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IN THE HIGH COURT OF JUDICATURE AT MADRAS
N. SATHISH KUMAR, J.
Sumithra Bhai - Petitioner
Versus
K. Venkopa Rao – Respondent
C.R.P. No.2802 of 2022 and CMP. No.1505 of 2022
Decided On : 03-06-2025
Key Points: - The amendment to add relief of declaration in a possession suit does not change the suit’s character and main relief governs limitation (!) (!) . - When the main relief is possession (12-year period under Article 65), the declaration as ancillary relief follows the same limitation or is governed by the relief it seeks; the court may allow amendment even if time-barred for declaration if justice requires (!) (!) (!) . - The court approved amendment at appellate stage to add declaration, directing resolution within four months, affirming that amendments serve justice and do not necessarily bar relief (!) (!) . - In a suit for possession based on title (gift deed) where the main relief is possession, limitation for declaration should not bar the amendment if the relief for possession governs and the declaration is ancillary (!) (!) . - The appellate court’s rejection of the amendment can be reviewed if amendment serves justice; courts have liberal approach to amendments at appellate stage to achieve substantive justice (!) (!) (!) .
| Table of Content |
|---|
| 1. challenge to appellate court's order for amendment. (Para 1 , 2) |
| 2. arguments on validity of amendment regarding limitation. (Para 3 , 4) |
| 3. court's reasoning on the nature of amendment. (Para 5 , 6 , 11) |
| 4. ratio on limitations applicable to amendments. (Para 7 , 10) |
| 5. general principles about amendments in appeals. (Para 8 , 9) |
| 6. final order allowing the amendment. (Para 12) |
ORDER :
(N. SATHISH KUMAR, J.)
Challenging the order of the appellate court rejecting the application filed under Order 6 Rule 17 of CPC for amendment seeking relief of declaration, the present revision has been filed.
2. The suit has been filed originally by the revision petitioner for eviction claiming that the defendant/respondent is the tenant in the shop premises. Written statement was filed by the tenant on 10.04.2015 denying the title. Thereafter, it appears that the suit was dismissed on 14.10.2020. While dismissing the suit, the Trial Court has observed that the plaintiff is claiming title on the basis of the gift deed said to have been executed by one Vittal Rao had ommitted to seek relief of declaration. Thereafter, the petitioner has filed application under Order 6 Rule 17 of CPC for amendment before the appellate court only for adding the relief of declaration. It was opposed by the respondent on the ground that as far as the title of the petitioner is concerned, the same was disputed in the year 2015 itself and the declaration ought to have been sought within a period of three years, whereas, the application has been filed only in the year 2022, that too, pending appeal. The appellate court vide impugned order dismissed the application. Challenging the same, the present revision has been filed.
3. The learned counsel for the petitioner submitted that the amendment sought in the appeal stage will not change the character of the suit itself. The suit itself is filed for recovery of possession based on the gift deed executed in favour of the revision petitioner, therefore, the question of applying limitation for the relief of declaration does not arise at all, since, the main relief itself is for recovery of possession which is governed under Article 65 of the Schedule to the LIMITATION ACT , 1963. The suit is not for mere declaration simplicitor, the larger relief of recovery of possession; in such case, only Article 65 of the Schedule to the LIMITATION ACT , 1963 will apply. Therefore, the contention of the respondent that the declaration relief ought to have been sought within a period of three years does not hold any water. Hence, seeks for allowing the revision petition.
4. Whereas, the learned counsel for the respondent submitted that as the title of the revision petitioner was disputed in the year 2015 itself, in such case, the limitation comes into play. The declaration ought to have been sought within a period of three years, whereas, the amendment application was filed only in the year 2022. Therefore, such plea of declaration is barred by limitation and the same cannot be entertained. It is her further contention that the Court Fee ought to have been paid under Section 25 (a) of the Tamil Nadu Court-Fees and Suits Valuation Act, 1955, in such case, the very jurisdiction of the Trial Court itself would change. Therefore, if the amendment is allowed at this stage, the same will take away the accrued the interest of the respondent. Further, there is no proper reasons assigned in the affidavit with regard to the limitation by the revision petitioner. Hence, opposed the revision petition.
5. In light of the above pleadings, now, the following point arises for consideration in this revision:
(i) Whether the amendment sought in the appeal stage particularly seeking relief of declaration will change the character of the suit itself?
Point (i)
6. It is not in dispute that the suit has been filed for recovery of possession of the property from the respondent. The plaintiff has based his claim on the basis of a registered gift deed sa
An amendment sought for a declaration in a possession suit does not change its character; limitation for possession applies over declaration, allowing amendments at the appellate stage serves justice....
The court established that the limitation for suits claiming declaration and possession of immovable property is 12 years under Article 65 of the Limitation Act, countering the trial court's applicat....
The court upheld that an amendment to include a declaration of title in a suit is barred by the limitation period defined in Article 58 of the Limitation Act if filed significantly after the right to....
The suit for possession based on title is governed by Article 65 of the Limitation Act, allowing 12 years from the date of adverse possession, not Article 58.
At the stage of considering an amendment of the plaint, the court is not required to inquire into the genuineness of the pleadings but to determine if the amendment would help in determining the real....
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