ASHOK BHUSHAN,J. - (1.) This appeal has been filed against the judgment of Delhi High Court dated 02.08.2017 by which judgment, the Writ Petition filed by the appellant challenging the order of Additional District Judge dismissing the application of the plaintiff under Order VI Rule 17 of the Civil Procedure Code (hereinafter referred to as "C.P.C.") has been dismissed. Facts in brief necessary to be noted for deciding the appeal are:- The appellant and respondent No.5 are sons of respondent No.1. Respondent Nos. 2, 3 and 4 are wife, son and daughter of another brother of appellant. The appellant's father Late Shri O.P. Mehra alongwith his wife and three minor sons came to Delhi from Lahore after Partition. Shri O.P. Mehra died in 1951. The respondent No.1 and her sons were held entitled to compensation under Order of Settlement Commissioner, New Delhi dated 14.08.1956. The respondent No. 1 was declared as highest bidder in a public auction for a House No. D-4, Lajpat Nagar, area measuring 300 sq. yds. which amount was adjusted from the claim to which the respondent No.1 and her sons were held entitled. Another property was also allotted in the name of respondent No.1 of area measuring 200 sq. yds. at G-11, Nizamuddin, New Delhi. The property G-11, Nizamuddin was sold by respondent No.1 in the year 2000. On 04.11.2009, the appellant filed a Suit No. 2082 of 2009 against the respondents seeking partition of the suit property described in Appendix A. In Appendix A, only property mentioned was Plot No.D-4, Lajpat Nagar, Part-II, New Delhi. Written statement was filed by the respondent and on 17.05.2010, issues were framed by the Court. 10.08.2010 was fixed for recording the evidence of the plaintiff. The plaintiff prayed for time for producing evidence. On 17.01.2011, plaintiff filed an application under Order VI Rule 17 praying for amendment of the plaint. By the application plaintiff sought to add certain pleadings and a prayer claiming share in the sale proceeds received by defendant No.1 from sale of the property of Nizamuddin. Application filed by the plaintiff was objected by the defendants by filing a reply. It was pleaded that several opportunities were given to the plaintiff to lead evidence and last opportunity was given on 08.12.2010 to file his evidence by 28.01.2011. It was further pleaded that in the sale document of Nizamuddin property, plaintiff himself was a witness. The relief which is sought to be amended is barred by time and is altogether a separate cause of action. Plaintiff filed a rejoinder in which it was stated that plaintiff came to know that plaintiff had undivided share in the property at Nizamuddin only in November, 2010. He further stated that he informed all the facts to his earlier counsel but in the plaint the mention of Nizamuddin property was not made by earlier counsel and while preparing for evidence in the suit, the fact was noticed by the plaintiff only in November, 2010 and hence application for amendment has been filed. The Court passed on order on 26.07.2011 granting the plaintiff four week's time as a last opportunity to file the examination-in-chief of his witnesses subject to payment of L 5,000/-, with regard to I.A. No.1001 of 2011, it was stated "Needless to say in Case I.A. No.1001/2011 is allowed, appropriate orders for evidence of the plaintiff would be made." Parties led evidence and suit was fixed for final disposal. On 14.02.2014, an order was passed directing that amendment application shall be considered at the time of final hearing of the suit. Plaintiff filed an application for amendment of issues, which was rejected by the High Court on 09.02.2015. The plaintiff filed a FAO (OS) No.196 of 2015, in which Division Bench of the High Court by order dated 28.04.2015 directed the learned Single Judge to decide the amendment application I.A. No. 1001 of 2011. In the meantime on account of pecuniary jurisdiction of the case, the suit was transferred to the Court of Additional District Judge, Saket. The Additional District Judge took up the amendment application and vide order dated 24.10.2016 rejected the amendment application. The trial court took the view that the suit for recovery of money of his share could have been filed by plaintiff within three years from the date of sale. The trial court held that the amendment sought is barred by time, hence the application was rejected. A Writ Petition under Article 227 was filed by the plaintiff in the High Court challenging the order dated 24.10.2016, which has been dismissed by the High Court by the impugned judgment, against which this appeal has been filed.
(2.) We have heard Ms. Shobha, learned counsel for the appellant. Shri S.B. Upadhyay, learned counsel was heard for respondent No.1, Shri Rana S. Biswas and Ms. Sharmila Upadhyay, has been heard for respondent No.5. Learned counsel for respondent No.5 having adopted the submissions raised on behalf of respondent No.1, we shall hereinafter refer to the submissions of respondent No.1 and respondent No.5 as submissions on behalf of respondents.
(3.) Learned counsel for the appellant in support of the appeal contends that the application filed by the plaintiff for amendment under Order VI Rule 17 was not barred by time. Relying on Article 110 of the Limitation Act, 1963, learned counsel submits that the limitation for enforcing a right to share in a joint family property is twelve years, hence the claim was not barred by time. The High Court on one hand refrained itself from saying anything on the issue of limitation on Article 110 of the Limitation Act and on the other hand has given an approval to the view of the learned Additional District Judge that suit is barred by time. The High Court has failed to appreciate that parties have already led evidence relating to proposed amendment which fact was recorded by the High Court on 14.02.2014 and only a formal order of allowing amendment was required, which would not have caused any prejudice to the defendant. The High Court on technical grounds has rejected the amendment application whereas it is well settled that amendment applications are to be liberally considered and unless any prejudice is shown to be caused to the defendant, the applications are allowed.;