In a recent judgement L.C. Hanumanthappa vs H.B.Shivakumar decided on 26 August, 2015.
Suit for declaration or amendment of pleadings to incorporate relief of declaration: While enacting Art. 58 of the 1963 Act, the legislature has designedly made a departure from the language of Art. 120 of the Limitation Act, 1908. The word “first” has been used between the words “sue” and “accrued”. This would mean that if a suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues. To put it differently, successive violation of the right will not give rise to fresh cause and the suit will be liable to be dismissed if it is beyond the period of limitation counted from the day when the right to sue first accrued.
the issue before the Hon'ble Supreme Court is When did the right to sue arose under Article 58 of the Limitation Act (b) Under what circumstances can such a time barred application be allowed.
The Hon'ble court held :-
14. Given this statement of the law, it is clear that the present amendment of the plaint is indeed time-barred in that the right to sue for declaration of title first arose on 16th May, 1990 when in the very first written statement the defendant had pleaded, in para 13 in particular, that the suit for injunction simpliciter is not maintainable in that the plaintiff had failed to establish title with possession over the suit property. The only question that remains to be answered is in relation to the doctrine of relation back insofar as it applies to amendments made under Order VI Rule 17 of the Code of Civil Procedure.
15. As early as in the year 1900, the Bombay High Court in Kisandas Rupchand v. Rachappa Vithoba, ILR 33 Bom 644 (1900), held as follows:-
“ ... All amendments ought to be allowed which satisfy the two conditions
(a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties ...amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. It is merely a particular case of this general rule that where a plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused; to allow it would be to cause the defendant an injury which could not be compensated in costs by depriving him of a good defence to the claim. The ultimate test therefore still remains the same: can the amendment be allowed without injustice to the other side, or can it not?” [at p. 655]
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29.......By 16th May, 1993 therefore a suit based on declaration of title would have become time-barred. It is clear that the doctrine of relation back would not apply to the facts of this 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 applying so that a legal right that had accrued in favour of the defendant should be taken away. This being so, we find no infirmity in the impugned judgment of the High Court. The present appeal is accordingly dismissed.
Suit for declaration or amendment of pleadings to incorporate relief of declaration: While enacting Art. 58 of the 1963 Act, the legislature has designedly made a departure from the language of Art. 120 of the Limitation Act, 1908. The word “first” has been used between the words “sue” and “accrued”. This would mean that if a suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues. To put it differently, successive violation of the right will not give rise to fresh cause and the suit will be liable to be dismissed if it is beyond the period of limitation counted from the day when the right to sue first accrued.
the issue before the Hon'ble Supreme Court is When did the right to sue arose under Article 58 of the Limitation Act (b) Under what circumstances can such a time barred application be allowed.
The Hon'ble court held :-
14. Given this statement of the law, it is clear that the present amendment of the plaint is indeed time-barred in that the right to sue for declaration of title first arose on 16th May, 1990 when in the very first written statement the defendant had pleaded, in para 13 in particular, that the suit for injunction simpliciter is not maintainable in that the plaintiff had failed to establish title with possession over the suit property. The only question that remains to be answered is in relation to the doctrine of relation back insofar as it applies to amendments made under Order VI Rule 17 of the Code of Civil Procedure.
15. As early as in the year 1900, the Bombay High Court in Kisandas Rupchand v. Rachappa Vithoba, ILR 33 Bom 644 (1900), held as follows:-
“ ... All amendments ought to be allowed which satisfy the two conditions
(a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties ...amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. It is merely a particular case of this general rule that where a plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused; to allow it would be to cause the defendant an injury which could not be compensated in costs by depriving him of a good defence to the claim. The ultimate test therefore still remains the same: can the amendment be allowed without injustice to the other side, or can it not?” [at p. 655]
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29.......By 16th May, 1993 therefore a suit based on declaration of title would have become time-barred. It is clear that the doctrine of relation back would not apply to the facts of this 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 applying so that a legal right that had accrued in favour of the defendant should be taken away. This being so, we find no infirmity in the impugned judgment of the High Court. The present appeal is accordingly dismissed.
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