Smt. Lalitha Shivappa vs Sri S.C. Byrahanumaiah and Others

A.N. Venugopala Gowda, J.—Petitioner is the 10th Defendant in the suit instituted by the 1st Respondent/Plaintiff. Written statement was filed and the suit was contested. Indisputably, trial of the suit has not commenced. I.A.8 was filed by the Plaintiff under Order 6 Rule 17 CPC praying to amend the plaint i.e., to incorporate an additional prayer. Petitioner/10th Defendant filed objections and raised amongst others, the plea of bar of limitation. The Trial Court has allowed I.A.8 subject to payment of cost of Rs. 350/-. Aggrieved, the 10th Defendant has filed this writ petition.

Heard the learned Counsel on both sides and perused the record.

The question raised for consideration is that, the amended prayer is barred by limitation. Whether it is so or not is not the matter which can be decided by a mere hearing. Question of limitation is not a pure question of law but a mixed question of fact and law, which requires trial. Whether it is Article 58 or any other article under Limitation Act, which applies, is an arguable point. It is settled position of law that, even time barred amendment could be allowed since the object of Rule 17 under Order 6 CPC is to avoid multiplicity of suits and to decide the real question in controversy between the parties unless it causes irremedial injustice to the opponent.

Considering the nature of amendment sought for, being an additional prayer based on the existing pleading, it would be in the interest of justice to allow the impugned order to remain subject to the condition that the amendment sought shall be effective from the date I.A.8 was filed and not relating it back to the date of the institution of the suit. The suit was filed on 28.1.2000 whereas I.A.8 was filed on 5.9.2007.

In the result, the writ petition stands disposed of. The Trial Court is directed to raise an issue regarding bar of limitation by treating additional prayer incorporated pursuant to the order on I.A.8 as if the same has come into the plaint with effect from 5.4.2007. The 10th Defendant is permitted to file additional written statement, within 3 weeks from today. If any other issues also arise for consideration, the same may be raised and the suit be disposed of as early as practicable and at any evident within one year from the date a copy of this order is placed on record of the suit by either of the parties. No costs.