L.C. HANUMANTHAPPA(SINCE DEAD) REPRESENTED A v. H. B. SHIVAKUMAR

2.2 The doctrine of relation back would not apply to the facts of the present case for the reason that the court which allowed the amendment expressly allowed it, subject to the plea of limitation, indicating thereby that there are no special or extraordinary circumstances in the present case to warrant the doctrine of relation back G applying so that a legal right that had accrued in favour of the defendant should be taken away. [Para 29] [674- E-F] Kisandas Rupchand v. Rachappa Vithoba ILR 33 Bom H 644 (1900); Pirgonda Hongonda Patil v. Kalgonda L.C. HANUMANTHAPPA (SINCE DEAD) REPRESENTED 653 BY HIS LRS. v. H. 8. SHIVAKUMAR Shidgonda Patil 1957 SCR 595; Charan Das v. Amir Khan A 47 IA255 (1920); L.J. Leach & Co. Ltd. v. Jardine Skinner& Co. 1957 SCR 438; K. Raheja Constructions Ltd. & Anr. v. Alliance Ministries & Ors. 1995 (3) SCR 960: 1995 Supp. (3) SCC 17; Vishwambhar & Ors. v. Laxminarayan (Dead) through LRs & Anr. (2001) 6 SCC 163; Siddalingamma and B Anr v. Mamtha Shenoy 2001 (4) Suppl. SCR 366: (2001) 8 SCC 561; Sampath Kumar v. Ayyakannu and Anr. 2002 (2) Suppl. SCR 397: (2002) 7 SCC 559; Van Vibhag Karamchari Griha Nirman Sahkari Sanstha Maryadit (Registered) v. Ramesh Chander and Ors. 2010 (12) SCR 1045: (20~0) 14 SCC 596; Prithi Pal Singh and Anr. v. Amrik Singh and Ors. (2013) 9 SCC 576 - referred to. c Case Law Reference 2011 (15) SCR 299 relied on. Para 13 ILR 33 Som 644 (1900) referred to. Para 15 1957 SCR 595 referred to. Para 16 47 IA 255 (1920) referred to. Para 17 1957 SCR"'438 referred to. Para 18 1995 (3) SCR 960 referred to. Para 22 (2001) 6 sec 163 referred to. Para 23 2001 (4) Suppl. SCR 366 referred to. Para 24 2002 (2) Suppl. SCR 397 referred to. Para 25 2010 (12) SCR 1045 referred to. Para 27 (2013) g sec 576 referred to. Para 28 D E F G H 654 SUPREME COURT REPORTS [2015] 9 S.C.R. A CIVIL APPELLATE JURISDICTION: Civil Appeal· No. 6595 of 2015. From the Judgment and Order dated 05.03.2015 of the High Court of Karnataka at Bangalore in RF.A. No. 796 of B 2009. P. Vishwanatha Shetty, S. K. Kulkarni, M. Gireesh Kumar, Mahesh Thakur, Ankur S. Kulkarni for the Appellants. Dr. Aditya Sondhi, Chandan S. Rao, Vikas Mehta, C Anushree Menon forthe Respondent. The following Judgment of the Court was delivered by R.F. NARIMAN, J.

Leave granted. D 2 .. The present case arises out of cross suits filed by the parties. On 9th March, 1990, one LC. Hanumanthappa filed a suit against one H.B. Shivakumar for permanent injunction restraining the defendants, his servants and agents from E disturbing the peaceful possession and enjoyment of the suit schedule property. In this suit, namely, O.S. No. 1386of1990 filed before the City Civil Court, Bangalore, the plaintiff averred that he is the absolute owner, and in lawful possession and enjoyment of the suit property. He also averred in the said suit that the schedule property is clearly distinguishable and could be identified without difficulty. According to the plaintiff, the cause of action arose when the defendant tried to trespass on the schedule property two days before the suit was filed. F G

Within a few days from the filing of this suit, the defendant in the first suit filed a suit being suit number O.S. 1650 of 1990 in the City Civil Court at Bangalore against one LC. Ramaiah and the said Shri Hanumanthappa stating that the defendants had attempted to trespass into the suit schedule H property about 15 days prior to the suit being filed, and asked for a permanent injunction against the said defendants L.C. HANUMANTHAPPA (SINCE DEAD) _REPRESENTED 655 BY HIS LRS. v. H. B. SHIVAKUMAR [R.F. NARIMAN, J.] restraining them from interfering with the peaceful possession A and enjoyment of the suit schedule property. The plaintiff also claimed to be the owner in possession of the suit schedule property.

In the written statementto O.S. No. 1386of1990 dated B 161h May, 1990, the defendant not only referred to his own suit which had by then already been filed, but specifically stated as follows:- "4. The boundaries furnished by the plaintiff to old survey c site No.13, in the plaint schedule is totally false and that has nothing to do with the boundaries mentioned in his document.

The Plaintiff has failed to established any relationship between old site No.13 and Corporation No.12/2, as claimed by him in the pl~int. D

The allegations that at the time of the purchase of the schedule property by the plaintiff, western boundary was a building site bearing No.14 and however subsequently E the said portion left for building site has been converted as road and is being used as such since several years are false and further it is false to state that the east of the schedule property bearing building site No. 12 is situate F to one H. Venkataramanappa and however, the said site has been sold by him and now the said property is owned by one SriAhmadullah khan and he has constructed a building ·thereon, as alleged in para 2 of the plaint. the same was belonging G

The plaintiff has purposefully distorted the b~undary of his old site No. 13 to bring substantially the boundaries of site No.15, old 3, C.T.S. No. 1157 (city Survey) which exclusively belongs to the defendant. H 656 SUPREME COURT REPORTS [2015] 9 S.C.R. A B

13. The suit for injunction is not maintainable in that, he has failed to establish title with possession over site No. old 13, and that is not establishing any connection between old site No.13, and new No. 12/2, alleged to be assigned by Bangalore City Corporation or about 6-6- 1989."

5. It can thus be seen that on 16th May, 1990 itself the plaintiff in O.S. No. 1386 of 1990 was put on notice that his suit for injunction was not maintainable as he had failed to C establish title over the suit schedule property.

6. Both suits were tried together, and by a judgment dated 1 Oth March, 1999, the Court of Additional City Civil Judge at Bangalore decreed O.S. No. 1650 of 1990 and dismissed o O.S. No. 1386 of 1990. In the first appeals filed against the said judgment, the High Court of Karnataka by its judgment dated 28th. March, 2002 allowe.d R.F.A. No. 4-15of1999, and dismissed R.F.A. No. 456of1999, and remanded the matter back to the trial court for fresh consideration. The High Court E while remanding the matter observed as follows:- " 10. The trial Court had also appointed the Commissioner. The Commissioner after inspecting the properties has given his report. The commissioner has also been examined as PW.2. From looking into the pleadings and the evidence adduced by the parties, it is crystal clear that the dispute is in respect of the identity of two properties and to declare right and title over the properties. The respondent in this case has not disputed the sale deed which stands in the name of the appellant. Since the defendant is disputing and existence of the St.lit schedule property, the present application is filed for declaration of his title. The respondent has resisted the application, contending that the relief sought for by the appellant is barred by limitation and that relief sought F G H L.C. HANUMANTHAPPA(SINCE DEAD) REPRESENTED 657 BY HIS LRS. v. H.B. SHIVAKUMAR [R.F. NARIMAN, J.] by way of limitation. However, such a plea can be raised A by the respondents by filing additional written statement. Considering the fact that the dispute in respect of an immovable property and question of identification of two properties have been involved, as the defendant is also not disputing the sale deed of the appellant, this court to B allow the application filed by the appellant for amendment of plaint seeking additional evidence.

11. Accordingly, R.F.A. No. 415/99 is allowed. The judgment and decree passed in O.S. No. 1386/90, is C set aside. The matter is remanded to the Trial Court to hold fresh enquiry after giving reasonable opportunities for both the parties. The defendant is entitled to file additional written statement and also entitled to raise the question of limitation. The Trial Court shall dispose of D the suit within six (6) months from to-day in accordance with law. The judgment and decree passed in O.S. 1650/ 90, which is the subject matter of RFA 415/99 is concerned, there is no need for this court to disturb the decree of injunction and that the decree that may be E passed in O.S. 1386/90 by the Trial Court will have a bearing on the judgment and decree in O.S. No. 1650/ 90. In the event of appellant succeeding in O.S. 1386/ 90, the judgment and decree passed in O.S. 1650/90 in F favour of Shivakumar for bare injunction will be unenforceable against the appellant- Hanumathappa. However, it is made clear till the disposal of 0. S. 1386/ 90, the respondent/plaintiff-shivakumar in O.S. 1650/90 is hereby directed to maintain status-quo. If such an order G is not passed, the respondent/plaintiff-Shivakumar may proceed with the construction and if he is allowed to construct and in the event of appellant succeeds in O.S. No. 1386/90, than it will lead to multiplicity of proceedings. Therefore it is necessary to direct the respondents to H 658 SUPREME COURT REPORTS [2015) 9 S.C.R. A maintain status-quo. "

7. On 1•tApril, 2002, the plaintiff in O.S. No. 1386of1990 then sought to amend the plaint in terms of the said judgment by adding para 5A to the plaint in which the plaintiff stated:- B c D "5A. "The Plaintiff submit that the Defendant has no manner of right title and interest in the plaint Schedule Property. The Defendant has denied the title of the plaintiff in respect of the suit Schedule Property. Hence it is just and essential to declare that the plaintiff is absolute owner in possession of the Schedule property. If the declaration as sought is not granted the Plaintiff who is the absolute owner from 05/05/1956 and enjoying the property as absolute owner thereof, will be put great loss and prejudice. On the other hand no hardship or prejudice will be caused to the defendant if the declaration as sought is granted. "

A decree for declaration of title to the suit schedule E property was then added as a prayer to the amended plaint. On 1st August, 2002, the defendant filed an additional written statement in which the defendant stated that the said plea based on a new cause of action, namely, declaration of title, was time-barred. F

After remand, by its judgment and decree dated 16th April, 2009, the City Civil Court at Bangalore decreed the suit O.S. No. 1386of1990. ltturned down the plea of limitation by stating that since in the original written statement the defendant G had admitted the title of plaintiff Hanumanthappa, and only in the written statement dated 1st August, 2002 was title denied for the first time after the amendment of the plaint was moved, the relief of declaration claimed by the plaintiff would be within the period of limitation. H

In R.F.A. No. 796 of2009, by the impugned judgment LC. HANUMANTHAPPA (SINCE DEAD) REPRESENTED 659 BY HIS LRS. v. H. B. SHIVAKUMAR [R.F..NARIMAN, J.] dated 5th March, 2015, the High Court reversed the said A judgment on limitation stating that the original written statement filed on 16th May, 1990 had clearly stated that the plaintiff did not have the necessary title to the suit schedule property, and as the amendment of the plaint was moved long after three years from 16th May, 1990, it was clear that it was time-barred. B O.S. No. 1386 of 1990 was thus dismissed on limitation alone. The High Court also turned down the plea with reference to Section 22 of the Limitation Act, 1963 stating that on the facts of the present case limitation could not be extended because the wrong in the present case was not a continuing wrong. C

Learned counsel forthe appellant has argued that once an amendment to the plaint is allowed, it necessarily relates back to the date on which the plaint was originally filed, and since the amendment was allowed in the present case by the D judgment dated 28th March, 2002, the said amendment.related back to 9th March, 1990 when the suit was originally filed. He further argued that the suit was based on title, and the title of the plaintiff was admitted in paragraph 2 of the original written statement, as was held by the trial court in its judgment dated E 161h April, 2009. He therefore submitted that the impugned judgment ought to be set aside. However, he did not press the plea of continuing wrong on the facts of the present case.

Learned counsel for the respondent, on the other hand, F argued that the plaintiffs title was clearly denied in the original written statement and three years having elapsed from the said date, the amendment was obviously time-barred. Further, the judgment dated 28th March, 2002 itself made it clear that the amendment was allowed subject to the plea of limitation being G raised. He further argued that the amendment made introduced a completely new cause of action based on fresh facts and therefore any amendment made could not possibly relate back as such amendment would be clearly time-barred. H 660 SUPREME COURT REPORTS [2015] 9 S.C.R. A

We have heard learned counsel for the parties. It is not disputed that Article 58 of the Limitation Act would apply to the amended plaint inasmuch as it sought to add the relief of declaration of title to the already existing relief for grant of In Khatri Hotels Private Limited & permanent injunction. B Anr. v. Union of India &Anr., (2011) 9 SCC 126, this Court while construing Article 58 of the Limitation Act held as follows:- "Article 58 of the Schedule to the 1963 Act, which has a bearing on the decision of this appeal, reads as under: c "THE SCHEDULE Period of limitation [See Section 20) and 3] First Division-Suits D Description of suit Period of limitation nmefrom which period begins to run * * 58. Toobtain any other declaration. * * Part Ill-Suits Relating To Declarations * When the rightto sue first accrues. * Three Years Article 120 of the Schedule to the Limitation Act, 1908 (for short "the 1908 Act") which was interpreted in the judgment relied upon by Shri Rohatgi reads as under: "Description of suit Period of limitation Time from which period begins to run •

Suit for which no period of limitation is provided elsewhere in this Schedule. • Six years • When the right to sue accrues. " E F G H LC. HANUMANTHAPPA (SINCE DEAD) REPRESENTED 661 BY HIS LRS. v. H. B. SHIVAKUMAR [RF. NARI MAN, J.] The differences which are discernible from the language A of the above reproduced two articles are: (1) The period of limitation prescribed under Article 120 of the 1908 Act was six years whereas the period of limitation prescribed under the 1963 Act is three years B and, (ii) Under Article 120 of the 1908 Act, the period of limitation commenced when the right to sue accrues. As against this, the period prescribed under Article 58 c begins to run when the right to sue first accrues. Article 120 of the 1908 Actwas interpreted by the Judicial Committee in Bo/ov. Kok/an [(1929-30) 57 IA325 :AIR D 1930 PC 270] and it was held: (IA p. 331) "There can be no 'right to sue' until there is an accrual of the right asserted in the suit and its infringement, or at least a clear and unequivocal threat to infringe that right, E by the defendant against whom the suit is instituted. " The same view was reiterated in Annamalai Chettiar •• v.Muthukaruppan Chettiar [ILR (1930) 8 Rang 645] and Gobinda Narayan Singh v. Sham Lal Singh [(1930- F 31) 58 IA 125].