PATNA HIGH COURT ISSUES JUDGEMENT ON ARUN KUMAR SINGH AND OTHER V/S ABHIMANYU PRASAD SINGH

PATNA, India, June 18 -- Patna High Court issued the following judgment on June 17:

The instant civil miscellaneous petition has been filed by the petitioners for setting aside the order dated 09.08.2023 passed by learned Munsif, Civil Court, Aurangabad in Title Suit No. 87 of 2000, whereby and whereunder the learned trial court has allowed the amendment application dated 31.03.2023 filed by the plaintiff/respondent under Order 6 Rule 17 of the Code of Civil Procedure (hereinafter referred to as 'the Code').

02. The factual matrix of the case, in short, is that the respondent filed Title Suit No. 87 of 2000, challenging the gift deed dated 04.02.1972 executed by father of the plaintiff in favour of defendant nos. 1 and 2, seeking declaration that the gift deed was inoperative and void. The suit has been filed against the petitioners who have been made defendant nos. 1 and 2 and the defendant no. 3 was father of defendant nos. 1 and 2. During pendency of the suit, respondent filed an application for amendment of plaint on 30.11.2009, challenging another gift deed dated 04.02.1972 executed by father of the respondent in favour of one Anju Lata Singh but the said amendment application was withdrawn on 21.01.2012 with submission that a fresh amendment application would be filed. Thereafter, a fresh amendment application was filed by the respondent on 21.01.2012 against which the petitioners filed a rejoinder and the said application was dismissed with direction to file a fresh application mentioning therein the date of knowledge of the gift deed sought to be brought on record and challenged by the proposed amendment. Subsequently, the respondent filed another application for amendment of plaint vide application dated 31.03.2023. A rejoinder was filed to this amendment application by the petitioners. The learned trial court, on consideration of case of the parties, allowed the amendment application with cost of Rs. 1,600/-. This order is under challenge before this Court.

03. The learned counsel for the petitioners submitted that the impugned order has been passed illegally without appreciating the fact that the amendment application was hopelessly barred by limitation and there has been concealment of material facts by the respondent. Allowing the amendment has caused serious prejudice to the rights of the petitioners and the impugned order is in contravention of the settled principles of law. Learned counsel further submitted that the learned trial court has failed to consider that challenging the gift deed of 4th of February, 1972, by way of amendment, is time-barred. The respondent had all along been knowing about the said gift deed and still failed to challenge the same. The respondent has filed an application in Chakbandi Case No. 140 of 1983 wherein he has mentioned that his father had not executed any deed in favour of Anju Lata Singh, as the respondent challenged the claim of Anju Lata Singh about execution of the deed in her favour by the father of the respondent. Learned counsel further submitted that respondent never denied the averment made in the application nor denied his signature or handwriting. Therefore, the plaintiff has not provided any reasonable or sufficient cause for not bringing this fact in his plaint though he was having knowledge of the same since the institution of Chakbandi Case No. 140 of 1983 before Chakbandi Officer, Aurangabad. Learned counsel further submitted that the learned trial court has allowed a time barred claim and serious prejudice has been caused to the petitioners. Learned counsel referred to the decision in the case of Radhika Devi Vs. Bajrangi Singh & Ors., reported in (1996) 7 SCC 486 wherein the Hon'ble Supreme Court relying on the decision in the case of Laxmidas Dahyabhai Kabarwala Vs. Nanabhai Chunilal Kabarwala, reported in [1964] 2 SCR 567 held that the ratio of the latter case squarely applies to a 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. Learned counsel next relied to a three Judge Bench decision of Hon'ble Supreme Court in the case of T.N. Alloy Foundry Co. Ltd. v. T.N. Electricity Board, reported in (2004) 3 SCC 392 wherein referring to the decision in the case of L.J. Leach & Co. Ltd. v. Jardine Skinner and Co., reported in AIR 1957 SC 357, it was held that the Court would as a rule decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application and thus the Hon'ble Supreme Court dismissed the appeal which has challenged the order of a LPA Bench of High Court of Madras which set aside the order of learned Single Judge by which amendment was allowed. Thus, the learned counsel submitted that the respondent had the knowledge about the gift deed in the year 1984 and he did not challenge the same till filing the application for amendment before the learned trial court and therefore, the respondent has been trying to bring a time barred claim by way of amendment and the same could not be allowed. Learned counsel further submitted that in Chakbandi Case No. 140 of 1983, Gopal Prasad Singh, father of the petitioners had moved an application for consolidation in reference to property acquired by Anju Lata Singh vide deed no. 1799 of 04.02.1972. In the said case, the respondent vide application dated 21.03.1984 raised objection submitting that the gift deed was executed in the name of Anju Lata Singh in Mauja Alampur and not in Mauja-Fesar. As such, it becomes abundantly clear that in application dated 21.03.1984, respondent has referred to gift deed no. 1799 dated 04.02.1972 and the said gift deed was well within the knowledge of respondent. Moreover, no other instrument/sale deed had been executed by Gupteshwar Singh in favour of Kumari Anju Lata Singh except for the gift deed dated 04.02.1972. As the gift deed dated 04.02.1972 has been brought under challenge after 51 years, as such, the valuable right accruing due to limitation has been frustrated by the effect of the impugned order and for this reason, the impugned order is fit to be set aside.

The rest of the document can be viewed at https://patnahighcourt.gov.in/viewjudgment/NDQjMTEwNiMyMDIzIzEjTg==-MQxaOkkfpXU=

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