Madhya Pradesh High Court
Govind Das vs Smt. Laxmikaushal on 16 May, 2024
Author: Roopesh Chandra Varshney
Bench: Roopesh Chandra Varshney
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ROOPESH CHANDRA VARSHNEY
ON THE 16 th OF MAY, 2024
FIRST APPEAL No. 229 of 2014
BETWEEN:-
GOVIND DAS S/O SHRI KHUMAN SINGH, AGED ABOUT
60 YEARS, OCCUPATION: RETIRED R/O NAKA
CHANDRAVADNI, LASHKAR, GWALIOR (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI K.N.GUPTA SENIOR ADVOCATE WITH AIJAJ GOURI-
ADVOCATE)
AND
SMT. LAXMIKAUSHAL W/O LATE OMPRAKASH
KAUSHAL, AGED ABOUT 70 YEARS, OCCUPATION:
HOUSEWIFE, R/O PREM MEDICAL, DWARIKADHEESH
MANDIR KE SAMNE, KUMHARPURA, THATIPUR,
MORAR, DISTRICT GWALIOR (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI JITENDRA KUMAR SHARMA- ADVOCATE)
Th is appeal coming on for hearing this day, t h e court passed the
following:
ORDER
The appellant/plaintiff has preferred the appeal being aggrieved by the
judgment and decree dated 05/09/2014 passed by the Third Additional District
Judge, Gwalior in Civil Suit No.29-A/2014 whereby the suit for declaration,
injunction and specific performance of contract has been dismissed.
2. The facts of the case, in brief are that the defendant/respondent
executed agreement to sale in favour of the plaintiff/appellant on 15/04/2005 in
respect of the disputed property owned by her through this agreement. The
respondent agreed to sell this property to the plaintiff for a sum of
Rs.3,25,000/- and received Rs.1,60,000/- as advance money from the plaintiff.
It was agreed upon between the parties that the registered sale deed will be
executed within two months and rest amount of consideration will be paid by
the plaintiff at that time. Thereafter, the defendant avoiding and procrastinating.
The execution of the sale deed in favour of plaintiff, started the efforts to sell
the property in dispute elsewhere. When plaintiff came to know about it, he
gave the notice to the defendant and also got it published in the newspaper, but
to of no avail. Hence, prayer is made to make a declaration that the defendant
has no right to sell the disputed property to anyone else except the plaintiff,
injunction be granted in this regard and also specific performance of agreement
to sale be also ordered.
3. The defendant/respondent denied the plaint allegations in her written
statement and averred that the plaintiff has prepared false and fabricated
agreement. She is still in possession of the suit property and has not received
any notice from the plaintiff. The suit deserves to be rejected and hence be
dismissed.
4. The Trial Court while dismissed the suit on the ground of limitation
held the existence of agreement and the payment of part consideration to the
defendant by the plaintiff and the readiness and willingness on the part of
plaintiff to get sale deed executed in his favour.
5. It is submitted by the learned counsel for the appellant that the findings
given by the Trial Court on issue No.8 is against the principles of law. Even no
order has been given by the Trial Court for the refund of money with or without
interest. Much money has been spent by the appellant for the payment of Court
fees and penalty imposed for impounding the document for agreement to sale.
Hence, prayer has been made to set aside the impugned judgment and decree
and also to decree the suit of the appellant.
6. Per contra, the learned counsel for the respondent has supported the
judgment and decree of the Trial Court as it is in consonance with the
provisions of law. He has prayed for the dismissal of appeal.
7. Heard the arguments advanced by the counsels for the rival parties and
perused the record of the Trial Court.
8. It is an admitted fact that the findings given by the Trial Court in favour
of the plaintiff/appellant on issue Nos. 5 to 7 regarding the execution of
agreement to sale, receiving of earnest money by the defendant/respondent and
readiness, willingness on the part of the plaintiff have not been assailed by the
respondent either by cross-objections or separate appeal. Hence, these findings
have become final. The suit for specific performance has been dismissed solely
on the ground that the suit is barred by limitation.
9. It is not in dispute between the parties that initially the suit was filed for
declaration and injunction on 03/10/2005 on the basis of agreement to sell.
During the trial on the observation/ advice by the Court below, in its order dated
30/06/2009 relief of specific performance of the sale agreement dated
15/04/2005 has been added by the plaintiff through amendment in the plaint on
30/07/2009. As per the agreement, the sale deed was to be executed within a
period of 60 days from the date of agreement i.e. 15/06/2005. The Trial Court
has held that the date of institution of the suit for specific performance is
30/07/2009 when such relief was inserted in the plaint and not the date
03/10/2005 when the suit was originally filed for declaration and injunction and
on that basis the suit is time barred as it has been filed after three years as per
the Article 54 of the Limitation Act. In this regard, the reliance has been placed
by the Trial Court on the Judicial Pronouncement (1996) 8 SCC 367 Tarlok
Singh Vs. Vijay Kumar Sabharwal.
10. In the present suit, the plaint already contains the pleadings of
agreement to sale. The valuation of the suit was also made on that basis of prior
to the filing of the suit. The notice has also been given to the defendant for
performing his part of contract i.e. execution of sale deed. Hence, the suit
originally contains all necessary requirements for a suit for specific performance
of agreement to sale. By the amendment dated 30/07/2009 only the relief for
specific performance has been added keeping intact the reliefs originally sought
for. Hence, neither the cause of action has been changed nor any new case has
been set up by the plaintiff through this amendment. Hence, it cannot be held
that the suit has been converted from injunction to one for specific
performance. On the contrary, it can very well be said that through this
amendment the mistake committed by the lawyer has been rectified.
11. It is well settled principle of law that an amendment once
incorporated relates back to the date of the suit unless it is directed by the
Court that the amendment permitted by it shall be deemed to have been brought
before the Court on the date on which the application seeking the amendment
was filed. A reference in this regard made to (i) (2001) 8 SCC 561
Siddalingamma Vs. Mamtha Shoenoy (ii) 2002 AIR (SC) 3369 Sampath
Kumar Vs. Ayyakannu and Another. In the instant case the Trial Court while
permitting the amendment has not given any such direction that it shall not relate
back to the date of the suit or the amendment will be effective from the date of
its incorporation in the plaint. Hence, in the absence of any direction by the
Court to the contrary, amendment seeking the relief for specific performance
will be deemed to have its place in the plaint since the institution of the suit. To
put it differently, it will be deemed that the suit for specific performance has
been filed on 03/10/2005. Hence the suit is within limitation.
12. In the present case, there is no conversion of suit from injunction to
specific performance. The amendment also does not constitute the addition of a
new cause of action not raise a different case but only refers to an additional
relief on the basis of same facts. Hence, the judicial pronouncement Tarlok
Singh (supra) does not help the defendant/respondent in any way but is
distinguishable on the above point. In the instant case, the time was the essence
of contract is another point for consideration.
13. In view of the above discussion, in the considered opinion of this
Court, the suit of the appellant/plaintiff deserves to be decreed in respect of
specific performance of agreement to sale. The Trial Court has committed error
of law in dismissing the suit on the ground of limitation. This appeal is
accordingly allowed and the impugned judgment and decree of the Trial Court
is set aside and the suit filed by the plaintiff/appellant so far as it relates to the
specific performance of agreement to sale succeeded and it is decreed that:-
(i) The defendants/respondent shall execute the registered sale deed of
the disputed property in favour of the plaintiff/ appellant within a period of two
months in compliance of the conditions of agreement to sale dated 15/04/2005.
(ii) The plaintiff shall perform his part of the agreement and shall pay the
rest amount of Rs.1,65,000/- with interest at the rate of 7% per year from the
date of 15/06/2005. He shall also bear all expenses incurred in the execution of
the registered sale deed.
14. Both parties shall bear their own costs. Advocate fees as per rules.
15. Decree shall be framed accordingly.
(ROOPESH CHANDRA VARSHNEY)
JUDGE
Pj'S/-
