Decided on May 02,2006



P.K.Deb, - (1.) THIS appeal has been preferred against the order dated 24th March, 2004 passed by the learned Presiding Officer, D.R.T., Allahabad in T.A. No. 564/2000, whereby and whereunder the prayer of amendment of the plaint by the respondent Bank has been allowed.
(2.) The brief facts of the case is that the respondent-Bank filed the recovery suit for Rs. 31,20,367.80 against the appellant and the respondent Nos. 2 and 3 in the year 1994 before the Court of Civil Judge, Kanpur Nagar. After constitution of Tribunal under the RDDBFI Act the suit was first transferred to Jabalpur D.R.T. and after setting up of D.R.T., Allahabad it has been re-transferred and was registered as T.A. No. 564/2000. The appellants had filed written statement along with evidence on 17th July, 2001 before the Tribunal at Allahabad. The grounds taken in the written statement by the appellants were that the claim is barred by limitation and that the accounts are not proper and remained non-explained, etc., etc. After written statement was filed and evidence was given by the defendant-appellants, the case was fixed for final hearing but the respondent Bank took several adjournments and then on 11th November, 2002 respondent Bank filed a petition presumably under Order 6, Rule 17 of the CPC seeking amendment of the original plaint on the ground that due to inadvertence and omission certain facts could not find place in plaint and as such amendment was necessary and several amendments in the plaint has been urged in the application itself. Such plea of amendment was vehemently objected to from the side of the appellants. Their case was that by the name of the amendment the respondent has attempted to change the nature of the suit and in the name of explanation of the previous history, they have overhauled the plaint and even the date of cause of action has also been changed including the mortgaged property being annexed with further prayer for a mortgage decree. After hearing both the parties, learned Tribunal by the impugned order has allowed the amendment and had given option to the appellant to raise all their points of grievances in the additional written statement to be filed on the basis of the amended plaint. Before this Appellate Tribunal it has been submitted from the side of the appellants that the learned Tribunal did not at all consider the change of nature of the suit and point of limitation by which denial has been made to a right already accrued to the appellants. On the other hand, the learned Counsel for the respondent has submitted that although amendment was sought at belated stage, but it did not change the nature of the suit as amount of recovery remained the same and only explanation has been given towards the history regarding bringing forward of the first amount in the accounts submitted. Regarding limitation he has submitted that if the points raised, the same can be considered at the time of final adjudication but on the ground of limitation alone amendment ought not to have been denied. In support of his contention he has referred to Raj Kumar v. Dipendra Kaur. IV (2004) CLT 291 (SC) : 2004(8) SCC 196, Pankaja v. Yellappa III (2004) CLT 147 (SC) : 2004(5) SCC 772 and Mrs. Shylaja Kumari Prem Lal v. S.B.I. I (2004) BC 1 : 2002(3) Banks CLR 548 (DRAT Chen.).
(3.) ON hearing of the argument of the learned Counsel for both the parties. I have scrutinized the impugned order in the light of the amendment petition filed and also objection raised thereof from the side of the appellants. The admitted position remains that the suit was filed in the Civil Court in the year 1994 and the case had come up to the final stage of disposal, when the amendment petition was filed after long eight years regarding the history as to how brought forward amount came in the statement of accounts. There might be logic as it does not change the nature of the suit and for delay such explanation might not suffer much, but then there arc vital points involved as to the putting up of new date and year in the paragraph of cause of action and then including the prayer for mortgage decree. Definitely case has a change in the nature of the suit. Previously it remained as a money suit, but then prayer for mortgage decree has also been included by the amendment. Such change in the nature of the suit might not be very vital when prayer for inclusion of mortgage decree might be a collateral one, but can that be done at such belated date and definitely limitation goes in the way. Generally allowance of amendment relates back to the date of filing of the suit, but if the limitation comes in the way then such relating back cannot be allowed as already right must have been accrued to the adversary. There is also overhauling of the vital places of the plaint itself for inclusion of mortgage decree and also for inclusion of the history regarding brought forward account and everywhere the question of limitation remains as a vital one. but the impugned order does not disclose that the learned Tribunal has considered the amendment in that perspective, but very wisely he has kept the points alive to be decided, when being raised formally in the additional written statement. The dispute has arisen since long back in the year 1985 and now we are in 2006 and the suit had also been filed in the year 1994 and already more than a decade have elapsed and in. that way if the amendment matter is being sent back to reconsider, then further delay would cause as the matter had already come to the nascent stage because of allowance of the amendment and for ends of justice although I find some force in the appeal., I do not want to interfere with the impugned order of allowance of amendment, but it is made clear that the learned Tribunal while adjudicating the matter of dispute shall reconsider the point of limitation, change of the nature of the suit and also relating back of the amendment to the date of filing of the suit. Although amendment has been formally allowed, limitation is a vital question which gives a right accrued to party pleading and no Court has got any right to take away such right if really accrued to that party.;

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