Murad vs B.R. Babu Prasad and Others

A.N. Venugopala Gowda, J.—Petitioner is the plaintiff and the respondents are the defendants in O.S. No. 131/2007 on the file of the Civil Judge and JMFC at Sira. Suit was filed on 14.09.2007 based on an agreement of sale dated 06.12.2004, to pass a judgment and decree of permanent injunction restraining the defendants from interfering or obstructing or meddling with the plaintiff''s peaceful possession and enjoyment of the property described in the schedule of the plaint. Defendants filed written statement on 30.01.2008 and denied the claim of the plaintiff to the suit property. It was contended that they are in possession and enjoyment of the suit property. Based on the pleadings, issues were raised and after commencement of the trial, on 17.03.2009, the plaintiff filed an I.A. under Order 6 Rule 17 r/w 151 of CPC to grant permission to amend the plaint, to convert the suit to one of specific performance of suit agreement of sale dated 06.12.2004. Statement of objections having been filed by the defendants on 20.04.2004, upon hearing the learned counsel for the parties, learned Trial Judge rejected the application by an order dated 20.06.2012. Assailing the said order, this writ petition has been filed. Sri Harish H.V., learned advocate appearing for the petitioner contended that the Trial Court has committed material irregularity in passing the impugned order. He submitted that there being no change in the cause of action for the suit, there cannot be any change in the nature of the suit and question of limitation being a mixed question of law and fact, the Trial Court has committed material irregularity in denying the relief to the plaintiff. Learned counsel submitted that there being a misdirection adopted by the learned Trail Judge while deciding the application, the impugned order being irrational, warrants interference.

Learned advocates appearing for the respondents on the other hand supported the view taken by the learned Trial Judge on the application filed for amendment of the plaint and sought dismissal of the writ petition.

Perused the writ record. In view of the rival contentions the point for consideration is;

Whether any interference with the impugned order is warranted?

According to the plaintiff, defendants 1 and 2 had leased the suit property to him and that, on 06.12.2004 the defendants proposed to sell the suit property and upon negotiation they executed an agreement in his favour and agreed to execute valid sale deed within one month, by receiving balance sale consideration amount. It was stated that possession of the suit property remained with him from the date of rent period.

Agreement of sale dated 06.12.2004 does not indicate the possession of the suit property having been delivered. It is not the case of the petitioner-plaintiff that the possession of the suit property was delivered to him under the agreement of sale dated 06.12.2004. Suit was filed on 04.09.2007 for the following reliefs:-

a) For permanent injunction restraining the defendants from interfering or obstructing or meddling with the plaintiff''s peaceful possession and enjoyment or from alienating the suit schedule property to anybody in any manner and

b) For costs of the suit and such other relief or reliefs as this Hon''ble Court deems fit to grant under the circumstances of the above case, in the interest of justice and equity.

In the written statement dated 21.11.2008 filed by the defendants 1 and 2, they denied the delivery of possession and enjoyment of the suit property by the plaintiff as a prospective purchaser and also execution of alleged agreement of sale dated 06.12.2004 and the receiving of advance amount. Entire claim of the plaintiff to the suit property was disputed and they sought the dismissal of the suit.

Based on the pleadings, issues having raised, plaintiff has deposed. At that stage, on 17.03.2009, I.A. 4 was filed to grant permission to amend the plaint, in the following manner:-

Proposed Amendment:

In 5th line of Para 3 of the plaint to delete the figure "9,03,000-00" and to insert in the same as "9,00,300.00".

In 3rd line of Para 4 of the plaint to delete the figure "1,00,000-00" and to insert in the same as "1,74,000.00".

In 17th line of Para No. 5 to delete the words "permanent injunction. Hence, this suit". And to insert the words in the same place as "specific performance of the suit agreement of sale dated 06.12.2004 and for permanent injunction and for other reliefs. Hence this suit".

To insert in the para No. 5(a) as "The defendants 1 and 2 filed their written statement and since they have denied the execution of the suit agreement and refused to execute the sale deed, the plaintiff has filed this suit and this plaintiff is ready to file fresh valuation slip and to pay the court Fee U/s. 40 R/w 7(2) of the K.C.F. and S.V. Act".

To insert the Para No. 5(b) as "The plaintiff is always ready and willing to perform his part of the contract under the agreement of sale dated 06.12.2004 which executed by the defendant No. 1 and 2 in respect of the suit schedule property".

In the prayer portion to insert the prayer No. 1 as "For a specific performance of the agreement of sale dated 06.12.2004 directing the defendant Nos. 1 and 2 to execute a registered sale deed in favour of plaintiff. Failing which the Hon''ble Court be pleased to appoint a suitable commissioner to execute the sale deed in favour of plaintiff in respect of suit schedule property, and

In the 6th line of schedule portion to delete the word "west" and to insert the word in the same place as "North".

In the 7th line of schedule portion to delete the word "north" and to insert the word in the same place as "West".

The material part of the affidavit in support of the prayer for amendment of the plaint is as follows:-

The defendant No. 1 and 2 have filed their written statement and they specifically denied the execution of the suit agreement dated 6.12.2004 and the sale transaction of the suit properties under the suit agreement and also disputed their signatures which are available on the suit agreement and they flatly refused to execute the regd. Sale deed by receiving the balance sale consideration amount. The suit agreement is genuine one and the defendants 1 and 2 have put their signatures before the witnesses and the signatures found on the suit agreement are purely belonged to the defendant Nos. 1 and 2. Knowing fully well aware the said truths and facts, they purposefully denying the same and refusing to execute the sale deed and hence the proposed amendment Sl. No. 3 to 6 are very just and necessary.

It was also stated that in view of stand taken by the defendants 1 and 2 in the written statement and as they denied the execution of suit agreement dated 06.12.2004 and the sale transaction of the suit property, a need has arisen for amendment of the plaint. In the statement of objections field to the said application, it was stated that the prayer having been put forth after more than 4 years, the cause of action being different, there being change in the nature of the suit, also in view of commencement of the trial and there being no due diligence, the application is untenable.

The Trial Court has rejected the relief prayed in the application by observing as follows:-

In this suit agreement of sale dated 06.12.2004 is 8 years old document. If really the plaintiff seek any specific performance of contract, he has to file separate suit by paying necessary court fee. As per the application filed by the applicant/plaintiff the proposed amendment will clearly change the nature of suit and also cause of action. In a suit for injunction, plaintiff has to prove his possession over suit property and interference caused by the defendant. But in a suit for specific performance, he has to prove transaction and agreement of sale. Hence, the proposed amendment clearly change the entire cause of action of the suit. Hence, there is no cause of action as per agreement of sale dated 06.12.2004. On perusal of contentions of applicant/plaintiff, he filed the present application at belated stage only with an intention to drag on the proceedings. The same is not tenable in the eye of law. When the proposed amendment will change the nature of suit and cause of action, the application is not maintainable in the eye of law. Hence, applicant/plaintiff has not made out any grounds to allow present application and to amend plaint. Accordingly, I answer this point in ''Negative''.

Suit was filed on 04.09.2007 based on an alleged agreement of sale dated 06.12.200.4. Written statement was filed on 21.11.2008 by the defendants 1 and 2. Defendants 3 and 4 have filed their written statement on 30.01.2009. Issues having been raised, plaintiff has deposed. Thereafter, application for amendment of plaint was filed. Hence, the proviso under Rule 17 of Order 6 of CPC is attracted. The affidavit filed in support of the application of the plaintiff does not show any diligence. Plaint averments do not show that possession of the suit property having been delivered to the plaintiff with the execution of alleged agreement of sale deed dated 06.12.2004. The suit filed is one for passing a decree of permanent injunction based on the cause of action dated 06.12.2004. The plaint does not show any notice having been issued demanding the performance of the contract of the alleged agreement of sale deed dated 06.12.2004 i.e., prior to institution of the suit. Application seeking for specific performance of contract having been filed on 17.03.2009 is beyond the period prescribed under Article 54 of Limitation Act, 1963. Though the alleged agreement of sale deed is dated 06.12.2004, there is nothing in the plaint to show that the plaintiff having demanded specific performance of contract by issuing a notice to the defendants, prior to filing of the suit. The petitioner has filed a suit for permanent injunction and the same is sought to be converted into a suit for specific performance of contract by filing an amendment application only on 17.03.2009, when the claim for specific performance had become barred by limitation.

In the case of K. Raheja Constructions Ltd. Vs. Alliance Ministries and others, suit was filed by the petitioner in 1987 for passing a decree of permanent injunction against the respondents from selling the property, based on a contract of sale of Trust property of the respondents. An application under Order 6 Rule 17 of CPC was made in the year 1994 i.e., after 7 years of filing of the suit, seeking to amend the plaint for grant of specific performance of the contract on the ground that it was subsequently discovered that Charity Commissioner had granted permission for sale of the property and therefore, they were entitled to decree of specific performance. Noticing the period of limitation provided under Article 54 of the Limitation Act, 1963, the application having been filed after 7 years from the date of filing of the suit, the valuable right of limitation having accrued to the respondents, the prayer for amendment of the plaint was declined.

In the case of Shiv Gopal Sah @ Shiv Gopal Sahu Vs. Sita Ram Saraugi and Others, almost in identical circumstances, it has been held as follows:

We have gone through the amendment application carefully where we do not find any explanation whatsoever for this towering delay. We would expect some explanation, at least regarding the delay since the delay was very substantial. The whole amendment application, when carefully scanned, does not show any explanation whatsoever. This negligent complacency on the part of the plaintiffs would not permit them to amend the plaint, more particularly when the claim has, apparently, become barred by time.

It is quite true that this Court in a number of decisions, has allowed by way of an amendment even the claims which were barred by time. However, for that there had to be a valid basis made out in the application and first of all there had to be bona fides on the part of the plaintiffs and a reasonable explanation for the delay. It is also true that the amendments can be introduced at any stage of the suit, however, when by that amendment an apparently time barred claim is being introduced for the first time, there would have to be some explanation and secondly, the plaintiff would have to show his bona fides, particularly because such claims by way of an amendment would have the effect of defeating the rights created in the defendant by lapse of time. When we see the present facts, it is clear that no such attempt is made by the plaintiffs anywhere more particularly in the amendment application.

In Dondapati Narayan Reddy Vs. Duggirddey Venkatanarayana Reddy and Others, this court observed: "The amendment should, generally, be allowed unless it is shown that permitting the amendment would be unjust and result in prejudice against the opposite side which cannot be compensated by costs or would deprive him of a right which has accrued to him with the lapse of time."

In T.N. Alloy Foundry Co. Ltd. Vs. T.N. Electricity Board and Others, a three Judge Bench of this Court relying on L.J. Leach and Company Ltd. Vs. Jardine Skinner and Co., reiterated as under:

The law as regards permitting amendments to the plaint is well settled. In L.J. Leach & Co. Ltd. v. Jardine Skinner and Co. it was held that the court 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.

The situation is no different in this appeal and as such a suit as described above would be clearly barred by limitation.

The defendant having set up a rival title on the basis of sale deed dated 4-10-1985 the plaintiff was bound to amend his pleadings if he wanted to challenge the said sale deed to be ineffective and incapable of creating a valid title in favour of the defendant. It completely beats us as to why the plaintiff remained complacently negligent right from 1987 in case of original plaintiffs and after 1997 in case of co-plaintiffs. On the top of it when we see the amendment application, it is sadly silent regarding any explanation as to why all these steps were not taken after a long period right from 1987 till the amendment application is made on 1 1-12-2.004. Having not challenged, the sale deed dated 4-10-1985, the plaintiff could not lead evidence regarding the circumstances under which that sale deed came into existence which facts they would be entitled now if the amendments were to be allowed. That would be completely different from their preliminary task of proving a better title to the property.

Under the circumstances we would not permit the plaintiffs now at this stage to introduce a time barred claim under the peculiar facts and circumstances of this case where we find a complacent negligence on the part of the plaintiffs apart from the towering delay of more than 15 years. We, therefore, allow this appeal and set aside the orders of the High Court as well as the trial Court and dismiss the application for amendment dated 11.12.2004.

In view of the above, the view taken by the Trial Court to reject the application filed by the plaintiff on 17.03.2009 does not suffer from any material irregularity. I am unable to find any misdirection on the part of the learned Trial Judge in considering the application for amendment. The order passed on 20.06.2012 does not suffer from any irrationality. The amendment, if allowed would change the nature of the suit. The application having been filed after commencement of the trial and there being no due diligence, the Trial Court is justified in rejecting the application. The facts proposed to be pleaded and prayer sought were well within the knowledge of the plaintiff when the suit was filed by him. For the reasons best known to the plaintiff, he did not seek specific performance of contract while filing the suit or atleast prior to commencement of the trial in the suit. In the circumstances, I do not find any ground to interfere with the impugned order.

In the result, writ petition is dismissed. No order as to costs.