LexSTATE BANK OF HYDERABAD versus TOWN MUNICIPAL COUNCIL
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ST A TE BANK OF HYDERABAD A v. TOWN MUNICIPAL COUNCIL DECEMBER l, 2006 [S.B. SINHA AND MARKANDEY KA TJU, JJ.] B Code of Civil Procedure, 1908-Proviso to Order VI, Rule 17-Suit filed in I 998-!J.mendment of plaint-Disallowed by High Court on basis of proviso appended to Order VJ, Rule I 7-Held: Proviso came into force w.ej C I. 7.2002-lt did not apply to the case in hand-High Court failed to invoke the law as it then existed In a suit for decree of injunction in respect of property, application was filed for grant of leave to amend the plaint. The application was allowed. High Court by reason of the impugned judgment held that the D said application for amendment was not maintainable in view of the proviso appended to Order VI, Rule 17, CPC and on the said finding the order granting leave to amend the plaint was set aside. In appeal to this Court the questions which arose for consideration are: (1) whether the proviso appended to Order VI, Rule 17, CPC was E inapplicable in the instant case and hence the High Court erred in relying upon the same and 2) whether the submission of Respondent that the application for amendment being belated, the same should not have been entertained, is unjustified. F Allowing the appeal and remitting the matter to the High Court, the Court HELD: 1. Proviso appended to Order VI, Rule 17, CPC was added by the Code of Civil Procedure (Amendment) Act, 2002 which came into force w.e.f. 1-7-2002. The suit having been filed in the year 1998, proviso G to Order VI, Rule 17 of the Code shall not apply. As the High Court has failed to invoke the law as it then existed, it was not correct in its view. The High Court relied upon the said proviso and opined that having regard thereto the plaintiff was obligated to establish that in spite of due diligence 919 H 920 SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R. A it could not have raised the matter before commencement of the trial of the suit. The High Court evidently committed an illegality in relying upon the said provision. (921-F; 922-C-EJ 2. It is one thing to say that the application for amendment suffers from delay or laches but it is another thing to say that thereby the B defendant was prejudiced. It is also not a case of the respondent that by reason of such an amendment, the relief which could not be granted having regard to the law of limitation has become available. The Court even in such a case is not powerless although the question as to whether the relief sought for would be otherwise barred by limitation is a relevant factor to C determine the issue. (922-F-GI L.J. leach and Company ltd v. Jardine Skinner and Co., [1957] SCR 438; Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil and Ors., (19571 SCR 595; Rajesh Kumar Aggarwal and Ors. v. K.K. Modi and Ors., (2006] 4 SCC 385; Pankaja and Anr. v. Yellappa (Dead) By LRs. and Oi·s., (20041 6 D SCC 415; Baldev Singh & Ors. v. Manohar Singh & Anr. etc., JT (2006) 7 SC 139; Gajanan Jaikishan Joshi v. Prabhakar Mohan/al Ka/war, (1990( I SCC 166 and A.K. Gupta and Sons v. Damodar Valley Corporation, (1966) 1 SCR 796, referred to. E F CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5294 of2006. From the final Common Judgment and Decree dated I6-6-2005 of the High Court of Kamataka at Bangalore in M.S.A. Nos. 132 and 133/2003. Rajeev Dhavan, A.V. Rangam, A. Ranganadhan and Buddy A. Ranganadhan for the Appellant. S. Nanda Kumar, Satish Kumar, Mayilsamy, Renuga Devi, Subramani V., and V.N. Raghupathy for the Respondent. The Judgment of the Court was delivered by G S.B. SINHA, J. Leave granted. Appellant-Bank filed a suit against the respondent. The suit related to ownership of a plot ad measuring 610 ft. x 250 ft. situated in the town Yadgir. It .was purchased by the plaintiff in a public auction. Allegedly, the respondent H is now claiming back the said amount. The suit was initially filed for a decree STATE BANK OF HYDERABAD v. TOWN MUNICIPAL COUNCIL[S.B. SINHA, J.] 921 for injunction. The respondent med another suit in the same court also for a A suit for permanent injunction restraining the Bank from constructing any building. The suit of the appellant was dismissed whereas the suit of the respondent was decreed. Appeals were preferred there against by both the parties. In the said appeals, an application was filed for grant of leave to amend the plaint. The said application for grant of leave to amend the plaint B
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