The BEML Employees Co-operative Housing Society Limited vs Gowramma

Anand Byrareddy, J.—The petition coming on for preliminary hearing, is considered for final disposal given that any order of stay granted and a final hearing in this matter would further delay the suit which is of the year 2006.

The petitioner is said to be Defendant No. 3 in a suit filed originally for the relief of bare injunction, which was later amended to include the relief of mandatory injunction. It is after the pleadings having been completed and issues framed and the plaintiffs having tendered evidence that the plaintiffs have chosen to file an application seeking the additional relief of declaration of title. The same was opposed by the defendants including the present petitioner. The court below however has allowed the application while observing that inclusion of such a relief at the stage at which the application was filed would not bar the relief being claimed by the law of limitation and further since the defendants would not be prejudiced as they would be enabled to file their additional written statement to the amended pleadings that issues could be framed including on the question of limitation, the court has opined that there was no prejudice caused to the defendants. However, the learned counsel for the petitioner would express his grave apprehension that having regard to the observation already made by the Trial Court that the relief being granted would not be opposed to the law of limitation, is a premature decision taken without considering the gravity of the amendment now brought about taking away the defence of the suit being barred by limitation.

Notwithstanding the further observation of the court that the defendants are not precluded from taking a defence as to the relief being barred by limitation which remains a grave apprehension and therefore would contend that the suit having run its course over the years and the plaintiff never having raised an issue of title, it is only as an afterthought that the present application was filed which could not be allowed by the Trial Court, thereby affording a lever to the plaintiff which was not available in the suit as filed earlier. Therefore, the plaint being given a different avatar at this point of time, causes serious prejudice to the defendants, contrary to the view expressed by the Trial Court and hence seeks that the petition be allowed.

While the learned counsel for the respondents would seek to justify the order and would point out that it is only after the additional written statement was filed that the plaintiffs became aware of the denial of their title and they were advised to file an appropriate application seeking amendment which does not in any way change the case of the plaintiffs. They may not even choose to lead any additional evidence on the pleadings now amended and would seek to justify the reasoning of the court below.

Given the above facts and circumstances, it is to be observed that apart from the plaintiffs having tendered evidence by way of examination-in-chief and having been cross-examined and the matter now being posted for additional written statement if any by the defendants, there is no prejudice caused as observed by the Trial Court if the amendment is allowed, for otherwise there is a duplication of the proceedings all over. However, the significant aspect whether the amendment would date back to the plaint or should be construed from the date the amendment was allowed, is a question that is not conclusive.

Any observation by the Trial Court need not be construed as being final and it is an issue which would have to be framed and decided in the course of the trial. Therefore, while observing that whether or not the amendment was barred by limitation is a question that is left open and would be an issue to be framed in the suit and having regard to the further circumstance that the defendants are now put to much inconvenience and hardship, the cost imposed in a sum of Rs. 1,000/- is paltry amount and stands enhanced to Rs. 10,000/-. With that modification, the petition is allowed. The cost shall be paid to Defendants 3 and 4 jointly, at the next date of hearing before the Trial Court.