Pleading

Period of Limitation

Supreme Court in the case of Bharat Barrel and Drum Mfg. Co. Ltd. v. ESI Corpn.: (1971) 2
SCC 860 as under:

“7. ….. The necessity for enacting periods of limitation
is to ensure that actions are commenced within a
particular period, firstly to assure the availability of
evidence documentary as well as oral to enable the
defendant to contest the claim against him; secondly to give effect to the principle that law does not assist
a person who is inactive and sleeps over his rights by
allowing them when challenged or disputed to remain
dormant without asserting them in a court of law. The
principle which forms the basis of this rule is expressed
in the maximum vigilantibus, non dermientibus, jura
subveniunt (the laws give help to those who are
watchful and not to those who sleep). Therefore the
object of the statutes of limitations is to compel a
person to exercise his right of action within a
reasonable time as also to discourage and suppress
stale, fake or fraudulent claims. ….”

Arbitration Matter

The Supreme Court has held in Union of India Vs. Popular Construction Co., AIR 2001 SC
4010, that the power of the court to condone delay does not
extend beyond the period of 30 days under Arbitration Act. The delay in re-filing of the
petition has to be viewed in the light of the aforesaid period of
limitation which is not stretchable beyond the period of three
months and thirty days.

The judgment of the Supreme Court in Improvement Trust was rendered
by the Supreme Court while considering a case falling under
Section 5 of the Limitation Act. Even though Limitation Act is
applicable to a petition under the Arbitration and Conciliation Act,
the limitation provided under Section 34(3) is elastic only to a
limited extent, and not beyond that.

Supreme Court in the case of Bharat Barrel and Drum
Mfg. Co. Ltd. v. ESI Corpn.: (1971) 2 SCC 860 as under:
“7. ….. The necessity for enacting periods of limitation is to
ensure that actions are commenced within a particular period,
firstly to assure the availability of evidence documentary as well
as oral to enable the defendant to contest the claim against him;
secondly to give effect to the principle that law does not assist
a person who is inactive and sleeps over his rights by allowing
them when challenged or disputed to remain dormant without
asserting them in a court of law. The principle which forms the
basis of this rule is expressed in the maximum vigilantibus, non
dermientibus, jura subveniunt (the laws give help to those who
are watchful and not to those who sleep). Therefore the object
of the statutes of limitations is to compel a person to exercise
his right of action within a reasonable time as also to discourage
and suppress stale, fake or fraudulent claims. ….”

The Supreme Court in the case of Union of India v. Popular
Construction Company: (2001) 8 SCC 470 has held that the time limit
prescribed under section 34 of the Act to challenge an award is not
extendable by the Court under section 5 of the Limitation Act, 1963 in
view of the express language of section 34(3) of the Act. However, this
decision would not be applicable in cases where the application under
section 34 of the Act has been filed within the extended time prescribed,
and there is a delay in re-presentation of the application after curing the
defects that may have been pointed out. This is so because section 5 of
the Limitation Act, 1963 would not be applicable in such cases. Section
5 of the Limitation Act, 1963 provides for extension of the period of
limitation in certain cases where the Court is satisfied that the appellant/
applicant had sufficient cause for not preferring an appeal or making an
application within the specified period. In cases, where the application/
appeal is filed in time, section 5 would have no application. The Supreme
Court in the case of Indian Statistical Institute v. Associated Builders:
(1978) 1 SCC 483 considered the applicability of section 5 of the Limitation
Act, 1963 where the objection to an award under the provisions of the
Arbitration Act, 1940 was filed in time but there was substantial delay in
re-filing the same. The High Court in that case held that there was a delay
in filing the objections for setting aside the award and consequently,
rejected the application for condonation of delay. An appeal against the
decision of the High Court was allowed and the Supreme Court rejected
the contention that there was any delay in filing objections for setting
aside the award.

REFERRED TO:

1. Delhi Transco Ltd. & Anr. vs. Hythro Engineers Pvt. Ltd.: 2012 (6) R.A.J. 299 (Del.).
2. India Tourism Dev. Corporation Ltd. vs. R.S. Avtar Singh & Co.: FAO(OS) No.58/2011, Decided on 10.02.2011.
3. M/s. Competent Placement Services through its Director/ Partner vs. Delhi Transport Corporation through its Chairman: 2011 (2) R.A.J. 347 (Del).
4. The Executive Engineer vs. Shree Ram Construction Co.: 2011 (2) R.A.J. 152 (Del.).
5. Improvement Trust vs. Ujagar Singh, (2010) 6 SCC 786.
6. DSA Engineers (Bombay) vs. Housing & Urban Development Corporation Ltd.: 2003 (1) AD (Delhi) 411.
7. Union of India vs. Popular Construction Company: (2001) 8 SCC 470.
8. Union of India vs. Popular Construction Co., AIR 2001 SC 4010.
9. S.R. Kulkarni vs. Birla VXL Limited: 1998 (5) AD (Delhi) 634.
10. D.C. Sankhla vs. Ashok Kumar Parmar: 1995 (1) AD
    (Delhi) 753.
11. Ashok Kumar Parmar vs. D.C. Sankhla: 1995 RLR 85.
12. Indian Statistical Institute vs. Associated Builders: (1978) 1 SCC 483.
13. Bharat Barrel and Drum Mfg. Co. Ltd. vs. ESI Corpn.: (1971) 2 SCC 860

CONSOLIDATION OF SUIT

Complete or even substantial and sufficient similarity of issue arising for decision in two
different suits, enables them for consolidation for trial and decision.

REFER TO

Nirmala Devi vs. Arun Kumar Gupta, JT 2000 (4) SC 229.
Col. Suresh Chand & Anr. vs. Shri Satish Dayal, I.A. no. 11307/2009 in CS(OS)2319/2006 decided on 28.01.2010.
Chitivalsa Jute Mills vs. Jaype Rewa Cement, 2004 (3) SCC 85.
Nirmala Devi vs. Arun Kumar Gupta and Ors., JT 2000 (4) SC 229.
Virender Gupta vs. Nitender Gupta and Ors., 31(1987) DLT 406

IN Nirmala Devi vs. Arun Kumar Gupta, JT 2000 (4) SC 229 to contend that a probate petition can be
clubbed with a suit.

1. Learned counsel appearing for defendants No. 1 to 3 and 5 has
   strenuously urged that the beneficiary of the Will in the probate petition,
   namely, the second wife of Late Sh. R.P. Srivastava is a senior citizen
   being above the age of 80 years. It is submitted that the present application
   is only an attempt to delay the whole proceedings. The probate petition
   throws up limited questions of law and facts which could be expeditiously
   disposed of. On the other hand, the present suit has raised various issues
   which would require a detailed trial and needlessly delay the proceedings
   in the probate petition. Reliance is placed on the following three judgments
   to contend that in such circumstances as that of the present case, the
   Court would normally not exercise power under Section 24 of the Civil
   Procedure Code.

The Hon’ble Supreme Court in the case of Chitivalsa Jute Mills vs. Jaype Rewa Cement, 2004(3) SCC 85 in para 12 held as follows:

“12. … Complete or even substantial and sufficient similarity of
the issues arising for decision in two suits enables the two suits
being consolidated for trial and decision. The parties are relieved of the need of adducing the same or similar documentary and oral evidence twice over in the two suits at two different trials.
The evidence having been recorded, common arguments need to
be addressed followed by one common judgment. …

Nirmala Devi vs. Arun Kumar Gupta and Ors., JT 2000 (4) SC229 relied upon by the learned counsel for the plaintiff which states as follows:-

“4. … Therefore, now remains the question whether the probate
proceedings could be clubbed with the suit. Learned counsel for
respondent No. 1 submitted that the civil suit is of the year 1987
and that despite various orders of the High Court, it has remained
pending and the probate proceedings are initiated by the appellant
in 1997 regarding the Will of 1984. Be that as it may, the decision in the probate proceedings on the question of proof of the Will,
will have a direct impact on the suit. Only on this short ground
and without expressing any opinion on the merits of the
controversy between the parties, we request learned District Judge,
Gopalganj to make it convenient to dispose of the Probate
proceedings being Probate Case No. 11 of 1997 along with civil
suit being T.S. No. 27 of 1987….

Code of Civil Procedure, 1908—Order VI Rules 17— Party proposing to make amendment—Application for
amendment of pleadings must clearly state what is proposed to be omitted, altered, substituted or added
to the original pleadings—Amendment cannot be allowed if it tantamount to changing the whole plaint
with a new plaint—Complete replacement of old plaint with a completely new plaint is not permitted under
Order VI Rule 17.

Party moving an application for amendment of pleadings must state the portion proposed to be omitted, altered, substituted or added to original pleadings.

Supreme Court in the case of M/
s. Estralla Rubber vs. Dass Estate (Pvt.) Ltd., AIR2001 SC 3295 to
submit that every amendment of pleading is to be allowed where such
amendment is required for proper and effective adjudication of controversy
between the parties and to avoid multiplicity of judicial proceedings subject
to certain conditions such as allowing amendment should not result in
injustice to the other side, a clear admission should not be allowed to be
withdrawn and a time barred claim cannot be allowed to be raised.

Gurdial Singh vs. Raj Kumar Aneja, (2002)2 SCC 445. In para 13, the Hon’ble Supreme Court held as follows:-

1. …. Unless and until the court is told how and in what
   manner the pleading originally submitted to the court is proposed
   to be altered or amended, the court cannot effectively exercise
   its power to permit amendment. An amendment may involve
   withdrawal of an admission previously made, may attempt to
   introduce a plea or claim barred by limitation, or, may be so
   devised as to deprive the opposite party of a valuable right accrued
   to him by lapse of time and so on. It is, therefore, necessary for
   an amendment applicant to set out specifically in his application,
   seeking leave of the court for amendment in the pleading, as to
   what is proposed to be omitted from or altered or substituted in
   or added to the original pleading.

The Hon’ble Supreme Court in the said judgment also took into account an amendment which is applicable in the State of Punjab and Haryana and the Union Territory of Chandigarh where Order 6 Rule 17
sub-clause 2 has been added which reads as follows:-

“17.(2) Every application for amendments shall be in writing and
shall state the specific amendments which are sought to be made
indicating the words or paragraphs to be added, omitted or
substituted in the original pleading.”

Order 6 Rule 17 CPC provides as follows:-

“17. Amendment of pleadings.-The Court may at any stage of
the proceedings allow either party to alter or amend his pleadings
in such manner and on such terms as may be just, and all such
amendments shall be made as may be necessary for the purpose
of determining the real questions in controversy between the
parties:”

The meaning of ‘alter’ in the Black’s Law Dictionary, Sixth Edition-1996 by Henry Campbell reads as follows:-

“Alter: To make a change in; to modify; to vary some degree;
to change some of the elements or ingredients or details without
substituting an entirely new thing or destroying the identity of
the thing affected. To change partially. To change in one or
more respects, but without destruction of existence or identity
of the thing changed; to increase or diminish.”

The meaning of ‘amend’ in the Black’s Law Dictionary, Sixth Edition-1996 by Henry Campbell reads as follows:“ Amend. To improve. To change for the better by removing defects or faults. To change,
correct, revise.