# Shyam Devi & Ors v. Smt. Thakura Devi

- **Citation:** (2016) 4 ILRA 279
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-02-19
- **Bench:** Pramod Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shyam-devi-ors-v-smt-thakura-devi-43582
- **Pages:** 5

## Headnote

fide mistake under Section 21(1) Limitation Act, hence deemed filed on original date and not time-barred.
(Paras 8-9, 13-14)

Amendment and Relation Back - Relying on Jai Ram Manohar Lal, Sampath Kumar and Rajesh Kumar
Aggarwal, court held that necessary amendments/impleadment serving real controversy and causing no
prejudice should be permitted and may relate back to the date of suit. (Paras 10-12)

Second Appeal Dismissed - Concurrent finding of fraudulent sale deed executed by impostor after
vendor's death upheld; both substantial questions of law decided against appellants; second appeal dismissed
on 19.02.2016. (Paras 2, 4, 7, 15)

Case Law discussed:

## Text

4 All. Shyam Devi & Ors. Vs Smt. Thakura Devi
279
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.02.2016

BEFORE

THE HON'BLE PRAMOD KUMAR SRIVASTAVA, J.

Second Appeal No.- 224 Of 1988

Shyam Devi & Ors. ...Appellants
Versus
Smt. Thakura Devi ...Respondent

Counsel for the Appellants:
Sri D.K.S. Rathore, H.S.N. Tripathi, M.M. Sahai, P.S. Tripathi, R. C. Singh

Counsel for the Respondent:
Sri Faujdar Rai A.P. Tiwari, H.N. Singh, R.K. Dubey, R.P. Tewari, S.K. Srivastava, S.S. Tripathi
.................................
Limitation - Impleadment of Purchaser - Plaintiff, treating purchaser Smt. Shyama Devi as dead, initially
sued only her sons; on disclosure of her being alive, her impleadment was allowed and held to be due to bona
fide mistake under Section 21(1) Limitation Act, hence deemed filed on original date and not time-barred.
(Paras 8-9, 13-14)

Amendment and Relation Back - Relying on Jai Ram Manohar Lal, Sampath Kumar and Rajesh Kumar
Aggarwal, court held that necessary amendments/impleadment serving real controversy and causing no
prejudice should be permitted and may relate back to the date of suit. (Paras 10-12)

Second Appeal Dismissed - Concurrent finding of fraudulent sale deed executed by impostor after
vendor's death upheld; both substantial questions of law decided against appellants; second appeal dismissed
on 19.02.2016. (Paras 2, 4, 7, 15)

Case Law discussed:
1. Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon, AIR 1969 SC 1267.
2. Sampath Kumar v. Ayyakannu & another, (2002) 2 SAR (Civil) 854.
3. Rajesh Kumar Aggarwal & others v. K.K. Modi & others, 2006 (63) ALR 335.

(Delivered by Hon'ble Pramod Kumar Srivastava, J.)

1. Heard learned counsel for the appellant on the point of admission of second appeal as well
as on framing of substantial question of law and perused the records.

2. Original Suit No. 1337/1982 (Smt. Thakura Devi v. Lallan & Ors.) was instituted for the
cancellation of registered sale-deed dated 20.01.1982, executed on behalf of Bali Raj @ Banshraj
(husband of plaintiff Smt. Thakura Devi) in favour of defendant Shyama Devi, on the ground that
Banshraj had died on 16.01.1982, but after his death the defendant had presented as impostor in
280 INDIAN LAW REPORTS ALLAHABAD SERIES
Sub-Registrar's Office as Banshraj and got executed sale-deed in question on 20.01.1982, regarding
property earlier owned by Banshraj and after his death inherited by plaintiff.

3. After affording the opportunity of hearing to the parties, court of Additional Munsif,
Gorakhpur, had dismissed the original suit by its judgement dated 29.01.1996.

4. Aggrieved by the judgement of the trial court, Civil Appeal No. 88/1986 (Smt. Thakura
Devi Vs. Lallan & Ors.) was preferred by the plaintiff of the original suit. This appeal was heard
and allowed by the judgement dated 21.12.1987 of the Ist Additional District Judge, Gorakhpur. By
this judgement, the first appellate Court had set aside the judgement dated 29.01.1986 of the trial
court and decreed the original suit, and cancelled the sale-deed in question dated 20.01.1982 with
specific finding that the said sale-deed was executed after the death of Banshraj, by any impostor. It
was held by first appellate court that said sale deed was fraudulently obtained and is liable to be
cancelled.

5. It is also admitted fact between the parties that disputed sale-deed was executed on behalf
of Banshraj in favour of Smt. Shyama Devi but plaintiffs had initially filed original suit against the
three sons of Smt. Shyama Devi, with pleading that since Smt. Shyama Devi is dead, therefore her
legal heirs are made as defendants. Then defendants had filed written-statement with averment that
Smt. Shyama Devi is alive, and they had also filed the proof of her being alive. Then plaintiffs had
moved amendment application for impleading Smt. Shyam Devi as defendant, which was allowed
and then original purchaser Smt. Shyama Devi was impleaded as defendant in original suit.

6. It was also admitted fact that original suit was instituted on 23.10.1982, in which writtenstatement of original three defendants (sons of Smt. Shyama Devi) had filed written-statement (90Ka) on 20.01.1985, in which they pleaded about Smt. Shyama Devi being alive. Then impleadment
application (100-Ka) was moved by plaintiffs on 07.12.1985, which was allowed by the Court and
Smt. Shyama Devi was impleaded as defendant.

7. After dismissal of original suit, the first appeal C.A No. 88/1986 was allowed with the
finding as discussed above. Then present appeal was preferred by defendants of original suit, which
was admitted for determining two substantial question of law, which are as under:-

1. Whether the suit can be dismissed as barred by time if a necessary party is
impleaded as defendant after the expiry of limitation for filing the suit?

2. Whether the court has jurisdiction to decide the suit on merit even if it is barred by
time without recording his satisfaction that the omission to add a new defendant was due to
the mistake?

8. Section 21 (i) of Limitation Act, 1963 reads as under.
4 All. Shyam Devi & Ors. Vs Smt. Thakura Devi
281
"21. Effect of substituting or adding new plaintiff or defendant.--(1) Where after the
institution of a suit, a new plaintiff or defendant is substituted or added, the suit shall, as regards
him, be deemed to have been instituted when he was so made a party:

Provided that where the court is satisfied that the omission to include a new plaintiff or
defendant was due to a mistake made in good faith it may direct that the suit as regards such
plaintiff or defendant shall be deemed to have been instituted on any earlier date."

9. The proviso of above-mentioned Section 21(1) Limitation Act makes its explicitly clear
that when the Court is satisfied that any new party was not included due to mistake made in good
faith, and he was added later on as party on the direction of Court, then such party shall be deemed
to have been instituted on any earlier date. In the present case the alleged purchaser of disputed
sale-deed Smt. Shyama Devi was considered to be dead at the time of institution of original suit by
the plaintiff, but application for her impleadment was moved by the plaintiff only when information
was furnished by the defendant about her being alive. It appears that even during proceedings of the
case plaintiffs were not assured as to whether said Smt. Shyama Devi was alive or not, as it reflects
from the evidence, but since there was averments in documentary proof of her death, so she was
rightly impleaded as defendant. During trial of the original suit, the best evedence regarding said
act was Smt. Shyama Devi herself who had never appeared in the Court personally. In any case
Smt. Shyama Devi was impleaded as party in the original suit on permission of the trial court. So
far the determination of fact as to whether her initial non-impleadment was due to mistake made in
good faith or otherwise. In this regard findings of the lower court, already there, which are in
favour of the plaintiffs-respondents. Apart from it, this court finds that there was no occassion for
plaintiff-respondents to institute the suit for cancellation of the sale-deed in question against the
three sons of purchaser for unnecessary delaying the trial of his case, if he had believed that Smt.
Shyama Devi was alive not only on concurrent finding of lower court in that regard, there are proof
that initially non-impleadment of Smt. Shyama Devi was due to bona-fide mistake, but this Court
also finds that there was no reason for plaintiff-respondents to institute the suit against the sons of
Smt. Shyama Devi, if she had to seek relief against Smt. Shyama Devi.

10. The first appellate court had cited the case of Jai Jai Ram Manohar Lal Vs. National
Building Meterial Supply, Gurgaon, A.I.R, 1969, SC 1267, in which the Hon'ble Apex Court has
held that:-

"In our view, there is no rule that unless in an application for amendment of the plaint it is
expressly averred that the error, omission or misdescription is due to a bona fide mistake, the
Court has no power to grant leave to amend the plaint. The power to grant amendment of the
pleadings is intended to serve the ends of justice and is not governed by any such narrow or
technical limitations."

11. In the case of "Sampath Kumar Vs. Ayyakannu & anr., (2002)2 SAR (Civil) 854, the
Hon'ble Apex Court has held as under:
282 INDIAN LAW REPORTS ALLAHABAD SERIES
"An amendment once incorporated relates back to the date of the suit. However, the
doctrine of relation back in the context of amendment of pleadings is not one of universal
application and in appropriate cases the Court is competent while permitting an amendment to
direct that the amendment permitted by it shall not relate back to the date of the suit and to the
extent permitted by it shall be deemed to have been brought before the Court on the date on which
the application seeking the amendment was filed."

12. Amendment / impleadment may generally being allowed even at belated such if it does
not cause injustice prejudice to other side and such amendment sought must be necessary for
purposes of determining in the real controversy between the parties. In the case of "Rajesh Kumar
Aggarwal & others Vs. K. K. Modi & others, 2006 (63) ALR 335", the Hon'ble Apex Court has
held as under:-

"16. The object of the rule is that Courts should try the merits of the case that come before
them and should, consequently, allow all amendments that may be necessary for determining the
real question in controversy between the parties provided it does not cause injustice or prejudice to
the other side.

17. Order VI, Rule 17 consists of two parts whereas the first part is discretionary (may)
and leaves it to the Court to order amendment of pleading. The second part is imperative (shall)
and enjoins the Court to allow all amendments which are necessary for the purpose of determining
the real question in controversy between the parties.

18. In our view, since the cause of action arose during the pendency of the suit, proposed
amendment ought to have been granted because the basic structure of the suit has not changed and
that there was merely change in the nature of the relief claimed. We fail to understand if it is
permissible for the appellant to file an independent suit, why the same relief could be prayed for in
the new suit cannot be permitted to be incorporated in the pending suit.

19. As discussed above, the real controversy test is the basic or cardinal test and it is the
primary duty of the Court to decide whether such amendment is necessary to decide the real
dispute between the parties."

13. On basis of above discussion, it is found that the delay in impleading Smt. Shyama Devi
and other necessary parties in original suit was due to bona-fide error, therefore, she was rightly
permitted to be impleaded in the suit and such impleadment had in effect of causinhg prejudise in
justice in any of the defendant-appellant. Therefore, her impleadment relates back to the institution
of suit, therefore original suit was rightly held not time-barred by the lower courts. Accordingly the
first substantial question of law is decided in favour of plaintiff-respondents and not against
defendant-appellants.

14. After filing the written statement in the Trial Court, an amendment application was
moved by the plaintiffs for impleading Smt. Shyama Devi as defendant. This was opposed, but
4 All. Dev Shankar Singh Vs State Of U.P. & Ors.
283
 after affording an opportunity of hearing, the said application was allowed and Smt. Shyama
Devi was impleaded as party in additional written statement. Plea of limitation was raised and in
that regard issue no. 7 was framed, which was discussed and decided against the plaintiffs then the
appeallant was specifically raised on this point of limitation. The arguments of both the parties
were heard, first appellate court had specifically discussed the points of limitation of suit on
account of belated impleadment of Smt. Shyama Devi, and after considering the arguments of
learned counsel for the parties gave it's specific finding rejected the contention of learned counsel
for the defendants-respondents of first appeal. By this finding, the first appellate court had recorded
its satisfaction that original suit was not time-barrred and that finding of first appellate court
appears legal and correct. During discussions of first substantial question of law, this court has also
held that the suit was not time barred. Therefore, on this second substantial question of law, the
contention of learned counsel for the appellant in second is found not acceptable and accordingly
this second substantial question of law is decided against appeal in favour of respondents-plaintiffs.

15. On the basis of above discussion, I am of the opinion that from the evidences adduced in
Trial Court, the plaint case was proved and judgement of first appellate court suffers from nonillegality, infirmity or irregularity. So both the substantial question of law were decided against the
appellant. None of the contention of learned counsel for the appellant are found acceptable,
therefore this second appeal is hereby dismissed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.04.2016

BEFORE

THE HON'BLE ARUN TANDON, J.
THE HON'BLE AMAR SINGH CHAUHAN, J.

Special Appeal No.- 226 Of 2016

Dev Shankar Singh ...Appellant
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Rajesh Kumar, Satish Kumar Singh

Counsel for the Respondents:
 C.S.C., D.P. Singh

This special appeal is directed against the judgment and order of the Hon'ble Single Judge dated
11.02.2016 passed in Writ Petition No. 168 of 2011 Dev Shankar Singh vs. State of U.P. and others.

Held: Para-