High Court of KeralaSingle Judge2007-06-14The writ petition is allowed; with directions a...

N. Saramma v. Babu T.T. and Nirmala Babu

Case / Petition Number:WP(C).No. 1572 of 2005(K)

Neutral Citation:/

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Pius C. KuriaKose
Judgment Date: 2007-06-14
Court Decision / Holding: Writ petition is allowed subject to the directions: Ext.P2 and Ext.P4 set aside; IA 273/2001 allowed on condition that the petitioner pays Rs. 1,500 within three weeks; Rs. 1,000 to the respondent and Rs. 500 to the High Court Legal Service Committee; if not paid, IA dismissed; the trial court to allow respondents to file additional written statement; if limitation arises, issues should be raised; the trial court to decide whether the amendment will relate back to the date of the suit; the matter to proceed accordingly.
Final Disposition: The writ petition is allowed; with directions as stated in the judgment.

Parties to the Case

Appellants / Petitioners

N. Saramma

Respondents

Babu T.T.
Nirmala Babu

Legal Representation & Advocates

Counsels for Petitioners

• Smt. Parvathi Menon
• Sri P. Sanjay

Counsels for Respondents

• Sri Blaze K. Jose

Case Synopsis & Summary

The petitioner, N. Saramma, challenges Ext.P4, an order of the trial court dismissing an application for reviewing Ext.P2, which dismissed the amendment of the plaint in a suit for specific performance of a property sale. The reverse side of the agreement allegedly bears an endorsement cancelling it and directing full and final settlement payable on a given date; thus, the plaintiff contends the pleadings require modification. The trial court, and later the first set of orders Ext.P2 (amendment dismissal) and Ext.P4 (review/dismissal) were challenged in this writ petition. The respondents argued that granting the amendment would prejudicially enable the petitioner to defeat the limitation bar and obtain relief beyond the scope of the original pleadings. The High Court discussed the controversy, noting that amendments changing the character and nature of the suit are permissible if no prejudice to the opposite party occurs and justice is not denied, but if the amendment would enable the plaintiff to overstep limitation, it should be refused or subject to conditions. Relying on Supreme Court decisions in Ragu Thilak D. John v. S. Rayappan and others, Sampath Kumar v. Ayyakannu, and on its own Subramanian v. Aboobacker Koya, the court held that the question of limitation can be proceeded with after amendment and that relation back can be decided by the trial court. The court allowed the amendment on terms, set aside Ext.P2 and P4, and directed payment of costs. The writ petition is thus allowed with directions.

Provisions of Law Cited

Order 47 Rule 1, CPC

Legal Doctrines & Maxims

Doctrine of relation back

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner submits that amendments to pleadings are permissible where they only clarify the cause of action without prejudice to the other side or changing the essential scope of relief claimed. In this case, the reverse endorsement on the agreement shows that the instrument was cancelled and that the plaintiff was entitled only to a certain amount in full settlement on a fixed date. This new circumstance was not available to the petitioner at the time of filing the suit, and a fresh cause of action does not arise; rather, the amendment seeks to plead a different remedy while preserving the original claim for specific performance. The amendment should relate back to the date of suit, or at least be given retrospective effect, so that the limitation bar can be determined adequately, and not to prejudice the respondents. The Supreme Court decisions in Ragu Thilak D. John v. S. Rayappan (2001) 2 SCC 472; Sampath Kumar v. Ayyakannu; and Subramanian v. Aboobacker Koya support allowing amendments and taking up the limitation issue after amendment. The delay is not intentional and the factual scenario could not have been discovered earlier; the court should exercise discretion and grant amendment on terms, including directions on costs; consequently, the petition should be allowed.

Contentions of Respondents

The respondents contend that allowing amendment would prejudice them by enabling the plaintiff to overcome the bar of limitation and by introducing a new money-claim based on a different remedy inconsistent with the relief sought in the original plaint. They point out that the amendment changes the character and nature of the suit and would lead to a trial on issues beyond those contemplated when the suit was filed. They submit that the alleged cancellation endorsement on the reverse side of the agreement is a matter of fact directly affecting the case, and the court should not countenance a belated attempt to obtain relief by circumventing the limitation provisions. The respondents urge the court to follow the principle that amendment should be refused where it would cause prejudice or denial of justice, or where the amendment would defeat the case on its own terms. They rely on the principle that extension beyond the bar of limitation cannot be allowed through amendment, unless permitted by the trial court with clear safeguards. They request the writ petition to be dismissed.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Ragu Thilak D. John v. S. Rayappan and Others	2001 (2) SCC 472	Positive	Cited to support that the question of limitation can be made an issue after allowing the amendment and that the court can decide that issue.
Sampath Kumar v. Ayyakannu and Another	2002 (7) SCC 559	Partly Overruled / Limited	Cited as supporting the doctrine of relation back, but the present judgment clarifies that its universal application is not warranted.
Subramanian v. Aboobacker Koya	2003 (3) KLT 819	Partly Overruled / Limited	Cited for relation back; court notes that it is not universally applicable and should be decided by the trial court.

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Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE THURSDAY, THE 14TH JUNE 2007 / 24TH JYAISHTA 1929 WP(C).No. 1572 of 2005(K) ------------------------OS.394/1998 of I ADDL.SUB COURT,TRIVANDRUM .................... PETITIONER: ------------ N.SARAMMA, D/O. NESAMMA, SHYNI NIVAS, B.P. NAGAR, PINNANKONAM, PEYAD, THIRUVANANTHAPURAM. BY ADV. SRI.P.SANJAY SRI.A.PARVATHI MENON RESPONDENTS: ------------- 1. BABU T.T., S/O. THANKAYYAN NADAR, RESIDING AT S.N.J. MANDIRAM, NIRMALA BHAVAN, NEAR CO-OPERATIVE BANK, KARAKULAM P.O., THIRUVANANTHAPURAM. 2. NIRMALA BABU, W/O. BABU T.T., RESIDING AT S.N.J. MANDIRAM, NIRMALA BHAVAN, NEAR CO-OPERATIVE BANK, KARAKULAM P.O., THIRUVANANTHAPURAM. BY ADV. SRI.BLAZE K.JOSE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/06/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO. 1572/2005 ## APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE I.A. 273/01 IN O.S. 394/98 BEFORE THE 1ST ADDL. SUBORDINATE JUDGE, TRIVANDRUM DATED 17.1.2001 EXT.P2: COPY OF THE ORDER IN IA 273/01 & IA 3392/03 IN OS 394/98 OF THE 1ST ADDL. SUB JUDGE, TRIVANDRUM DATED 4.6.2004. EXT.P3: COPY OF the I.A. 3243/04 IN OS 394/98 OF THE 1ST ADDL. SUBORDINATE JUDGE, TRIVANDRUM DATED 30.7.2004. EXT.P4: COPY OF THE ORDER IN I.A. NO. 3243/04 IN O.S. NO. 394/98 OF THE 1ST ADDL. SUB JUDGE TRIVANDRUM DATED 18.11.2004. ## **PIUS C. KURIAKOSE, J. ---------------------------------W.P.(C) NO. 1572 of 2005 ---------------------------------Dated this the 14[th] day of June , 2007** ## **JUDGMENT** The plaintiff petitioner in a suit, which was originally for specific performance of a contract for sale of property, is aggrieved by Ext.P4 order by which the trial court dismissed the application for reviewing Ext.P2 order by which the petitioner's application for amendment of the plaint was dismissed. 2. I have heard Smt.Parvathi Menon, the learned counsel for the petitioner and Sri. Blaze K.Jose the learned counsel for the respondents. The main thrust in the arguments of the learned counsel for the respondents defendants was that granting the amendment application would have caused serious legal prejudice to them in as much as the amendment will enable the plaintiff petitioner to get over the bar of limitation which had already in as against the relief for money decree sought to be incorporated as per the amendment. The suit was filed on the WPC No 2 basis of an agreement for sale for specific performance. But as a matter of fact, on the reverse side of the agreement itself there was an endorsement under the signature of the parties that agreement stood cancelled and that plaintiff was to be paid a particular amount in full and final settlement of his claims on a particular day. The above aspect, it appears, was not noticed even by the counsel for the plaintiff while filing the suit. Smt.Parvathi Menon submits that there has been change of vakalath and the above aspect could be noticed only after the new counsel was engaged. The learned Munsiff was not very much impressed by the explanation and dismissed the amendment application by Ext.P2. The Review Petition was dismissed mainly on the reason that the facts did not come within the contours of Order 47 Rule 1. 3. Change in the character and nature of the suit will not a reason for denying the amendment. All amendments which do not cause prejudice to the opposite side resulting in denial of justice or failure of justice ought to be allowed. If the proposed amendment enables the plaintiff petitioner to get over the bar of limitation, such amendment is not to be allowed since the 3 WPC No same will cause prejudice to the respondents. The question that arises for consideration in this case is whether the amendment sought to be incorporated will enable the petitioner to get over the bar of limitation. My attention was drawn to the decision of the Supreme Court in In **Ragu Thilak D.John v. S.Rayappan And others ( 2001 ) 2 Supreme Court Cases 472)** which lays down that in such a situation the question of limitation can be made an issue after allowing the amendment and court can be directed to take a decision on that issue. In **Sampath Kumar v. Ayyakannu And Another (2002) 7 Supreme Court Cases 559)** and also in the judgment of this court in **Subramanian v. Aboobacker Koya (2003 (3) KLT 819)** it is ruled that ultimately the rule is that amendment once allowed will relate back to the date of the suit. But the question whether doctrine of relation back in the context of amendment of pleadings is not one of universal application and it is for the court which allows amendment to clarify whether doctrine of relation back will apply to the given suit. 4. Having regard to the rival submissions addressed before me and having considered ratio emerging from the decisions WPC No 4 cited at the bar, I am of the view that in this case the amendment application filed by the petitioner ought to have been allowed by the learned Sub Judge and the respondents should have been permitted to raise question of limitation. But I noticed that there was inordinate delay on the part of the petitioner in seeking amendment and explanation for not seeking amendment earlier does not appear to be convincing to me also. Therefore, I am inclined to allow the amendment application only on terms. 5. The question whether amendment will relate back or not is also left open to be decided by the trial court. The trial court will permit the petitioner respondent to file written statement and if it is seen that question of limitation arises issue should be raised regarding limitation. The court will decide that issue along with the other issues and while deciding the issue of limitation, it will be open to the court to decide whether the amendment allowed by this court will relate back to the date of suit itself. In view of the above question, the writ petition will stand allowed issuing the following directions: Ext.P2 and P4 are set aside and I.A. 273/2001 will stand allowed on condition that the petitioner pays total cost of WPC No 5 Rs.1,500/- (Rupees One Thousand Five Hundred) within three weeks from today. Out of the cost a sum of Rs.1,000/- will be payable to the respondent either directly or through their counsel in this court and Rs.500/= will be payable to the High Court Legal Service Committee. If the payment is not made within the stipulated time, I.A. will stand dismissed and Ext.P4 order impugned in this writ petition will stand confirmed. Once the order allowing the I.A. become operative on payment of cost, The court below, will allow the respondents to file additional written statement raising all contentions. If it is contended that the suit is barred by limitation and that amendment will not relate back, issues should be raised by the learned Munsiff on those contentions and those issues will also be decided by the learned Munsiff along with the other issues. The writ petition is allowed subject to the above directions. **PIUS C. KURIAKOSE, JUDGE.** dpk WPC No 6