C. Manikantan Nair and M. Prabhakaran Nair v. Attukal Bhagavathy Temple Trust

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **TUESDAY, THE 29TH JUNE 2010 / 8TH ASHADHA 1932** ## **WP(C).NO. 20120 OF 2010(O)** **------------------------------------------** **OS.494/2002 OF I ADDL.SUB COURT,TRIVANDRUM** **....................** ## **PETITIONER(S):** **------------------------** **1. C.MANIKANTAN NAIR,S/O.CHELLAPPAN PILLAI, MUTHUVALLY HOUSE,ATTUKAL,MANACAUD, THIRUVANANTHAPURAM.** **2. M.PRABHAKARAN NAIR,S/O.LATE MADHAVAN PILLAI,NEDIYAVILAKATHU VEEDU,ATTUKAL,MANACAUD.PO, THIRUVANANTHAPURAM.** **BY ADV. SRI.K.B.PRADEEP** ## **RESPONDENT(S):** **------------------------** **ATTUKAL BHAGAVATHY TEMPLE TRUST, REPRESENTED BY THE SECRETARY,ATTUKAL, MANACAUD.P.O,THIRUVANANTHAPURAM.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/06/2010 ALONG WITH W.P(C) NO.20205 AND 20206 OF 2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **THOMAS P.JOSEPH, J.** **==================================== W.P(C) No.20120 of 2010, W.P(C) No.20205 of 2010 and W.P(C) No.20206 of 2010 ==================================== Dated this the 29[th] day of June, 2010** ## **J U D G M E N T** These Writ Petitions are in challenge of common order passed by learned Sub Judge, Thiruvananthapuram on I.A. Nos.2616, 2617 and 2615 respectively, in O.S.Nos.494 of 2002, 335 of 2005 and 493 of 2002. These suits are filed by the respondent, described as a Trust for recovery of various amounts from the petitioners who were the Secretary and President of the said Trust during 1993-99. Allegations in these cases are of mismanagement, misappropriation, falsification of accounts and such other matters concerning property of the Trust and in the matter of purchase of articles, assignment of contracts and such other matters. Petitioners resisted the suit on various grounds. In the year 2010 respondent filed the above said applications for amendment of the plaints which were resisted by petitioners. Petitioners also sought for amendment of their written statement to contend that suits are bad for non-joinder of necessary parties. All the applications were heard by the additional Sub Judge and **W.P(C) No.20120, 20205 & 20206 of 2010** **==> picture [41 x 10] intentionally omitted <==** disposed of by a common order as per which applications preferred by petitioners and respondent were allowed. Petitioners are aggrieved by the common order to the extent it allowed applications preferred by the respondent for amendment of plaints. Learned counsel for petitioners contended that what is sought to be incorporated by amendment are matters which are otherwise barred by limitation in that suits are filed in the year 2002 and 2005 but the applications for amendment are filed in the year 2010. According to the learned counsel ordinary rule that a relief which has already become barred by limitation shall not be allowed to be incorporated by way of amendment should govern the matter. In the absence of a plea under Section 10 of the Limitation Act (for short, “the Act”) the suits cannot be saved from the bar of limitation. Learned counsel has invited my attention to Order VII Rule 6 of the Code of Civil Procedure (for short, “the Code”) which states that when the suit is instituted after expiration of period prescribed by the law of limitation plaint shall state grounds upon which exemption from limitation is claimed. According to the learned counsel there is no whisper in the plaints as to any exemption from the law of limitation under **W.P(C) No.20120, 20205 & 20206 of 2010** -: 3 :- Sec.10 of the Act or as required under Order VII Rule 6 of the Code which is now sought to be supplemented by amendment which prejudiced defence of petitioners. Reliance is placed on ## **Revajeetu Builders and Developers v. Narayanaswamy and Sons** (2009) 10 SCC 84). 2. No doubt, under Order VII Rule 6 of the Code plaint should specifically state the grounds of exemption from limitation when the suit is preferred beyond the period prescribed for the purpose. Section 10 of the Act states that there shall be no limitation in a suit against a person in whom property has been vested for any purpose. Learned counsel has a case that respondent is not a Trust as envisaged under Sec.10 of the Act and further that there is no averment in the plaint that there was any vesting for specific purpose. Now I am concerned with the question whether court below was justified in allowing the applications for amendment. 3. In the decision relied on by learned counsel it is stated in paragraph 39 after referring to the decisions which state that even claims barred by limitation are not outside the purview of Order VI Rule 17 of the Code, that the rule is not a **W.P(C) No.20120, 20205 & 20206 of 2010** **==> picture [41 x 10] intentionally omitted <==** universal one and under certain circumstances amendment may be allowed notwithstanding the law of limitation. It is stated that fact that claim is barred by law of limitation is only one of the factors to be taken into account by the court in exercising the discretion as to whether amendment should be allowed or refused. In paragraph 63 factors to be taken into consideration while deciding the application for amendment are narrated and clause (6) states that as a general rule the court decline amendment if a fresh suit on the amended claims would be barred by limitation on the date of application. 4. In a later decision - **State of Maharashtra v.** ## **M/s. Hindustan Construction Company Ltd** (2010 [2] Supreme 697) the same principle has been enunciated and it is stated that amendment of pleadings is a matter of procedure and the grant or refusal thereof is in the discretion of the court which as in the case of any other discretion, has to be exercised consistent with the legal principles. It is also stated that there is no rule that claim which is barred by limitation cannot be allowed to be incorporated by amendment. Reference has been made to the decision in **Ganesh Trading Co. v. Moji Ram** (1978) 2 **W.P(C) No.20120, 20205 & 20206 of 2010** -: 5 :- SCR 614 where it is held that procedural law is intended to facilitate and not to obstruct course of substantive justice. Provisions relating to pleading in civil cases are meant to give to each side intimation of case of the other so that it may be met to enable courts to determine what is really at issue between parties and to prevent deviations from the pleadings. This court in **Kunheedu v. Marakkar and Others** (1989 [1] KLJ 92) considered the question whether under Order VI Rule 17 of the Code amendment to introduce a new cause of action or a new relief even beyond the period of limitation can be allowed. It was held that if the plaint contains basic foundation for the relief claimed (by way of amendment) there is nothing wrong in allowing amendment even beyond the period of limitation. Bearing in mind the above principles I shall consider whether court below is right in allowing the applications of respondent. 5. I referred to the nature of the allegations made by the respondent in the plaints. For e.g., in O.S.No.494 of 2004 it is stated that petitioners were office bearers (Secretary and Secretary) of the respondent-Trust during 1993-99 and that petitioners due to their commissions and omissions caused huge **W.P(C) No.20120, 20205 & 20206 of 2010** -: 6 :- loss to the respondent. There are specific allegations regarding misappropriation, misfeasance and conduct of like nature. In paragraph 2 of the plaint reference is made to the relationship between petitioners and respondent-Trust as they being office bearers of the Managing Committee. Paragraph 13 of the plaint states about breach of trust on the part of petitioners which was realised by the respondent on 22.6.2002. On the above allegations applications for amendment was made to incorporate paragraph 29(a) and (b) and also to amend portion of cause of action in the plaints. In paragraph 29(a) what is sought to be incorporated by amendment is that petitioners are trustees of the respondent as Secretary and President for the period 1993-99 and thus were in a fiduciary relationship, that respondent-Trust is an express Trust engaged in religious and charitable activities, illegalities and irregularities were committed by the petitioners while acting as trustees of the respondent in their capacity as Secretary and President and hence the suit is not barred under Sec.10 of the Act. Similar grounds are incorporated in paragraph 29(b). There, it is stated that commissions and omissions resulted in loss to the respondent and that respondent asked **W.P(C) No.20120, 20205 & 20206 of 2010** **==> picture [41 x 10] intentionally omitted <==** petitioners to make good the loss on 22.6.2006. In the cause of action as originally averred it is stated that it arose from March, 1997, February, 1998 and February, 1999 when the contracts were accepted and continuously thereafter when provisions were purchased by the petitioners as above stated causing loss to the respondent. The words incorporated by amendment is that cause of action arose on 22.6.2006 (also) when petitioners finally refused to make good the loss. In other suits also similar allegations are made in the plaint and the applications of amendment. 6. It is seen from the averments in the plaint that throughout it is the consistent case of respondent that it is a Charitable Trust of which petitioners were office bearers, Secretary and President and in that capacity their commissions and omissions during their term of office, i.e., from 1993 to 1999 resulted in huge loss to the respondent and that came to the knowledge of respondent only on 22.6.2006. What is sought to be incorporated by way of amendment is only explicit statements which in otherwise stated in the plaint. It is not as if suits are attempted to be brought within the scope of Sec.10 of the Act for **W.P(C) No.20120, 20205 & 20206 of 2010** **==> picture [41 x 10] intentionally omitted <==** the first time without any averment at all in the plaints. Going by the averments in the original plaints what I can understand is that there are sufficient foundation already pleaded to state that the commissions and omissions of petitioners resulted in loss to the respondent which were done by petitioners in their capacity as Secretary and President of the respondent-Trust in which case Sec.10 of the Act came into application. What is attempted to be achieved by amendment is only a specific averment that in the circumstances pleaded in the plaint Sec.10 of the Act came into application and the suits are not barred by limitation. Having gone through the materials on record I find that the court below has exercised the discretion in accordance with the known principles of law and it calls for no interference. Writ Petitions fail and are dismissed. ## **THOMAS P. JOSEPH, JUDGE.** vsv