Pirgonda Hongonda Patil vs Kalgonda Shidgonda Patil And Others
Rewritten Version Notice: This is a rewritten version of the original judgment.
Court: Supreme Court of India
Case Number: Civil Appeal No. 228 of 1953
Decision Date: 7 February 1957
Coram: S. K. Das, P. B. Gajendragadkar
In the matter titled Pirgonda Hongonda Patil versus Kalgonda Shidgonda Patil and others, the Supreme Court of India rendered its judgment on 7 February 1957. The judgment was authored by Justice S K Das, who also sat on the bench together with Justice P B Gajendragadkar. The parties are identified as the petitioner, Pirgonda Hongonda Patil, and the respondents, Kalgonda Shidgonda Patil and others. The case is reported in 1957 AIR 363 and 1957 SCR 595. The legal issue concerned an amendment of the plaint to add further and better particulars of the claim without altering the nature of the reliefs, and the question of whether such amendment was barred by limitation under the Code of Civil Procedure, Act V of 1908, specifically Order VI Rule 17, Order XXI Rules 97, 99 and 103.
The plaintiff had previously obtained a decree of ejectment against a third respondent. While attempting to execute that decree and take possession of the property, the plaintiff was obstructed by the appellant, leading to the dismissal of an application for removal of the obstruction on 12 April 1947. Consequently, the plaintiff instituted the present suit on 12 March 1948 under Order XXI Rule 103 of the Code, seeking a declaration that he was entitled to recover possession of the suit properties, thereby impleading the appellant and the third respondent. The plaint, aside from referencing the earlier decree, contained no specific averments regarding the facts or grounds upon which the plaintiff claimed title against the appellant. The appellant, in an application dated 20 November 1948 and in his written statement, challenged the maintainability of the suit on the grounds that he was not a party to the earlier suit and that the plaint disclosed no cause of action against him. When the suit was taken up for trial on the preliminary issue of its tenability on 20 March 1950, the plaintiff applied to amend the plaint to provide further and better particulars of the claim. The trial judge rejected this application and dismissed the suit, but the High Court, on appeal, allowed the amendment. The appellant then appealed by special leave, contending that the amendment should not have been permitted because (1) the limitation period for a suit under Order XXI Rule 103 had expired at the time of the amendment application, and (2) although the defect in the original plaint had been pointed out as early as 20 November 1948, no amendment was sought until 29 March 1950. The Court held that the High Court was correct in allowing the amendment, observing that the amendments did not introduce a new case nor alter the nature of the reliefs, and that the appellant was not required to meet a fresh claim after the limitation period had expired.
The Court observed that, according to the Code of Civil Procedure, the appellant was not required to meet a new case or a fresh claim that had been raised after the limitation period had expired. The appellant was not taken by surprise, nor was he compelled to defend a claim that was first set up beyond the statutory limitation. The Court relied on the authority in Charan Das v. Amir Khan, reported in L. R. 47 I.A. 255, and followed the precedent set in L. J. Leach & Co. v. Jardine Skinner & Co., reported in [1957] S.C.R. 438. It also approved the observations of Batchelor J. recorded in Kisandas Rupchand v. Rachappa Vithoba, I.L.R. 33 Bom. 644 at page 649. These authorities supported the view that the amendment of the plaint did not introduce a new cause of action or alter the nature of the reliefs sought, and therefore the appellant’s rights were not prejudiced by the amendment.
The appeal, identified as Civil Appeal No. 228 of 1953, was filed by special leave from the judgment and decree dated 6 September 1951 of the Bombay High Court. The High Court had set aside the decree of the Civil Judge (Senior Division) of Kolhapur in Civil Suit No. 23 of 1949 and had permitted an amendment of the plaint at the appellate stage, subject to certain conditions. The appellant, who had been defendant No. 1 in the original suit, was represented by counsel, while respondents Nos. 1 and 2, the heirs of the original plaintiff, were also represented by counsel. The original plaintiff had earlier, in 1942, instituted a suit against respondent No. 3 for possession of certain properties and secured a decree of ejectment on 28 March 1944, which was confirmed on appeal on 9 July 1945 and again affirmed by the then Supreme Court of Kolhapur on 2 April 1946. The plaintiff’s attempt to execute that decree was obstructed by the present appellant, leading the plaintiff to file an application under Order XXI, Rule 97 of the Code of Civil Procedure, which was dismissed under Rule 99 on 12 April 1947. Subsequently, on 12 March 1948, the plaintiff instituted the present suit under Order XXI, Rule 103, seeking a declaration of his right to recover possession of the properties from the appellant, who was impleaded as the first defendant. Before amendment, the plaint alleged that defendant No. 2, in collusion with defendant No. 1, had caused an objection to be filed against the execution, and that the plaintiff had conducted…
In this matter, the Court observed that the plaintiff had previously commenced a miscellaneous proceeding identified as Suit No. 5/1946, which sought possession of the suit properties and the removal of an objection. That ancillary suit had been decided against the plaintiff. Consequently, the plaintiff instituted the present action, requesting a declaration that he possessed the right to take possession of the suit property against defendants numbered I and II. Apart from the decree obtained in the earlier suit, the plaintiff did not set out any specific factual averments or legal grounds on which he claimed title to the properties in question against the appellant.
On 20 November 1948, the appellant filed an application in which it was pointed out that the plaintiff’s present suit was based on the decision in the earlier suit to which the appellant had not been a party. The application contained the following submission: “As the defendant is not a party in the said decree, the plaintiff will not acquire any ownership whatever against the defendant from the said decree. And the plaintiff has not given even the slightest explanation as to how he has ownership against the defendant. So permission should not be hereafter given to the plaintiff to make amendment in respect of showing ownership.” A copy of this application was forwarded to the learned pleader for the plaintiff. The pleader recorded his response as follows: “The plaintiff’s suit is under O. XXI, r. 103 of the Code of Civil Procedure. Hence relief which can be granted as per this provision may be granted.” An objection was also raised regarding the description of the suit properties in the schedule. That objection was subsequently satisfied by making the necessary amendment to the description.
On 20 December 1949, the appellant filed his written statement. In that statement, inter alia, the appellant contended that the suit was not maintainable against him because the plaint disclosed no cause of action as against him. A preliminary issue was then framed on 19 January 1950, raising the question of whether the suit, as framed, was tenable against the appellant. When the trial of this preliminary issue commenced, the original plaintiff applied on 29 March 1950 for permission to give further and better particulars of the claim asserted in the plaint. The plaintiff sought to insert a new paragraph designated as paragraph 1(a) into the plaint and to add a few sentences to paragraph 3. The Court later noted that these amendments were allowed by the learned Judges of the High Court of Bombay by order dated 6 September 1951. The newly inserted paragraph was worded in the following terms: “In the Ichalkaranji village there are two independent Patil families ‘taxima,’ viz., Mulki (Revenue) Patil and Police Patil. The suit properties are the Inam lands in the Police Patil family. A woman by name Bhagirathibai, wife of Shivagonda Patil, was the Navwali ‘warchi Vatandar’ (representative Vatandar) of the Police Patil family. This woman died in the year…”
In the year 1936 a woman named Bhagirathibai, who was the representative Vatandar of the Police Patil family, died. As a result of her death the plaintiff acquired heirship and ownership of the suit property as the nearest heir. At that time the suit properties were possessed and held under a vahiwat by defendant No 2, who had no right to do so. Consequently the plaintiff instituted Suit No 3/1942 seeking a declaration that he owned the suit property and also seeking possession of that property. The plaintiff subsequently pursued Appeal No 9/44 and Supreme Appeal No 5/46, and in those appeals he was unanimously declared to be the heir and the owner, and the possession of the suit properties was granted to him.
The plaintiff also sought to amend paragraph 3 of the plaint by inserting the following sentences: “Defendant No 1 is from the Mulki (Revenue) Patil family. He has nothing to do with the suit property in the Police Patil family.” By an order dated 31 March 1950 the learned Civil Judge rejected the plaintiff’s application for amendment and, on the same day, dismissed the suit on the ground that the plaint failed to disclose any title against defendant No 1, the appellant before this Court, who was not a party to the earlier ejectment suit in which the plaintiff had obtained a decree against defendant No 2. The plaintiff appealed this judgment and decree of the Civil Judge to the High Court of Bombay. The High Court allowed the amendment of the plaint, subject to costs and other terms imposed on the plaintiff.
While granting the amendment the learned Judges of the High Court observed in their order: “We realise that by doing what we propose to do we may deprive the first defendant of a very valuable right which he claims he has acquired, namely, that of pleading a bar of limitation against the amended plaint, but we are guided more in this matter by regard to the principles of substantial justice and we think that if we can make sufficient compensation to the first defendant by making drastic orders of costs in his favour and against the plaintiff, we shall not be doing any injustice to him. This is, after all, a question of title to the property and we would be justified in making this observation that when the suit in ejectment was filed by Shidgonda against Pirgonda Annappa in the year 1942 he based it on his title to the suit property and it was only against Pirgonda Annappa that he had obtained the decree. When this decree which he had obtained against Pirgonda Annappa, the second defendant, was mentioned as a starting point in the plaint as it came to be filed, it would not be stretching too much of a point in favour of the plaintiff to observe that the decree which he had obtained against the second defendant, having been obtained on the strength of his title to the suit property, was really one of his documents of title…” The court further noted that, as far as the first defendant was concerned, the averment required under Order XXI, Rule 103 of the Code of Civil Procedure was that the …
It was found that the first defendant was unlawfully preventing the plaintiff from taking possession of the suit property in accordance with the decree that the plaintiff had successfully obtained against the second defendant in a suit that had been properly instituted for that purpose. In light of this situation, the Court considered that allowing the plaintiff to amendment his plaint at such an advanced stage would not cause any injustice to the first defendant, provided that the amendment incorporated the paragraphs which the plaintiff had proposed in his application for further and better particulars that had been filed in March 1950.
The appellant subsequently obtained special leave to appeal to this Court and therefore filed the present appeal. The principal contention raised on behalf of the appellant before the Court was that, given the facts of the case, the learned Judges of the High Court erred in permitting the amendment of the plaint at such a late point in the proceedings. It is noteworthy that counsel for the appellant did not argue that the appellate Court lacked jurisdiction or the authority to allow the amendment. Rather, the submission was that, although the appellate Court possessed the requisite power and jurisdiction, that power ought not to have been exercised under the specific circumstances prevailing in this case.
Two circumstances were particularly highlighted by the appellant’s counsel. The first circumstance related to the statutory limitation period applicable to a suit under Order XXI, Rule 103 of the Code of Civil Procedure. According to this rule, the limitation period had already expired before the date of the application for amendment, which was March 29 1950. The second circumstance emphasized that the plaintiff’s attention to the defect in the original plaint had first been drawn by an application filed on behalf of the appellant on November 20 1948. Despite the defect being pointed out at that time, the plaintiff did not seek any amendment until the later application dated March 29 1950.
The learned Judges of the High Court gave full consideration to both of these circumstances. It is important to note that the limitation period for a suit under Order XXI, Rule 103, is one year measured from the date of the adverse order issued under Rule 99 of Order XXI. The adverse order in the present matter had been made on April 12 1947, which meant that the one‑year limitation period expired well before November 20 1948, the date on which the appellant first filed an application indicating the defect in the plaint.
The application filed on November 20 1948, as argued by the appellant’s counsel, did not possess the benevolent purpose that is now being asserted. At the time the application was made, the limitation period had already lapsed, and the appellant expressly stated that no permission should be granted to the plaintiff to amend the plaint thereafter. Consequently, the Court does not consider that the appellant can derive considerable benefit from that earlier application. The Court also mentions that it has recently examined a similar issue in another case, indicating the relevance of these principles to the present appeal.
In a previous decision concerning a similar request for amendment, L. J. Leach & Co. v. Jardine Skinner & Co. (1), the Court permitted an amendment of the plaint on appeal. While doing so, it observed that, although courts generally decline to allow amendments when the amended claim would be barred by limitation at the time of the application, such a limitation consideration is merely one factor to be weighed in exercising discretion. The Court emphasized that this factor does not deprive the court of the power to order an amendment if justice requires it. The observations were made in a case where the original claim for damages was based on conversion of goods. After finding, in agreement with the High Court judges, that the conversion claim could not succeed on the evidence, the plaintiffs sought to amend their pleadings to include, alternatively, a claim for damages arising from breach of contract for non‑delivery of the goods. The respondents opposed the amendment, chiefly on the ground that the limitation period had expired. The Court accepted the reasoning in Charan Das v. Amir Khan (2), which held that although a court has full power to permit an amendment, as a rule it should not be exercised when the effect would be to deprive a defendant of a legal right that had accrued to him by lapse of time; nevertheless, the rule may yield where special circumstances of the case outweigh the consideration. The Court noted, as pointed out in Charan Das (1), that the power to amend rests within judicial discretion. The only contention that could be raised was that the discretion might have been exercised on an erroneous principle, but the Court concluded that such an error did not occur in the present matter.
The facts of the present case closely resemble those of a Privy Council decision in which the respondents sought a declaration of their pre‑emption right over certain land, a suit that would not lie under the proviso to section 42 of the Specific Relief Act, 1877. In that earlier case, both the trial judge and the first appellate court refused to permit an amendment that would allow the plaintiffs to claim possession on the basis of pre‑emption because the limitation period for enforcing that right had already expired. However, on a second appeal, the higher court allowed the amendment, finding no evidence that the plaintiffs had acted in bad faith and concluding that the proposed amendment did not change the nature of the relief sought. In the case before this Court, a comparable defect existed in the pleadings, and the trial judge likewise refused to allow an amendment on the ground that the limitation period for a suit under Order XXI, rule 103 of the Code of Civil Procedure had elapsed.
The trial Court had refused to allow the plaintiff’s pleading to be amended on the basis that the limitation period prescribed by Order XXI, Rule 103 of the Code of Civil Procedure had already lapsed. The learned Judges of the High Court correctly observed that the error lay principally with the counsel who had prepared the original pleading, and that the amendment sought did not change the nature of the reliefs that the plaintiff was requesting. Counsel for the appellant then referred the matter to the authority in Kisandas Bupchand v. Rachappa Vithoba and relied heavily on the passage of Justice Beaman at page 655, wherein he stated that only two simple tests are required to determine whether a proposed amendment falls within the applicable principle. The first test asks whether the party seeking the amendment could obtain the same amount of relief without making the amendment; if the answer is negative, the amendment necessarily places the opposing party at a disadvantage, allowing the opponent to obtain more from the plaintiff than would have been possible without the amendment. The second test inquires whether the party who is placed at a disadvantage can be compensated for that disadvantage by way of costs; if compensation is not possible, the amendment should be refused unless the case is so unusual that it falls outside the rule. Counsel argued that the first of these tests was not satisfied in the present matter. The Court rejected this contention, noting first that it is neither practical nor advisable to confine a discretionary power within a rigid formula, and second that the expression “quantity of relief,” which is difficult to define in every circumstance, was not affected by the amendments that were permitted. The defect in the pleading, which had obstructed the plaintiff’s claim for the reliefs he desired, was cured by the amendment, and the quality and quantity of the reliefs sought remained unchanged. Whether those reliefs should ultimately be granted is a separate question that the Court was not called upon to decide at this stage.
The Court further held that the appropriate principles governing amendments were well set out by Justice Batchelor in the same case, Kisandas Rupchand’s case (see pages 649‑650). Justice Batchelor explained that an amendment should be allowed when it satisfies two conditions: (a) it does not cause injustice to the other side, and (b) it is necessary to resolve the real issues in dispute between the parties. The Court indicated that it would not cite additional authorities because, in the Court’s view, they all articulate essentially the same doctrine. According to this doctrine, an amendment must be refused only when the other party cannot be placed in the same position as if the pleading had originally been correct and the amendment would cause an injury that cannot be remedied by an award of costs. In the present case, the amendment remedied a procedural defect without altering the substantive relief sought, and therefore did not create an injustice to the opposite party. Consequently, the Court affirmed that the amendment was permissible under the established principles.
In that situation the amendment would place the defendant in the same position as if the original pleading had been correct, yet the amendment would cause the defendant an injury that could not be compensated by an award of costs. This circumstance represents a specific application of the general rule that an amendment must be refused when a plaintiff seeks to introduce a fresh claim concerning a cause of action that, after the suit was instituted, has become barred by limitation. Allowing such an amendment would injure the defendant in a way that could not be remedied by costs, because it would deprive the defendant of a proper defence to the claim. Consequently, the ultimate test remains whether the amendment can be permitted without causing injustice to the other side. Batchelor J. illustrated these principles in a case involving a claim for dissolution of partnership and accounts. In that case the plaintiffs contended that, under a partnership agreement, they had delivered cloth worth Rs 4,001 to the defendants. The Subordinate Judge accepted that the delivery had taken place but concluded that no partnership had been created. On appeal the plaintiffs abandoned the partnership plea and sought leave to amend the suit by adding a prayer for recovery of the Rs 4,001. At the time of the amendment request the monetary claim was already barred by limitation. The court held that the amendment was properly allowed because the claim did not constitute a new cause of action. The present Court applied the same principles to the present proceedings. The amendments filed did not introduce a new cause of action, and the appellant’s own application demonstrated that he was not taken by surprise nor was he required to defend a claim raised for the first time after the limitation period had expired. Accordingly, the Court found no merit in the appeal, dismissed it and ordered the appellant to pay costs.