Madhya Pradesh High Court
Sharad Sharma vs New Krishi Nagar Griha Nirman Samiti on 17 April, 2025
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1
F.A.NO.510/2002
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 17th OF APRIL, 2025
FIRST APPEAL NO.510/2002
SHARAD SHARMA
VS.
NEW KRISHI NAGAR GRIHA NIRMAN SAHKARI SANSTHA MARYADIT,
BHOPAL AND OTHERS
------------------------------------------------------------------------------------------
Appearance:
Appellant by Shri Ravish Agrawal - Senior Advocate with Smt
Sanjana Sahni - Advocate.
Respondent No.12 by Shri Ankit Saxena - Advocate.
None for other respondents.
................................................................................................................................................
Reserved on: 02.04.2025
Pronounced on: 17.04.2025
JUDGMENT
The matter is languishing to see its fate since 2002. Earlier,
Advocate Shri R.D. Hoondikar and Shri Himanshu Rai filed
Vakalatnama on behalf of respondent No.1, but did not appear on behalf
of respondent No.1. Moreso, notices were also issued and served on the
legal heirs of respondents No.4, 5 and 6. Notably, this Court on
28.01.2024 had made it clear that the appeal would be heard on the next
date because the contesting respondent was represented through counsel.
Again, on 28.03.2025, the matter was fixed for hearing in motion stage
for 02.04.2025 under caption 'top of the list' and such order was passed
only because the counsel for the contesting respondent did not appear
when the cases of final-hearing were taken-up and therefore this appeal
was listed in motion stage for bringing this old matter to its logical end.
Unfortunately, Shri Hoondikar breathed his last but still Shri Himanshu
Rai, Advocate should have appeared but he did not. Therefore, this
appeal was heard on 02.04.2025. Albeit, Shri Ankit Saxena, Advocate
appeared for respondent No.12, but he supported the submissions made
on behalf of the appellant.
2. By the instant appeal filed under Section 96 of the Civil
Procedure Code, the appellant-defendant is challenging the validity of
the judgment and decree dated 25.07.2002 passed in Civil Suit i.e. RCS
No.8-A/2001 by learned 11th Additional District Judge, Bhopal.
3. Shri Ravish Agrawal, learned Senior Advocate submitted
that though the issue with regard to limitation was framed, but the court
without considering the facts of the case properly had decided the issue
saying that the suit was within the limitation whereas as per the existing
factual position, the same is apparently barred by time. He has submitted
that from the averments made in the plaint i.e. from paragraphs-10, 11
and 14, it can be clearly seen that the cause of action pleaded in the
plaint starts from 1988 and even otherwise according to him if the date
of filing of suit i.e. 23.04.1991, considered to be the date of cause of
action, the amendment application which had been moved on
25.08.1995 to change the nature of suit and claiming decree for specific
performance of contract, then also it was apparently barred by time
because as per Article 54 of Limitation Act, the suit for specific
performance of contract can be moved within the limitation of three
years from the date of cause of action but it was beyond the said period.
Ergo, the issue decided by the court below with regard question of
limitation and finding given is perverse whereas the suit could have
been dismissed only on the ground of limitation. The second limb of
challenge was that initially the suit was filed by the plaintiff for
declaration and permanent injunction saying that the plaintiff had not
violated any of the terms of the agreement dated 09.07.1988 and as
such, the defendants should be restrained from interfering in the
peaceful possession of the plaintiff and they should also be restrained
from creating any third party interest over the suit property. He has
further submitted that initially the present appellant was not made a
party in the suit, but later on, by way of amendment, a decree for
specific performance of contract was claimed. The court not only
allowed the application, but returned the plaint for its presentation
before the appropriate court because after allowing the amendment, the
particular Civil Court did not have pecuniary jurisdiction to try the said
suit. He has further submitted that application of amendment could not
have been allowed by the Civil Court because allowing the application
would amount to entertaining the suit which is beyond the pecuniary
jurisdiction of the Court. He has also submitted that the plaint was
returned and it was presented before the competent Court having
pecuniary jurisdiction, the same suit cannot be treated to be in
continuation of the earlier suit, but it would be a fresh suit. The
limitation of specific performance of contract has to be treated with the
cause of action mentioned in the fresh plaint. He has submitted that
present appellant was not party in the original civil suit which had been
filed initially before the Civil Judge for declaration and permanent
injunction, but was made the party after filing a fresh suit of specific
performance of contract. According to him, the court below considered
the said suit to be continuation of the suit but not considered the fact
regarding cause of action properly so as to bring the suit within the
limitation. He has submitted that the application for amendment should
not have been allowed by the Court but after receiving the application, it
was obligatory for the Court to return the plaint for placing it before the
competent Court of pecuniary jurisdiction. He has submitted that under
such a circumstance, the impugned judgment and decree passed by the
court below is not sustainable in the eyes of law and deserves to be
dismissed. He has placed reliance upon a decision of Supreme Court
reported in (2020) 12 SCC 667 (EXL Careers and Another Vs.
Frankfinn Aviation Services Private Limited).
4. Shri Ankit Saxena, learned counsel appearing on behalf of
respondent No.12 has supported the submissions advanced on behalf of
the appellant.
5. On the anvil of multifarious submissions made on behalf of
the appellant, I find it apposite to frame certain questions and by
answering those questions it will navigate this Court in reaching to a
definite conclusion, as under:-
(i) Whether the court of Civil Judge before whom the original
civil suit was filed for declaration and injunction was
competent enough to allow the application of amendment? If
yes, then what would be its impact over the suit?
(ii) Whether, the Additional District Judge before whom the
plaint was represented, was right in treating the same to be
continuation of original suit?
(iii) Whether, the court was right in excluding the time taken
by the court in trying the original suit by giving benefit of
Section 14 of the Limitation Act to hold that the suit was well
within limitation?
6. To answer the above questions, it is imperative to engraft
the factual matrix of the case, in a nutshell, as under:-
6.1 A suit was filed on 23.04.1991 by Cooperative Society and
that civil suit was registered as C.S.No.44-A/1991 in the court of IV/XI
Civil Judge, Class-II, Bhopal. The suit was filed for declaration that the
plaintiff has not violated any terms of agreement and also for permanent
injunction restraining the defendants from interfering with possession
and creating any third party right. As per the averments made in the
plaint, an agreement was executed on 09.07.1988 by Shayama Bai to
sell the land in favour of the plaintiff-Society. The suit land was
comprised in khasra No.8 and 9 admeasuring 1.62 and 9.08 acres out of
which 8.08 acres (except 1 acre of Samadhi place) situated at Village
Chuna Bhatti, Tehsil Huzur, District Bhopal. The plaintiff-Society paid
Rs.50,000/- in advance vide cheque No.12029 and the possession of the
suit land was handed over to the Society.
6.2 Another agreement dated 05.08.1988 executed between the
parties containing condition that if unfortunately Shayama Bai dies then
other defendants would execute the sale-deed in pursuance to the
agreement. Shayama Bai died on 14.10.1988 and thereafter defendant-
Sitaram received Rs.5,000/- from the plaintiff on 10.05.1989 and issued
receipt to that extent in favour of the plaintiff.
6.3 The plaintiff repeatedly asked the defendants to get the sale-
deed executed, but they somehow evaded it even after granting the
ceiling permission. According to the plaintiff, the defendants were
deliberately avoiding the execution of sale-deed whereas the plaintiff
was ready to pay the remaining consideration of sale. On 03.04.1991 the
defendants approached the plaintiff asking for the enhancement of the
sale amount, otherwise they would sell the land to some other person.
As such, the suit was filed showing cause of action in paragraph 14 of
the plaint arose on 09.07.1988, 05.08.1988 and also on 16.04.1991,
18.04.1991 and 22.04.1991 when the defendants tried to sell the land to
another person and also tried to dispossess the plaintiff and as such
cause of action arose. Originally the suit was filed on 23.04.1991 with a
cause of action on 03.04.1991 and also on 09.07.1988 and 05.08.1988.
In the said civil suit, a written-statement was filed on 11.01.1993
wherein the averments made in the plaint were denied and it was stated
the defendants have never denied for execution of sale-deed. If
remaining amount of sale consideration had been paid, the sale-deed
would have been executed. It was also denied that the land was being
sold to somebody else and also denied any attempt of dispossession of
the plaintiff.
6.4 An application for amendment was made by the plaintiff on
25.08.1995 before the trial Court in response to the objection raised by
the defendants that the plaintiff should have instituted a suit for specific
performance of contract in place of declaration. By way of amendment,
the plaintiff sought amendment seeking a decree of specific performance
of contract against defendants No.2, 3 and 6 saying that they should be
directed to execute the sale-deed in respect of the land bearing khasra
No.8 and 9 area 9.70 acre and if they fail to do so, a direction be issued
to get the sale-deed executed through the court. Further, it was claimed
that a decree of permanent injunction be passed restraining the
defendants from disturbing the possession of the plaintiff over the suit
land and further sought declaration that sale-deed executed by
defendant-Sitaram and defendant-Sunil in favour of defendant-Sharad
on 13.10.1995 be declared void. The cause of action was shown on
03.04.1991 as has been pleaded in paragraph 11 of the plaint. The
averments made in paragraph 11 are material for answering the
questions raised in this appeal and therefore the purpose of convenience,
it is being reproduced hereinbelow:-
यह कि दिनांक 03-04-91 की प्रतिवादीगण वादी से आकर मिले और कहा कि
वह उक्त भूमि के विक्रय- मूल्य राशि को बढ़ावें अन्
यथा वह किसी अन्
य की उक्त
भूमि को बेंच देंगे ।
Further in paragraph 14 of the plaint, cause of action has been shown,
which is also reproduced hereinunder:-
यहकि वाद कारण दिनांक ०९-०७-८८ , ०५-०८-८८ को अनुबंध पत्र दिनांक २४-०८-
८६ स्वीकृ ति पत्र का प्रतिवादीगण ने निष्
पादन किया तथा दिनांक १०-०५-८९ की
जब प्रतिवादी ने 5000/- रूपये वादी से प्राप्
त किये तथा दिनांक ०३-०४-९१ को जब
प्रतिवादीगण ने भूमि के विक्रय मूल्य को बढ़ाने की बात कही तब १६-०४-९१, १८-
०४-९१ व २२-०४-९१ को जबकि किसी अन्
य को विक्रय करने का व वादी की कब्
जे
की भूमि से बेदखल करने का प्रयास किया उत्पन्
न हुआ है तथा वाद कारण बराबर
जारी है ।
यहकि वादी की प्रतिवादीगण के विरूद्ध विशिष्
ट अनुपालन हेतु अन्
त में वादी कारण
दिनांक २६-०८-९४ को उत्पन्
न हुआ जब प्रतिवादीगण क्र.१ एवं ४ से ९ ने अलग
अलग होकर वादी के पक्ष में विक्रय-पत्र का पंजीयन कराया तथा प्रतिवादी क्र.२ व ३
और ६ ने दिनांक २६-८-९४ को समझाने के पश्
चात भी अवशेष भूमि का विक्रय-पत्र
का पंजीयन कराने से मना कर दिया ।
वाद कारण माननीय न्
यायालय के क्षेत्राधिकार में उत्पन्
न हुआ है माननीय
न्
यायालय वाद श्रवण करने में सक्षम है। .........
7. From the record, it is gathered that the application of
amendment dated 25.08.1995 was allowed by the court on 20.10.1995.
On 04.11.1995, plaintiff preferred an application under Order VII Rule
10A(2). On 09.11.1995, plaint was returned to be presented before the
court having pecuniary jurisdiction. On 15.11.1995, 12 th Additional
District Judge renumbered the suit as C.S.No.17-A/1995. On 20.11.1995
an application under Order I Rule 10 of CPC for making defendant
No.10, the present appellant party was moved. The said application was
allowed on 20.01.1997. A written-statement was filed by defendant
No.10 denying the averments of the plaint. On 25.07.2002, the suit was
decreed. As per Shri Agrawal, the application for amendment could not
have been allowed by the civil court because by way of amendment, the
nature of the suit was being changed, in place of declaration it was
converted into a suit for specific performance of contract and as per the
valuation made. It was apparent that the civil court did not have
pecuniary jurisdiction. As per his submission, the application of
amendment was illegally allowed and the plaintiff was returned the
plaint by the court and the plaint was presented before the Additional
District Judge having pecuniary jurisdiction to entertain the suit for
specific performance of contract. The plaint has been accepted by the
court treating the same to be a continuation of earlier civil suit initially
filed for declaration and permanent injunction, whereas, it was a fresh
suit because after return of the plaint, if it is presented before the
appropriate court having pecuniary jurisdiction, the same should be
treated to be a fresh civil suit. As per Shri Agrawal, the illegality has
been committed because the suit was not maintainable and it could have
been dismissed by the Additional District Judge as it was barred by time.
It was not a fresh suit filed by the plaintiff and it was a suit treated to be
in continuation of earlier suit.
8. At this juncture, it is profitable to go-through the legal
position already set at rest. In case of Amar Chand Inami v. Union of
India, (1973) 1 SCC 115 = AIR 1973 SC 313, the Supreme Court has
also referred the judgment reported in Ramdutt Ramkissen Dass v.
E.D. Sassoon & Co. AIR 1929 Privy Council 103 and has observed as
under:-
"8. It was contended for the appellant that even if
the Karnal Court was not the proper Court in which the
suit should have been filed, the plaintiff was entitled to the
benefit of s. 4 of the Act. Section 4 of the Act provides
that where the period of limitation prescribed for any suit
expires on a day when the Court is closed, the suit may be
instituted on the day the Court re-opens. But, if the Karnal
Court was not the proper Court in which the suit should
have been filed, the plaintiff would not be entitled to the
benefit of Section 4. The decision of the Privy Council in
Maqbul Ahmad and Others v. Pratap Narain Singh and
Others; 62 Ind App 80 = (AIR 1935 PC 85) is an authority
for this proposition. In that case the Privy Council said:
".... the language of Section 4 is such that it seems to their
Lordships to be impossible to apply it to a case like the
present. What it provides is that, where the period of
limitation prescribed expires on a day when the Court is
closed, the application may be made on the day when the
Court reopens. In 'their Lordships' view that means the
proper Court in which the application ought to have been
made......"
If the plaintiff had filed the suit in the trial Court on
March 2, 1959, then, certainly the suit would have been
within time under s. 4, as that was the proper Court in
which the suit should have been filed. As the Karnal Court
had no jurisdiction to entertain the plaint, it was not the
proper Court. The fact that the plaintiff would be entitled
to take advantage of the provisions of Section 14 of (1) 62
I. A. 80. L499 Sup.C.I./73 the Act would not, in any way,
affect the question whether the suit was filed within the
time as provided in Section 4 in the Karnal Court. Section
14 of the Act only provided for the exclusion of the time
during which the plaintiff has been prosecuting with due
diligence another civil proceeding against the defendant,
where the proceeding is founded upon the same cause of
action and is prosecuted in good faith in a Court which,
from defect of jurisdiction, or other cause of a like nature,
is unable to entertain it Even if the plaintiff was entitled to
get an exclusion of the time during which he was
prosecuting the suit in the Karnal and Panipat, the suit
would not be within time as the filing of the suit in the
Kamal Court was beyond the period of limitation. It was,
however, argued by counsel for the appellant that the suit
instituted in the Trial Court by the presentation of the
plaint after it was returned for presentation to the proper
Court was a continuation of the suit filed in the Karnal
Court and, therefore, the suit filed in Kamal Court must be
deemed to have been filed in the trial Court. We think
there is no substance in the argument, for, when the plaint
was returned for presentation to the proper Court and was
Presented in that Court, the suit can be deemed to be
instituted 'in the proper Court only when the plaint was
presented in that Court. In other words, the suit instituted
in the trial Court by the presentation of the plaint returned
by the Panipat Court was not a continuation of the suit
filed in the Karnal Court (see the decisions in Hirachand
Succaram Gandhy and others v. G.I.P. Rly. Co. AIR 1928
Bom 421, Bimla Prasad Mukherji v. Lal Moni Devi AIR
1926 Cal 355, and Ram Kishun v. Ashirbad ILR 29 Pat
699 = (AIR 1950 Pat 478)(3). Therefore, the presentation
of the plaint in the Karnal Court on March 2, 1959, cannot
be deemed to be a presentation of it on that day in the trial
Court."
(emphasis supplied)
Further, in the case of EXL. Careers (supra), also relied
upon on behalf of the appellant, the Supreme Court while dealing with
the similar situation has observed as under:-
"15. Modern Construction (2014) 1 SCC 648, referred to
the consistent position in law by reference to Ramdutt
Ramkissen Dass vs. E.D. Sassoon & Co., Amar Chand
Inani vs. The Union of India, Hanamanthappa vs.
Chandrashekharappa, (1997) 9 SCC 688, Harshad
Chimanlal Modi (II) (supra) and after also noticing
Joginder Tuli (supra), arrived at the conclusion as follows:
"17. Thus, in view of the above, the law on the issue
can be summarised to the effect that if the court
where the suit is instituted, is of the view that it has
no jurisdiction, the plaint is to be returned in view of
the provisions of Order 7 Rule 10 CPC and the
plaintiff can present it before the court having
competent jurisdiction. In such a factual matrix, the
plaintiff is entitled to exclude the period during
which he prosecuted the case before the court having
no jurisdiction in view of the provisions of Section
14 of the Limitation Act, and may also seek
adjustment of court fee paid in that court.
However, after presentation before the court of
competent jurisdiction, the plaint is to be considered
as a fresh plaint and the trial is to be conducted de
novo even if it stood concluded before the court
having no competence to try the same."
Joginder Tuli was also noticed in Harshad Chimanlal Modi
(II) (supra) but distinguished on its own facts."
(emphasis supplied)
In the case of Ramdutt Ramkissen Dass (supra) with
regard to Section 14 of Limitation Act, the Privy Council has
observed under:-
"Where a suit has been instituted in a Court which is
found to have no jurisdiction and it is found necessary
to raise a second suit in a Court of proper jurisdiction,
the second suit cannot be regarded as a continuation of
the first, even though the subject matter and the parties
to the suits were identical."
In view of the above observations, it is clear that after
returning the plaint, if it is presented before another court having
pecuniary jurisdiction to try the suit, the said plaint shall be treated to be
a fresh plaint and the trial has to be conducted denovo. It is worth-
noting that when the application for amendment was moved and
apparently in the said application, relief claimed by the plaintiff could
not have been tried by the said court, the application of amendment
could not have been allowed by the court. Rather, the proper course was
- the trial Court i.e. the court which entertained the suit for declaration
and permanent injunction should have directed the plaintiff to present
the plaint before the appropriate court having pecuniary jurisdiction to
try the same. Therefore, the trial Court has committed illegality in
allowing the application for amendment instead of returning the plaint to
the plaintiff directing him to present it before the appropriate court.
Further, the court of Additional District Judge has committed wrong
treating the suit to be in continuation of earlier suit and decided it
accordingly. Thus, in my opinion not only in allowing the application of
amendment, the court below committed illegality, but the Court of ADJ
which tried the suit for specific performance of contract has also ignored
this material aspect and instead of conducting the suit denovo, tried it as
if it was continuation of earlier suit.
9. The court below has also committed an illegality in deciding
the issue with regard to the limitation saying that the suit was well
within limitation and according to the court, cause of action arose on
26.08.1994 when other co-owners except defendants No.2, 3 and 6 have
executed a registered sale-deed in favour of the plaintiff. The court has
also observed that earlier suit was filed on 03.04.1991 and the time
consumed therein has to be excluded as per Section 14 of Limitation Act
and present suit since filed on 15.11.1995 and from the date of cause of
action, which according to court arose on 26.08.1994, the subsequent
suit filed on 15.11.1995 is well within limitation. Although, this
observation of the court is absolutely illegal and contrary to law because
the cause of action in plaint itself has been shown in paragraphs 11 and
14, as quoted above, and suit filed on 15.11.1995 for specific
performance of contract and as per the cause of action treating it to have
arisen on 13.04.1991, the application of amendment was allowed on
20.10.1995. Even though the said amendment was barred by time as per
Article 54 of the Limitation Act, which provides limitation for three
years for filing a suit for specific performance of contract from the date
of cause of action. Moreover, in the plaint itself, in paragraph 11, the
plaintiff has shown cause of action of somewhere in the year 1988 and
as such bringing the suit for specific performance of contract by way of
amendment, moved on 25.08.1995, was also barred by time. However, it
is already observed by this Court that the plaint presented before the
court on 15.11.1995 cannot be treated to be a suit in continuation to
earlier one, but that had to be tried denovo and the plaint should have
been treated to be a fresh plaint. The court below has wrongly observed
that the benefit of Section 14 of the Limitation Act can be extended in
favour of the plaintiff excluding the period of filing the suit for
declaration and permanent injunction. In my opinion, the suit initially
filed was defective and the benefit of Section 14 cannot be granted
because the said suit was not filed in good faith and it was a suit of
different nature and therefore the plaintiff's claim in view of the
pleadings made in the plaint was apparently barred by time and
therefore the suit should have been dismissed on the ground of
limitation. In the light of view taken by the Privy Council in case of
Ramdutt Ramkissen Dass (supra), the court of Civil Judge tried the
suit had no jurisdiction and therefore the benefit of Section 14 cannot be
granted and time consumed earlier cannot excluded.
Ergo, the finding given by the court below treating the suit
to be within time is contrary to law and not sustainable, thus, the same is
set aside. The Supreme Court in the case of K. Raheja Constructions
Ltd. and another v. Alliance Ministries and others, AIR 1995 SC
1768 = (1995) Supp(3) SCC 17 has clearly observed that the
application under Order VI Rule 17 of CPC filed beyond the limitation
of Article 54 of Limitation Act which provides limitation of three years,
defeated the valuable right of the defendant and said amendment was
not permissible. The observation of the Supreme Court is reproduced as
under:-
"4. It is seen that the permission for alienation is not a
condition precedent to file the suit for specific
performance. The decree of specific performance will
always be subject to the condition to the grant of the
permission by the competent authority. The 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 to elapse 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 accruing to the respondent."
10. In view of the above discourse and in answer to the
questions framed by this Court, I find that initially the suit for
declaration and permanent injunction filed in the year 1991
subsequently amended by way of amendment by filing an application
under Order VI Rule 17 of CPC, although said application was allowed
by the court having no jurisdiction to entertain the same and returned the
plaint, which was presented before the court of ADJ, who tried the suit
in continuation of earlier suit instead of trying the same denovo treating
the plaint as fresh plaint and granted the benefit of Section 14 of the
Limitation Act to the plaintiff, is contrary to law. In view of the
averments made in the plaint showing the cause of action arose on
03.04.1991 or prior to that the suit for specific performance of contract
was apparently barred by time and as such the issue with regard to
limitation has wrongly been decided by the court below, therefore, the
said finding that the suit was within time is not sustainable, is hereby set
aside.
11. Futile would be the exercise to advert to other issues as in
the opinion of this Court, the suit itself was apparently barred by time
and beyond limitation and it ought to have been dismissed.
12. Accordingly, the appeal is allowed. The impugned judgment
and decree dated 25.07.2002 is set aside. The suit filed by the
respondent-plaintiff is dismissed on the ground that the same was
beyond limitation.
13. No order as to costs.
(SANJAY DWIVEDI)
JUDGE
sudesh
SUDESH
SHUKLA
DN: c=IN, o=HIGH COURT OF
MADHYA PRADESH, ou=HIGH
COURT OF MADHYA PRADESH,
KUMAR
2.5.4.20=1d5e479f08e68eda8f9271d
bbe2c4bc3916264aec736f7c5f5885
257f5eeaeb7, postalCode=482001,
st=Madhya Pradesh,
serialNumber=7D462390C18350EF7
SHUKLA C40811B12AB45D82AF1259878762
BAC356DCFA877F02654,
cn=SUDESH KUMAR SHUKLA
Date: 2025.04.17 17:24:03 +05'30'
