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Judgment
This revisional application is directed against an order no. 59 dated 29th November, 2017 passed by the learned Civil Judge (Senior Division), 2nd Court, Tamluk, Purba Medinipur in Title Suit No. 134 of 2013, by which an application for amendment of the plaint is rejected.
At the very outset this Court must record that the grounds on which the said application has been rejected are not convincing and legally sustainable. The delay in taking out an application for amendment cannot be a sole factor for dismissing the same. Even an application for amendment taken out after the commencement of trial, the Court cannot reject such application solely on the ground of delay, if the party applying for an amendment has satisfactorily proved his due diligence.
Initially this Court was inclined to set aside the impugned order, but after perusing the schedule of amendment, this Court finds that the ultimate decision taken by the Trial Court is legal and justified.
The plaintiff/petitioner filed a suit for declaration, partition and separation of shares. By the proposed amendment the petitioner intended to incorporate that the earlier two suits were instituted in the year 2005 and the orders passed therein are illegal and bad on the ground of fraud and false impersonification.
The aforesaid facts were disclosed by the contesting defendants in the written statement, which was filed in the year 2011. The proposed amendment came to be filed in the year 2017 after a gap of nearly six years.
Article 59 of the Limitation Act provides three years period for setting aside any decree, when such facts entitle the plaintiff to seek such relief and the limitation would reckon from the date when such facts first became known to him. Admittedly those facts were disclosed in the written statement by the contesting defendants filed in the year 2011 and was well within the knowledge of the plaintiff/petitioner.
This Court, therefore, finds that the relief of such nature is barred by limitation. I am not oblivion of the settled proposition of law that the Court should not venture to verify the genuinity, authenticity and sanctity of the proposed amendment at the time of considering an application for amendment of the pleading.
It is no longer res integra that if the Court finds that the point of limitation is debatable one and depends upon the facts as well as the evidence to be led, it should permit the party to amend the pleading and incorporate those facts with the restriction that such facts would not be treated to have been incorporated in the plaint at the time of initiation, but should be treated from the date of the application for amendment. In other words, the doctrine of ''relation back'' can be applied in such eventuality. If the Court finds that the relief claimed by way of proposed amendment is apparently and palpably barred by limitation, it should not allow such amendment to be carried out in the pleading. Furthermore, if the independent suit for such relief is barred by the provisions of the Limitation Act, the Court should not permit the party to take such plea by way of an amendment of the pleading and to frustrate the purpose and the object behind incorporation of the period of limitation.
So far as the other facts sought to be incorporated by way of amendment are concerned, this Court also finds that the independent suit on the basis of the aforesaid facts is barred by the provisions of Benam Transaction (Prohibition) Act, 1988. If the relief cannot be given because of the embargo created under the Special Act, the Court should not permit the party to incorporate those facts, as those facts may be decided negatively at the time of trial. If the relief of such nature is expressly barred by the provisions of the Act, the amendment application should not be allowed to incorporate such facts in the pleading.
This Court, therefore, finds that the Trial Court did not commit any error in dismissing the said application.
The revisional application is thus dismissed.
There will be no order as to costs.