amount received by defendants 4 to 7. To obtain redressal, the plaintiffs now seek to amend the plaint to include the relief of money decree for a sum of Rs. 12,57,082/- as 1/7^th share of the second plaintiff together with interest at 12% per annum. The defendants resisted the claim before the Trial Court and before me as well. The grounds of resistance are that the plea is barred by limitation and that the plea would change the nature of the suit.

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Regarding the nature of the suit, the suit was filed for partition of plaint schedule property by metes and bounds. Now the plaintiffs are trying to claim a money decree on the ground that the property sought to be partitioned had already been acquired. I am not satisfied that the relief the plaintiffs are trying to seek now is an analogous relief

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that the plaintiffs had already sought for. The earlier relief was a relief of partition by metes and bounds where as the present proposed relief is a money decree. In view of the attempt to change the nature of the suit, I consider that the amendment deserves to be dismissed.

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More important is the plea of limitation. Inter alia, the plaintiffs contend that they were not aware about the acquisition of the property till additional evidence was put forth by the defendants before the Trial Court. The learned counsel for the defendants 4 to 7 on the other hand pointed out that way back in 2004, the plaintiffs filed a Writ Petition in W.P.No. 8266 of 2004 challenging the acquisition and that the plaintiffs were thus aware about the acquisition of the property by the Government and that the plaintiffs seeking for the relief of money decree after a lapse of about 9 years is barred by limitation.

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Regarding the question of limitation, the learned counsel for the plaintiffs placed reliance upon RAGU THILAK D. JOHN V. S. RAYAPPAN (supra). However, in that case, during the pendency of the suit, the compound wall was demolished but there was no clarity as to when the compound wall was demolished, so much so, there was no clarity regarding the question of limitation. In the

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present case, clearly the award was passed in 2003 and evidently, the plaintiffs were aware at least by 2004 that the award was passed. Seeking to amend the prayer bringing about the money decree relief, after a lapse of about 8 years is clearly barred by limitation. I am afraid that the plaintiffs are not entitled to seek for such a relief in view of these circumstances. I see no merit in this Civil Revision Petition and accordingly, the same is dismissed. No costs. Miscellaneous petitions, pending if any in this Revision Petition, shall also stand closed.

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______________________________ DR.JUSTICE K.G.SHANKAR DATE: 26.12.2013 KA

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[1] AIR 2001 SC 699

Smt Badikhajamma (died) v. Moddin Sab

Case brief

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Smt Badikhajamma (died) v. Moddin Sab

Case brief

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