KAMAL ASHOK FUTNANI Vs. G. NALINI RAO

JUDGEMENT

(1.) THE respondent filed O.S No. 715 of 2008 in the Court of IX Additional Chief Judge, City Civil Court, Hyderabad against the petitioner for the relief of recovery of possession and mandatory injunction in respect of the suit schedule property. The petitioner opposed the suit by filing a written statement. During the pendency of the suit, the respondent filed I.A No. 3421 of 2011 under Order VI Rule 17 read with Section 151 of CPC and Rule 28 of the Civil Rules of Practice, with a prayer to permit her to amend the plaint, mainly to incorporate the prayer of declaration of title.

(2.) IN the affidavit filed in support of the I.A., the respondent stated that in the written statement filed by her, the petitioner claimed pleaded rival title to the property on the basis of a sale deed dated 31 -10 -1996 and since she (the respondent) purchased the property earlier point of time i.e., on 21 -01 -1992, the necessity has arisen for seeking the relief of declaration of title. The application was opposed by the petitioner by filing a counter. Objection was raised as to the limitation as well as maintainability. According to her, the relief of declaration of title in respect of sale deed of the year 1992 is barred by limitation. Another contention was that once the respondent failed to incorporate the prayer for declaration of title in the suit, it is not permissible for her to claim it at a later point of time, and that it is barred under Rule 2 of Order II CPC.

(3.) SRI K. Vivek Reddy, learned counsel appearing for Sri Pratik Reddy, learned counsel for the respondent, on the other hand, submits that the question of limitation can certainly be raised at the trial of the suit and it cannot be treated as a bar for seeking amendment at this stage. He further submits that the plea referable to Rule 2 of Order II CPC is totally impermissible. According to the learned counsel, it is only when a subsequent suit is filed in respect of a claim, which could have constituted the subject matter of an earlier suit that the prohibition contained under Order II gets attracted and the question of an amendment in the same suit being barred under Rule 2 of Order II CPC does not arise.