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Judgment
Heard.
Rule. Rule made returnable forthwith. Heard finally with the consent of learned Counsel for the parties.
The present petition challenges order passed below Exhibit 84 in Special Civil Suit No. 30/2020 by the Civil Judge, Senior Division, Amravati. By way of said order, the Trial Court has allowed the application and permitted the plaintiff to amend the plaint as prayed.
The facts which are more or less undisputed, are as under:
The present respondent Nos. 1 to 3 filed a Special Civil Suit No. 30/2020, thereby seeking decree of a declaration for a permanent injunction, partition, and separate possession. As the suit proceeded, as per the plaintiffs, i.e. the respondent Nos. 1 to 3 herein, the property change hands and the present petitioner purchased the property. Therefore, an application was moved on 15.02.2021 for adding the present petitioner as a party respondent. The said application was allowed by the Trial Court by order dated 03.03.2022. After the present petitioner was added as a defendant No. 7, the respondent Nos. 1 to 3 herein, i.e. present plaintiffs, chose to file an application for amendment on 18.07.2024. The said application was marked as Exhibit 84. After hearing the parties, the said application was allowed by the Trial Court vide order dated 01.10.2024, which is impugned in the present petition.
I have heard Shri Vaishnav, learned Counsel for the petitioner, and Shri Babrekar, learned Counsel for the respondent Nos. 1 to 3, i.e. the original plaintiffs. Shri Vaishnav took me through the impugned order and stated that as can be clearly seen from the date of knowledge as depicted in the application under Order 1, Rule 10, that the plaintiffs had sufficient knowledge of an execution of sale deed way back December, 2020. Therefore, the application for amendment moved in 18.07.2024, challenging the validity of the sale deed, was clearly time barred. He submits that a time barred amendment ordinarily would not have been allowed. He places reliance on the judgment reported in (2016) 14 SCC 761 State of Gujrat Vs. Kothari and Associates, (2004) 3 SCC 392 T.N. Alloy Foundry Co. Ltd. Vs. T.N. Electricity Board and others, and (1996) 7 SCC 486, Radhika Devi Vs. Bajrangi Singh and others, to buttress his contention.
Per contra, Shri Babrekar, learned Counsel for the respondent Nos. 1 to 3, states that a discretion has been exercised by the Trial Court, which has not shown to be perverse. He therefore submits that in supervisory jurisdiction, the Court would be loathe to interfere in the said order. He also places reliance on the recent judgment of the Hon’ble Supreme Court reported in 2024 SCC OnLine SC 3846 in the case of Mallavva and Another vs. Kalsammanavara Kalamma, It is his submission, by placing reliance on the said judgment, and more particularly paragraph No. 31 thereof, that when several reliefs are claimed in the suit, the limitation period would be that of the main relief and the limitation for the ancillary relief be ignored. Taking cue from this judgment, it is the submission of the learned Counsel for the petitioner that, admittedly, the main relief in the suit is partition and declaration qua the sale deed is the ancillary relief. Therefore, the limitation for challenging the sale deed has to be ignored, and what is to be considered is the limitation for filing a suit for partition. Even if this aspect is considered, the amendment as proposed would be clearly within limitation.
I have gone through the impugned order. The aspect that the limitation vis-a-vis the main relief of partition has not been considered by the Trial Court, and it has only proceeded on a premise that the amendment is necessary for determining real question in controversy between the parties. Therefore, in my considered opinion, it would be proper to quash and set aside the
order dated 01.10.2024, passed below Exhibit 84 in Special Civil Suit No. 30/2020 and relegate the matter to the Trial Court to decide the application filed at Exhibit 84 afresh.
In that view of the matter, the matter is remanded to the Civil Judge, Senior Division, Amravati for deciding Exhibit 84 afresh after affording an opportunity to the parties of hearing. Accordingly, petition is allowed and disposed of in above terms.