Smt. Preeti Singh vs Smt. Ramkali And Ors

Heard finally with the consent of both the parties.

In this petition under Article 227 of Constitution of India, petitioner has challenged the legality, validity and proprietary of the order dated 13/11/2017

passed in Civil Suit No. 1-A/2014 by VIth Civil Judge, Class-I, Gwalior whereby, the application of the petitioner / plaintiff under Order VI Rule 17 of

Code of Civil Procedure (for brevity, 'CPC') has been dismissed.

Brief facts leading to filing of this petition are that the petitioner/plaintiff had filed a civil suit for permanent injunction against the

respondents/defendants in respect of agricultural land bearing survey No. 16 & 17 admeasuring area 0.053 hectare i.e. 5706 sq. ft. situated in village

Rampura, Purana Patwari Halka No. 27, New No. 36, Gwalior, District Gwalior. The petitioner/plaintiff has entered into agreement to sell dated

24/08/2012 with respondents/defendants No. 1 to 3 to purchase the said land for consideration of Rs. 7,41,780/-and in part performance thereof paid

an amount of Rs. 70,000/- and in turn the respondents/defendants No. 1 to 3 handed over all the original documents to the petitioner/plaintiff. Despite

the aforesaid agreement, the defendants No. 1 to 3 further agreed to sell the disputed land to the respondent No. 4 without having any right since they

had already entered into agreement to sell with the petitioner/plaintiff. The petitioner requested them to execute the sale deed, but they refused to

perform their part and ultimately the time period was extended by further two years. However, during that period, the respondents No. 1 to 3 executed

another agreement dated 05/10/2013 in favour of respondent No. 4 and refused to execute the sale deed in favour of the petitioner.

The defendants/respondents filed their written statement in which they accepted execution of agreement to sell and also receipt of advance amount

of Rs. 70,000/- from the petitioner. It is contended by defendants/respondents that petitioner/plaintiff herself is responsible for not getting the sale deed

executed despite several requests and that they had no option, but to enter into afresh agreement with the respondent No. 4 of which the petitioner

had knowledge. The respondents No. 4 & 5 did not file their written statement, therefore, they were proceeded ex-parte. The petitioner /plaintiff filed

an application under Order VI Rule 17 of CPC for amendment inter alia contended that time extended under the agreement is going to expire on or

before 22/01/2018 and prayed for incorporating amendment with regard to the relief of specific performance and requisite court fees. The said

application was opposed by the respondents by filing reply. It is submitted that relief of specific performance ought to have been asked in the original

suit itself and the application cannot be allowed being time barred.

The trial court vide impugned order has dismissed the application on the ground that the petitioner/plaintiff in para 10 of the plaint has specifically

averred that the petitioner had knowledge that on 31/12/2013 the respondents No. 1 to 3 had specifically declared that they will execute the sale deed

in favour of the respondent No. 4 and they will not execute the sale deed in favour of the petitioner. From the aforesaid fact, petitioner had knowledge

of non-performance of agreement on 31/12/2013 and, therefore, the amendment application which has become time barred cannot be allowed.

Learned counsel for the petitioner has placed reliance on the judgment of the Apex Court in the case of Sucha Singh Sodhi ( D) Thr.Lrs. vs. Baldev

Raj Walia and Another passed in Civil Appeal No. 3777 of 2018 dated 13/04/2018 to contend that the relief of specific performance of agreement can

be claimed in addition to the claim of permanent injunction in the previously instituted suit.

On perusal of the judgment of the Apex Court, in para 30 of the judgment it has specifically been held that whether the relief of specific

performance of the agreement against the respondents/defendants in addition to the claim of permanent injunction in the previously instituted suit can

be claimed? Our answer to the aforesaid question is that plaintiff can not claim specific performance of the agreement against the respondents along

with permanent injunction in the previously instituted suit for the reasons assigned therein.

I have considered the submissions made by learned counsel for the parties and perused the record.

It is well settled in law that just and proper amendment can be introduced at any stage. However, in the facts and circumstances of the present

case it is not in dispute that the petitioner/plaintiff had the knowledge on 31/12/2013 as per his own version in para 10 of the plaint that the

respondents/defendants are not going to execute the agreement in favour of the petitioner, therefore, the limitation of three years start from

31/12/2013 and at this stage the amendment application cannot be allowed since it has become time barred.

The Apex Court in the case of K. Raheja Constructions Limited vs. Alliance Ministries and Ors. reported in AIR 1995 SC 1768 has held as

under:-

“4. It is seen that the permission for alienation is not a condition precedent to file the suit for specific performance. The decree of specific

performance will always be subject to the condition to the grant of the permission by the competent authority. The petitioner having expressly admitted

that the respondents have refused to abide by the terms of the contract, they should have asked for the relief for specific performance in the original

suit itself. Having allowed the period of seven years elapsed from the date of filing of the suit, and the period of limitation being three years under

Article 54 of the Schedule to the Limitation Act,1963, any amendment on the grounds set out, would defeat the valuable right of limitation accrued to

the respondent.â€​

10.1) In another case, the Apex Court in the case of Muni Lal vs. The Oriental Fire and General Insurance Company Limited and Anr. reported in

AIR 1996 SC 642 has held as under :-

“6. On a consideration of this case in its proper perspective, we are of the view that granting of amendment of plaint seeking to introduce

alternative relief of mandatory injunction for payment of specified amount is bad in law. The alternative relief was available to be asked for when the

suit was filed but not made. He cannot be permitted to amend the plaint after the suit was barred by the limitation during the pendency of the

proceeding in the appellate court or the second appellate court. Considered from this perspective, we are of the opinion, that the District Court and the

High Court were right in refusing the prayer of amendment of the suit and the courts below had not committed any error of law warranting

interference.

The appeal is accordingly dismissed, but in the circumstances, without costs.â€​

In view of aforesaid, no illegality has been committed by the trial court in rejecting the application under Order VI Rule 17 of CPC.

Resultantly, the instant writ petition is hereby dismissed. There shall be no order as to costs.