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Judgment
Aravind Kumar, J.—Heard Sri. G.B. Manjunatha, learned counsel appearing for the petitioner and Sri. Sreedhar, appearing on behalf of respondent No. 1. The counsel appearing on behalf of respondent No. 2 before the Court below has been served and unrepresented. Respondent No. 3 is served and unrepresented. Matter is taken up for final disposal by consent.
Second defendant in O.S. No. 6916/2007 being aggrieved by the order of rejection of I.A. No. 10 filed under Order VI Rule 17 of CPC seeking amendment of the written statement, has challenged the order dated 07.07.2014 (Annexure-H).
Parties are referred to as per the rank in Trial Court.
Plaintiff has filed the suit for specific performance of a contract and to direct the defendants to execute the sale deed in respect of the suit property. During the pendency of the suit, 3rd defendant who is the sister of 2nd defendant has executed a sale deed on 30.10.2010 conveying her 1/3rd undivided share right, title and interest in the suit schedule property. Subsequently, the plaintiff filed an application under Order VI Rule 17 CPC seeking amendment of the plaint to place the said material fact on record. This application having been rejected by the Trial Court, came to be allowed by this Court and accordingly, the amendment has been carried out. To the said amendment brought about by the plaintiff, 2nd defendant has also filed his additional written statement and 3rd defendant filed a memo adopting the additional written statement filed by 2nd defendant.
It is thereafter I.A. No. 11 came to be filed by the 2nd defendant namely application in question for amending the written statement by raising a counter claim for declaring the sale deed dated 30.10.2010 executed by the 3rd defendant in favour of the plaintiff is invalid and not binding upon him and to direct the 3rd defendant to execute the absolute sale deed in his favour by receiving consideration amount as indicated in the sale deed. The said claim raised by the 2nd defendant was by virtue of the alleged preferential right to purchase 1/3rd share of the 3rd defendant as provided under Section 22 of the Hindu Succession Act.
This application came to be resisted by the learned counsel appearing for respondent No. 1, contending inter alia that said plea is not necessary for adjudication of the dispute in question and even otherwise the counter claim by defendant No. 3 as on date it was brought was barred by limitation.
Trial Court after considering rival contentions by impugned order dismissed the application, for the reason that plea of counter claim was barred by limitation under Article 97 of the Limitation Act.
It is the contention of Sri. G.P. Manjunatha, learned counsel appearing for 2nd defendant that in the normal course, all the applications for amendment ought to be allowed; defendant would be entitled to raise alternate or even inconsistent pleadings; issue of limitation is a mixed question of fact and law and as such, without recording of evidence Trial Court could not have dismissed the application for amendment of written statement and lastly, until and unless defendant''s possession over the suit property is disturbed or possession is sought to be obtained, limitation would not start and as such the application for amendment of written statement ought to have been allowed. In support of his submission he has relied upon the following cases:
"i) Rajinder Singh v. Balbir Singh And Ors reported in LAWS (P&H)-2015-1-26
ii) Prahlad Rai Dhanania Vs. Narayani Devi Dhanania-->
iii) Mihir Kumar Das Vs. Ajanta Dutta--> "
Per contra, Sri. Sreedhar, learned counsel appearing on behalf of respondent - plaintiff i.e., 1st respondent would support the impugned order and press for dismissal of the writ petition.
Having heard the learned advocates appearing for the parties and on perusal of the case papers, this Court is of the considered view that core issue which requires to be considered is whether claim of defendant raised in the proposed amendment of written statement was time barred as on said date and as such dismissal of the applications is to be upheld or reviewed. 2nd defendant by amendment is seeking to raise a plea that he has a preferential right over undivided share of 3rd defendant and as such plaintiff and 3rd defendant be directed to execute absolute sale-deed in his favour. The period of limitation prescribed to enforce such right is traceable to Article 97 of the Limitation Act, 1963 and same reads as under.
A bare reading of this Article would indicate to enforce such right period of limitation prescribed is one year. Third column of the schedule would indicate that such time of 1 years prescribed under said column would begin to run under two contingencies namely two types of cases are covered by it. Firstly, if it is proved that the purchaser has taken physical possession of the whole or part of the property sold under the sale sought to be impeached, then limitation of one year would start from the date when such physical possession was sought to be obtained. Secondly, if the subject matter of the sale did not admit of physical possession of the whole or part of the property, limitation of one year would commence from the date when the sale deed/instrument was registered. In order to apply the first part of 3rd column of the Article, one has to see whether the subject matter of the sale admits of the physical possession of the whole or the part of the property and whether the purchaser has taken such physical possession under the sale sought to be impeached. If this test is satisfied then the limitation of one year would start from the date when the said physical possession was taken. On the other hand, if the subject matter of the sale does not admit the physical possession of whole or part of the property, then limitation will start from the date of registration of the sale deed. Yet another factor which requires to be noticed is that if the property or a part thereof under the sale is incapable of physical possession, limitation in the suit under Article 97 of the Act would commence from the date of registration of the sale deed and not from the date of sale. The words "does not admit of physical possession" found in this Article mean "does not for the time being, admit of physical possession" and in such cases time begins to run from the date of registration of the sale deed.
The expression "physical possession" came up for consideration before the privy counsel reported in 1902 ILR 24 Allahabad 17 PC, Lord Robert Stuart speaking for the judicial committee he has said:
"Section 30 of the Punjab Pre-emption Act applies only when the case does not fall within Article 10. On the finding of the District Judge and of the High Court it is obvious that physical possession of the whole of the property sold was not taken by the vendees, on the date of sale. Therefore, the first part of article does not apply. According to the appellants'' counsel the land sold does admit of physical possession and if a part of the land has been taken into possession by the vendees then Article 10 would be inapplicable and Section 30 of the Punjab Preemption Act would be attracted. In that case the terminus a quo according to Shri Gosain would be the date on which the vendees took under the sale physical possession of any part of such land. The arguments in our view is misconceived.
The argument that use of the expression "subject of the sale" suggests that this article would apply only if the entire and not only a part of the land is in the possession of the tenants is not acceptable.
"What has to be considered is as the High Court accurately formulated, the question, Does the property admit of physical possession? The word "Physical" is of itself a strong word, highly restrictive of the kind of possession indicated; and when it is found, as is pointed out by the High Court, that the Legislature has in successive enactments about the limitation of such suits gone on strengthening the language used,- first in 1859 prescribing "possession", then in 1871 requiring "actual possession" and finally in 1877 substituting the word "physical" for "actual", it is seen that that word has been very deliberately chosen and for a restrictive purpose. Their Lordships are of opinion that the High Courts are right in the conclusion they have stated. Their Lordships consider that the expression used by Stuart, C.J., in regard to the words "actual possession" is applicable with still more certainty to the words "physical possession" and that what is meant is a "personal and immediate possession".
In the instant case, the application for amendment of the written statement sought for by the 2nd defendant under I.A. No. 11 (Annexure-F) would clearly indicate that the counter claim was made in respect of the suit schedule property contending inter alia that the sale deed dated 30.10.2010 executed by the 3rd defendant in favour of the plaintiff is invalid and not binding upon him. It is no doubt true that while considering an application for amendment of written statement which stands on a different footing, than an application for amendment of the plaint and it would normally be allowed and of course if it does not place the plaintiff in a disadvantageous position or takes away the valuable right accrued if any or in other words if by way of proposed amendment any counter-claim is made it should be within limitation and it should not have became time barred and if fresh suit is brought on said date it should not have become barred by limitation. Apex Court in the case of Revajeetu Builders and Developers Vs. Narayanaswamy and Sons and Others, has indicated the contours which will have to be considered while considering an application for amendment which are illustrative in nature and they read as under:
"63. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment.
(2) Whether the application for amendment is bona fide or mala fide;
(3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;
(4) Refusing amendment would in fact lead to injustice or lead to multiple litigation;
(5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case;"
Thus, keeping these aspects in mind when facts on hand are examined, it would indicate that plaintiff has filed the suit for specific performance of an alleged agreement of sale dated 10.06.1976 on 26.08.2007 and during the pendency of the said suit, 3rd defendant sold her 1/3rd undivided share in the suit schedule property in favour of plaintiff under a registered sale deed dated 30.10.2010. Hence, application for amendment of plaint came to be filed by the plaintiff to place the said material fact on record. Said application came to be filed on 19.11.2010. The date of filing of the suit on 26.08.2007, sale of 1/3rd undivided share by the 3rd defendant in favour of plaintiff on 30.10.2010 and filing of the application for amendment by the plaintiff on 19.11.2010 are all undisputed facts. It is also not in dispute that under the sale deed dated 30.10.2010 possession of the suit property was not delivered to the plaintiff (which is not disputed by either of parties) and this aspect has been delved upon by the Trial Court and it has rightly arrived at a conclusion that the 1st part of Article 97 would be inapplicable to the case on hand. Thus 2nd part of Article 97 would be applicable and when so applied, the limitation for the second defendant to raise the claim either by way of filing of counter claim or by filing a fresh suit would commence from the date of filing of instrument of sale came to be registered i.e., from 30.10.2010. Even if it is construed that knowledge of such sale is to be construed as starting point of limitation then filing of the amendment application by the plaintiff i.e., on 19.11.2010 would be starting point inasmuch as in the said application and the affidavit supporting the said application, plaintiff has unequivocally stated that he has purchased 1/3rd undivided share in the suit schedule property from the 3rd defendant on 30.10.2010 and this fact was fully within the knowledge of the second defendant. Impugned order is examined from this angle also. In view of the assertion made by Sri. Manjunatha, learned counsel appearing for the writ petitioner/2nd defendant contending that limitation would commence from the date of knowledge of such sale to the 2nd defendant by contending that only on production of said sale deed dated 30.10.2010 during the course of trial by the plaintiff, 2nd defendant would become aware of such sale.
Execution of sale deed dated 30.10.2010 by 3rd defendant in favour of plaintiff has been brought on record by the plaintiff by his application for amendment of the plaint and same came to be filed on 19.11.2010. The registration of the sale deed is dated 30.10.2010. The application in question namely the application filed for amendment of the written statement for raising counter claim came to be filed on 28.11.2013. Thus, the period of one year as prescribed in the second part of the Article 97 would commence from the date of the registration of the sale deed if reckoned from date of filing of application for amendment i.e., 19.11.2011 one year would come to an end on 18.11.2011 and the application in question having been filed on 28.11.2013 it was time barred and the valuable right accrued to the plaintiff as such would be taken away if amendment is allowed and it would amount to revival of dead claim.
Sri. Manjunatha, has contended that the certified copy of the sale deed dated 30.10.2010 has been produced only on 23.10.2013 and as stated limitation would commence from the said date. Though the argument is attractive, it is not susceptible to acceptance for reasons more than one. Firstly, the execution of the sale deed dated 30.10.2010 was placed on record by way of an affidavit by the plaintiff to the application for amendment filed seeking amendment of plaint on 19.11.2010 itself and second defendant was aware of this fact and sale deed had also been produced along with the application and 2nd defendant raise his little finger to seek for amendment of the written statement by raising a counter claim at that time itself as such said contention cannot be accepted.
Sri. G.B. Manjunatha in support of his contention has relied upon Re: Rajinder Singh v. Balbir Singh and Ors., reported in LAWS (P&H)-2015-1-26. It has been noticed by the learned Judge that in a given case it is to be examined whether the land was capable of physical possession of the whole or part of the property and if so, it has been held that the first part of Article 97 would be applicable. It has also been held that if the physical possession is not capable of delivery, the 2nd part of Article 97 would be applicable.
In the instant case, it is undisputed that the recitals in the sale deed dated 30.10.2010, does not even remotely suggest that physical possession has been delivered. It is also not the case of the 2nd defendant that such possession has not been delivered to plaintiff. Thereby issue of possession being delivered or not delivered would have no bearing in the instant case. As such, it has been held hereinabove that 2nd part of Article 97 would be applicable. In that view of the matter, this judgment would not come to rescue of 2nd defendant/writ petitioner.
Prahlad Rai Dhanania Vs. Narayani Devi Dhanania--> . It has been noticed by learned Hon''ble Judge after having discussed and analyzed Article 97 of the Limitation Act, 1963, that while applying Order VII Rule 11(d) to reject the plaint on the ground of limitation, it should be manifest from a plain reading of plaint that the suit is barred by limitation. It has also been held in the said judgment that issue regarding limitation would be a mixed question of fact and law. It would be unsafe to hold that the situation which was obtained in Prahlad Rai''s case, is applicable to the instant case, inasmuch as there is no dispute in the instant case with regard to recitals found in the sale deed dated 30.10.2010 and possession of whole or part of suit schedule property was not delivered by 3rd defendant in favour of plaintiff. Under the said circumstances, delivery of possession of the property in question by the 3rd defendant in favour of plaintiff having no bearing in the instant case, it is 2nd part of Limitation Act that would be attracted and the prescribed period of 1 year would commence from the date of sale-deed came to be registered i.e., one year from 30.10.2010 and it would end on 29.10.2011.
Hence, I find no merit in this writ petition. Accordingly, petition is rejected.
Ordered accordingly.