Sundar Lal vs Madhusoodanan
2022 Latest Caselaw 10121 Ker

                    IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                    PRESENT

                     THE HONOURABLE MRS. JUSTICE M.R.ANITHA

          THURSDAY, THE 15TH DAY OF SEPTEMBER 2022 / 24TH BHADRA, 1944

                               RFA NO. 28 OF 2019

          AGAINST THE ORDER/JUDGMENTOS 83/2011 OF SUB COURT, ALAPPUZHA

APPELLANT/1ST DEFENDANT:

             SUNDAR LAL
             AGED 56 YEARS
             S/O. K.K.VASU,KALPAGTHURTHU VEEDU, C/O.MARY,S.L.PURAM, CHERTHALA,
             ALAPPUZHA NOW RESIDING AT KELANGATTU HOUSE (KALYANI NILAYAM),
             MARARIKULAM NORTH, CHERTHALA, ALAPPUZHA,PIN-685 523
             BY ADV SRI.S.M.PRASANTH


RESPONDENTS/PLAINTIFF AND DEFENDANTS NO.2 TO 4:

     1       MADHUSOODANAN
             AGED 61 YEARS
             S/O. PARTHAN, RATNALAYAM, KALOOCHIRA VELIYIL , WARD NO.13,
             MADAYANTHODU, NORTH ARYAD P.O., ALAPPUZHA,PIN-688 538
     2       THE MANAGER,
             KERALA STATE FINANCIAL ENTERPRISES,VELLAKINNAR BRANCH,
             ALAPPUZHA,PIN-688 001
     3       DISTRICT COLLECTOR
             ALAPPUZHA-688 001
     4       SPECIAL DEPUTY TAHASILDAR
             REVENUE RECOVERY, KERALA STATE FINANCIAL ENTERPRISES, KUMARANASAN
             BUILDING, ALAPPUZHA,PIN-685 605
             BY ADVS.
             SRI.V.SATHEESH
             P.PRIJITH(K/233/2005) SC
             SRI.S.K.BALACHANDRAN
             SMT.N.D.DEEPA


OTHER PRESENT:

             0
             SMT. SHYNI -GP

      THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 02.08.2022, THE

COURT ON 15.09.2022 DELIVERED THE FOLLOWING:
 R.F.A.No.28/2019

                                    2


                                                            (C.R.)


                             JUDGMENT

This appeal has been directed against the judgment

and decree in O.S.No.83/2011 on the file of Subordinate Judge's

Court, Alappuzha.

2. The appellant is the first defendant. The suit was one

for specific performance of contract. (Parties would hereinafter

be referred as per their status before the trial court).

3. Plaintiff entered into an agreement with the defendant

for the purchase of plaint schedule property for a total sale

consideration of Rs.13 lakhs on 20.09.2010. On the date of

agreement Rs.1,50,000/- was paid as advance sale consideration

and the time of six months was stipulated for execution of the

agreement. On 01.10.2010, Rs.6,50,000/- was further paid by the

plaintiff towards part of sale consideration. On the next day, i.e.

on 02.10.2010 first defendant shifted his residence from the

property and plaintiff was put in possession and thereafter

plaintiff and family have been residing in the plaint schedule

property. Plaintiff invested a sum of Rs.1,50,000/- for R.F.A.No.28/2019

maintenance of the house. Plaintiff repeatedly demanded the

defendant to execute the agreement and he has been ready to

perform his part of the contract always by paying the balance

sale consideration. But the first defendant was not willing to

perform his part and finally a registered notice dated 09.12.2010

was issued to the first defendant expressing the readiness and

willingness of the plaintiff to execute the agreement. On

15.12.2010, first defendant and his henchmen came to the house

and intimidated the plaintiff and family and attempted to drive

them out of the house. Immediately, O.S.No.875/2010 was filed

before the Munsiff's Court seeking for permanent injunction. As

per letter dated 11.03.2011 plaintiff demanded the defendant to

be present before the Sub Registry Office, Kalavoor on

16.01.2011 to execute the sale deed. But the defendant did not

turn up. Plaintiff has got sufficient means to complete the

transaction. Hence the suit.

4. Subsequently plaint was amended impleading

defendants 2 to 4 for the reason that first defendant availed a

loan from the second defendant and committed default in

repaying the amount. Second defendant initiated revenue

recovery proceedings against the first defendant and he failed to R.F.A.No.28/2019

clear off the debt. When the defendants 2 to 4 initiated revenue

recovery proceedings plaintiff filed O.S.No.573/2012 for

injunction for restraining the defendants from interfering with

the possession of the plaintiff. Subsequently the plaintiff cleared

off the debt due to the second defendant also. Thereafter as per

order dated 12.02.2015 in I.A.No.150/2015 plaint schedule was

amended incorporating 5 cents and excess land and the building

and other improvements comprising in re-survey No.121/4/1.

5. First defendant filed written statement stoutly denying

the allegations in the plaint. Suit has been filed suppressing the

material facts and plaintiff is not entitled to get any decree by

way of equity or discretion. Agreement executed is admitted.

Receipt of Rs.1,50,000/- on the date of agreement towards

advance and Rs.6,50,000/- subsequently towards part of sale

consideration is also admitted. There was no transfer of

possession of property in pursuance of the agreement and on

humanitarian consideration plaintiff was allowed to occupy the

building. It is denied that plaintiff invested Rs.1,50,000/- for

maintenance of the house. Plaintiff was never ready and willing

to perform his part of contract. O.S.No.875/2010 was a frivolus

suit. The defendant was not informed to be present before the R.F.A.No.28/2019

Sub Registry Office on 16.01.2011. Plaintiff was not having the

balance sale consideration for executing the sale deed. The

house in the plaint schedule property is the only house of the

first defendant and family. He was compelled to sell his property

to discharge his huge debt due to loss in business. Amount was

due from him to Union Bank of India, State Bank of Travancore,

Canara Bank as well as Kerala State Financial Enterprises

(K.S.F.E.). At the time of execution of the agreement, the title

deed of the plaint schedule property was mortgaged with

K.S.F.E. So he was forced to take a building on rent after

disposing the sole property due to threat from numerous

creditors. The proposed price in the agreement is very low and

the property would have fetched at least Rs.18 lakhs at the time

of execution of agreement and at the time of filing written

statement it would have fetched minimum Rs.25 lakhs. The

specific performance is not allowable since it will result in undue

enrichment to the plaintiff and undue loss and injury to the

defendant. First plaintiff is liable to vacate the plaint schedule

premises. The building as amended in the plaint schedule is not

standing in the plaint schedule property. Almost half of the

building is in the purambokku property lying on the south which R.F.A.No.28/2019

is vested with the Panchayath. So the plaint schedule property is

not identifiable and hence plaintiff is not legally entitled to get

any decree of specific performance. Hence a counter claim is

also sought for directing the plaintiff to vacate from the plaint

schedule property and surrender vacant possession to the

defendants.

6. Plaintiff filed written statement to the counter claim

contending that plaintiff was always ready and willing to perform

his part of contract. It is further contended that plaintiff never

took any undue advantage of any situation and defendant offered

to sell the property and on negotiation plaintiff agreed to

purchase the property and the agreement was executed. It is

denied that the property would have fetched Rs.18 lakhs at the

time of execution of agreement and Rs.25 lakhs at the time of

filing written statement. According to the plaintiff, defendant

willfully kept away from executing the sale deed and written

statement has been filed without any bona fides.

7. Second defendant filed written statement contending

that the suit is not maintainable as against them. Second

defendant is not a necessary party to the suit. The suit has been

filed to cause delay in recovery proceedings initiated by this R.F.A.No.28/2019

defendant through additional 3rd and 4th defendants. The plaint

schedule property is mortgaged with the 2 nd defendant in

February, 2010 as security for a loan availed by the first

defendant and original title deed is deposited with the second

defendant. The first defendant defaulted repayment and hence

revenue recovery proceedings has been initiated against him.

Hence there is no cause of action, according to the second

defendant, as against them to the plaintiff.

8. Additional 4th defendant filed written statement

contending about the amount of Rs.88,020/- due from the first

defendant to the second defendant and the authority of the first

defendant to enter into such agreement is further disputed. It is

contended that due to the residence of the plaintiff in the plaint

schedule property obstruction will be caused to the revenue

recovery proceedings. No notice as provided under law has been

sent for instituting the suit against the defendants.

9. PW1 examined and Exts.A1 to A7 marked from the side

of the plaintiff. DWs 1 and 2 examined and Exts.B1 to B9 marked

from the side of the first defendant. There was no evidence from

the side of defendants 2 to 4.

10. On evaluating the facts and circumstances and R.F.A.No.28/2019

evidence adduced, the learned Sub Judge, Alappuzha decreed

the suit as prayed for.

11. Aggrieved by the judgment and decree the

appellant/first defendant approaches this Court in this Regular

First Appeal.

12. Notice was issued to the respondents. Respondents

1 and 2 appeared through respective counsel. Respondents 3

and 4 appeared through learned Government Pleader. Lower

court records were called for and both sides were heard.

13. Appellant/first defendant assailed the judgment and

decree passed by the trial court on various counts. According to

the learned counsel, this is a case where the court should not

have exercised the discretion while granting specific

performance of contract in view of the peculiar facts and

circumstances of this case. Plaintiff was never willing to execute

his part of agreement and the first defendant had several

liabilities and out of compulsion to settle the liabilities the

agreement was executed by him and while ordering specific

performance of the contract it would cause undue hardship to

the first defendant. It is also his contention that defendant has

no title over the entire plaint schedule property and a portion of R.F.A.No.28/2019

the schedule property is purambokku vested with the Panchayat

and a decree for specific performance with respect to a property

belonging to the panchayat ought not have been ordered. It is

also his contention that the plaint schedule property originally

was only 5 cents of land and amendment was effected on

07.02.2015 after the period of limitation including the building

and excess land and that amendment ought not have been

allowed since it was barred by limitation. He would also contend

that plaintiff was not having sufficient funds for the due

execution of the agreement and Exts.A6 savings passbook

produced by the plaintiff would not prove his capacity or fund to

execute the agreement as stipulated in the agreement. He also

contends about I.A.No.1/2022 filed by the defendant for

accepting additional documents, for which counter has been field

by the plaintiff. That petition has been considered and dismissed

by separate order.

14. The learned counsel for the respondent/plaintiff on the

other hand would contend that court below rightly found in

favour of the plaintiff and granted a decree for specific

performance of contract and plaintiff already deposited the

entire sale value before the court and hence there is no reason R.F.A.No.28/2019

whatsoever to interfere with findings entered into by the court

below. He would further contend that for the first notice sent by

the plaintiff, there was no reply. It is also his contention that the

title deed of the plaintiff was pledged in the Kerala State

Financial Enterprises and suppressing that fact agreement was

executed and pending the proceedings recovery proceedings

were also initiated by the K.S.F.E and hence the plaintiff was

forced to clear the liability of the first defendant towards the

K.S.F.E. So a criminal complaint was also filed by him against the

defendant for cheating him by executing the agreement with

respect to a property with regard to which there is already a

liability due to K.S.F.E. It is also his contention that there was no

unlawful enrichment to the plaintiff since he himself has sold his

house and appurtenant land for purchasing the plaint schedule

property. Now himself and family also have no place of abode

and it is after receiving Rs.8 lakhs, on the next day possession of

the property was handed over to him by the first defendant in

pursuance of the agreement. The subsequent amendment

carried out in the plaint schedule is in tune with the sale

agreement and that has been rightly allowed by the trial court

and hence according to him it relates back to the date of the suit. R.F.A.No.28/2019

In short, according to plaintiff there is no reason whatsoever to

interfere with the judgment and decree passed by the court

below.

15. Based on the above, the following points were raised

for consideration:

(1) Whether the trial court went wrong in

exercising the discretion for ordering specific

performance of Ext.A1 agreement?

(2) Whether the specific performance of Ext.A1

agreement ordered with respect to the plaint

schedule property, which includes Panchayat

purambokku also is legally sustainable

especially because the Panchayat is not a

party to the proceedings?

(3) Whether the amendment of the plaint

schedule property introduced on 07.02.2015

beyond the period of limitation is legally

sustainable?

16. Point No.1:

The records in this case would go to show that the suit was

once decreed ex parte as against the first defendant and the R.F.A.No.28/2019

petition filed by the first defendant to set aside the ex parte

decree was dismissed by the trial court and against which first

defendant filed F.A.O.No.87/2016 before this Court and this

Court set aside the decree and an amount of Rs.3,00,000/- was

deposited by the first defendant before the trial court for setting

aside the ex parte decree, as per the submission of the learned

counsel for the first defendant.

17. The first question is with regard to the correctness of

exercising the discretionary power for ordering specific

performance of Ext.A1 agreement by the court below. Ext.A1

agreement was executed on 20.09.2010 by receiving

Rs.1,50,000/- towards advance sale consideration and further he

received Rs.6,50,000/- on 01.10.2010 towards part of sale

consideration and from the next day i.e. on 02.10.2010 onwards

plaintiff is in occupation of the plaint schedule building and

property. According to the plaintiff, the possession was handed

over by the first defendant in pursuance of the agreement after

receiving the major portion of sale consideration. But, according

to the first defendant, it was only on a humanitarian

consideration that plaintiff was permitted to occupy the house. It

has also come out that the plaintiff cleared the liability of R.F.A.No.28/2019

Rs.1,54,880/- of the first defendant towards the second

defendant and the remaining balance sale consideration

Rs.3,45,120/- has been deposited by the plaintiff before the court

on 01.01.2016. The total sale consideration agreed between the

parties is Rs.13 lakhs and the first defendant did not dispute the

execution of the agreement and according to him the plaintiff

was not ready and willing to perform his part of the contract. It

is also his contention that he is a poor lottery vendor and

physically challenged person and agreed to sell the plaint

schedule property due to heavy financial liabilities with the

Union Bank of India, State Bank of Travancore and Canara Bank

and Kerala State Financial Enterprises.

18. In order to prove the readiness and willingness on the

part of the plaintiff, he produced copy of notice Ext.A4 dated

09.12.2010 sent by him to the first defendant. He also produced

the savings bank passbook Ext.A6 drawn on Government

Servants Co-operative Bank Ltd. A-208, Alappuzha to prove his

means. Ext.A6 would show that an amount of Rs.3,90,191/- was

in his account as on 11.12.2010 and only on 01.12.2012

Rs.14,000/- has been withdrawn from that and another

Rs.2,80,000/- withdrawn on 12.12.2012.

R.F.A.No.28/2019

19. The learned counsel for the plaintiff would also

contend that balance sale consideration was planned to be raised

by selling the gold ornaments. So Ext.A6 passbook and the

evidence of PW1 would prove that he had the capacity or funds

to pay the balance sale consideration within the stipulated time

of the agreement. Even though plaintiff produced copy of

another lawyer notice Ext.A5 alleged to have been sent to the

first defendant stating that he was ready and willing to pay the

balance sale consideration of Rs.5 lakhs and is willing to execute

the sale deed and he would be present at Sub Registry Office,

Kalavoor on 16.03.2011 and directing him to take necessary

steps for executing the sale deed and to be present before the

Sub Registry Office on that date, no document could be

produced by the plaintiff to prove that the said notice has been

actually sent to the first defendant and has been received by

him. So the fact that an amount of Rs.8 lakhs out of total sale

consideration of Rs.13 lakhs has been paid and subsequently

he cleared the liability towards the second defendant K.S.F.E

and further the deposit of balance sale consideration

before the trial court would speak in volumes about the

readiness and willingness of the plaintiff to perform R.F.A.No.28/2019

his part of the contract.

20. It is an admitted fact that the plaintiff is in occupation

of the plaint schedule property from 02.10.2010 onwards when

he paid Rs.6,50,000/-. Though the first defendant took a vain

attempt to establish that the plaintiff was permitted to occupy

the plaint schedule house on humanitarian consideration, that

seems to be not acceptable since even admittedly by the

defendant after the plaintiff was permitted to occupy the plaint

schedule property himself and family shifted to a rented house.

So that itself would go to show that the intention of the first

defendant was to put the plaintiff in possession of the plaint

schedule building in pursuance of the agreement after receiving

Rs.8 lakhs in total towards the sale consideration. It has also

come out in evidence that the plaintiff sold his residential house

prior to this agreement to raise funds. So the contention of the

first defendant that he was a poor physically challenged lottery

vendor and there is unlawful enrichment if the specific

performance is ordered cannot be accepted in this particular

case because plaintiff is not in a better position than the first

defendant.

21. Even though the defendant contended that he entered R.F.A.No.28/2019

into the agreement to sell the plaint schedule property due to his

heavy financial liability with Union Bank of India, State Bank of

Travancore, Canara Bank and Kerala State Financial

Enterprises, apart from the debt due to the K.S.F.E to the tune of

Rs.1,53,000/- alleged to have been cleared by the plaintiff, the

first defendant could not produce any document or other

materials apart from his bald averments in the plaint and his

proof affidavit to prove his financial liabilities to the other banks.

So, in effect, as has been rightly found by the court below, first

defendant could not establish that he agreed to sell the plaint

schedule building out of heavy financial difficulties. It is also to

be noted that in spite of the fact that he received Rs.8 lakhs

towards sale consideration from the plaintiff, he was not even

prepared to clear off the debt due to the K.S.F.E and after the

institution of the suit the plaintiff was forced to clear off the

liability in order to prevent the revenue recovery proceedings

against the plaint schedule property. So that itself would show

the bona fides of the plaintiff. So the contention of the first

defendant that he was forced to sell the plaint schedule property

due to heavy financial liabilities due to various banks etc has

been rightly negatived by the court below.

R.F.A.No.28/2019

22. It is also to be noted that first defendant suppressed the

liability to the K.S.F.E prior to the execution of agreement and

due to that plaintiff filed criminal complaint against him. It is

admitted by DW1 that it is he who dictated the terms of

agreement to DW2 the scribe, inspite of that, liability to the

K.S.F.E has not been revealed in Ext.A1.

23. From the above facts and circumstances, the

contention of the defendant that the court should not have

exercised the discretionary relief in ordering specific

performance is not at all sustainable.

24. Point:No.2:

The next aspect is with regard to the defective title of

the first defendant with respect to the plaint schedule property.

According to the first defendant, he has title over only 5 cents of

property and the rest of the property is Panchayat purambokku

and hence specific performance ordered by the court below

without impleading the Panchayat as a party is illegal and

unsustainable. But in this context the learned counsel for the

plaintiff relies on M.K. Marattukulam v. Hemchand [1988 (2) KLT

166: 1988 (2) KLJ 96: 1988 KHC 402] wherein it has been held

that only parties bound to carry out the agreement to be R.F.A.No.28/2019

impleaded as parties in a suit for specific performance. It is also

held that on the ground that vendors title is defective or that

there are other parties entitled to the property is not at all a

reason to refuse the prayer for specific performance if the

purchaser is willing to take such title vendor has.

25. In Kasturi v. Iyyamperumal & Ors [2005 (6) SCC 733:

AIR 2005 SC 2813 : 2005 KHC 1311] it has been held that

necessary parties in a suit for specific performance of a contract

for sale are the parties to the contract or parties claiming under

them, or a person who had purchased the contracted property

from the vendor with or without notice of the contract.

26. In Gurmit Singh Bhatia v. Kiran Kant Robinson & Ors.

[2020 (13) SCC 773 : AIR 2019 SC 3577 : 2019 KHC 6689] a two

Judge Bench of the Apex Court while dealing with Order 1 Rule

10 of the Code of Civil Procedure, 1908 and impleadment of

parties in a suit for specific performance of contract, it has been

held that third party or stranger to contract are not necessary

parties and cannot be added in suit for specific performance of

contract to sell to find out who is in possession of contracted

property. In that case the appellant sought to be impleaded in a

suit for specific performance as an additional defendant on the R.F.A.No.28/2019

ground that pending the proceedings despite an order of

injunction against alienation or transfer of suit property the

original defendant executed a sale deed in favour of the

appellant and he filed an application during the pendency of the

suit for impleadment as defendant in the suit.

27. In the present case, one of the main contentions of the

learned counsel for the first defendant is that major portion of

the house is situated in purambokku which is vested with the

Panchayat as per Section 218 of the Kerala Panchayat Raj Act,

1994 and hence the Panchayat is a necessary party to the suit.

But, as has been rightly found by the court below, in the

additional written statement filed by the first defendant he has

specifically contended that almost half of the building is situated

in purambokku property and he agreed to sell the schedule

property to the plaintiff and further in the affidavit sworn in by

the first defendant also he admitted that the plaint schedule

property includes purambokku and the procedures in respect of

first defendant's application for assignment of purambokku land

were almost completed. So fully knowing the fact that the plaint

schedule property includes purambokku land also the agreement

was executed. So, even if the plaint schedule property includes R.F.A.No.28/2019

purambokku, as has been held in M.K.Marattukulam, referred

above, if the purchaser is willing to purchase the property with

the defective title, the specific performance cannot be denied for

the defective title of the vendor. So the contention of the learned

counsel for the defendant that the plaint schedule property

includes purambokku land vested with the Panchayat is also not

a ground as has been rightly found by the court below to refuse

the claim of specific performance.

28. Point:No.3:

The next contention advanced by the learned counsel

is with respect to the amendment of the plaint schedule property

effected on 07.02.2015, which, according to him, is beyond the

period of limitation and hence the court below ought not have

allowed the amendment application for amending the plaint

schedule.

29. On verifying the plaint, as rightly contended by the

learned counsel, originally the plaint schedule property has been

described as 5 cents purayidam and the trees standing therein

comprised in old survey No.375/2/1 and resurvey No.121/4/1.

But by the subsequent amendment plaintiff amended the plaint

schedule as 5 cents and excess land and the building MGPW R.F.A.No.28/2019

XII/20A and the improvements and the trees standing therein.

The agreement for sale Ext.A1 was entered into between the

parties on 20.09.2010 with a stipulation to execute the

agreement within six months from the date of agreement.

Obviously that period will expire on 20.03.2011. The period of

limitation for specific performance of Ext.A1 agreement is three

years from 20.03.2011. So obviously the amendment carried out

in the year 2015 is barred by limitation.

30. As per Section 107(2) of the Code of Civil Procedure,

the appellate court has got the same powers and shall perform

as nearly as may be the same duties as are conferred and

imposed by the Code on Courts of original jurisdiction in respect

of suits instituted therein.

31. In this context the learned counsel drew my attention

to Sundara Iyer Sthanunatha Iyer v. Anantharaman Pillai

Chidambaram Pillai [1956 KLT 453] wherein it has been held

while dealing with Section 3 of the Limitation Act that even

though the plea of limitation was not raised in the pleadings the

court is bound to consider the question of limitation. So that

would enable the first defendant to raise the plea of limitation in

allowing the amendment of the plaint schedule which was R.F.A.No.28/2019

introduced after the period of limitation.

32. The learned counsel for the first defendant also relies

on Ragu Thilak D. John v. S. Rayappan & Ors [2001 KHC 1029].

That was a case in which the plaintiff filed a suit for permanent

injunction against the defendants and his agents and

subordinates from demolishing the compound wall in the suit

property and it is alleged that during the pendency of the suit

defendants entered into the plaintiff's house unauthorizedly and

demolished the compound wall. In view of the subsequent

developments appellant filed application for amendment of the

plaint. But the trial court rejected the prayer and revision

petition filed before the High Court was dismissed for the reason

that if it is allowed it would introduce a new case and cause of

action. It is also observed that amendment sought for is barred

by limitation. Against which, the plaintiff approached the Apex

Court and while disposing the same it has been held that

whether the amendment sought would be barred by limitation

and the plea of limitation being a disputed one, can be made

subject matter of the issue after allowing the amendment prayed

for.

33. Learned counsel also relies on Pankaja & Anr. v. R.F.A.No.28/2019

Yellappa (Dead) By LRs & Ors. [(2004) 6 SCC 415] to support the

proposition of law that an application for amendment of

pleadings should not be disallowed merely because it is opposed

on the ground that the same is barred by limitation, on the

contrary application will have to be considered bearing in mind

the discretion that is vested with the court in allowing or

disallowing such amendment in the interest of justice. It is also

held that the plea of limitation being a disputed fact could be

made a subject matter of issue after allowing the amendment

prayed for.

34. So, all the above decisions would only lay down the

proposition that even though the amendment sought would be

barred by limitation the court can allow the amendment and the

plea of limitation can be left open as subject matter of the issue.

So also in Pankaja & Anr. v. Yellappa (Dead) By LRs & Ors. [(2004)

6 SCC 415] the Apex Court quoted T.N. Alloy Foundry Co. Ltd. v.

T.N. Electricity Board & Ors. [(2004) 3 SCC 392]. In paragraph

No.16 of the said judgment the Apex Court held that the

application for amendment of the pleadings should not be

disallowed merely because it is opposed on the ground that the

same is barred by limitation, on the contrary, application will R.F.A.No.28/2019

have to be considered bearing in mind the discretion that is

vested with the Court in allowing or disallowing such

amendment in the interest of justice. So also in Alkapuri Co-

operative Housing Society Ltd. v. Jayantibhai Naginbhai [(2009) 3

SCC 467 : 2009 (1) KLT Suppl. 1232 (SC)] in paragraph 16 it has

been held that the question as to whether an application for

amendment should be allowed inspite of delay and laches in

moving the same, would depend upon the facts and

circumstances of each case wherefor a judicial evaluation would

be necessary. The decision reported in Pankaja has also been

quoted therein. In that decision Sampath Kumar v. Ayyakannu

[(2002) 7 SCC 559] has been quoted in paragraph No.17, which

reads as follows:

"10. An amendment once incorporated relates back to the date of the suit. However, the doctrine of relation-back in the context of amendment of pleadings is not one of universal application and in appropriate cases the court is competent while permitting an amendment to direct that the amendment permitted by it shall not relate back to the date of the suit and to the extent permitted by it shall be deemed to have been brought before the court on the date of which the application seeking the amendment was filed." R.F.A.No.28/2019

35. In this context it is to be noted that the suit has been

filed for specific performance of contract as per Ext.A1

agreement which was produced along with the suit. In Ext.A1

there is specific description of plaint schedule property as

property comprised in re-survey No.121/4/1 and 5 cents and

excess land and the building No.MGPW XII/20A building and

other improvements therein. Originally when the suit was filed

the plaintiff described the plaint schedule property as 5 cents

purayidam and the trees standing therein. It appears that the

resurvey number has also been wrongly shown as 121/4 whereas

in the agreement the resurvey number has been clearly shown as

121/4/1 of Komalapuram Village, Block No.3. So when the court

allowed the amendment sought and amended the plaint schedule

as 5 cents and excess within the boundaries it would relates

back to the date of filing of the suit. Moreover, apart from the

description of the property and extent, there is clear description

of the boundaries of four sides. So even if there is some

difference with regard to the extent originally shown, the

description of boundaries would prevail and that would also be a

clear identification of the plaint schedule property including the

excess land. So the subsequent amendment introduced after the R.F.A.No.28/2019

period of limitation can not be said to have caused any prejudice

to the defendant.

36. In the present case, while allowing the petition for

amendment, learned Sub Judge has not made any specific

direction that the amendment will not relate back to the date of

suit. So naturally the amendment effected would relate back to

the date of suit. So it will not be barred by limitation.

37. An application for amendment of the pleadings is not

to be disallowed on the ground that the same is barred by

limitation. It is well within the discretion of the court to decide

whether inspite of the bar of limitation the proposed amendment

to be allowed to secure the ends of justice. In that event court

can also ensure that no prejudice is caused to the opposite side

in allowing the amendment.

38. Based on the above it is concluded that the trial court

has appreciated the facts and circumstances and evidence

adduced in a correct perspective and there is no reason what so

ever to interfere with the same.

In the result, appeal is found to be devoid of any merit and

hence dismissed with cost. The amount of Rs.3,00,000/ alleged to

have been deposited before the court below by the R.F.A.No.28/2019

appellant/defendant as per the direction of this court shall be

returned to him.

Sd/-

                                        M.R.ANITHA

SHG                                        JUDGE