None for the respondents No. 1 to 3 despite service of notice, and

on the last date of hearing also this Court had granted one last opportunity

to the respondents to address this Court but today also none has appeared.

Hence, the matter is heard finally.

This petition has been filed under Article 227 of the Constitution

of India by the petitioner/defendant against the order dated 21/12/2022,

passed in Case No.RCSA/37-A/19 by XI Civil Judge Class-II, Ujjain, M.P.

whereby the application filed by the respondents no.1 to3/plaintiffs under

Order 6 Rule 17 of the CPC for amendment in relief clause has been

allowed.

3.

In brief, the facts of the case are that a suit titled as, “for

declaration and possession” has been filed by the plaintiffs against the

defendant in which the written statement has already been filed. The

defendant also filed an application under Section 34 of the Specific Relief

Act on 21.10.2021, contending that the plaintiff has not sought any relief

of possession despite the fact that the defendants are in possession of the

property, hence, under Section 34 of the Specific Relief Act, the suit is not

maintainable. After the aforesaid application was filed by the defendant, an

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application under Order 6 Rule 17 of the CPC on 29.07.2022 wherein the

plaintiffs have also sought the relief of possession to be added in the plaint.

4.

Shri Ashok Garg, learned sr. counsel for the petitioner has

submitted that the aforesaid relief has been sought subsequently by the

plaintiffs which cannot be allowed as it was clearly barred by limitation

and the valuable right of the defendant has been violated. Thus, it is

submitted that the impugned order is liable to be set aside.

5.

In support of his submission Shri Garg has also relied upon the

decision rendered by the Supreme Court in the case of Radhika Devi v.

Bajrangi Singh reported as Note No.130, M.P. Weekly Notes 1997(1).

Heard the learned counsel for the petitioner and perused the

record.

6.

So far as the scope of an amendment application is concerned, in

the case of Radhika Devi (supra), the Supreme Court has held as under:-

“5. We find no force in the contention of the appellant. No doubt,

the amendment of the plaint is normally granted and only in

exceptional cases where the accrued rights are taken away by

amendment of the pleading, the Court would refuse the amendment.

This Court in Laxmidas Dahyabhai Kabarwala v. Nanabhai Chunilal

Kabarwala (SCR at p. 582) held thus:

“It is, no doubt, true that, save in exceptional cases, leave to amend

under Order 6, Rule 17 of the Code will ordinarily be refused when

the effect of the amendment would be to take away from a party a

legal right which had accrued to him by lapse of time. But this rule

can apply only when either fresh allegations are added or fresh reliefs

sought by way of amendment. Where, for instance, an amendment is

sought which merely clarifies an existing pleading and does not in

substance add to or alter it, it has never been held that the question of

a bar of limitation is one of the questions to be considered in allowing

such clarification of a matter already contained in the original

pleading. The present is a fortiori so. The defendants here were not

seeking to add any allegation nor to claim any fresh relief which they

had prayed for in the pleading already filed.”

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6. In that case this Court considered the cross-objections to be

treated as a cross-suit since no alteration was being made in the

written statement to treat it as a plaint originally instituted. The

amendment which was sought to be made was treated to be

clarificatory and, therefore, this Court had upheld the amendment of

the written statement and treated it to be a cross-suit. The ratio therein

squarely applies to a fact situation where the party acquires right by

bar of limitation and if the same is sought to be taken away by

amendment of the pleading, amendment in such circumstances would

be refused. In the present case,