The plaintiff in O.S. No.3188/2017 on the file of LXVI

Additional City Civil and Sessions Judge, Bengaluru City,

has filed this writ petition challenging the Order dated

31.01.2022, by which an application (I.A. No.36) filed by

him under Order VI Rule 17 read with Section 151 of the

Code of Civil Procedure, 1908, (for short, 'the CPC') was

rejected.

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The parties shall henceforth be referred to as

they were arrayed before the Trial Court.

A suit in O.S. No.3188/2017 was filed for

perpetual injunction in respect of a vacant site bearing

No.517 intermediate CMC khata No.632, new khata

No.1512 situate in Pattanagere village, Kengeri hobli,

Bengaluru South Taluk, (henceforth referred to as the 'suit

schedule property'). It was claimed that the defendants 1

to 3 were interfering with the possession of the plaintiff in

respect of the suit schedule property and hence, she

sought injunctive reliefs.

The defendant Nos.1 and 2 contested the suit

and claimed that they were the owners of the suit schedule

property and challenged the title of the plaintiff to the suit

schedule property. Following the above, the plaintiff filed

an application (I.A. No.36) under Order VI Rule 17 of the

CPC seeking amendment of the plaint to incorporate the

relief of declaration of her title to the suit schedule

property.

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5.

The Trial Court rejected the application (I.A.

No.36) on the ground that the relief of declaration of title

claimed by the plaintiff was beyond the period of three

years from the date when the right to sue first accrued and

therefore, the application was barred by time.

6.

The law regarding amendment of the pleadings

is well settled and in the present case, an application for

amendment of the plaint was filed even before the issues

were framed and before the parties adduced evidence. It

is well settled that the applications cannot be rejected on

the ground that the relief sought for is barred by the law of

limitation. In this regard, it is profitable to refer to the

Judgment of the Hon'ble Supreme Court of India in

Sampath Kumar v. Ayyakannu and Another [AIR 2002

SC 3369], where it is held as under:

"An amendment once incorporated relates back

to the 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

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competent while permitting an amendment to

direct that the amendment permitted by it

shall not relate back to the date of the suit and

to the extent permitted by it shall be deemed

to have been brought before the Court on the

date on which the application seeking the

amendment was filed."

7.

.In the present case, the Trial Court rejected

the application (I.A. No.36) on the ground that the relief

sought for by way of amendment in the plaint is barred by

the law of limitation. The issue of limitation is a mixed

question of fact and law and a mere assertion in the

written statement that the plaintiff is not the owner, does

not give rise to a cause of action to seek declaratory relief.

As

held

by

the

Hon9ble

Apex

Court

in

Anathula Sudhakar Vs. P. Buchi Reddy

(Dead)

by

LRs., and Others [AIR 2008 SC 2033], the requirement

to seek declaratory reliefs arises only when a cloud is cast

on the title of the plaintiff or when the title is threatened.

Therefore, this being a question of fact and law, the Court

is bound to answer it after the trial is concluded. The

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impugned order passed by the Trial Court suffers from

non-application of mind. Hence, the same deserves to be

set aside.

Consequently, the Writ Petition is allowed. The

Order dated 31.01.2022 passed on I.A. No.36 in O.S.

No.3188/2017 by the LXVI Additional City Civil and

Sessions Judge, Bengaluru City, is set aside. The

application in I.A. No.36 filed by the plaintiff under Order

VI Rule 17 read with Section 151 of the CPC., is allowed,

but the amendment to the plaint shall be given effect to

from the date of the application and shall not relate back

to the