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High Court of Calcutta
Harish Tandan, J.
Qamrul Hoda – Appellant
Versus
Md. Wakil Khan – Respondent
CO. No. 3783 of 2009 with CO. No. 3784 of 2009
Decided on : Jun 29, 2011
AMENDMENT OF PLEADING - COUNTERCLAIM - LIMITATION - INCORPORATION OF COUNTERCLAIM BY WAY OF AMENDMENT - REJECTION ON GROUND OF LIMITATION - LEGALITY - Civil Procedure Code, 1908 - Order 6, Rule 17 - Limitation Act, 1963 - Article 58.
Fact of the Case:
The petitioner, in two suits filed against him by the opposite parties for declaration of ownership and injunction, sought to amend his written statement to incorporate a counterclaim for declaration that the deed of sale executed in favor of the opposite parties was void and illegal. The trial court rejected the amendment applications on the ground that the proposed amendment was barred by limitation under Article 58 of the Limitation Act. The petitioner challenged the trial court's orders in revision.
Finding of the Court:
The court held that the amendment sought by the petitioner was not barred by limitation. It reasoned that the foundational fact challenging the deed of the opposite parties was already present in the original pleading, and the incorporation of a prayer for relief on the basis of such foundational fact did not amount to introducing a new claim for the first time. The court also noted that the cause of action had already been pleaded in the original pleading, and the insertion of a prayer by way of counterclaim did not mean the introduction of the claim for the first time so as to defeat it on the anvil of limitation.
Issues: 1. Whether the amendment sought by the petitioner was barred by limitation under Article 58 of the Limitation Act. 2. Whether the foundational fact challenging the deed of the opposite parties was already present in the original pleading. 3. Whether the incorporation of a prayer for relief on the basis of such foundational fact amounted to introducing a new claim for the first time.
Ratio Decidendi: 1. The court held that the amendment sought by the petitioner was not barred by limitation. It reasoned that the foundational fact challenging the deed of the opposite parties was already present in the original pleading, and the incorporation of a prayer for relief on the basis of such foundational fact did not amount to introducing a new claim for the first time. 2. The court also noted that the cause of action had already been pleaded in the original pleading, and the insertion of a prayer by way of counterclaim did not mean the introduction of the claim for the first time so as to defeat it on the anvil of limitation.
Final Decision: The court allowed the revisional applications and set aside the trial court's orders rejecting the amendment applications. The petitioner was directed to file the amended copy of the written statement-cum-counterclaim within three weeks from the date of the order, and the opposite party was permitted to file the written statement to the counterclaim within four weeks from the date of service of the copy of the amended written statement-cum-counterclaim.
HARISH TANDAN, J.
1. THIS revisional application is directed against an order dated 31.8.2009 passed by the Civil Judge (Senior Division), 1st Court, Howrah in Title Suit No. 53 of 2003 heard analogously with Title Suit No. 179 of 2002 by which an application for amendment of the written statement for incorporating the counter-claim was rejected.
2. THE opposite parties instituted two suits; one being. T. S No. 179 of 2002, against the petitioner and the Municipal Authorities, praying for declaration that they are the absolute owners and occupiers of the suit premises and the petitioner being the defendant No. 1 therein has no manner of right, title and interest in the schedule property and the notice dated 6.8.2002 issued by the Howrah Municipal Corporation Authorities are manufactured and collusive and a decree for permanent injunction restraining the petitioner from creating any disturbances and the other defendants therein from giving any effect to the said notice dated 6.8.2002, the other being T. S. No. 53 of 2003 wherein the opposite parties prayed for decree for partition upon declaration that the petitioner, the sole defendant therein has not acquired any right, title and interest in respect of 'B' schedule property on the basis of deed of conveyance dated 26.6.2000. In both the suits the petitioner appeared and filed written statement. Apart from the other defence it is sought to be contended by the petitioner that the deed of sale by which the opposite parties purchased the 'A' schedule property which includes 'B' schedule property is void and no right, title and interest has been acquired thereupon.
3. ON the basis of the pleading, so made in the written statement as aforesaid, the petitioner filed an application for amendment of the written statement seeking to incorporate the prayer, by way of a counter-claim, for declaration that the deed of sale executed in favour of the opposite parties by which they claimed to have acquired right, title and interest in respect of 'A' scheduled property is void, illegal, unenforceable and not binding upon the defendant and a further declaration that the petitioner is the sole and absolute owner of piece and parcel of land measuring 2 cottaha 14 chittaks together with a structure standing thereupon which comprised in the holding No. 72 /13 Basiruddin Munsi Lane (previously 7,2, Basiruddin Munsi Lane) District -Howrah and the insertion of the valuation statement.
4. THE said applications for amendment were resisted by the opposite parties on the ground that the amendment sought to be incorporated, is barred by limitation. The trial Court rejected the said applications by separate orders but on a similar and identical ground i.e. the proposed amendment is barred by law of limitation, the issues are already settled and the evidence of parties has started.
5. MR. Buddhadeb Ghosal, learned Advocate appearing for the petitioner strenuously argues that there is no bar incorporating the counter-claim by way of an amendment. He further argues that the Court cannot jettison the petition for amendment on the ground of being barred by limitation. The limitation being the mixed question of fact and law, the Court should not refuse the amendment as being barred by limitation. He relies the following judgments: Seema Dasgupta v. Gopal Banerjee 2004 (1) CHN 6, Bollepanda P. Poonacha and Anr. v. KM. Madapa 2008(3) CHN (SC) 90, Pankaja and Am. v. Yellappa (2004)6 SCC 415, Andhra Bank v. ABN AMRO Bank N. V. and Anr. (2007)6 SCC 167.
6. MR. Bidyut Kumar Banerjee, learned senior Advocate appearing for the opposite parties argues that by way of a counter-claim the petitioner is seeking for decree for declaration that the deed of conveyance dated 5.7.1993 is illegal and void which is barred under Article 58 of the Limitation Act and such an amendment cannot be allowed. He strenuously argues that section 3 of the Limitation Act provides that the suit including the counter-claim shall be dismisse
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