(Prayer: Petition under Article 227 of the Constitution of India,praying that in the circumstances stated in the grounds filed herein,the High Court may be pleased to set aside the order dated 1st November, 2022 in IA.No.202/2018 in O.S.No. 152/2011 on the file of the Hon'ble Junior Civil Judge, Nandikotkur, Kurnool Dist and pass

IA NO: 1 OF 2025

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to stay all the further proceedings in OS.No.152/2011 on the file of the Hon’ble Junior Civil Judge, Nandikotkur, Nandyala dist, till the final disposal of the Civil Revision Petition in the interest of justice.)

1. This Civil Revision Petition is filed questioning the legality and correctness of the order dated 01.11.2022 passed in I.A.No.202 of 2018 in O.S.No.152 of 2011 by the learned Junior Civil Judge, Nandikotkur.

2. The petitioners are the plaintiffs while the respondents are defendants in O.S.No.152 of 2011.

3. The petitioner no.1 filed the suit for permanent injunction initially against respondent no.1 and consequent to death of petitioner no.1 his Legal Representatives were brought on record as petitioner nos.2 to 6 and consequent to death of first defendant, his Legal Representatives being respondent nos.2 to 6, were brought on record. The petitioners filed petition vide I.A.No.202 of 2018 under order-VI, Rule-17 of Code of Civil Procedure and Rule 28 of Civil Rules of Practice to amend the plaint for the relief of declaration of title over the plaint schedule property. The respondents resisted the relief sought in the petition by filing counter contending that since defendant no.1 filed written statement on 17.10.2012 denying the title of the plaintiffs over the plaint schedule property and the petition for amendment not having been filed within three (03) years therefrom is barred by limitation as per Article-58 of the Limitation Act. The learned trial Judge upon hearing both the counsel and upon perusing the material available on record dismissed the petition. The said dismissal order has been assailed in this Civil Revision Petition by the plaintiffs in the suit.

4. Heard Sri Dasani Venkata Ramana, learned counsel for petitioners, and Sri N.Chandra Sekhar Reddy, learned counsel for respondents.

5. Sri Dasani Venkata Ramana, learned counsel for the petitioners while reiterating the contents of the affidavit filed in support of the petition before the trial Court and the grounds of Civil Revision Petition would contend that mere denial of a right will not set the period of limitation running against the person entitled to such right. He would further contend that so long as the right to property continues and subsists, the relief of declaration would be a continuing right and there would be no limitation so long as right to property subsists. He would further contend that aspect as to limitation has to be decided during the course of trial but not at the time of dealing with the petition seeking amendment. He would further contend that the period of limitation mentioned in Article 58 of the Limitation Act starts running from the date on which the right to immovable property is lost but not on the date when mere denial in the written statement was made and that too Article 65 of the Limitation Act would apply to the facts of the case and anyhow the aspect of limitation has to be decided during the course of trial but not at the time of considering the application filed for amendment and therefore, the impugned order is unsustainable and the same is liable to be set aside. Accordingly, prayed to allow the Civil Revision Petition.

6. In support of his contentions, the learned counsel relied on the decisions in C.Mohammed Yunus vs. Syed Unnisa and others ((1962) 1 SCR 67), Mallavva and another vs. Kalsammanavara Kalamma (died) by Legal Heirs and others(2024 INSC 1021) and Mangala Sunkanna (died) by L.Rs. vs. Kypa Subhadramma(2023:APHC:50834).

7. On the other hand, Sri N.Chandra Sekhar Reddy, learned counsel for respondents, while reiterating the contents of the counter filed before the trial Court would contend that the amendment having not been sought within three years from the date of filing of the written statement denying title of the plaintiffs over the plaint schedule property, the same is barred by limitation as per Article-58 of the Limitation Act. He would further contend that Article-65 of the Limitation Act would come to play only when declaration and recovery of possession is sought and in the present case since declaration alone is sought, Article-58 would only apply which stipulates three (03) years as period of limitation and the learned trial Judge has rightly scanned the material and relevant provision of Limitation Act applicable to the facts of the case and rightly dismissed the petition, which does not require interference of this Court. Accordingly prayed to dismiss the Civil Revision Petition.

8. Perused the material available on record and considered the submissions made by learned counsel for the parties.

9. In a suit filed for permanent injunction, the defendant no.1 filed written statement on 31.01.2012 denying title of the plaintiff no.1 over the suit schedule property and after lapse of nearly six (06) years after filing of the written statement, a petition seeking amendment of prayer for declaration of title was sought.

10. Both the learned counsel have taken aid of different provisions of Limitation Act in support of their contentions. The learned counsel for the petitioners banked upon Article 65 of the Limitation Act, whereby limitation of 12 years is provided, whereas the learned counsel for the respondents took shelter of Article 58 of the Limitation Act, which specifies limitation of three (03) years.

11. It is well settled that mere belatedness in filing the application for amendment cannot be a ground to reject the application and the aspect as to whether the suit is barred by limitation for seeking the relief of declaration can be gone into in the main suit.

12. It relevant here to note that the impugned order specifically mentions that in the written statement the defendant no.1 had also taken a plea that the schedule property is situated in Survey No.416/2, whereas the document in favour of the plaintiff no.1 shows that it was situated in Survey No.415/1 and its boundaries and plaint plan filed by the plaintiffs are not correct. Therefore, denial of title by the defendant no.1 is with regard to the plaint schedule property or some other property is a disputed fact to be resolved upon full-pledged trial. Therefore, it is better to allow amendment subject to the aspect of limitation.

13. In view of the above, this Court feels it appropriate to allow the amendment, but by keeping the question of limitation open to be decided at the final hearing, instead dismissing the amendment on the ground of limitation, which always be a mixed question of fact and law. Therefore, this Civil Revision Petition has to be allowed.

14. Accordingly, the Civil Revision Petition is allowed, setting aside the order dated 01.11.2022 passed in I.A.No.202 of 2018 in O.S.No.152 of 2011. The question of limitation is kept open to be decided by the trial Court at the time of final adjudication of the lis. There shall be no order as to costs.

Pending miscellaneous petitions, if any, shall stand closed.