Holding

The amendment is time‑barred and the doctrine of relation back does not apply; the appeal is dismissed.

Summary

L.C. Hanumanthappa filed a suit for permanent injunction against H.B. Shivakumar on 9 March 1990. The defendant’s written statement dated 16 May 1990 denied the plaintiff’s title to the suit property, thereby putting the plaintiff on notice that a right to sue for declaration of title had arisen. On 1 April 2002 the plaintiff amended the plaint to add a prayer for declaration of title. The High Court allowed the amendment but subject to a plea of limitation, later holding the amendment time‑barred under Article 58 of the Limitation Act, 1963. The Supreme Court affirmed that the right to sue for declaration of title first accrued on 16 May 1990, so the three‑year limitation expired on 16 May 1993, making the amendment barred. The doctrine of relation back was held not to apply because the amendment was allowed with a limitation plea and no special circumstances existed. The appeal was dismissed.

Issues considered

The amendment of the plaint to include a declaration of title is barred by the limitation period under Article 58 of the Limitation Act, 1963.
Whether the doctrine of relation back can make the amendment relate back to the date of the original suit.
When does the right to sue for declaration of title accrue in the present facts.

Legislation cited

Code of Civil Procedure, 1908s. Order 6 Rule 17
Limitation Act, 1963s. Article 58 (Schedule), s. Section 22

Subjects

LimitationAmendment of plaintRelation back doctrineDeclaration of titlePermanent injunctionCivil ProcedureArticle 58Order 6 Rule 17

Judgment

[2015] 9 S.C.R. 651

L.C. HANUMANTHAPPA(SINCE DEAD) REPRESENTED A
BYHISLRS.
v.
H. B. SHIVAKUMAR
(Civil Appeal No.6595 of 2015) B
AUGUST 26, 2015
[A.K. SIKRI AND R. F. NARIMAN, JJ.]

Limitation Act, 1963 - Schedule Article 58 ~Applicability C
of - To amended plaint - Original Suit for permanent
injunction filed on 9.3.1990 - In original written statement
(filed on 16. 5. 1990) plaintiff's title to property denied -
Amendment of plaint allowed by order dated 28.3.2002 -
Amendment of plaint for declaration of title to the suit D
schedule property-Plea in additional written statement that
the plea of declaration of title was time-barred- Suit decreed,
turning down the plea of limitation - High Court held that the
amended plea was time-barred - On appeal, held: Right to
sue for declaration of title first arose on 16. 5. 1990 (when the E
defendant denied the title in his written statement) - The
amendment having been done after 3 yearsfrom 16.5.1990
was time-barred u!s. 58 - Doctrine of relation back will also
not apply to the present case, because the amendment was
allowed subject to the plea of limitation - Doctrine of Relation F
Back - Code of Civil Procedure, 1908 - Or. 6 r. 17.

Dismissing the appeal, the Court

HELD: 1. Article 58 of the Limitation Act, 1963 would
apply to the amended plaint inasmuch as it sought to G
add the relief of declaration of title to the already existing
relief for grant of permanent injunction. The present
amendment of the plaint is indeed time-barred in that the
651 H
652 SUPREME COURT REPORTS [2015] 9 S.C.R.

A rightto sue for declaration of title first arose on 16th May,
1990 when in the very first written· statement the
defendant had pleaded, that the suit for injunction
simpliciter is not maintainable in that the plaintiff had
failed to establish title with possession over the suit
B property. [Paras 13, 14] [660-A-B; 662-E-F]
Khatri Hotels Private Limited & Anr. v. Union of India &
Anr. 2011 (15) SCR 299: (2011) 9 sec 126 - relied on.

C 2.1 In the present case, two things are clear. First, in
the original written statement itself dated 16th May, 1990,
the defendant had clearly put the plaintiff on notice that
it had denied the plaintiff's title to the suit property.
Secondly; while allowing the amendment, the High Court
o in its earlier judgment dated 28th March, 2002 had
expressly remanded the matter to the trial court, allowing
the defendant to raise the plea of limitation. Thus, the
right to sue for declaration of title first arose on 16th May,
1990 when the original written statement c!early denied
E the plaintiff's title. By 16th May, 1993 therefore a suit based
on declaration of title would have become time-barred.
[Para 29] [67 4-A-E]

2.2 The doctrine of relation back would not apply to
F the facts of the present case for the reason that the court
which allowed the amendment expressly allowed it,
subject to the plea of limitation, indicating thereby that
there are no special or extraordinary circumstances in
the present case to warrant the doctrine of relation back
G applying so that a legal right that had accrued in favour
of the defendant should be taken away. [Para 29] [674-
E-F]

Kisandas Rupchand v. Rachappa Vithoba ILR 33 Bom
H 644 (1900); Pirgonda Hongonda Patil v. Kalgonda
L.C. HANUMANTHAPPA (SINCE DEAD) REPRESENTED 653
BY HIS LRS. v. H. 8. SHIVAKUMAR

Shidgonda Patil 1957 SCR 595; Charan Das v. Amir Khan A
47 IA255 (1920); L.J. Leach & Co. Ltd. v. Jardine Skinner&
Co. 1957 SCR 438; K. Raheja Constructions Ltd. & Anr. v.
Alliance Ministries & Ors. 1995 (3) SCR 960: 1995 Supp.
(3) SCC 17; Vishwambhar & Ors. v. Laxminarayan (Dead)
through LRs & Anr. (2001) 6 SCC 163; Siddalingamma and B
Anr v. Mamtha Shenoy 2001 (4) Suppl. SCR 366: (2001) 8
SCC 561; Sampath Kumar v. Ayyakannu and Anr. 2002 (2)
Suppl. SCR 397: (2002) 7 SCC 559; Van Vibhag
Karamchari Griha Nirman Sahkari Sanstha Maryadit
(Registered) v. Ramesh Chander and Ors. 2010 (12) SCR c
1045: (20~0) 14 SCC 596; Prithi Pal Singh andAnr. v. Amrik
Singh and Ors. (2013) 9 SCC 576 - referred to.

Case Law Reference
D
2011 (15) SCR 299 relied on. Para 13

ILR 33 Som 644 (1900) referred to. Para 15

1957 SCR 595 referred to. Para 16
E
47 IA 255 (1920) referred to. Para 17

1957 SCR"'438 referred to. Para 18

1995 (3) SCR 960 referred to. Para 22
F
(2001) 6 sec 163 referred to. Para 23

2001 (4) Suppl. SCR 366 referred to. Para 24

2002 (2) Suppl. SCR 397 referred to. Para 25
G
2010 (12) SCR 1045 referred to. Para 27

(2013) g sec 576 referred to. Para 28

H
654 SUPREME COURT REPORTS [2015] 9 S.C.R.

A CIVIL APPELLATE JURISDICTION: Civil Appeal· No.
6595 of 2015.

From the Judgment and Order dated 05.03.2015 of the
High Court of Karnataka at Bangalore in RF.A. No. 796 of
B 2009.

P. Vishwanatha Shetty, S. K. Kulkarni, M. Gireesh Kumar,
Mahesh Thakur, Ankur S. Kulkarni for the Appellants.

Dr. Aditya Sondhi, Chandan S. Rao, Vikas Mehta,
C Anushree Menon forthe Respondent.

The following Judgment of the Court was delivered by

R.F. NARIMAN, J.1. Leave granted.
D
2 .. The present case arises out of cross suits filed by the
parties. On 9th March, 1990, one LC. Hanumanthappa filed a
suit against one H.B. Shivakumar for permanent injunction
restraining the defendants, his servants and agents from
E disturbing the peaceful possession and enjoyment of the suit
schedule property. In this suit, namely, O.S. No. 1386of1990
filed before the City Civil Court, Bangalore, the plaintiff averred
that he is the absolute owner, and in lawful possession and
enjoyment of the suit property. He also averred in the said suit
F that the schedule property is clearly distinguishable and could
be identified without difficulty. According to the plaintiff, the
cause of action arose when the defendant tried to trespass on
the schedule property two days before the suit was filed.

G 3. Within a few days from the filing of this suit, the
defendant in the first suit filed a suit being suit number O.S.
1650 of 1990 in the City Civil Court at Bangalore against one
LC. Ramaiah and the said Shri Hanumanthappa stating that
the defendants had attempted to trespass into the suit schedule
H property about 15 days prior to the suit being filed, and asked
for a permanent injunction against the said defendants
L.C. HANUMANTHAPPA (SINCE DEAD) _REPRESENTED 655
BY HIS LRS. v. H. B. SHIVAKUMAR [R.F. NARIMAN, J.]

restraining them from interfering with the peaceful possession A
and enjoyment of the suit schedule property. The plaintiff also
claimed to be the owner in possession of the suit schedule
property.

4. In the written statementto O.S. No. 1386of1990 dated B
161h May, 1990, the defendant not only referred to his own suit
which had by then already been filed, but specifically stated
as follows:-

"4. The boundaries furnished by the plaintiff to old survey c
site No.13, in the plaint schedule is totally false and that
has nothing to do with the boundaries mentioned in his
document.

5. The Plaintiff has failed to established any relationship
D
between old site No.13 and Corporation No.12/2, as
claimed by him in the pl~int.

6. The allegations that at the time of the purchase of the
schedule property by the plaintiff, western boundary was
a building site bearing No.14 and however subsequently E
the said portion left for building site has been converted
as road and is being used as such since several years
are false and further it is false to state that the east of the
schedule property bearing building site No. 12 is situate F
and the same was belonging to one H.
Venkataramanappa and however, the said site has been
sold by him and now the said property is owned by one
SriAhmadullah khan and he has constructed a building
·thereon, as alleged in para 2 of the plaint. G

7. The plaintiff has purposefully distorted the b~undary
of his old site No. 13 to bring substantially the boundaries
of site No.15, old 3, C.T.S. No. 1157 (city Survey) which
exclusively belongs to the defendant.
H
656 SUPREME COURT REPORTS [2015] 9 S.C.R.

A 13. The suit for injunction is not maintainable in that, he
has failed to establish title with possession over site No.
old 13, and that is not establishing any connection
between old site No.13, and new No. 12/2, alleged to be
assigned by Bangalore City Corporation or about 6-6-
B 1989."

5. It can thus be seen that on 16th May, 1990 itself the
plaintiff in O.S. No. 1386 of 1990 was put on notice that his
suit for injunction was not maintainable as he had failed to
C establish title over the suit schedule property.

6. Both suits were tried together, and by a judgment dated
1Oth March, 1999, the Court of Additional City Civil Judge at
Bangalore decreed O.S. No. 1650 of 1990 and dismissed
o O.S. No. 1386 of 1990. In the first appeals filed against the
said judgment, the High Court of Karnataka by its judgment
dated 28th.March, 2002 allowe.d R.F.A. No. 4-15of1999, and
dismissed R.F.A. No. 456of1999, and remanded the matter
back to the trial court for fresh consideration. The High Court
E while remanding the matter observed as follows:-

" 10. The trial Court had also appointed the
Commissioner. The Commissioner after inspecting the
properties has given his report. The commissioner has
F also been examined as PW.2. From looking into the
pleadings and the evidence adduced by the parties, it is
crystal clear that the dispute is in respect of the identity
of two properties and to declare right and title over the
properties. The respondent in this case has not disputed
G the sale deed which stands in the name of the appellant.
Since the defendant is disputing and existence of the
St.lit schedule property, the present application is filed
for declaration of his title. The respondent has resisted
the application, contending that the relief sought for by
H the appellant is barred by limitation and that relief sought
L.C. HANUMANTHAPPA(SINCE DEAD) REPRESENTED 657
BY HIS LRS. v. H.B. SHIVAKUMAR [R.F. NARIMAN, J.]

by way of limitation. However, such a plea can be raised A
by the respondents by filing additional written statement.
Considering the fact that the dispute in respect of an
immovable property and question of identification of two
properties have been involved, as the defendant is also
not disputing the sale deed of the appellant, this court to B
allow the application filed by the appellant for amendment
of plaint seeking additional evidence.

11. Accordingly, R.F.A. No. 415/99 is allowed. The
judgment and decree passed in O.S. No. 1386/90, is C
set aside. The matter is remanded to the Trial Court to
hold fresh enquiry after giving reasonable opportunities
for both the parties. The defendant is entitled to file
additional written statement and also entitled to raise the
question of limitation. The Trial Court shall dispose of D
the suit within six (6) months from to-day in accordance
with law. The judgment and decree passed in O.S. 1650/
90, which is the subject matter of RFA 415/99 is
concerned, there is no need for this court to disturb the
decree of injunction and that the decree that may be E
passed in O.S. 1386/90 by the Trial Court will have a
bearing on the judgment and decree in O.S. No. 1650/
90. In the event of appellant succeeding in O.S. 1386/
90, the judgment and decree passed in O.S. 1650/90 in F
favour of Shivakumar for bare injunction will be
unenforceable against the appellant- Hanumathappa.
However, it is made clear till the disposal of 0. S. 1386/
90, the respondent/plaintiff-shivakumar in O.S. 1650/90
is hereby directed to maintain status-quo. If such an order G
is not passed, the respondent/plaintiff-Shivakumar may
proceed with the construction and if he is allowed to
construct and in the event of appellant succeeds in O.S.
No. 1386/90, than it will lead to multiplicity of proceedings.
Therefore it is necessary to direct the respondents to H
658 SUPREME COURT REPORTS [2015) 9 S.C.R.

A maintain status-quo."

7. On 1•tApril, 2002, the plaintiff in O.S. No. 1386of1990
then sought to amend the plaint in terms of the said judgment
by adding para 5A to the plaint in which the plaintiff stated:-
B
"5A. "The Plaintiff submit that the Defendant has no
manner of right title and interest in the plaint Schedule
Property. The Defendant has denied the title of the plaintiff
in respect of the suit Schedule Property. Hence it is just
c and essential to declare that the plaintiff is absolute owner
in possession of the Schedule property. If the declaration
as sought is not granted the Plaintiff who is the absolute
owner from 05/05/1956 and enjoying the property as
absolute owner thereof, will be put great loss and
D prejudice. On the other hand no hardship or prejudice
will be caused to the defendant if the declaration as
sought is granted."

8. A decree for declaration of title to the suit schedule
E property was then added as a prayer to the amended plaint.
On 1st August, 2002, the defendant filed an additional written
statement in which the defendant stated that the said plea
based on a new cause of action, namely, declaration of title,
was time-barred.
F
9. After remand, by its judgment and decree dated 16th
April, 2009, the City Civil Court at Bangalore decreed the suit
O.S. No. 1386of1990. ltturned down the plea of limitation by
stating that since in the original written statement the defendant
G had admitted the title of plaintiff Hanumanthappa, and only in
the written statement dated 1st August, 2002 was title denied
for the first time after the amendment of the plaint was moved,
the relief of declaration claimed by the plaintiff would be within
the period of limitation.
H
10. In R.F.A. No. 796 of2009, by the impugned judgment
LC. HANUMANTHAPPA (SINCE DEAD) REPRESENTED 659
BY HIS LRS. v. H. B. SHIVAKUMAR [R.F..NARIMAN, J.]

dated 5th March, 2015, the High Court reversed the said A
judgment on limitation stating that the original written statement
filed on 16th May, 1990 had clearly stated that the plaintiff did
not have the necessary title to the suit schedule property, and
as the amendment of the plaint was moved long after three
years from 16th May, 1990, it was clear that it was time-barred. B
O.S. No. 1386 of 1990 was thus dismissed on limitation alone.
The High Court also turned down the plea with reference to
Section 22 of the Limitation Act, 1963 stating that on the facts
of the present case limitation could not be extended because
the wrong in the present case was not a continuing wrong. C

11. Learned counsel forthe appellant has argued that once
an amendment to the plaint is allowed, it necessarily relates
back to the date on which the plaint was originally filed, and
since the amendment was allowed in the present case by the D
judgment dated 28th March, 2002, the said amendment.related
back to 9th March, 1990 when the suit was originally filed. He
further argued that the suit was based on title, and the title of
the plaintiff was admitted in paragraph 2 of the original written
statement, as was held by the trial court in its judgment dated E
161h April, 2009. He therefore submitted that the impugned
judgment ought to be set aside. However, he did not press the
plea of continuing wrong on the facts of the present case.

12. Learned counsel for the respondent, on the other hand, F
argued that the plaintiffs title was clearly denied in the original
written statement and three years having elapsed from the said
date, the amendment was obviously time-barred. Further, the
judgment dated 28th March, 2002 itself made it clear that the
amendment was allowed subject to the plea of limitation being G
raised. He further argued that the amendment made introduced
a completely new cause of action based on fresh facts and
therefore any amendment made could not possibly relate back
as such amendment would be clearly time-barred.
H
660 SUPREME COURT REPORTS [2015] 9 S.C.R.

A 13. We have heard learned counsel for the parties. It is
not disputed that Article 58 of the Limitation Act would apply to
the amended plaint inasmuch as it sought to add the relief of
declaration of title to the already existing relief for grant of
permanent injunction. In Khatri Hotels Private Limited &
B Anr. v. Union of India &Anr., (2011) 9 SCC 126, this Court
while construing Article 58 of the Limitation Act held as follows:-

"Article 58 of the Schedule to the 1963 Act, which has a
bearing on the decision of this appeal, reads as under:
c "THE SCHEDULE
Period of limitation
[See Section 20) and 3]
First Division-Suits
D Description of suit Period of nmefrom which period
limitation begins to run

* * *
E Part Ill-Suits Relating To Declarations
* * *
58. Toobtain any other Three Years When the rightto sue first accrues.
declaration.

Article 120 of the Schedule to the Limitation Act, 1908
F
(for short "the 1908 Act") which was interpreted in the
judgment relied upon by Shri Rohatgi reads as under:

"Description of suit Period of Time from which period begins to run
limitation
G
• • •
120. Suit for which no period Six years When the right to sue accrues."
of limitation is provided
elsewhere in this Schedule.
H
LC. HANUMANTHAPPA (SINCE DEAD) REPRESENTED 661
BY HIS LRS. v. H. B. SHIVAKUMAR [RF. NARI MAN, J.]

The differences which are discernible from the language A
of the above reproduced two articles are:

(1) The period of limitation prescribed under Article 120
of the 1908 Act was six years whereas the period of
limitation prescribed under the 1963 Act is three years B
and,

(ii) Under Article 120 of the 1908 Act, the period of
limitation commenced when the right to sue accrues. As
against this, the period prescribed under Article 58 c
begins to run when the right to sue first accrues.

Article 120 of the 1908Actwas interpreted by the Judicial
Committee in Bo/ov. Kok/an [(1929-30) 57 IA325 :AIR D
1930 PC 270] and it was held: (IA p. 331)

"There can be no 'right to sue' until there is an accrual of
the right asserted in the suit and its infringement, or at
least a clear and unequivocal threat to infringe that right, E
by the defendant against whom the suit is instituted."

The same view was reiterated in Annamalai Chettiar
v.Muthukaruppan Chettiar [ILR (1930) 8 Rang 645]
••
andGobinda Narayan Singh v. Sham Lal Singh [(1930- F
31) 58 IA 125].

In Rukhmabaiv. Lala Laxminarayan [AIR 1960 SC 335
: (1960) 2 SCR 253] , the three-Judge Bench noticed
the earlier judgments and summed up the legal position G
in the following words: (Rukhmabai case [AIR 1960 SC
335 : (1960) 2 SCR 253] , AIR p. 349, para 33)

"33 . ... The right to sue under Article 120 of the [1908
Act] accrues when the defendant has clearly or H
662 SUPREME COURT REPORTS [2015] 9 S.C.R.

A unequivocally threatened to infringe the right asserted
by the plaintiff in the suit. Every threat by a party to such a
right, however ineffective and innocu9us it may be, cannot
be considered to be a clear and unequivocal threat so
as to compel him to file a suit. Whether a particular threat
B gives rise to a compulsory cause of action depends upon
the question whether that threat effectively invades or
jeopardizes the said right."

While enacting Article 58 of the 1963 Act, the legislature
C has designedly made a departure from the language of
Article 120 of the 1908 Act. The word "first" has been
used between the words "sue" and "accrued". This would
mean that if a suit is based on multiple causes of action,
the period of limitation will begin to run from the date
D when the right to sue first accrues. To put it differently,
successive violation of the right will not give rise to fresh
cause and the suit will be liable to be dismissed if it is
beyond the period of limitation counted from the day when
the right to sue first accrued." [at paras 25 - 30]
E
14. Given this statement of the law, it is clear that the
present amendment of the plaint is indeed time-barred in that
.. the right to sue for declaration of title first arose on 161h May,
1990 when in the very first written statement the defendant had
F pleaded, in para 13 in particular, that the suit for injunction
simpliciter is not maintainable in that the plaintiff had failed to
establish title with possession over the suit property. The only
question that remains to be answered is in relation to the
doctrine of relation back insofar as it applies to amendments
G made under Order VI Rule 17 of the Code of Civil Procedure.

15. As early as in the year 1900, the Bombay High Court
in Kisandas Rupchand v. Rachappa Vithoba, ILR 33 Born
644 (1900), held as follows:-
H
L.C. HANUMANTHAPPA(SINCE DEAD) REPRESENTED 663
BY HIS LRS. v. H. B. SHIVAKUMAR [R.F. NARIMAN, J.]

" ... All amendments ought to be allowed which satisfy A
the two conditions (a) of not working injustice to the other
side, and (b) of being necessary for the purpose of
determining the real questions in controversy between
the parties ... but I refrain from citing further authorities,
as, in my opinion, they all lay down precisely the same B
doctrine. That doctrine, as I understand it, is that
amendments should be refused only where the other party
cannot be placed in the same position as if the pleading
had been originally correct, but the amendment would
cause him an injury which could not be compensated in C
costs. It is merely a particular case of this general rule
that where a plaintiff seeks to amend by setting up a fresh
claim in respect of a cause of action which since the
institution of the suit had become barred by limitation, D
the amendment must be refused; to allow it would be to
cause the defendant an injury which could not be
compensated in costs by depriving him of a good
defence to the claim. The ultimate test therefore still
remains the same: can the amendment be allowed E
without injustice to the other side, or can it not?" [at p.
655]

16. This statement of the law was expressly approved by
a three Judge Bench of this Court in Pirgonda Hongonda F
Patil v. Kalgonda Shidgonda Patil, 1957 SCR 595, at pages
603 to 604.

17. Twenty years later, the Privy Council in Charan Das
v. Amir Khan, 47 IA255 (1920), stated the law as follows:-
G
"That there was full power to make the amendment cannot
be disputed, and though such a power should not as a
rule be exercised where the effect is to take away from a
defendant a legal right which has accrued to him by lapse
of time, yet there are cases where such considerations H
664 SUPREME COURT REPORTS [2015] 9 S.C.R.

A are out-weighed by the special circumstances of the
case."

18. This statement of the law was cited with approval in
L.J. Leach & Co. Ltd. v. Jardine Skinner & Co., 1957 SCR
B 438, at pages 450 to 451.

19. The facts in the aforesaid case were that the plaintiffs
had, on the basis of the material facts stated in the plaint,
claimed damages on the basis of the tort of conversion. It had
c been held by the courts below that on the pleading and on the
evidence such claim must fail. At the stage of arguments in
the Supreme Court, the plaintiff applied to the Supreme Court
for amendment of the plaint by raising an alternative plea on
the same set of facts, namely, a claim for damages for breach
o of contract for ~on-delivery of the goods. The respondents in
that case resisted the said plea for amendment, stating that a
suit based on this new cause of action would be barred by
limitation. This Court, while allowing the said amendment,
stated that no change needs to be made in the material facts
E pleaded before the court all of which were there in support of
the amended prayer. In any case, the prayer in the plaint as it
originally stood was itself general and merely claimed
damages. Thus, all the allegations which were necessary for
sustaining a claim of damages for breach of contract were
F already there in the plaint. The only.thing that was lacking was
the allegation that the P.laintiffs were in the alternative entitled
to claim damages for breach of contract. In the facts of the
said case, this Court held:-

G "It is no doubt true that courts would, as a rule, decline to
allow amendments, if a fresh suit on the amended claim
would be barred by limitation on the date of the
application. But that is a factor to be taken into account
in exercise of the discretion as to whether amendment
H should be ordered, and does not affect the power of the
L.C.HANUMANTHAPPA(SINCE DEAD) REPRESENTED 665
BY HIS LRS. v. H.B. SHIVAKUMAR [R.F. NARIMAN, J.]

court to order it, if that is required in the interests of justice." A
[at page 415]

20. It is clear that this case belonged to an exceptional
class of cases where despite the fact that a legal right had
accrued to the defendant by lapse of time, yet this s
consideration was outweighed by the special circumstances
of the case, namely, that no new material fact needed to be
added at all, and only an alternative prayer in law had
necessarily to be made in view of the original plea in law being
discarded. C

21. Similar is the case with Pirgonda Hongonda Patil,
reported in 1957 SCR 595. Here again it was ~eld that the
amendment did not really introduce a new fact at all, nor did
the defendant have to meet a new claim set up for the first D
time after the expiry of the period of limitation.

22. In K. Raheja Constructions Ltd. &Anr. v. Alliance
Ministries & Ors., 1995 Supp. (3) SCC 17, this Court was
seized with a belated application to amend a plaint filed for E
permanent injunction. Seven years after it was filed, an
amendment application was moved seeking to amend the ,
plaint to one for specific performance of contract. In turning
down such amendment on the ground that it was time-barred,
this Court held:- F

"It is seen that the permission for alienation is not a
condition precedent to file the suit for specific
performance. The decree of specific performance will
always be subject to the condition to the grant of the G
permission by the competent authority. The petitioners
having expressly admitted that the respondents have
refused to abide by the terms of the contract, they should
have asked for the relief for specific performance in the
original suit itself. Having allowed the period of seven H
666 SUPREME COURT REPORTS [2015] 9 S.C.R.

A years to elapse from the date of filing of the suit, and the
period of limitation being three years under Article 54 of
the Schedule to the Limitation Act, 1963, any amendment
on the grounds. set out, would defeat the valuable right of
limitation accruing to the respondent." [at para 4]
B
23. Similarly, in Vishwambhar & Ors. v. Laxminarayan
(Dead) through LRs & Anr., (2001) 6 SCC 163, in a suit
originally filed for recovery of possession, an amendment was
sought to be made after the limitation period had expired, for
C a prayer of declaration that certain sale deeds be set aside.
This was repelled by this Court as follows:-

"On a fair reading of the plaint, it is clear that the main
fulcrum on which the case of the plaintiffs was balanced
D was that the alienations made by their mother-guardian
Laxmibai were void and therefore, liable to be ignored
since they were not supported by legal necessity and
without permission of the competent court. On that basis,
the claim was made that the alienations did not affect
E the interest of the plaintiffs in the suit property. The prayers
in the plaint were inter alia to set aside the sale deeds
dated 14-11-1967 and 24-10-197 4, recover possession
of the properties sold from the respective purchasers,
partition of the properties carving out separate
F possession of the share from the suit properties of the
plaintiffs and deliver the same to them.As noted earlier,
the trial court as well as the first appellate court accepted
the case of the plaintiffs that the alienations in dispute
were not supported by legal necessity. They also held
G that no prior permission of the court was taken for the
said alienations. The question is, in such circumstances,
are the alienations void or voidable? In Section 8(2) of
the Hindu Minority and Guardianship Act, 1956, it is laid
down, inter alia, that the natural gu;::irdian shall not, without
H
LC. HANUMANTHAPPA(SINCE DEAD) REPRESENTED 667
BY HIS LRS. v. H.B. SHIVAKUMAR [RF. NARI MAN, J.]

previous permission of the court, transfer by sale any part A
of the immoveable property of the minor. In sub-section
(3) of the said sectior:i, it is specifically provided that any
disposal of immoveable property by a natural guardian,
in contravention of sub-section (2) is voidable at the
instance of the minor or any person claiming under him. B
There is, therefore, little scope for doubt that the
alienations made by Laxmibai which are under challenge ·
in the suit were voidable at the instance of the plaintiffs
and the plaintiffs were required to get the alienations set
.. aside if they wanted to avoid the transfers and regain C
the properties from the purchasers. As noted earlier in
the plaint as it stood before the amendment the prayer
for setting aside the sale deeds was not there, such a
prayer appears to have been introduced by amendment D
during hearing of the suit and the trial court considered
the amended prayer and decided the suit on that basis.
If in law the plaintiffs were required to have the sale deeds
set aside before making any claim in respect of the
properties sold, then a suit without such a prayer was of E
no avail to the plaintiffs. In all probability, realising this
difficulty the plaintiffs filed the application for amendment
of the plaint seeking to introduce the prayer for setting

- aside the sale deeds. Unfortunately, the realisation came
too late. Concededly, Plaintiff 2 Digamber attained F
majority on 5-8-1975 ·and Vishwambhar, Plaintiff 1
attained majority on 20-7-1978. Though the suit was filed
on 30-11-1980 the prayer seeking setting aside of the
sale deeds was made in December 1985. Article 60 of
the Limitation Act prescribes a period of three years for G
setting aside a transfer of property made by the guardian
of a ward, by the ward who has attained majority and the
period is to be computed from the date when the ward
attains majority. Since the limitation started running from
the dates when the plaintiffs attained majority the H
668 SUPREME COURT REPORTS [2015) 9 S.C.R.

A prescribed period had elapsed by the date of
presentation of the plaint so far as Digamber is
concerned. Therefore, the tri~I court rightly dismissed the
suit filed by Digamber. The judgment of the trial court
dismissing the suit was not challenged by him. Even
B assuming that as the suit filed by one of the plaintiffs was
within time the entire suit could not be dismissed on the
ground of limitation, in the absence of challenge against
the dismissal of the suit filed by Digamber the first
appellate court could not have interfered with that part of
c the decision of the trial court. Regarding the suit filed by
Vishwambhar, it was filed within the prescribed period
of limitation but without the prayer for setting aside the
sale deeds. Since the claim for recovery of possession
of the properties alienated could not have been made
D
without setting aside the sale deeds the suit as initially
filed was not maintainable. By th,e date the defect was
rectified (December 1985) by introducing such a prayer
by amendment of the plaint the prescribed period of
E limitation for seeking such a relief had elapsed. In the
circumstances, the amendment of the plaint could not
come to the rescue of the plaintiff.

From the averments of the plaint, it cannot be said that
all the necessary averments for setting aside the sale
F
deeds executed by Laxm.i.bai were contained in the plaint
and adding specific prayer for setting aside the sale
deeds was·a mere formality. As noted earlier, the basis
of the suit as it stood before the amendment of the plaint
G was that the sale transactions made by Laxmibai as
guardian of the minors were ab initio void and, therefore,
liable to be ignored. By introducing the prayer for setting
aside the sale deeds the basis of the suit was changed
to one seeking setting aside the alienations of the
H property by the guardian. In such circumstance, the suit
LC. HANUMANTHAPPA(SINCE DEAD) REPRESENTED 669
BY HIS LRS. v. H. B. SHIVAKUMAR [R.F. NARIMAN, J.]

for setting aside the transfers could be taken to have been A
filed on the date the amendment of the plaint was allowed
and not earlier than that." [at paras 9 and 1OJ

24. In Siddalingamma and Anr v. Mamtha Shenoy,
(2001) 8 SCC 561, this Court held while allowing an B
amendment of the plaint in a case of bona fide requirement of
the landlord that the doctrine of relation back would apply to all
amendments made under Order VI Rule 17 of the Code of
Civil Procedure, which generally governs amendment of
pleadings, unless the court gives reasons to exclude the C
applicability of such doctrine in a given case. No question of
limitation was argued on the facts in that case which would
therefore be in the category of cases which would follow the
line of judgments which state that costs can usually
compensate for an amendment that is made belatedly but D
within the period of limitation, it not being an exceptional case
such as those contained in the two judgments L.J. Leach &
Co. Ltd. and Pirgonda Hongonda Patil cited above.
25. In Sam path Kumar v. Ayyakannu and Anr., (2002) E
7 sec 559, this Court was faced with an application for
amendment made 11 years after the date of the institution of
the suit to convert through amendment a suit for permanent
prohibitory injunction into a suit for declaration of title and
recovery of possession. This Court held:- F

"In our opinion, the basic structure of the suit is not altered
by the proposed amendment. What is sought to be
changed is the nature of relief sought for by the plaintiff.·
In the opinion of the trial court, it was open to the plaintiff G
to file a fresh suit and that is one of the reasons which
has prevailed with the trial court and with the High Court
in refusing the prayer for amendment and also in
dismissing the plaintiff's revision. We fail to understand,
if it is permissible for the plaintiff to file an independent H
670 SUPREME COURT REPORTS [2015] 9 S.C.R.

A suit, why the same relief which could be prayed for in a
new suit cannot be permitted to be incorporated in the
pending suit. In the facts and circumstances of the present
case, allowing the amendment would curtail multiplicity
of legal proceedings.
B
Order 6 Rule 17 CPC confers jurisdiction on the court to
allow either party to alter or amend his pleadings at any
stage of the proceedings and on such terms as may be
just. Such amendments as are directed towards putting
c forth and seeking determination of the real questions in
controversy between the parties shall be permitted to be
made. The question of delay in moving an application
for amendment should be decided not by calculating the
period from the date of institution of the suit alone but by
D reference to the stage to which the hearing in the suit
has proceeded. Pre-trial amendments are allowed more
liberally than those which are sought to be made after
the commencement of the trial or after conclusion thereof.
In the former case generally it can be assumed that the
E defendant is not prejudiced because he will have full
opportunity of meeting the case of the plaintiff as
amended. In the latter cases the question of prejudice to
the opposite party may arise and that shall have to be
answered by reference to the facts and circumstances
F
of each individual case. No straitjacket formula can be
laid down. The fact remains that a mere delay cannot be
a ground for refusing a prayer for amendment.

An amendment once incorporated relates back to the
G date of the suit. However, the doctrine of relation-back in
the context of amendment of pleadings is not one of
universal application and in appropriate cases the court
is competent while permitting an amendment to direct
that the amendment permitted by it shall not relate back
H
to the date of the suit and to the extent permitted by it
LC. HANUMANTHAPPA(SINCE DEAD) REPRESENTED 671
BYHIS LRS. v. H.B. SHIVAKUMAR [R.F. NARIMAN, J.]

shall be deemed to have been brought before the court A
on the date on which the application seeking the
amendment was filed. (See observations in
Siddalingammav. Mamtha Shenoy[(2001) 8 SCC 561])

In the present case the amendment is being sought for B
almost 11 years after the date of the institution of the suit.
The plaintiff is not debarred from instituting a new suit
seeking relief of declaration of title and recovery of
possession on the same basic facts as are pleaded in
the plaint seeking relief of issuance of permanent C
prohibitory injunction and which is pending. In order to
avoid multiplicity of suits it would be a sound exercise of
discretion to permit the relief of declaration of title and
recovery of possession being sought for in the pending
suit. The plaintiff has alleged the cause of action for the D
reliefs now sought to be added as having arisen to him
during the pendency of the suit. The merits of the
averments sought to be incorporated by way of
amendment are not to be judged at the stage of allowing
prayer for amendment. However, the defendant is right E
in submitting that if he has already perfected his title by
way of adverse possession then the right so accrued
should not be allowed to be defeated by permitting an
amendment and seeking a new relief which would relate F
back to the date of the suit and thereby depriving the
defendant of the advantage accrued to him by lapse of
time, by excluding a period of about 11 years in calculating
the period of prescriptive title claimed to have been
earned by the defendant. The interest of the defendant G
can be protected by directing that so far as the reliefs of
declaration of title and recovery of possession, now
sought for, are concerned the prayer in that regard shall
be deemed to have been made on the date on which the
application for amendment has been filed." [at paras 7, H
672 SUPREME COURT REPORTS [2015] 9 S.C.R.

A 9, 10 and 11]

26. It is clear that on the facts in the above case the
amendment was allowed subject to the plea of limitation which
could be taken up by the defendant when the trial in the case
B proceeds.

27. In Van Vibhag Karamchari Griha Nirman Sahkari
Sanstha Maryadit (Registered) v. Ramesh Chander and
Ors., (2010) 14 SCC 596, this Court considered a suit which
c was originally filed for declaration of ownership of land and for
permanent injunction. The suit had been filed on 11th February,
1991. An amendment application was moved under Order VI
Rule 17 of the Code of Civil Procedure on 161h December,
2002 for inclusion of the relief of specific performance of
o contract. This Court in no uncertain terms refused the
midstream change made in the suit, and held:-

"ln the present case, the factual situation is totally different
and the appellants have not filed any suit for specific
E performance against the first respondent within the period
of limitation. In this context, the provision of Article 54 of
the Limitation Act is very relevant. The period of limitation
prescribed in Article 54 for filing a suit for specific
performance is three years from the date fixed for the
F performance, or if no such date is fixed, when the plaintiff
has notice that performance is refused.

Here admittedly, no date has been fixed for performance
in the agreement for sale entered between the parties in
G 1976. But definitely by its notice dated 3-2-1991, the first
respondent has clearly made its intentions clear about
refusing the performance of the agreement and cancelled
the agreement.

Even though the prayer for amendment to include the
H
relief of specific performance was made about 11 years
L.C. HANUMANTHAPPA (SINCE DEAD) REPRESENTED 673
BY HIS LRS. v. H.B. SHIVAKUMAR [R.F. NARIMAN, J.] ·

after the filing of the suit, and the same was allowed after A
12 years of the filing of the suit, such an amendment in
the facts of the case cannot relate back to the date of
. filing of the original plaint, in view of the clear bar under
Article 54 of the Limitation Act. Here in this case, the
inclusion of the plea of specific performance by way of B
amendment virtually alters the character of the suit, and
its pecuniary jurisdiction had gone up and the plaint had
to be transferred to a different court. This Court held in
Vishwambharv. Laxminarayan [(2001) 6 SCC 163], if
as a result of allowing the amendment, the basis of the C
suit is changed, such amendment even though allowed,
cannot relate back to the date of filing the suit to cure the
defect of limitation (SCC at pp. 168-69, para 9). Those
principles are applicable to the present case." [at paras
0
24, 25 and 32]

28. In Prithi Pal Singh and Anr. v. Amrik Singh and
Ors., (2013) 9 sec 576, this Court was concerned with a suit
claiming pre-emption under the Punjab Pre-emption Act, 1913.
An amendment was sought to the plaint claiming that the E
plaintiff was entitled to relief as a co-sharer of the suit property.
This Court after considering some of its earlier judgments held:-

"In our opinion, there is no merit in the submissions of
the learned counsel. A reading of the order passed by F
this Court shows that the application for amendment filed
by Respondent 2 was allowed without any rider/condition.
Therefore, it is reasonable to presume that this Court
was of the view that the amendment in the plaint would
relate back to the date of filing the suit. That apart, the G
learned Single Judge has independently considered the
issue of limitation and rightly concluded that the amended
suit was not barred by time." [at para 11]

29. Applying the law thus laid down by this Court to the H
674 SUPREME COURT REPORTS [2015] 9 S.C.R.

A facts of this case, two things become clear. First, in the original
written statement itself dated 16th May, 1990, the defendant
had clearly put the plaintiff on notice that it had denied the
plaintiff's title to the suit property. A reading of an i$olated
para in the written statement, namely, para 2 by the trial court
B on the facts of this case has been correctly commented upon
adversely by the High Court in the judgment under appeal. The
original written statement read as a whole unmistakably
indicates that the defendant had not accepted the plaintiffs
title. Secondly, while allowing the amendment, the High Court
C in its earlier judgment dated 28th March, 2002 had expressly
remanded the matter to the trial court, allowing the defendant
to raise the plea of limitation. There can be no doubt that on
an application of Khatri Hotels Private Limited (supra), the
right to sue for declaration of title first arose on the facts of the
0
present case on 16th May, 1990 when the original written
statement clearly denied the plaintiff's title. By 16th May, 1993
therefore a suit based on declaration of title would have
become time-barred. It is clear that the doctrine of relation
E back would not apply to the facts of this case for the reason
that the court which allowed the amendment expressly allowed
it subject to the plea of limitation, indicating thereby that there
are no special or €5xtraordinary circumstances in the present
case to warrant the doctrine of relation back applying so that a
F legal right that had accrued in favour of the defendant should
be taken away. This being so, we find no infirmity in the
impugned judgment of the High Court. The_present appeal is
accordingly dismissed.

G Kalpana K. Tripathy Appeal dismissed.