Mange Ram vs Parbodh Chand Mittal and Others

V.S. Aggarwal, J.—The present revision petition has been filed by Mange Ram (hereinafter described as ''the petitioner'') directed against the order passed by the learned Civil Judge (Jr. Division), Rohtak, dated 29.8.1998. By virtue of the impugned order, the learned trial Court had allowed the application filed by the petitioner under Order 6, Rule 17, CPC seeking amendment of the plaint.

The relevant facts are that respondent Parbodh Chand Mittal had filed a civil suit for declaration with consequential relief of permanent injunction. It was prayed that by virtue of the agreement dated 11.2.1993, the respondent-plaintiff has become the absolute owner of the property in question and the petitioner be restrained not to interfere in his possession over the plot. During the pendency of the said suit, an application was filed seeking amendment of the plaint. It was asserted that the impugned ground taken by the respondent-plaintiff was that the-petitioner had entered into an agreement of sale pertaining to the land in question and had received the whole sale consideration. He had promised to execute the general power of attorney in favour of the respondent-plaintiff. When the petitioner did not execute the power of attorney, referred to above, he had to file the civil suit for a declaration and permanent injunction. It was further asserted that respondent c(sic)e to know that the petitioner has already sold the entire land to different persons, by way of four different transactions namely Chander Prakash and others. The possession had been delivered to the said four persons. It was prayed that these parsons may be arrayed as defendants and a decree for possession of the suit land be also passed in favour of the respondent-plaintiff. The petitioner should be directed to get the sale deed executed with respect to the suit land in the name of respondent-plaintiff.

The application was opposed. As per the petitioner, he had never agreed and consented to execute the power of attorney referred to above in favour of the respondent-plaintiff. It was further contended that the amendment is totally unnecessary. The petitioner was the owner and could dispose of the property and the present relief now being asserted to be claimed could well have claimed when the civil suit was filed. A new cause of action cannot be allowed to be added.

The learned trial Court noted the contentions of the parties'' counsel and vide the impugned order, allowed the amendment prayed subject to payment of Rs. 500/- as costs. Aggrieved by the same, the present revision petition has been filed.

Learned counsel for the petitioner highlighted the fact that the proposed amendment is unnecessary, it introduces a new cause of action and lastly that the claim for possession by way of specific performance is barred by time. Needless to state that the respondent-plaintiff controverted the said assertions pointing that the claim incorporated has not become barred by time.

At the bar, reference was made to large number of precedents and some of them can well be referred to.

On behalf of the petitioner strong reliance was placed on the decision of the Supreme court in the case of L.J. Leach and Company Ltd. Vs. Jardine Skinner and Co., . The question as to what would be the position when the claim has become barred by time, was taken into consideration. The Supreme Court held that the court would normally decline an amendment if fresh suit on the amended claim would be barred by limitation on the date of the application. But if interest of justice so requires, amendment could be allowed and it does not effect the power of the Court to allow the amendment in the interest of justice. The Supreme Court held:-

"It is no doubt true that Courts would, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the Court to order it, if that is required in the interests of justice. In Charan Das v. Amir Khan 47 App. 255 : (A.I.R. 1921 P.C. 50) (A) the Privy Council observed:

"That there was full power to make the amendment cannot be disputed, and though such a power should not as a rule be exercised where the effect to take away from a defendant a legal right which has accrued to him by lapse of time, yet there are cases where such considerations are out-weighed by the special circumstances of the case."

Vide also Kisan Das v. Rachappa ILR Bom. 611(B)."

The same question came up for consideration in the case of Vineet Kumar Vs. Mangal Sain Wadhera, . Herein a civil suit was filed for eviction and arrears of rent besides damages. The defendant had resisted the claim on the ground that having regard to the date of construction of the building, the provisions of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 was applicable. During the pendency of the litigation the exemption granted under the provision of Sub-section (2) of Section 2 of the said Act was expired. The question arose as to whether the amendment as such should be allowed or not. The Supreme Court held that normally the amendment is not to be allowed if it changes the cause of action. But where the amendment does not constitute an addition of a new cause of action, or raises a new case, but amounts to no more than adding to the facts already on the record, the amendment could be allowed after the expiry of the statutory period.

Similarly, in the case of T.L. Muddukrishanan and another Vs. Smt. Lalitha Ramchandra Rao, the Supreme court was concerned with a similar situation. Herein, the appellant before the Supreme Court had entered into an agreement of sale of plot. A notice had been issued calling upon the respondent to comply with the conditions mentioned in the agreement. The respondent had also issued, a notice repudiating the contract. A civil suit was filed for mandatory injunction. During pendency of the same, an application was filed seeking amendment of the plaint and to seek relief of specific performance of the contract. The Supreme Court held that where suit for specific performance had become barred by time on the date of the application, the amendment as such could not have been allowed. In paragraph 7 the Supreme court concluded:-

"Under these circumstances, it must be held that for the purpose of limitation, what is material is that the limitation begins to run from the date the parties have stipulated for performance of the contract. The suit is required to be filed within three years from the date fixed by the parties under the contract. Since the application for amendment of the plaint came to be filed after the expiry of three years, certainly it changed the cause of action as required to be specified in the plaint. The suit for mandatory injunction is filed and the specific performance was sought for by way of an amendment. The cause of action is required to be stated initially in the plaint but it was not pleaded. It was sought to be amended, along with an application for specific performance which, as stated earlier, was rejected. Under these circumstances, even by the date of filing of the application, namely, 5.11.1992, the suit was barred by limitation. The High Court, therefore, was right in refusing to permit the amendment of the plaint."

Same view was again reiterated in the decision rendered in the case of Vijendra Kumar Goel v. Kusum Bhuwania, (1997) 11 SCC 457 . The facts were almost identical that earlier a civil suit was filed for a declaration. Later it was prayed that permission be granted to convert the civil suit into one for specific performance. The suit for specific performance had become barred by time. The Court held that the amendment after the limitation expired could not be allowed. In paragraph 4 the Court held:-

"In the instant case the High Court appears to have proceeded on the basis that in the plaint the plaintiff-respondent has made out a case for specific performance and nothing new had been sought for by way of amendment. We have perused the plaint. We are unable to agree with the said view of the High Court. It is no doubt true that in the plaint the plaintiff-respondent has made a reference to the agreement and his having requested the appellant to execute the sale deed. But there is nothing in the plaint to show that the plaintiff-respondent was seeking specific performance of the contract. The suit, as framed, is a suit for declaration and injunction only. It was sought to be converted into a suit for specific performance by the plaintiff-respondent by way of amendment in the plaint in 1993 when the claim for specific performance had become barred by limitation. The submission of Shri Dhavan is that even on the date of the filing of the suit, the claim for specific performance was barred by limitation. We do not propose to go into that question."

Few decisions from this Court can also be taken note of. In the case of Rajinder Singh Vs. Narinder Kumar Verma and Others, a civil suit was filed for permanent injunction to restrain the defendants from encroaching upon the first and second floor of the house of the petitioner-plaintiff, in violation of the temporary injunction order, it was asserted that the defendants raised construction on the third floor. The application seeking amendment was filed after lapse of considerable time. It was held that this issue shall be gone into after the parties lead the evidence and that the facts pertaining to subsequent events would be taken note of.

In the case of Randhir Singh v. Ajit Singh 1992 PLJ 412 a civil suit was filed for possession. The amendment was claimed for an alternative relief of damages. It was held that since the relief flows from the cause of action already pleaded, the question of limitation does not arise. This decision was followed by this Court in the case of Madan Lal Vs. Kabal Singh and Others, .

It is patent from aforesaid that if a new relief has become barred by time which the person wants to incorporate in the plaint, then the amendment as such will not be allowed. However, if the facts are the same, an alternative relief flows from the same, the Court can in the interest of justice and totality of facts may or may not allow the amendment.

What is the position herein. The civil suit had been filed on 17.11.1989. It is based on the agreement of the year 1983. It was not disputed that in terms of Section 54 of the Limitation Act, the period of limitation is 3 years. As per the petitioner, the period would start running from the date of the agreement. But the peculiar facts as such cannot be ignored. Clause viii of the purported agreement reproduced in the order reads:-

"viii) That in case any dispute arose with respect to the land in dispute at the time for getting sale deed registered then the time shall be extended till the dispute is over."

In the facts of the present case, it is patently obvious that it was agreed that in case there is any dispute pertaining to execution of the sale deed, the time shall be extended till the dispute is over. Thus, the time for execution of the sale deed and the dispute pertaining to the same arises only when the dispute is over. The respondents dispute the very execution of the agreement. Normally the same has to be executed and in the peculiar facts, it cannot be taken that the period of limitation started running from the date, the sale deed was executed. This indeed is a prima facie view for purposes of disposal of the present revision petition. It will not debar the petitioner from taking the said contention in the written statement and prove otherwise. But it cannot be termed that the trial court has exercised the discretion incorrectly and erroneously to prompt this Court to hold that there is an error of jurisdiction.

For these reasons, the revision petition being without merit must fail and is dismissed.