Smt. Kiran Soni vs Har Govind @ Har Govind Soni

Sanjay Yadav, J.—With consent of learned counsel for the parties, the matter is finally heard.

Order dated 16.8.2013 passed in Civil Suit No. 118-A/2011 by First Additional District Judge, Hoshangabad is being assailed by the petitioner; whereby, an application under Order 6 Rule 17, Code of Civil Procedure, 1908 for amending the plaint has been rejected.

Suit by the plaintiff is for permanent injunction that the defendant be prohibited from alienating the house property, built over 573 sq. ft. bearing sheet No. 22, plot No. 75 area 22955 sq. ft., Narayanganj Ward No. 5, Hoshangabad.

Facts brought on record reveals that in the civil suit on 25.1.2005 the Trial Court directed for affixing ad valorem court fee as per the consideration in sale agreement. The order was challenged in W.P. No. 2139/2005 which was permitted to be withdrawn on 3.7.2006 with liberty to the plaintiff to file appropriate application seeking the additional relief/correcting the relief of permanent injunction. The petitioner thereafter filed an application for amendment of plaint which was turned down on 20.2.2008 on the ground that the plaintiff had failed to comply with the direction dated 25.1.2005. The order was assailed in W.P. No. 3558/2008; wherein, the matter was remitted by order dated 13.7.2008, by setting aside the order dated 25.1.2005 and 20.2.2008 for deciding the same on merit.

The trial court while dwelling on the application under Order 6 Rule 17 Code of Civil Procedure, 1908 dated 20.9.2005 and 24.7.2006 by order dated 16.8.2013, rejected the same on the ground that the relief for specific performance of an agreement of sale cannot be permitted to be incorporated after the expiry of limitation and secondly, that the plaintiff sought amendment stating that he has been directed to do so by oral order of the High Court.

As regard to seeking amendment of a time barred relief trite it is that the same cannot be allowed. It has been held in Van Vibhag Karamchari Griha Nirman Sahkari Sanstha Maryadit (Regd.) Vs. Ramesh Chander and Others, :

In K. Raheja Constructions Ltd. Vs. Alliance Ministries and others, , this court held that an application for amendment filed 7 years after the filing of the suit to include the plea of Specific Performance, would not defeat the valuable rights of limitation accruing to the other side. In that case, the factual position was somewhat similar to the present case and this Court held that when a plea for Specific Performance was not included in the original suit, it could not be included after a period of 7 years having regard to Article 54 of the Limitation Act. (Para 4 at pg. 18-19).

In Dhaniram Jagannath Shivhare Vs. Saraswati Devi Ratan Lal Shivhare and Others, it is held-"There can be no dispute with the legal proposition that in a suit for specific performance of the agreement no amendment can be permitted if it is established on record that the amendment is being sought after the period of limitation."

Whereas, for the contention that the petitioner/plaintiff has been orally directed by the High Court to amend the plaint, no material has been brought on record to substantiate the claim.

In view whereof since there is no jurisdictional error in passing of the impugned order, no interference is warranted in a petition under Article 227 of the Constitution of India.

Consequently, petition fails and is dismissed. No costs.