The Bombay High Court has clarified that a plaintiff may seek amendment to plead the waqf status of a defendant’s property even after the expiry of limitation, provided the amendment is based on facts already pleaded and does not introduce a new cause of action. This ruling reinforces the liberal approach courts must adopt toward amendments aimed at achieving complete justice, particularly when jurisdictional questions hinge on the nature of the property in dispute.
Background & Facts
The Dispute
The appellant, Shirin Munir Merchant, filed Waqf Suit No. 175 of 2019 challenging No Objection Certificates (NOCs) issued by MHADA to Prince Aly Khan Hospital for redevelopment. The suit was premised on the assertion that the hospital’s property constituted waqf property under the Waqf Act, 1955, and therefore could not be redeveloped without Waqf Board approval. The respondents contested this, asserting that the hospital is a trust registered under the Maharashtra Public Trusts Act, 1950, and not a waqf.
Procedural History
- October 2019: Original plaint filed challenging MHADA’s NOCs.
- April 2022: First amendment to the plaint seeking interim relief and status quo.
- January 2021: Written statement filed by respondents denying waqf status and challenging jurisdiction of the Waqf Tribunal.
- October 2024: Appellant filed application under Order VI Rule 17 CPC seeking amendment to include a declaration that the hospital’s property is waqf property, citing the Supreme Court’s judgment dated 20 October 2022.
- January 2025: Waqf Tribunal rejected the amendment application on grounds of limitation and merits.
- February 2026: First Appeal heard and decided by the Bombay High Court.
Relief Sought
The appellant sought to amend the plaint to include a declaration that the property of Defendant No. 1 is waqf property under the Waqf Act, 1955, and consequential relief to nullify the MHADA NOCs on that basis.
The Legal Issue
The central question was whether an amendment seeking a declaration of waqf status, filed after the expiry of limitation, can be permitted under Order VI Rule 17 CPC when the underlying facts were already pleaded in the original plaint and the amendment does not alter the nature of the suit.
Arguments Presented
For the Appellant
The appellant’s counsel relied on Life Insurance Corporation of India v. Sanjeev Builders Private Limited to argue that:
- The proposed amendment merely clarifies the basis of the existing claim - that the property is waqf - and does not introduce a new cause of action.
- The Supreme Court’s 2022 judgment created a subsequent event that necessitated the amendment, as it directed entities like the hospital to approach the Waqf Board for status determination.
- The Tribunal erred in adjudicating the merits of the amendment, which is impermissible under Rajesh Kumar Aggarwal v. K.K. Modi.
- Delay alone cannot defeat an amendment, especially when the opposite party can be compensated by costs and issues of limitation can be framed separately.
For the Respondent
The respondents contended that:
- The amendment seeks to introduce a time-barred claim, as the denial of waqf status was raised in 2019 and no such declaration was sought within the limitation period.
- The nature of the suit has changed from challenging MHADA’s NOCs to asserting a new legal status for the property.
- The hospital’s name does not appear in any valid waqf list, and the 2005 list was withdrawn in 2008.
- The amendment is mala fide and seeks to exploit a procedural loophole after construction had already commenced.
The Court's Analysis
The Court undertook a detailed review of Order VI Rule 17 CPC and the Supreme Court’s judgment in Life Insurance Corporation of India v. Sanjeev Builders, emphasizing that amendments must be allowed if they are necessary for the effective adjudication of the real controversy.
"All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word 'shall' in the latter part of Order 2 Rule 2 CPC."
The Court held that the original plaint contained sufficient averments regarding the waqf nature of the property - paragraphs 13, 16, 19, and 20 explicitly referenced the property as waqf and challenged the NOCs on that basis. The respondents, in their written statement, had directly denied this, thereby making the status of the property a jurisdictional issue for the Tribunal to resolve.
The Tribunal erred by evaluating the merits of the amendment, including whether the hospital was listed as a waqf in 2003 or 2004. Such an inquiry is impermissible at the amendment stage. The Court reiterated that the question of limitation must be framed as a separate issue for trial, not decided summarily.
The Court further noted that the amendment was filed pre-trial, giving the respondents ample opportunity to meet the case. The relief sought was not foreign to the original suit but an extension of its foundational premise. The Supreme Court’s 2022 judgment, while not creating a fresh cause of action, provided a factual context that justified clarifying the legal status of the property.
The Court distinguished cases under Section 23 of the Limitation Act, 1963, which deal with continuous causes of action, as they were not applicable here. The focus remained on whether the amendment altered the nature of the suit - a threshold not crossed.
The Verdict
The appellant succeeded. The Bombay High Court quashed the Tribunal’s order rejecting the amendment and allowed the application under Order VI Rule 17 CPC. The Court directed that the amendment shall not relate back to the date of filing of the suit, and the issue of limitation shall be framed and decided during trial.
What This Means For Similar Cases
Amendments Based on Pleadings Are Permissible Even After Limitation
- Practitioners may seek amendments to clarify or strengthen pleaded facts, even if the specific relief appears time-barred, provided the underlying facts were already in the plaint.
- Courts must not reject amendments on the basis of limitation unless the claim would divest the opposite party of an accrued right.
- The burden shifts to the respondent to prove prejudice, not to the applicant to prove timeliness.
Jurisdictional Issues Cannot Be Pre-Judged at the Amendment Stage
- When the nature of property (e.g., waqf vs. trust) affects jurisdiction, the court must allow amendments that enable proper adjudication.
- Denial of status in the written statement creates a live dispute that must be resolved at trial, not summarily dismissed.
- Tribunals and courts must avoid premature findings on the merits during amendment hearings.
Pre-Trial Amendments Demand a Liberal Approach
- Amendments filed before commencement of trial are entitled to liberal consideration under Order VI Rule 17 CPC.
- Costs may be imposed to balance equities, but outright rejection is impermissible if the amendment aids in resolving the real controversy.
- Practitioners should frame amendments as clarifications of existing claims, not new causes of action, to maximize chances of acceptance.
