Back
2024 Supreme(Online)(KER) 56394
HIGH COURT OF KERALA
VIJU ABRAHAM, J
KURIAN THOMAS – Appellant
Versus
BERNARD K THOMAS – Respondent
OP(C) NO. 1875 OF 2020 | OP(C) NO. 539 OF 2021
For the Appellants/Petitioners: JACOB SEBASTIAN, K.V. WINSTON, ANU JACOB
For the Respondents: SAJAN VARGHEESE K., LIJU M.P.
Amendments to pleadings cannot resurrect time-barred claims, and the doctrine of relation back is not universally applicable, especially if it causes injustice to the opposing party.
Headnote:(A) Limitation Act, 1963 - Section 21(1) - Civil Procedure Code - Amendment of pleadings - The court ruled that amendments should not resurrect time-barred claims and clarified that the non-joinder of necessary parties must be addressed timely. (Paras 9, 10, 12)
(B) Civil Procedure - Relation back doctrine - The court held that amendments may not necessarily relate back to the date of the original suit, especially if it causes injustice to the other party. (Paras 10, 12)
Facts of the case:
The petitions challenged the order allowing the amendment and impleadment of a necessary party in a suit for recovery of possession filed in 2002, with arguments surrounding the limitation period and non-joinder of parties.
Findings of Court:
The court upheld the trial court's order that the amendment would not relate back to the date of the suit, thus preserving the rights of the parties involved.
Issues: The primary issues were whether the amendment application could resurrect a time-barred claim and the implications of non-joinder of necessary parties.
Ratio Decidendi: The court emphasized that amendments should not infringe on the rights acquired by the defendant due to limitation and that the doctrine of relation back is not universally applicable.
Result: Both original petitions were dismissed.
| Table of Content |
|---|
| 1. petitioners are challenging the order in a civil suit. (Para 1 , 2) |
| 2. claims of limitation and non-joinder of necessary parties. (Para 3 , 4) |
| 3. citing case law regarding amendments and limitation. (Para 5 , 6) |
| 4. court's consideration of the arguments presented. (Para 7 , 8 , 9) |
| 5. court's ruling on the application of limitation and amendments. (Para 10 , 11 , 12) |
| 6. final dismissal of both original petitions. (Para 13) |
JUDGMENT
Both these original petitions are filed challenging order in IA Nos.473 of 2020 and 474 of 2020 in OS No.243 of 2007 of the Principal Subordinate Judge, Palakkad.
2. In OP(C) No.1875 of 2020 the petitioners are the defendants in OS No.243 of 2007, whereas OP(C) No.539 of 2021 is filed by the plaintiffs in OS No.243 of 2007. In OP(C) No.1875 of 2020 it is contended that OS No.243 of 2007 is filed seeking recovery of possession of the plaint schedule property along with mesne profits. Ext.P2 detailed written statement was filed on 06.08.2002 contending that property is in the possession of the 2nd petitioner and she is a necessary party to the suit and since the 2nd petitioner was not a defendant, the suit is bad for non-joinder of necessary parties. No steps were taken by the respondents to implead the 2nd petitioner in the suit. While the suit was posted for trial the plaintiff filed IA No.473 of 2020 seeking to implead the 2nd petitioner as supplemental defendant, a copy of which is produced as Ext.P3 and a counter statement was filed by the 1st petitioner as Ext.P4. The plaintiffs also filed IA No.474 of 2020 seeking permission to amend the cause title of the plaint and also to incorporate necessary pleadings against the supplemental defendant as Ext.P5, to which also Ext.P6 counter statement was filed by the 1st petitioner.
3. Petitioners would submit that the suit was filed on 29.01.2002 and a written statement raising the plea of non-joinder of necessary party was filed as early as on 06.08.2002, and the application seeking impleadment and amendment was filed only on 19.02.2020. The prayer in the suit is for recovery of possession, and the limitation for institution of such suit is 12 years. The plaintiff could not have instituted the suit against the supplemental defendant at this distance of time as it is clearly barred by limitation. By this amendment what is attempted to is to resurrect a time barred claim by impleading/amendment. The trial Court by a common order allowed both the applications as per Ext.P7 order. It is aggrieved by the same that OP(C) No.1875 of 2020 is filed.
4. OP(C) No.539 of 2021 is filed by the plaintiff challenging the very same order, since there is condition in the said order that the amendment/impleadment shall be deemed to have been brought before the Court on the date on which the application seeking amendment was filed. It is the said rider that is challenged in OP(C) No.539 of 2021, and the petitioners contend that the amendment application should relate back to the date of filing of the suit.
5. As per the averment in the plaint it is contended that the property mentioned as item Nos. 1 and 2 is in the possession and enjoyment of the 1st plaintiff and item Nos. 3 and 4 properties are in the possession and enjoyment of the 2nd plaintiff. As the 1st plaintiff was employed as staff in the Federal Bank he could not look after the said property and thereupon the defendant who is the younger brother of the 1st plaintiff who also have certain other properties adjacent to the plaint schedule properties was permitted to reside in the old house situated in item No.2 of the plaint schedule property. While so, the defendant started construction of a residential house in the property purchased by him lying near the plaint schedule properties, and tried to trespass upon a portion of the plaint schedule properties and asserted independent right over some portion of the properties. Thereupon a suit was filed as OS No.572 of 1994 praying for mandatory injunction and al
