Bombay High Court
Sou. Deepa Chandrashekar Shetty, Thr. ... vs Milind Jaykumar Kole on 8 April, 2025
Author: N.J. Jamadar
Bench: N.J. Jamadar
2025:BHC-AS:16715
Digitally signed by
ARUN ARUN
RAMCHANDRA
RAMCHANDRA SANKPAL
SANKPAL Date: 2025.04.09
21:08:22 +0530
Varsha wp-432-2024 with cra-26-2024.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 432 OF 2024
WITH
CIVIL REVISION APPLICATION NO. 26 OF 2024
1. Sou Deepa Chandrashekar Shetty }
aged 57 years, Occu: Housewife }
R/o AMARDEEPA, }
at Uliyaragoli, Post Kapu, Tal-Udupi,
}
Dist-Udupi, Karnataka }
}
2. Sou Rajshree Prasad Shetty }
Aged 50 years, Occu: Housewife }
R/o 7014, Glenfield prestige, }
Wellington Park, 182, IAF Main }
Road }
Gangamma Circle, Jalahalli, }
Bangalure-560013, Karnataka }
}
Both Appellants through their POA }
Ashok Bhaskar Shetty aged---Years, }
Occu: Business R/o Sudha Niwas, }
A/P Korochi, Tal-Hatkanagale, Dist- } .....(Petitioners/Applicants)
Kolhapur. } Orig. Def. Nos. 1a and 1b)
Versus
Milind Jaykumar Kole }
aged 39 years, Occu: Agri & }
Business }
an Indian inhabitant having address }
at R/o Kabnur, Tal-Hatkanangale, } ....Respondent
Distr-Kolhapur. } (Orig. Plaintiff)
-------------------
Mr. Yuvraj Narvankar I.by Prasad L Gajbhiye and N.B. Patil, for the
Petitioners/Applicants.
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Mr. Anilkumar Patil with Sachin Bhavar, Zeel Jain and Digvijay Patil,
for the Respondent.
---------------------
CORAM : N.J. JAMADAR, J.
RESERVED ON : 17TH MARCH 2025
PRONOUNCED ON : 8TH APRIL 2025
JUDGMENT:
1. Rule. Rule made returnable forthwith and, with the consent
of learned counsel for the parties, heard finally.
2. These petition and application arise out of the orders passed by
the learned Civil Judge, Ichalkarnaji in Special Civil Suit No. 251 of
2005 and as the outcome of one may have a bearing on another, both
the petition and the application were heard together and are being
decided by this common judgment.
3. The background facts, leading to these proceedings, can be
summarised as under:
3.1 Guruprasad Narayan Shetty, the deceased defendant, and
the predecessor in title of the applicants/petitioners was the holder of
property bearing revenue survey No. 575/ 2, admeasuring 35.02 R
situated at Tal-Hatkanangale, District-Kolhapur. The deceased-
defendant entered into a contract to sell 15 R land out of the said
property at the consideration of Rs.150 per sq. ft.
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3.2 An agreement for sale dated 18 th September 1996 came to
be executed. Under the said agreement, the plaintiff claimed to have
paid a part consideration of Rs.2,80,000/-. Balance consideration was
to be paid at the time of the execution of the sale deed. The deceased
defendant was to take requisite steps to have the record of rights
corrected, get the property agreed to sold measured and obtain the
consent of his heirs and execute the sale deed within a period of 11
months.
3.3 Asserting that the deceased-defendant did not take the requisite
action and perform his part of the reciprocal promises, despite
repeated requests, the plaintiff instituted the suit for specific
performance of the contract. It was, inter alia, asserted that the
plaintiff had addressed a notice on 2 nd September 1999 and,
eventually, on 2nd April 2003, the deceased-defendant flatly refused to
perform the contract. Hence, the suit.
3.4 Initially, the suit proceeded ex-parte as the deceased-
defendant did not appear despite the service of summons. By a
judgment and order dated 14th March 2006, the learned Civil Judge
was persuaded to dismiss the suit observing, inter alia, that the suit
was not within the period of limitation.
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3.5 The plaintiff preferred an appeal before the District Court.
By a judgment and order dated 31 st January 2020, the learned District
Judge, Ichalkaranji reversed the judgment of the trial Court and passed
a decree for specific performance of the contract. Aggrieved, the
petitioners preferred second Appeal before this Court being Second
Appeal No. 390 of 2022.
3.6 By an order dated 20th September 2023, this Court was
persuaded to allow the appeal, set aside the judgment and order
passed by the First Appellate Court and restore the suit to the file of
the trial Court for afresh decision after providing an opportunity to the
petitioner to file written statement and adduce evidence.
3.7 Post remand, the petitioners/defendants preferred an
application for rejection of the plaint under Order VII Rule 11(d) of the
Code of Civil Procedure ('CODE') contending, inter alia, that the suit
was ex-facie barred by law of limitation and to circumvent the bar of
limitation the plaintiff had resorted to clever drafting. From the
averments in the plaint, it would be abundantly clear that the plaintiff
had knowledge of refusal of performance of contract more than three
years prior to the institution of the suit. Therefore, the plaint was liable
to be rejected.
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3.8 The plaintiff, in turn, filed an application for amendment in
the plaint asserting, inter alia, that on account of inadvertence and
omission on the part of the advocate who earlier represented the
plaintiff, the office copy of the notice dated 2nd April 2003 was
misplaced and certain averments with regard to the said fact could not
be raised in the plaint.
3.9 The petitioners resisted the application for amendment.
3.10 By an order dated 8th December 2023, the learned Civil
Judge ruled that the application for amendment would be decided first
and, thereafter, the application for rejection of the plaint would be
decided.
3.11 Eventually, by an order dated 8th December 2023, the
learned Civil Judge was persuaded to allow the application for
amendment as, in the view of the learned Civil Judge, the proposed
amendment was necessary for the determination of real questions in
controversy between the parties and since trial had not commenced the
interdict contained in the proviso to Order VI Rule 17 was not
attracted.
3.12 By a separate order dated 12 th December 2023, the learned
Civil Judge was persuaded to reject the application for rejection of the
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plaint as, in the facts of the case, the question of limitation appeared to
be a mixed question of law and facts and, thus, could be legitimately
decided after the parties adduced evidence.
4. Being aggrieved, the defendants have assailed the order
dated 8th December 2023, permitting amendment in the plaint, in Writ
Petition No. 432 of 2024, and the order dated 12 th December 2024
declining to reject the plaint, in Civil Revision Application No. 26 of
2024.
5. I have heard Mr. Yuvraj Narvankar, learned counsel for the
defendants, and Mr. Anil Patil, learned counsel for the plaintiff at some
length. The learned counsel took the Court through the pleadings and
material on record.
6. At the outset, Mr. Narvankar, learned counsel for the
defendants, would submit that the legality, propriety and correctness of
the order dated 12th December 2024 declining to reject the plaint is
required to be examined first. Thus, if the defendants succeed in
establishing that the trial Court has exercised the jurisdiction with
material irregularity and declined to reject the plaint though it is ex-
facie barred by law of limitation, it would seal the fate of the writ
petition assailing the order permitting amendment in the plaint.
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7. Mr. Narvankar would urge that the Trial Court was in error
in holding that the question of limitation, in the facts of the case, was a
mixed question of law and facts and, thus, warranted adjudication at
the trial. In arriving at such an erroneous conclusion, according to Mr.
Narvankar, the learned Civil Judge failed to notice that the plaintiff
had resorted to clever drafting to create an illusion of cause of action
and that the suit is not barred by law of limitation. The trial Court was
duty bound to read the averments in the plaint in a meaningful
manner and a meaningful reading of the plaint would indicate that the
suit is hopelessly barred by law of limitation.
8. Mr. Narvankar laid emphasis on the pre-suit notice dated
2nd September 1999 which was relied upon by the plaintiff. Special
emphasis was laid on the fact that the said notice dated 2 nd September
1999 referred to a prior notice which was allegedly addressed by the
plaintiff to the deceased-defendant by RPAD as well as Under
Certificate of Posting (UPC). And yet the deceased-defendant did not
perform his part of the promise.
9. By the said notice dated 2nd September 1999, the deceased-
defendant was called upon to execute the sale deed within a period of
72 hours, lest the plaintiff would institute a suit against the deceased-
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defendant. This notice dated 2nd September 1999, and the consequent
failure of the deceased-defendant to execute the sale deed, according
to Mr. Narvankar, constituted a clear refusal to perform the contract on
the part of the deceased-defendant. Mr. Narvankar strenuously
submitted that the fact that the plaintiff had addressed a prior notice
calling upon the deceased-defendant to execute the sale deed and the
said notice was not complied with, further erodes the claim of the
plaintiff as the period of limitation began to run upon failure of the
deceased-defendant to comply with the said notice.
10. With a view to wriggle out of the aforesaid situation, the
plaintiff resorted to the device of the amendment in the plaint to assert
that despite service of notices the deceased defendant never refused to
perform the contract and that notice dated 22 nd April 2003 was
misplaced. Such amendment could not have been permitted by the
trial Court. In any event, such amendment, which was introduced to
obviate an inevitable rejection of the plaint, does not advance the
cause of the plaintiff.
11. To this end, Mr. Narvankar placed reliance on a judgment
of the Supreme Court in the case of 'Patasibai and Ors vs Ratanlal'1,
wherein it was enunciated that an amendment which was sought to be
1 (1990) 2 SCC 42
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introduced to obviate the consequence of rejection of the plaint, cannot
be permitted.
12. To buttress the submission that the plaint can be rejected
when it is ex-facie barred by law of limitation, Mr. Narvankar placed
reliance on the decisions of the Supreme Court in the cases of 'Dahiben
vs Arvindbhai Kalyanji Bhanusali (Gajra) dead through legal
representative and Ors.2 and 'C.S. Ramaswamy Vs V.K . Senthil and
Ors.'3
13. Mr. Patil, learned counsel for the plaintiff, stoutly resisted
the submissions on behalf of the defendant. Mr. Patil would urge that
the defendants having obtained a remand on the premise that they
have had no opportunity to contest the suit, cannot now be permitted
to file an application to delay the disposal of the suit.
14. On the merits of the matter, taking the Court through the
averments in Para 3 and Para 7 in plaint, Mr. Patil urged with tenacity
that the question as to whether the instant suit is barred by law of
limitation is indeed a question rooted in facts and law. Emphasising
that at the stage of the consideration for rejection of the plaint only
averments in the plaint and documents annexed thereto, are required
2 (2020) 7 SCC 366
3 (2024) SCC online 330
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to be considered, Mr. Patil would urge, there is no material to show
that the deceased-defendant had refused to perform the contract on a
particular date. Whether there was indeed refusal to perform the
contract and on what date, would be the matters for adjudication at
the trial. Thus, no fault can be found with the impugned order, urged
Mr. Patil.
15. To bolster up the submission that the question of limitation
is a mixed question of law and facts and such question cannot be
decided at the threshold, Mr. Patil placed a strong reliance on the
decision of the Supreme Court in the case of 'Nusli Neville Wadia Vs.
Ivory Properties and Others4,
16. The aforesaid submissions now fall for consideration.
17. Since the rejection of the Plaint was sought principally on
the ground that the Suit is barred by law of limitation, it may be
apposite to notice the provisions contained in Article 54 to the
Limitation Act 1963. It reads thus:
Art 54. For specific performance of Three Years The date fixed for the
a contract performance, or if no such
date is fixed, when the
plaintiff has notice that
performance is refused.
4 (2020) 6 SCC 557
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18. The controversy often revolves around the question as to the
starting point of limitation for a Suit for specific performance.
Evidently, the third column which indicates the time from which the
period of limitation begins to run is in two parts.
19. The first part relates to a case where the parties to the
contract for sale, stipulate a date for the performance. Thus the
commencement of the period of limitation in the first part is from "the
date fixed for the performance".
20. The expression, "the date fixed for performance" is not
necessarily restricted to a specific date named in the contract or an
identifiable date but also a date which the parties intended should be
the date when the contract is to be performed. It thus implies that the
expression the date fixed covers in its fold not only the date expressly
stipulated in the contract but the date which the parties intended that
the contract should be performed. It might take the shape of a date to
be ascertained on the happening of a continent event specified in the
contract.
21. Under the second part, where no date is fixed for the
performance of the contract, the period of limitation begins to run
when the Plaintiff has notice that performance is refused. To put in
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other words, if no date is fixed for the performance of the contract, the
period of limitation begins to run from the knowledge to the Plaintiff
of refusal of the performance of contract by the Defendant.
22. Thus, while considering the aspect of limitation for a suit
for specific performance, the Court has to first determine as to whether
the case falls within the first or second part of Article 54 of the
Limitation Act, 1963. In the case of Pancham Dhara and Ors. V/s.
Monmatha Nath Maity (dead) through LRs and Anr. 5, the Supreme
Court enunciated that while determining the applicability of the first or
the second part of the said provision, the court will firstly see as to
whether any time was fixed for performance of the agreement of sale
and if it was so fixed, whether the suit was filed beyond the prescribed
period unless any case of extension of time for performance was
pleaded and established. When, however, no time is fixed for
performance of contract, the court may determine the date on which
the plaintiff had notice of refusal on the part of the defendant to
perform the contract and in that event the suit is required to be filed
within a period of three years therefrom.
23. In the case at hand, the Counsel for the parties were in
unison on the point that under the Agreement for Sale, the parties had
5 (2006) 5 SCC 340
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not fixed the date for performance of the contract. It was stipulated
that the Sale Deed will be executed under 11 months of the said
Agreement, however, no date, as such, was fixed for the performance.
The controversy thus really revolves around the question of the
application of the second part of Column - 3 of Article 54. i.e.,
institution of the Suit within the period of limitation from the date of
knowledge of refusal of performance by the deceased Defendant. That
brings in its trail, the question as to whether there was refusal of
performance by the deceased Defendant.
24. Mr. Narvankar, the learned Counsel for the Petitioner,
strenuously urged that the claim of the Plaintiff that eventually on 2 nd
April 2003, the deceased Defendant refused to perform the contract is
a self-serving assertion made with a view to create an illusion of cause
of action. The events which preceded the institution of the Suit,
especially, the notice dated 2nd September 1999 and, more particularly,
reference to the prior notice which was allegedly served on the
Defendant, according to Mr. Narvankar, clearly indicates that there was
notice of refusal of performance at a much earlier point of time,
thereby rendering the Suit ex-facie barred by law of limitation.
Repetitive notices, according to Mr. Narvankar, would not resurrect
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the cause of action for a Suit which was hopelessly time-barred. A
factual investigation, in such a scenario, is not warranted, urged Mr.
Narvankar.
25. In the case of Dahiben (Supra), on which a very strong
reliance was placed by Mr. Narvankar, the Supreme Court, after
adverting to the previous pronouncements on the rejection of Plaint,
inter alia, enunciated that the underlying object of Order VII Rule
11(a) is that if in a suit, no cause of action was disclosed, or the Suit is
barred by limitation under Rule 11(d), the Court would not permit the
Plaintiff to unnecessarily protract the proceedings in the Suit. In such a
case, it would be necessary to put an end to the sham litigation, so that
further further judicial time is not wasted.
26. In the case of Raghwendra Sharan Singh (Supra) the
Supreme Court had rejected the Plaint as it was clearly barred by law
of limitation. The observations of the Supreme Court in paragraph 7
are instructive and, hence, extracted below :
"7. Applying the law laid down by this Court in the
aforesaid decisions on exercise of powers under Order 7 Rule
11 of the CPC to the facts of the case in hand and the
averments in the plaint, we are of the opinion that both the
Courts below have materially erred in not rejecting the plaint
in exercise of powers under Order 7 Rule 11 of the CPC. It is
required to be noted that it is not in dispute that the gift deed
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was executed by the original plaintiff himself along with his
brother. The deed of gift was a registered gift deed. The
execution of the gift deed is not disputed by the plaintiff. It is
the case of the plaintiff that the gift deed was a showy deed
of gift, and therefore the same is not binding on him.
However, it is required to be noted that for approximately 22
years, neither the plaintiff nor his brother (who died on
15.12.2002) claimed at any point of time that the gift deed
was showy deed of gift. One of the executants of the gift
deed, brother of the plaintiff during his lifetime never
claimed that the gift deed was a showy deed of gift. It was
the appellant herein-original defendant who filed the suit in
the year 2001 for partition, and the said suit was filed against
his brothers to which the plaintiff was joined as defendant
No. 10. It appears that the summon of the suit filed by the
defendant being TS (Partition) Suit No. 203 of 2001 was
served upon the defendant No.10-plaintiff herein in the year
2001 itself. Despite the same, he instituted the present suit in
the year 2003. Even from the averments in the plaint, it
appears that during these 22 years i.e. the period from 1981
till 2001/2003, the suit property was mortgaged by the
appellant herein-original defendant and the mortgage deed
was executed by the defendant. Therefore, considering the
averments in the plaint and the bundle of facts stated in the
plaint, we are of the opinion that by clever drafting the
plaintiff has tried to bring the suit within the period of
limitation which, otherwise, is barred by law of limitation.
Therefore, considering the decisions of this Court in the case
of T. Arivandandam (Supra) and others, as stated above, and
as the suit is clearly barred by law of limitation, the plaint is
required to be rejected in exercise of powers under Order 7
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Rule 11 of the CPC".
27. In the case of C.S. Ramaswamy (Supra), the Supreme
Court, following earlier judgments in the case of T. Arivandandam Vs
T.V. Satyapal & Anr6 and Raghwendra Sharan Singh Vs Ram Prasanna
Singh7 held that the Suits were barred by law of limitation and,
therefore, the Plains were required to be rejected in exercise of the
power under Order VII Rule 11 of the Code.
28. There can be no duality of opinion that once the Court
comes to a conclusion that the Suit is ex-facie barred by law of
limitation and no further enquiry is warranted to determine the aspect
of limitation and an endeavour has been made to infuse life into a Suit
which is on its face barred by law of limitation by resorting to clever
drafting, the Court has a duty to pierce the facade of elusion and nip
such litigation in its bud.
29. For that purpose, the Court is enjoined to read the
averments in the Plaint as a whole in a meaningful manner. It is trite,
the defence raised by the Defendant cannot be taken into account. A
plea of rejection of the Plaint is essentially a plea on a demurrer. If the
averments in the Plaint, taken as true and on their face-value, do
6 1977 4 SCC 467.
7 (2020) 16 SCC 601.
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indicate that the Suit is barred by limitation, the Court may not
hesitate to reject the Plaint as the provisions contained in Order VII
Rule 11 also serve the cause of public justice by empowering the Court
to strike at abortive and unnecessary litigation.
30. At the same time, the Court must be alive to the
proposition that, more often than not, limitation is a mixed question of
law and facts. Often the applicability of a particular Article or a part of
given Article of the Limitation Act is intertwined with the proof of
primary facts. In the case of Nusli Wadia (Supra), the Supreme Court
in the context of the provisions contained in Section 9(A) of the Code
(as it then stood in its Application to the State of Maharashtra)
enunciated that limitation is a mixed question of law and facts.
31. Re-adverting to the facts of the case, it is imperative to note
that the Defendants seek the rejection of the Plaint on the premise that
the Plaintiff had issued the notice on 2 nd September 1999 and prior
thereto also, and despite a categorical assertion in the notice dated 2 nd
September 1999 that in the event of non-performance of the contract
within 72 ours thereof, the Plaintiff would be constrained to initiate
action by way of Suit, the Suit came to be instituted in the month of
October 2003 and, thus, the Suit was clearly barred by law of
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limitation.
32. It would be contextually relevant to note that, by way of
amendment, the Plaintiff asserted that despite those notices, the
deceased Defendant never refused the performance of the contract
and, instead, sought time to perform the contract.
33. On first principles, the amendment would ordinarily relate
back to the date of the institution of the Suit. This amendment may
possibly blunt out the objection on the ground of limitation. However,
in the backdrop of submissions canvassed before the Court, I deem it
appropriate to consider as to whether the Suit would appear to be
barred by limitation, even if the amended portion of the Plaint is not
taken into account.
34. A perusal of the averments in the Plaint and the notice
dated 2nd September 1999 would indicate that the Plaintiff claimed
that the notices were served on the deceased-Defendant calling upon
him to perform the contract. Mr. Narvankar, was fully justified in
canvassing a submission that the successive notices including the
alleged notice in the year 2003 do not furnish a fresh cause of action.
Nor they extend the period of limitation (Venkappa Gurappa Hosur
V/s. Kasawwa c/o Rangappa Kulgod 8). However, the pivotal question
8 (1997) 10 SCC 66
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that wrenches the fore is, whether the service of the notice on the
deceased Defendant, in itself, would amount to refusal to perform the
contract on the part of the deceased Defendant.
35. Undoubtedly, refusal need not be express. Refusal to perform the
contract can be gathered from the attendant circumstances and the
conduct of the parties, including an act by which the Defendant has
disabled himself from performing the contract. A case where the
Defendant expressly refuses the performance of the contract, in
response to the notice, or otherwise repudiates the contract, does not
present much difficulty. The cases where an inference of refusal is
required to be drawn on the basis of the attendant circumstances and
conduct of the parties, on the other hand, may warrant an
investigation into facts. Whether such refusal of performance can be
interfered, in the instant case, without such investigation into facts, is
the moot question.
36. From the averments in the Plaint and the documents which
are annexed to the Plaint, an inference of a positive repudiation of the
contract or refusal of its performance, by the deceased Defendant,
cannot be drawn. What the notice dated 2 nd September 1999 indicates
is that a prior notice demanding the performance of the contract was
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served on the deceased Defendant Under Certificate of Posting and the
notice sent by Registered Post was refused by the deceased Defendant.
Under the notice dated 2nd September 1999, the Plaintiff demanded
the performance of the contract within 72 hours at the pain of an
action for enforcement of the contract. However, the averments in the
Plaint or the documents annexed thereto do not evince that there was
refusal of performance. What the Defendants want the Court, at this
stage, is to draw an inference that there was refusal of performance,
on the count that despite repetitive notices, the deceased Defendant
did not perform the contract. To put it differently, silence or inaction
on the part of the deceased Defendant would amount to refusal of
performance.
37. I am afraid, at the stage of consideration for the rejection of
the Plaint, merely on the basis of service of the notices for
performance, without anything more, the Court would be justified in
drawing such an inference of refusal of performance. At the trial, the
Defendants might succeed in persuading the Court that the necessary
corollary of the inaction on the part of the deceased Defendant was,
refusal of performance. That would necessarily warrant investigation
into facts and appraisal of evidence. However, that cannot be the
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sustainable premise on which the Plaint can be rejected at this stage.
38. The conspectus of aforesaid consideration is that on a
meaningful reading of the Plaint as a whole, alongwith the documents
annexed thereto, the Court does not find either an express refusal of
performance or circumstances which would justify an inexorable
inference that there was indeed refusal of performance by the deceased
Defendant, on a given date, and the Plaintiff failed to institute the Suit
within three years from such refusal of performance. Therefore, the
learned Civil Judge cannot said to have committed any error in
declining to reject the Plaint on that count.
39. On the aspect of the amendment in the Plaint, suffice to
note that the amendment was sought at a pre-trial stage. The interdict
contained in the proviso to Order VI Rule 17 of the Code, was not
attracted. Even otherwise, on the touchstone of the two overarching
principles, namely, necessity of the amendment from the point of view
of deciding the real questions in controversy between the parties and
the degree of potentiality of prejudice to the Defendants, this Court
does not find that the amendment, permitted by the Trial Court, can be
faulted at. The proposed amendment is essential for the determination
of all questions in controversy between the parties.
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40. Resultantly, this Court does not find any infirmity in the
order permitting the amendment in the Plaint.
41. The upshot of aforesaid consideration is that both the Writ
Petition and Civil Revision Application deserve to be dismissed.
42. Hence the following order:
:O R D E R :
i) Writ petition and Civil Revision Application stand
dismissed.
ii) Rule discharged.
iii) No costs.
iv) The plaintiff is permitted to withdraw the
amount which the Plaintiff has deposited
pursuant to the order dated 28 March 2024
passed by this Court, alongwith interest accrued
thereon.
(N.J. JAMADAR, J)
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