SULEKHA BEEVI Vs. ABU BACKER

JUDGEMENT

(1.) THE suit property - 2 cents (I am told, in the heart of Thiruvananthapuram city) originally belonged to the mother of the parties. She, on various occasions executed different documents in respect of the same property in favour of her children, the latest being settlement deed No.4032 of 2000 in favour of petitioner. Based on that document, she sought declaration of the title and possession she claimed to have in the suit property before learned Second Additional Munsiff, Thiruvananthapuram in O.S.No.1979 of 2003. In that suit, first respondent/brother of petitioner was impleaded as the sole defendant. He filed written statement denying the claim of petitioner and contending that the mother had executed settlement deed No.289 of 1987 dated 30.01.1987 in favour of the first respondent and later, the mother along with the first respondent executed document No.2972 of 1996 in favour of the second respondent. THE second respondent got himself impleaded as additional second defendant as per order dated 09.02.2004 on I.A.No.1709 of 2004. He claimed title and possession of the property tracing title to settlement deed No.289 of 1987 and document No.2972 of 1996. THEreafter there was an ex parte decree in favour of petitioner on 18.05.2005 which was set aside on 06.03.2007 as per application filed on 20.05.2005. Case was posted for trial in the list on 08.06.2007. That day though, petitioner filed proof affidavit she was not available for cross examination. Learned Second Additional Munsiff dismissed the suit on 14.06.2007 for default. THE suit was later restored on the request of petitioner and again it was posted in the list on 11.06.2009. On 10.06.2009 petitioner came with Ext.P4, application for amendment of the plaint to incorporate a prayer for cancellation of settlement deed No.2972 of 1996. That application was dismissed as per Ext.P6, order dated 24.06.2009. THE case was posted for trial in the list on 06.01.2010. THEn petitioner got the case removed from the list on a submission that she wanted to challenge Ext.P6, order. THE suit was later dismissed for default and against restored to file. Again, the case was posted for trial in the list on 11.02.2011. On 10.02.2011 petitioner filed Ext.P7, application for review of Ext.P6, order with an application to condone the delay of about 2 years (I.A.No.1373 of 2011). Llearned Munsiff condoned the delay but, I.A.No.1372 of 2011 was dismissed by Ext.P10, order. Now challenge is to Ext.P10, order refusing review of Ext.P6, order.

(2.) LEARNED counsel for petitioner contends that the main ground on which learned Munsiff disallowed the prayer for amendment is that the time prescribed for challenging the settlement deed No.2972 of 1996 under Art.59 of the Limitation Act, 1963 had expired by the time petitioner filed Ext.P4, application on 10.06.2009 and hence a time barred relief cannot be allowed to be incorporated by amendment which will cause prejudice to the respondents. It is contended by learned counsel that learned Munsiff has not taken into account the fact that there was an ex parte decree in favour of petitioner on 18.05.2005 and that ex parte decree was set aside only on 06.03.2007. According to the learned counsel, since there was an ex parte decree in favour of petitioner as aforesaid, it was not necessary or possible for petitioner to file any application for amendment of plaint to challenge validity of settlement deed No.2972 of 1996 and hence the period during which the ex parte decree remained in force could not be reckoned in computing the period of limitation. It is also contended, on the facts and circumstances of the case that when petitioner claims title and possession over the property as per settlement deed No.4032 of 2006 executed by the mother it meant that no other person in whatever manner it may be has title and possession and in the circumstances it was only just and proper that petitioner was permitted to challenge validity of settlement deed No.2972 of 1996. LEARNED Munsiff ought to have allowed the amendment and in the circumstance Ext.P6, order ought to have been reviewed.

(3.) BUT, it is not as if petitioner should be granted an amendment so that it should relate back to the date of the suit. I must bear in mind the contention of learned counsel for respondents that petitioner must be imputed with knowledge of the settlement deed Nos.289 of 1987 and 2972 of 1996 atleast from 09.02.2004 when second respondent filed I.A.No.1709 of 2004 for his impleadment stating about his title and possession of the property based on the impugned settlement deed. The question whether in computing the period of limitation in respect of the challenge to the said settlement deed, the period during which the ex parte decree remained in force is to be excluded or not is a matter which the trial court has to decide at the appropriate stage. Having regard to the facts and circumstances stated I am inclined to think that the appropriate course is to allow the amendment but to make it clear that it will not relate back to the date of the suit, the question whether relief incorporated by amendment is barred by limitation being a matter which respondents could raised and which shall be decided by the trial court at the appropriate stage. In the light of the decision in Sampath Kumar Vs. Ayyakannu and Anr. ((2002)7 SCC 559) I feel justified in adopting that course.