HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved Case :- MATTERS UNDER ARTICLE 227 No. - 3781 of 2015 Petitioner :- Mahajan Sahkari Awas Samiti Ltd. Thru' Secy. Respondent :- Resham Singh & 8 Others Counsel for Petitioner :- J.S. Pandey,M.A. Qadeer Counsel for Respondent :- Rahul Sahai Hon'ble Manoj Kumar Gupta,J.
1. The core issue in this petition is whether an amendment in the plaint seeking a relief which is alleged to be barred by limitation, should be allowed or not; should a plea relating to bar of limitation be decided at the stage of dealing an application for amendment; or should it be left for being decided in the suit, after allowing the amendment application. 2. The petitioner had instituted Original Suit No.835 of 1988 against the deceased defendant Roshan Singh (for short 'defendant') for restraining him from alienating the suit property in favour of any person during subsistence of agreement for sale dated 26.5.1986 in favour of the plaintiff. It was alleged that defendant no.1 had executed a registered agreement for sale in favour of the petitioner in respect of the suit property. One of the conditions of the agreement was that the defendant will obtain requisite permission from the competent authority under the Ceiling Act and clearance certificate from the Income Tax authorities and thereafter, inform the petitioner, who will within three years of receipt of the intimation, obtain a sale deed. It was alleged that the deceased defendant had failed to obtain the requisite permission. On the contrary, he had executed an agreement for sale in favour one Sri Raj Narayan Goel, which thus is wholly illegal. It was claimed that during subsistence of agreement for sale in favour of the plaintiff, the deceased defendant was not entitled to execute sale deed in favour of any person and consequently, relief for prohibitory injunction was claimed. During pendency of the suit, the deceased defendant had transferred the suit property in favour of respondent no.2 by sale deed dated 21.9.1991 registered on 24.9.2002. The heirs of the deceased defendant have made further alienations dated 28.5.2001, 8.7.2002 and 1.3.2007, all of which were subjected to challenge by seeking amendment in the plaint with consequential relief for declaration of the aforesaid sale deeds as null and void.
3. The suit was contested by the deceased defendant by taking a categorical plea that by notice dated 30.1.1987, he avoided the agreement contending that it was obtained by fraud and misrepresentation. Thereafter, he was free to negotiate for sale of the property and he could not be injuncted from doing so. It was also specifically pleaded that after refusal by the defendant to execute sale deed, the only remedy open to the plaintiff was to bring a suit for specific performance and suit for injunction simplicitor was not maintainable.
4. During the pendency of the suit, the petitioner instituted Original Suit No.861 of 2008 against the heirs of the deceased defendant and their transferrees seeking relief of specific performance of the agreement for sale dated 26.5.1986. The plaint of the said suit was rejected by the trial court by an order dated 21.3.2013 holding that the suit is barred by limitation and provisions of Order II Rule 2 C.P.C. The petitioner claims to have filed an appeal against the order of the trial court rejecting the plaint and the appeal is stated to be pending.
5. Simultaneously, the petitioner filed an application for amendment of the plaint of the instant suit No.835 of 1988 seeking to incorporate relief of specific performance of the sale agreement. The trial court rejected the amendment application by order dated 11.7.2013 holding that the relief for specific performance has since become barred by limitation and thus, such an amendment could not be allowed. Revision preferred against the said order has also been dismissed by District Judge, Agra by order dated 29.4.2015. The aforesaid orders are subject matter of challenge in the instant petition.
6. Sri M.A. Qadeer, learned Senior Counsel appearing on behalf of the petitioner contended that the trial court acted with material irregularity in exercise of its jurisdiction in rejecting the amendment application. It is submitted that the power to grant amendment is very wide and should be exercised very liberally. It is urged that the amendment in question was necessary to determine the real question in controversy between the parties, to avoid multiplicity of proceedings and thus ought to have been allowed. It is submitted that the trial court was not justified in going into the question of limitation while considering the application seeking amendment in the plaint. In other words, it is urged that the trial court should have allowed the amendment application and the question of limitation should have been left open to be decided after framing an issue in the suit itself. It is urged that the limitation had not started running as the plaintiff had failed to intimate the petitioner regarding permission from the ceiling authorities and clearance under the Income Tax Act. It is further submitted that in a contract for sale of immovable property, time is not essence of the contract.
7. On the other hand, Sri Naveen Sinha, learned Senior Counsel appearing on behalf of the defendant-respondents submitted that the amendment sought was, on the face of it, barred by limitation and as such, the amendment was rightly refused. It is urged that an amendment which seeks to take away accrued right of a party, as in the instant case, where even a fresh suit seeking relief for specific performance was held to be barred by limitation, the trial court was fully justified in declining to grant amendment seeking relief of specific performance.
8. It is in the aforesaid background facts and the submissions made, that the questions framed arise for consideration by this Court.
9. Order VI Rule 2 C.P.C. requires every material fact to be stated in the pleadings. Order VII Rule 1 C.P.C. enumerates the particulars to be stated in the plaint like the name of the court, parties to the suit, cause of action, jurisdiction of court, valuation, limitation, relief etc. Similarly, Order VIII Rule 1 which deals with written statement, requires the defendant to specify while denying the allegations of the plaint, all material facts which may show that the suit is not maintainable, like plea relating to fraud, limitation, release, payment, performance etc. It further stipulates that every written statement wherein a set off is claimed or a counter claim set up, it should be specifically disclosed. The allegations in the plaint are to be denied specifically and not vaguely.
10. Many a time, a party may find it necessary to amend the pleadings. This may because of faulty drafting at the initial stage or some new facts having been discovered. At times, some subsequent development may take place which may have serious bearing on the question in controversy necessitating amendment. A party may come across new documents. All this may require re-shaping of the pleadings, to make them more elaborate and explicit or to ensure incorporation of new facts which are necessary for full and final adjudication of the controversy involved in the suit.
11. Order VI Rule 17 is the enabling provision which permits the party to seek amendment in the pleadings and invests the court with the power to allow such an application. Order VI Rule 17 was amended by Act No.22 of 2002 and a proviso was inserted. It now reads as under:-
" 17. Amendment of pleadings:- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:
Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of the trial."
12. Order VI Rule 17 stipulates that all amendments that are necessary for determining the real controversy between the parties should be allowed. The object of the rule is to empower the court to grant amendments and thereby, do full and complete justice to the parties. After all, the court exists for doing justice and not to punish the parties for their slackness in making proper pleading. Ultimately, the provisions of Order VI, Order VII and Order VIII governing the law of pleadings are in the realm of procedural law. The rules of procedure are hand maid of justice. The ultimate cause of justice cannot be sacrificed on the alter of procedural technicalities.
13. While the main substantive provision of Order VI Rule 17 confers unfettered power in the courts to allow all amendments which are necessary for determining the real question in controversy between the parties, the proviso added by Act No.22 of 2002 is meant to foil attempt by unscrupulous litigant to employ the provision as a tool to procrastinate litigation. Now, a party seeking amendment after the commencement of the trial has to satisfy the court that despite exercise of due diligence, it was not possible for him to have raised the matter before the commencement of the trial.
14. Apart from the limitation embodied by proviso to Order VI Rule 17, the power to grant amendment though unfettered is to be exercised judiciously on basis of well recognised principles enunciated by the courts of law. If in granting an amendment it really sub-serves the ultimate cause of justice, avoids multiplicity of proceedings, such amendments should be allowed. On the other hand, an amendment which has the propensity of taking away accrued right of a party or is intended to substitute another cause of action or to change the subject matter of the suit, the court may refuse to grant such amendment. One such limitation evolved by judicial decisions in granting amendments is in cases where the amendment sought is highly belated. Such amendments when sought in written statement are allowed more liberally, as adding a new ground, or substituting the defence does not pose the same problem as in case of a plaint. Where a belated amendment is allowed in the written statement, the other side can be compensated by imposing cost, but the same may not always be possible where the amendment sought is in the plaint. The plea sought to be introduced may have become barred by limitation. In such cases, the other side may be put to irreparable loss, as allowing such a plea may divest it of a right that had come to accrue in its favour by sheer lapse of time. However, even in such cases no strait jacket formula can be laid down. It all depends on fact of each case.
15. The earliest of the decisions of the Supreme Court, on the point, is in the case of L.J. Leach and Company Ltd. Vs. Jardine Skinner and Company1 wherein it has been held as under:-
"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."
16. Again, a three Judge Bench of the Supreme Court in the case of T.N. Alloy Foundry Company Ltd. Vs. T.N. Electricity Board and others2, after referring to the law laid down in L.J. Leach and Company Ltd., held that the court would as a rule disallow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application.
17. In Ragu Thilak D. John vs S.Rayappan & others3 the Supreme Court while recognising the power of the courts to grant all amendments sans a hypertechnical approach, held that where the plea relating to the amendment being barred by time is an arguable plea, it should not come in the way in allowing the amendment application. It has been held that the interest of the other side can be safeguarded by allowing the amendment, leaving the issue of limitation to be decided after framing an issue. The suit in that case was for permanent injunction restraining the respondents from demolishing the constructions over the suit property. It was alleged that during pendency of the suit, the defendants demolished the constructions. The subsequent events were sought to be brought on record by filing amendment application seeking recovery of damages. The application was opposed on the ground that amendment sought was barred by limitation, as the alleged demolitions had taken place since before filing of the suit and thus, the relief seeking damages is barred by limitation. The Supreme Court finding that there being dispute between the parties as to when demolition had taken place, permitted the amendment to be allowed by observing as under:-
"If the aforesaid test is applied in the instant case, the amendment sought could not be declined. The dominant purpose of allowing the amendment is to minimise the litigation. The plea that the relief sought by way of amendment was barred by time is arguable in the circumstances of the case, as is evident from the perusal of averments made in paras 8(a) to 8(f) of the plant which were sought to be incorporated by way of amendment. We feel that in the circumstances of the case the plea of limitation being disputed could be made a subject matter of the issue after allowing the amendment prayed for."
18. Similarly, in Pankaja Vs. Yellappa4 the Supreme Court found that plea of limitation pressed into service by the other side to get the application seeking amendment in the plaint rejected, was found to be an arguable plea and thus, permitted the amendment to be allowed and plea regarding limitation to be decided in the suit after framing an issue in that regard. The Supreme Court, for coming to such conclusion, had relied on the previous decisions in the case of L.J. Leach and Company Ltd. and Ragu Thilak D John noted above. It has been held as under:-
"We have already noted, hereinabove, that there is an arguable question whether the limitation applicable for seeking the relief of declaration on facts of this case falls under Entry 58 of the Limitation Act or under Entry 64 or Entry 65 of the Limitation Act which question has to be decided in the trial, therefore, in our view, following the judgment of this Court in the case of Ragu Thilak D. John (supra), we set aside the impugned orders of the courts below, allow the amendment prayed for, direct the Trial Court to frame necessary issue in this regard and decide the said issue in accordance with law bearing in mind the law laid down by this Court in the case of L.J. Leach and Co. Ltd."
19. Thus, it is clear that even in cases where it is alleged that the amendment is barred by limitation, it is well within the discretion of the court to allow such an amendment. The discretion has to be exercised judiciously, keeping in mind the facts of the case. Where the plea that amendment sought is barred by limitation is found to be an arguable plea, the court should normally exercise its discretion in allowing the amendment application, leaving the issue of limitation to be decided in the suit. In such cases, in order to safeguard the interest of the other side, the court have departed from the normal rule that the amendment relates back to the date of the original pleading. Such pleadings are held to have been made on the date of moving the application for amendment. The object is to prevent accrued right in favour of the other side being taken away.
20. In Vishambhar and others Vs. Laxminarayan and another5 a suit was brought by a minor plaintiff for recovery of possession from the purchaser in respect of the property sold by the mother as his guardian. Subsequently, by seeking amendment in the plaint, relief was claimed for setting aside the sale deeds executed by the guardian. The Supreme Court held that from the averments of the plaint it cannot be said that all the necessary averments for setting aside the sale deeds executed by Laxmibai were contained in the plaint and adding specific prayer for setting aside the sale deeds was a mere formality. As noted earlier, the basis of the suit as it stood before the amendment of the plaint was that the sale transactions made by Laxmibai as guardian of the minors were ab initio void and, therefore, liable to be ignored. By introducing the prayer for setting aside the sale deeds the basis of the suit was changed to one seeking setting aside the alienations of the property by the guardian. In such circumstance the suit for setting aside the transfers could be taken to have been filed on the date the amendment of the plaint was allowed and not earlier than that.
21. Again in Sampath Kumar vs Ayyakannu and another6 the Supreme Court allowed the amendment application but with the rider that the amendment sought will not relate back. In that case, as originally instituted, the relief claimed was for issuance of permanent prohibitory injunction alleging that the plaintiff is in possession over the suit property. The defendant in his written statement denied the plaint averments and contended that he was in possession of the suit property on the date of the institution of the suit. Subsequently, the plaintiff moved an application seeking amendment in the plaint alleging that the defendant had forcibly dispossessed him after filing of the suit and thus, sought relief of declaration of title to the suit property and consequential relief of delivery of possession. The amendment was opposed by contending that the defendant has perfected his title by adverse possession and the relief of possession is barred by time. The Supreme Court held that the plea whether relief of possession is barred by limitation or not, deserves to be decided in the suit itself and permitted the amendment to be allowed, subject however to the condition that the pleading would be deemed to have been made on the date the application for amendment was filed. It was observed as under:-
"......The merits of the averments sought to be incorporated by way of amendment are not to be judged at the stage of allowing prayer for amendment. However, the defendant is right in submitting that if he has already perfected his title by way of adverse possession then the right so accrued should not be allowed to be defeated by permitting an amendment and seeking a new relief which would relate back to the date of the suit and thereby depriving the defendant of the advantage accrued to him by lapse of time, by excluding a period of about 11 years in calculating the period of prescriptive title claimed to have been earned by the defendant. The interest of the defendant can be protected by directing that so far as the reliefs of declaration of title and recovery of possession, now sought for, are concerned the prayer in that regard shall be deemed to have been made on the date on which the application for amendment has been filed."
22. There are cases where it is clear from the pleadings or the material on record, without any scope for further inquiry, that the amendment sought is barred by law of limitation. Such amendments are generally declined, as allowing the same would be an empty formality and may unnecessary result in delay of the proceedings.
23. In K. Raheja Constructions Ltd. Vs. Alliance Ministries7 the facts were akin to that of the case in hand. A suit for permanent injunction was filed restraining the defendants from alienating the suit property on the ground that the defendants had entered into an agreement for sale with the plaintiff and during its subsistence they cannot enter into a sale in favour of a third party. Subsequently, an application seeking amendment in the plaint was moved. Thereby, the plaintiffs prayed for grant of relief of specific performance. In the application, it was averred that they subsequently discovered that the Charity Commissioner had granted permission for sale of the trust property and, therefore, the plaintiffs are also entitled to the relief of specific performance. The application seeking amendment was rejected by the trial court and the High Court. The Supreme Court held that the relief for specific performance became barred by limitation and thus, was rightly not allowed. The plea that earlier the plaintiffs could not have prayed for relief of specific performance, as the sale was dependent on grant of permission by Charity Commissioner, was repelled by holding as under:-
"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 petitioners 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."
24. In Radhika Devi Vs. Bajrangi Singh and others8 the Supreme Court upheld the rejection of application seeking amendment in the plaint to challenge gift deed holding that relief therefor is barred by limitation. The Supreme Court held that the suit as initially filed for relief of declaration that gift deed was obtained by the respondents illegally and fraudulently, could not be converted into a suit for cancellation of the gift deed, as the limitation of three years prescribed for cancellation of a registered document had since expired. It was observed thus:-
"6. ............ The ratio therein squarely applies to a fact situation where the party acquires right by bar of limitation and if the same is sought to be taken away by amendment of the pleading, amendment in such circumstances would be refused. In the present case, the gift deed was executed and registered as early as 28.7.1978 which is a notice to everyone. Even after filing of the written statement, for three years no steps were taken to file the application for amendment of the plaint. Thereby the accrued right in favour of the respondents would be defeated by permitting amendment of the plaint. The High Court, therefore, was right in refusing to grant permission to amend the plaint."
25. In South Konkan Distilleries and another Vs. Prabhakar Gajanan Naik and others9 the Supreme Court having found that the plea of limitation is not an arguable one, upheld the decision of the courts below declining amendment in the plaint by observing as under:-
" 21. ............ we are in full agreement with the courts below that there was no dispute on the question of limitation. Therefore, it cannot be said that the point of limitation was an arguable one and the same should be decided by raising an issue at the time of disposal of the suit.
26. It is thus well settled that where a plea sought to be introduced by amendment in the plaint is found to be barred by law of limitation, without any scope of argument, it is well within the discretion of the court to decline such amendment.
27. Now reverting to the facts of the instant case, it is noticeable that the suit was instituted on 3.8.1988. The relief sought was for prohibitory injunction restraining the defendant from making alienation in favour of any third party in view of the agreement of sale dated 26.5.1986 in favour of the plaintiff. The defendant filed written statement on 3.8.1990. He pleaded that the agreement was obtained by fraud and misrepresentation. It was alleged that the agreement was avoided by giving notice dated 30.1.1987 to the plaintiff. It was further alleged that again by notice dated 18.4.1987 the defendant refused to execute the sale deed and thus, repudiated the contract. However, even then, no suit for specific performance was brought. Paras 11 and 12 of the written statement are reproduced for convenience of reference:-
"11. That the defendant had already served a notice dated 30.01.87 on the plaintiff Samiti avoiding the agreement on the ground of fraud and misrepresented and as such the alleged agreement has ceased to be an enforceable contract and as such suit is maintainable for the enforcement of the alleged agreement.
12. That the defendant having already avoided the agreement on the ground of fraud and misrepresented through the notice dt. 30.01.1987 the refusal of the defendant to execute the sale deed was clearly brought to the knowledge of the plaintiff through the notice dated 18.04.1987 and therefore the only remedy available to the plaintiff was to file a suit for specific performance if any and not a suit for bare an injunction and as such the present suit merely for an injunction is not maintainable."
28. Under Article 54 of the Limitation Act, 1963, the limitation for bringing a suit for specific performance of contract for sale is three years from the date fixed for performance, or if no such date is fixed, when the plaintiff has notice that the performance is refused.
29. In a suit for specific performance, generally time is not the essence of the contract, as rightly contended by learned counsel for the petitioner. However, it does not mean that even where a party has notice of the fact that the performance has been refused, still the limitation would not start running. The law specifically provides that in such cases the limitation will start running from the date the plaintiff has notice that performance is refused.
30. In the instant case, the first refusal to abide by the contract was made on 30.1.1987 when the defendant tried to avoid the contract alleging that the agreement was obtained by fraud and misrepresentation. The notice was duly received by the plaintiff. He even replied to it on 23.3.1987. Again, the defendant repudiated the contract by giving notice dated 18.4.1987, wherein he claimed that he was not bound by the agreement and free to negotiate for the sale of the property. Finally, when the written statement was filed on 3.8.1990, the denial to abide by the terms of the agreement was unequivocably conveyed to the plaintiff. Thereafter, the plaintiff was left with no option but to bring a suit for specific performance of the agreement for sale within the limitation prescribed by law. Alternatively, he could have sought amendment in the plaint of the pending suit. However, none of these options were exercised by the plaintiff.
31. During the pendency of the suit, the defendant executed first registered sale deed dated 24.9.2002 in favour of a third party followed by several other sale deeds. The intention not to abide by the terms of the contract conveyed to the plaintiff by various notices and in the written statement was manifested by executing these sale deeds in favour of third parties. Surprisingly, even thereafter, the plaintiff chose not to seek relief of specific performance but got the plaint amended seeking a declaration that the sale deeds be declared as null and void. Now, almost after 11 years of the execution of the first sale deed dated 24.9.2002, the petitioner moved an application seeking amendment in the plaint for incorporating the relief of specific performance. On the face of it, the relief sought had become barred by limitation without any scope of argument to the contrary. In the aforesaid circumstances, the courts below were perfectly justified in rejecting the amendment application.
32. Sri M.A. Qadeer, learned senior counsel tried to overcome the plea of limitation by suggesting that the contract was a contingent contract dependent on the defendant obtaining permission from the Ceiling authorities and clearance from Income Tax Department and since the same was not obtained, thus the limitation never started running. However, the Court is unable to accept the submission. Firstly, the Urban Land (Ceiling and Regulation) Act, 1976 (for short "the Urban Ceiling Act) was repealed in 1990 and thereafter, no permission was required under the Urban Ceiling Act. Likewise, the provision for taking permission from the Income Tax authorities under Section 230-A of the Income Tax Act was omitted w.e.f. 1.6.2001 by the Finance Act, 2001. Thus, even assuming that the date for the performance was dependent on obtaining the aforesaid permissions, the period of three years during which the plaintiff should have obtained the sale deed as per the terms of the contract, would start running soon after the requirement of obtaining these permissions was omitted. The amendment sought in the year 2013 seeking relief of specific performance was thus apparently barred by the law of limitation. Second, it is now well settled by series of pronouncements of the Supreme Court that a condition in an agreement for sale to obtain permission from a statutory authority will not have the effect of extending the limitation indefinitely in bringing a suit for specific performance. The Supreme Court repelling a similar plea in the case of K. Raheja Constructions Ltd. (supra) held that as soon as the performance of the contract has been denied, the suit has to be instituted as 'the decree of specific performance will always be subject to the condition to the grant of permission by the competent authority'.
33. In T.L. Muddukrishana and another Vs. Lalitha Ramchandra Rao10 under an agreement dated 16.3.1989, the execution of sale deed was dependent on obtaining clearance from Ceiling authorities and Income Tax Department. The appellant issued notice on 2.10.1989 to the respondent to comply with the terms of the agreement by obtaining necessary clearances. The respondent instead of obtaining the clearance, by reply dated 6.11.1989 repudiated the contract. The appellant brought a suit for mandatory injunction to compel the respondent to comply with the terms of the agreement without seeking relief of specific performance. Later he filed an application seeking amendment in the plaint to add relief of specific performance. The amendment application filed in that regard on 5.11.1992 was rejected by the trial court holding that the relief of specific performance has since become barred by time. The Supreme court upheld the rejection of the amendment application by observing as under:-
"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, November 5, 1992, the suit was barred by limitation. The High Court, therefore, was right in refusing to permit the amendment of the plaint."
34. A similar plea that in view of the provisions of the Urban Ceiling Act, the suit for specific performance could not have been filed was repelled by the Supreme court in the case of Van Vibhag Karamchari Griha Nirman Sahkari Sanstha Maryadit (Regd.) Vs Ramesh Chander and others11 by holding that the suit for specific performance could have easily been filed as a conditional decree can always be passed subject to requisite permissions being obtained. It was observed thus:-
"27. The aforesaid purported justification of the appellant is not tenable in law. If the alleged statutory bar referred to by the appellant stood in its way to file a suit for Specific Performance, the same would also be a bar to the suit which it had filed claiming declaration of title and injunction. In fact, a suit for Specific Performance could have been easily filed subject to the provision of Section 20 of the Ceiling Act.
28. Similar questions came up for consideration before a Full Bench of Gujarat High Court in the case of Shah Jitendra Nanalal v. Patel Lallubhai Ishverbhai [AIR 1984 Guj145]. The Full Bench held that a suit for Specific Performance could be filed despite the provisions of the Ceiling Act. A suit for Specific Performance in respect of vacant land in excess of ceiling limit can be filed and a conditional decree can be passed for Specific Performance, subject to exemption being obtained under Section 20 of the Act." (emphasis supplied)
35. Sri M.A. Qadeer, in support of his case, placed reliance on a decision in the case of Panchanan Dhara Vs. Monmatha Nath Maity12. In that case, respondent no.1 before the Supreme court entered into an agreement for sale of immovable property with a Company respondent no.2 on 18.4.1971. There was some dispute regarding title of respondent no.2 in respect of the property agreed to be sold to respondent no.1. The Company, therefore, instituted a suit against the persons claiming hostile title. The suit was decreed in terms of compromise on 3.5.1979. Respondent no.1 thereafter issued several letters asking the Company to execute sale deed in his favour. The Company, in response thereto, had all along been assuring respondent no.1 that it would do so. By letter dated 16.3.1985 one of the Directors of the Company again assured respondent no.2 that the Company would honour the contract. However, on 12.8.1985 the Company refused to register the sale deed on the plea that the agreement has lapsed. A suit for specific performance of the said agreement for sale dated 18.4.1971 was brought by respondent no.1 soon thereafter. During pendency of the suit, the Company transferred the property on 13.11.1985 to the appellant. It was in the backdrop of these facts that the Supreme Court held that in such cases, time is not the essence of the contract, as the Company itself had been extending the time for execution of the sale deed by giving assurances to respondent no.1. The plea of limitation was repelled by observing as under:-
"31. In view of the aforementioned pronouncements of this Court, we are of the opinion that the plea raised by the learned counsel for the Appellant that the suit was barred by limitation cannot be accepted as all the courts have arrived at a finding of fact that the period for execution of the deed of sale had been extended."
36. The facts of the aforesaid case were thus entirely different and the dictum of law laid down therein would not apply to the case at hand.
37. The next decision relied on by learned counsel for the petitioner is in the case of Andhra Bank Vs. ABN Amro Bank N.V.13, wherein the amendment sought was in the written statement for adding an additional ground of defence and thus, the principles laid down in the said case would not apply. Similarly, the judgment in the case of Rajesh Kumar Aggarwal Vs. K.K. Modi14 would also not be of any help to the petitioner, as therein all that has been observed is that the correctness or falsity of the case set up by way of amendment cannot be adjudged while considering the amendment application.
38. Sri M.A. Qadeer also made a feeble attempt to suggest that the amendment in the plaint was sought in view of observations made by the trial court in its order dated 21.3.2013 in Original Suit no.861 of 2008 and thus, the same should have been allowed. However, the Court is unable to accept the submission. The order dated 21.3.2013, whereby the plaint of Original Suit No.861 of 2008 was rejected, is based on two grounds viz. (i) that the suit is barred by limitation; and (ii) it is barred by provisions of Order II Rule 2 C.P.C. The trial court, while holding that the subsequent suit is barred by provisions of Order II Rule 2 C.P.C., has held that the relief of specific performance should have been claimed in the earlier instituted suit i.e. Original Suit No.835 of 1988 or by seeking amendment therein but the same having not been done, the relief therefor shall be deemed to have been relinquished. The said observation made by the court would not come to the rescue of the petitioner, as the relief of specific performance has since become barred by limitation.
39. Moreover, as noted above, the trial court by its order dated 21.3.2013 has rejected the plaint also on the ground that the suit for specific performance has since become barred by limitation. The petitioner cannot overcome the bar of limitation by seeking amendment in the instant suit, inasmuch as, such an amendment, even if to be allowed, would not relate back to the date of institution of the suit. Once the suit for specific performance filed in the year 2008 was held to be barred by limitation, it is beyond comprehension as to how the same relief could be permitted to be introduced by seeking amendment in the plaint of the instant suit. Something which could not be done directly, also, cannot be permitted to be done indirectly. The valuable right accrued in favour of the defendant cannot be permitted to be defeated.
40. In view of the foregoing discussion, this Court does not find any error in the view of the courts below declining amendment in the plaint.
41. The petition lacks merit and is dismissed.
(Manoj Kumar Gupta, J.) Order Date :- 29.10.2015 SL