Karnataka High Court
Sri. N. Krishnappa vs Sri. R. Dilip Kumar on 17 June, 2020
Equivalent citations: AIRONLINE 2020 KAR 1298, 2020 (3) AKR 578
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17H DAY OF JUNE, 2020
PRESENT
THE HON'BLE MR. JUSTICE ARAVIND KUMAR
AND
THE HON'BLE MR. JUSTICE E.S. INDIRESH
R.F.A.NO.264/2011
BETWEEN:
1. SRI. N. KRISHNAPPA
S/O LATE SRI. NANJAPPA
SINCE DEAD BY HIS LRS.
(1a) SMT. SAROJAMMA
W/O LATE KRISHNAPPA
AGED ABOUT 68 YEARS.
(1b) SRI. K. KUMAR
S/O LATE KRISHNAPPA
AGED ABOUT 47 YEARS
DEFENDANT NO. 1 & 2
RESIDING AT NO.11/14
CAMBRIDGE ROAD
ULSOOR, BANGALORE - 08.
(1c) SMT. K. JAYANTHI
D/O LATE KRISHNAPPA
W/O SRI. A. SRINIVASA
AGED ABOUT 58 YEARS
RESIDING AT 16/1, ESHWARI LAYOUT
INDIRANAGARA, BANGALORE - 08.
(1d) SMT. K. MANJULA
D/O LATE KRISHNAPPA
W/O SRI. N. ANANDA REDDY
AGED ABOUT 55 YEARS
RESIDING AT NO.10
2
LAKSHMAIAH REDDY ROAD
ULSOOR, BANGALORE - 08.
(1e) SMT. K. GAYATHRI
D/O LATE KRISHNAPPA
W/O SRI. LAKSHMANA REDDY
AGED ABOUT 52 YEARS
RESIDING AT NO.100/5
'G' STREET, ULSOOR
BANGALORE - 08.
(1f) SMT. K. BRINDA
D/O LATE KRISHNAPPA
W/O SRI. M. BABU REDDY
AGED ABOUT 49 YEARS
RESIDING AT NO.5/1
ESHWARI LAYOUT, INDIRANAGARA
BANGALORE - 08.
(1g) SMT. BHARATHI
D/O LATE KRISHNAPPA
W/O SRI. S. RAVINDRA REDDY
RESIDING AT NO.15, ESHWARI
LAYOUT, INDIRANAGARA
BANGALORE - 08.
...APPELLANTS
(BY SRI. ZULFIKAR KUMAR SHAFI, ADVOCATE)
AND:
1 SRI. R. DILIP KUMAR
S/O LATE A. RAMACHANDRA RAO
AGED ABOUT 56 YEARS
OCC: BUSINESS.
2 SMT. D. SUCHETHA
W/O SRI. R. DILIPKUMAR
AGED ABOUT 46 YEARS
OCC: HOUSEHOLD.
BOTH ARE RESIDING AT NO.124
(OLD No.3-1), 4TH FLOOR
AASHIRWAD APARTMENTS
3
PALACE CROSS ROAD
BANGALORE - 560 020
...RESPONDENTS
(BY SRI L.S. CHIKKANAGOUDAR, ADVOCATE)
THIS APPEAL IS FILED UNDER SECTION 96 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 16.12.2010
PASSED IN O.S. NO.16831/2001 ON THE FILE OF THE XIII-
ADDL. CITY CIVIL JUDGE, MAYO HALL UNIT, BANGALORE,
DECREEING THE SUIT FOR SPECIFIC PERFORMANCE AND
PERMANENT INJUNCTION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS
DAY, ARAVIND KUMAR J., DELIVERED THE FOLLOWING:
JUDGMENT
This is a defendant's appeal calling in question the judgment and decree passed in O.S.No.16831/2001 whereunder suit filed by the plaintiffs seeking specific performance by directing the defendant to receive the balance sale consideration and execute the sale deed in their favour in respect of the suit schedule property in all measuring 5027.75 sq. ft. has been decreed.
2. The suit initially was filed for the relief of permanent injunction namely to restrain the defendant from interfering with or obstructing plaintiffs' lawful 4 possession and enjoyment of the suit schedule property. Subsequently, prayer came to be amended seeking relief of specific performance and to direct the defendant to receive the balance sale consideration amount and to execute the sale deed in respect of suit schedule property in favour of plaintiffs and in the alternate to direct the defendant to refund double the amount paid towards the agreed sale consideration. Defendant appeared and filed his written statement denying the claim of the plaintiff but admitting the execution of Memorandum of Understanding (hereinafter referred to as 'MOU' in short), Agreement of Sale, supplemental agreements and endorsement made on supplemental agreement dated 17.10.1996.
3. On the basis of the pleadings of the parties learned trial judge framed the following issues for consideration:
5
1) Whether the plaintiffs prove that, they are in lawful possession of the suit schedule property?
2) Whether the plaintiffs prove illegal interference by the defendant?
3) Whether the plaintiffs are entitled to relief of injunction?
4) What decree or Order?
ADDITIONAL ISSUES:
1) Whether the plaintiffs prove that, they were always ready and willing to perform their part of the Agreement and that it is the defendant who has fallen back from the promise?
2) Whether the plaintiffs prove that, they are entitled to the possession of the remaining portion of the suit schedule property, as sought for?
3) In the alternative, in the event of holding that, the plaintiffs are not entitled to a decree for Specific 6 Performance then are they entitled for refund of the amount paid within interest at 30% as sought?
4) Whether the plaintiffs are entitled to the relief sought?
4. In order to substantiate their respective claims first plaintiff got himself examined as PW1 and in all produced 19 documents and got them marked as Exs.P-1 to P-19. Son of the defendant got himself examined as D.W1 in the capacity of General Power of Attorney holder of defendant and 4 documents were got marked as Exs.D-1 to D-4. Learned trial Judge on consideration of the pleadings, evaluating both oral and documentary evidence and after considering the rival contentions raised at the bar, decreed the suit by arriving at a conclusion that there was an agreement entered into between the parties with regard to sale of the suit schedule property and this fact has not been denied by the defendant. It is further held that son of 7 the defendant who came to be examined as DW1 was present at the time of negotiations between the plaintiffs and his father and the fact that his father had agreed to sell the suit property in favour of the plaintiffs had also been admitted by him. It is further held that DW1 after having perused Ex.P-1 has admitted that his father had delivered possession of the property described in the Schedule-II of Ex.P-1 to plaintiffs on the said date. Learned trial Judge also held that DW1 has admitted execution of Ex.P-5 between plaintiffs and defendant on 17.10.1996 after measurement of the property and it was endorsed on 15.10.1999 as per Ex.P-5-a by extending six (6) weeks time for execution of sale deed. It has been further noticed by the learned trial Judge that when DW1 was questioned as to whether defendant was ready to execute the sale deed by receiving balance sale consideration amount at the agreed rate of Rs.630/- per sq.ft. or even more, (DW1) had stated that time had already lapsed and agreement of sale had become 8 infructuous which according to learned trial Judge established defendant was evading execution of the sale deed. On these amongst other grounds, suit came to be decreed. Hence, this appeal.
5. We have heard the arguments of Sriyuths Zulfikar Kumar Shafi, learned counsel appearing for appellants and L.S.Chikkanagoudar, learned counsel appearing for respondents.
6. It is the contention of Sri.Zulfikar Kumar Shafi that suit initially came to be filed on 22.12.2001 for the relief of permanent injunction only and on service of suit summons, defendant had appeared and had filed the written statement on 18.04.2002 whereunder it was specifically pleaded that if plaintiffs are ready and willing to perform their part of the contract as claimed by them, nothing prevented them to file a suit for specific performance of agreement and defendant having denied that plaintiffs were never ready and willing to perform 9 their part of the contract, they could not have added their claim for specific performance after a period of four (4) years after filing the written statement and as such prayer made in the suit was barred by limitation. He would also contend that application for amendment of the plaint came to be filed on 14.02.2005 seeking to add the prayer for specific performance, which was contested by the defendant by filing objections and order passed on 21.07.2005 allowing the said application, was with an observation that question concerning limitation and refund of double the amount was kept open and yet trial court had not framed an issue much-less finding is recorded on the question of limitation and as such judgment and decree passed by the trial court is erroneous and liable to be set aside.
7. He would further contend that at the time of presenting the plaint or filing the suit, an application under Order II Rule 2(3) r/w Section 151 CPC had been filed seeking leave to file the suit for permanent 10 injunction by reserving liberty to claim the relief of specific performance of agreement of sale and said application has not been allowed as evident from the proceedings of trial court and as such application filed for amendment of the plaint, after three (3) years from the date of filing of the written statement was time barred and as such the trial court ought to have framed the issue on the question of limitation and answered it and in the absence of it judgment and decree passed by trial court is not sustainable. He would also contend that agreement of sale and supplemental agreements are dated 15.09.1985, 02.06.1996 and 17.10.1996, based on which the suit for specific performance has been filed. After issuance of legal notice dated 06.03.1998 (Ex.P-6), which was duly replied on 24.02.1999 (Ex.P-14) and even accepting that limitation under Article 54 of the Limitation Act was said to have commenced on issuing reply notice i.e., 24.02.1999, the suit ought to have been filed within three (3) years and undisputedly suit for bare 11 injunction filed on 22.12.2001 was barred by limitation. He would contend without considering these aspects, learned trial Judge has erroneously decreed the suit. He would also contend that there is no evidence whatsoever to arrive at a conclusion that plaintiffs were delivered possession of portion of the suit property namely northern half portion as claimed and as such finding recorded by the trial court in this regard is erroneous and liable to be set aside. Hence, he prays for the judgment and decree passed by trial Court being set aside.
In support of his submissions, he has relied upon following judgments:
(i) (1996) 8 SCC 367:
TARLOK SINGH vs VIJAY KUMAR
SABHARWAL
(ii) AIR 2005 LOC 302 (RAJ):
RANCHOD B. DAS vs L.Rs OF
KANHAIYA LAL
8. Per contra, Sri. L.S.Chikkanagoudar, learned counsel appearing for the respondents has supported the 12 judgment and decree passed by the trial Court. He would contend that knowledge of denial of the execution of the sale deed is attributable to the plaintiffs from the date of filing of the written statement by the defendant, which undisputedly was on 18.04.2002 and application for incorporating the prayer for specific performance was filed on 14.02.2005 within a period of three (3) years from the date written statement was filed. Thus, amendment application which came to be filed and allowed would relate back to the date of institution of the suit and the application for amendment having been filed within three (3) years from the date of denial (as made out in the written statement filed on 18.04.2002), it cannot be gainsaid by the defendant that suit was barred by limitation. He would also elaborate his submission by contending that an application under Order 2 Rule 2(3) seeking leave to file the suit for bare injunction for the present with liberty to seek prayer for specific performance had been filed at the time of presenting the 13 plaint, on which no orders had been passed by the trial court and as such no lapse can be attributed to the plaintiffs or default if any, cannot be laid at the doors of the plaintiffs. Hence, he prays for dismissal of the appeal by confirming the judgment and decree passed by the trial Court. In support of his submissions he has relied upon following judgments:
(i) RSA 555/2005 DTD 05.09.2017:
SHIV SARAN DASS vs
SMT.RAJINDERA DEVI & OTHERS
(ii) 2005 SAR (CIVIL) 906:
S BRAHMANAND & OTHERS vs
K.R.MUTHUGOPAL (D) AND
OTHERS
(iii) CIVIL APPEAL NO.1204/2020 DD
06.02.2020:
VUNDAVALLI RATNA MANIKYAM &
ANOTHER vs V.P.P.R.N PRASADA
RAO
(iv) CIVIL APPEAL NO.4215-
4216/2007 DD 29.10.2014:
INBASEGARAN & ANOTHER vs S
NATARAJAN (DEAD) THR LRs
14
9. Having heard the learned Advocates
appearing for the parties and after perusing the trial Court records and on bestowing our careful and anxious considerations to the rival contentions raised at the Bar, we are of the considered view that following points would arise for our consideration:
(i) Whether judgment and decree passed by the trial court decreeing the suit for specific performance suffers from any infirmity either in law or on facts calling for our interference?
(ii) Whether Court below erred in not appreciating the available evidence on record or there has been non-
consideration of available evidence or erroneous appreciation of evidence?
(iii) Whether suit filed by the plaintiffs for specific performance was barred by limitation?
(iv) Whether Court below was correct in
allowing the application for
amendment of the plaint by permitting 15 the plaintiffs to incorporate additional plea of specific performance?
OR Whether prayer for amendment of the plaint permitted would not relate back to the date of filing of the suit?
(v) Whether plaintiffs have proved their readiness and willingness as per the mandate of Section 16(c) of the Specific Relief Act, 1963?
BACKGROUND OR HISTORY:
10. Before proceeding to adjudicate the points formulated herein above, it would be of benefit to narrate the history or background of the case.
11. The suit schedule property as described in the plaint is comprised of 6 sites carved out of Sy.No.24/5A with a building of 20 squares existing, which is located at Shastri Nagar, Eshwara Layout, Ulsoor, Bangalore city, measuring East to West 59½ feet 16 and North to South 84 ½ feet in all measuring 5027.75 sq.ft. which is a prime locality in the city of Bangalore.
12. It is the specific case of the plaintiffs that defendant had agreed to sell the suit schedule property to the plaintiffs and a memorandum of understanding came to be entered into on 28.03.1995-Ex.P-1 whereunder it was agreed to by the defendant to sell the suit property to the plaintiffs for a valuable consideration of Rs.450/- per sq.ft. and in this regard defendant had received a sum of Rs.19,00,000/- (Rupees nineteen lakhs only) towards part sale consideration under said MOU, Agreement of Sale dated 27.04.1995 - Ex.P-2 and Supplemental Agreements dated 15.09.1995, 02.06.1996 and 17.10.1996 - Exs.P-3 to P-5 respectively. It is also the case of the plaintiffs that a portion of the suit property namely northern half portion which is described as Item No.2 in the Schedule to the MOU-Ex.P-1 came to be delivered. It is the case of the plaintiffs that part sale consideration namely, Rs.19 Lakhs in all had been paid 17 to the defendant as and when demanded and yet defendant had refused to execute the sale deed by receiving balance sale consideration, though at all point of time the plaintiffs were ready and willing to perform their part of the contract and as such they got issued legal notices dated on 06.03.1998 - Ex.P-6, 24.02.1999 -
Ex.P-14 which received the attention of the defendant and as such he had endorsed in the supplemental agreement dated 17.09.1996 on 15.10.1999 as per Ex.P-5(a) by endorsing to the effect the time for execution of sale deed is being extended by six (6) weeks from the said date and also admitting the execution agreement of sale dated 27.04.1995 and subsequent deeds of addendum and supplemental agreements dated 15.09.1995, 02.06.1996 and 17.10.1996, which the defendant failed to perform. It was further contended by the plaintiffs, they are always ready and willing to perform their part of the contract and ready to pay the balance consideration to the defendant and on account 18 of defendant having attempted to demolish the structure standing in suit schedule property, plaintiffs had approached the jurisdictional police to prevent illegal acts of the defendant, who had refused to intervene on account of dispute being civil in nature and having narrated the entire facts in the plaint commencing from the date of execution of Memorandum of Understanding dated 27.04.1995 - Ex.P-1 till the attempted act of building situated in the suit schedule property being demolished on 20.12.2001 and claiming to be possession of northern portion of suit schedule property, they sought for perpetual injunction. In aid of main relief an interlocutory application under Order 39 Rule 1 and 2 CPC to restrain the defendant from interfering with or obstructing either by way of demolition of building in the suit schedule property or plaintiffs' lawful possession and enjoyment was sought for. Another interlocutory application I.A.No.2 under Order 2 Rule 3 CPC was also filed seeking leave of the Court to file the suit for 19 permanent injunction by reserving liberty to file the suit for specific performance against the defendant. The learned trial Judge by order dated 22.12.2001 ordered for status quo to be maintained till next date of hearing or till appearance of the defendant. The interim order so granted came to be extended from time-to-time.
13. On service of suit summons defendant appeared and filed his written statement on 18.04.2002 whereunder he admitted to have agreed to sell the suit schedule property but not @ Rs.450/- per sq.ft. as claimed by plaintiffs but @ Rs.630/- per sq. ft. as specified in Ex.P-1 to P-5 and P-13. It was also contended that as per the total lsale consideration so agreed, defendant had to receive balance consideration of Rs.17 Lakhs and not Rs.4,56,594/- as claimed by the plaintiffs. Defendant also admitted that he had received permission/clearance from the Income Tax Department on 26.03.1998 in Form No.34A (Ex.P-12) to sell the suit schedule property in favour of plaintiff. However, it was 20 pleaded by the defendant that plaintiffs were never ready and willing to pay the balance sale consideration and get the sale deed registered in their names. Defendant specifically contended that plaintiffs were never put in possession of any portion of the suit property. Subsequent to application for amendment filed by plaintiffs to include the prayer for specific performance being allowed on 21.07.2005, additional written statement came to be filed by the defendant contending interalia that as on the date of filing the suit claim for specific performance was barred and so also the prayer for refund of the double the amount specified in the agreement of sale. It was further pleaded that amendment of the plaint cannot relate back to the date of the suit. Turning down the contentions, suit came to be decreed.
DISCUSSION AND FINDING ON POINT NOS.(i) & (ii):
14. These two points relates to the correctness or otherwise of the judgment and decree passed by trial 21 court and the findings recorded on the issues framed. These two points being interlinked and opinion expressed by this Court on the same would overlap, they are taken up together for consideration.
15. The son of the defendant had entered the witness box as power of attorney holder of his father and he came to be examined as DW1. Though he has reiterated the plea put forward in the written statement, he has admitted in his evidence that negotiations had taken place between first plaintiff and his father, whereunder, defendant had agreed to sell suit schedule property in favour of plaintiffs resulting in MOU dated 28.03.1995 - Ex.P-1 being entered into, including addendums/Supplementary Agreements as per Exs.P-3 to P-5, receipt of Rs.19 lakhs as advance amount, delivery of possession of portion of suit schedule property. His admission reads:
"3) I am aware that my father has agreed to sell the suit schedule property to the plaintiff no.1. I was 22 present at the time of negotiations of the said transaction. But I did not participate in the negotiations. I am aware that my father and plaintiff no.1 have entered in MOU for the sale of the Suit Schedule property. It was executed 1 or 2 months prior to executing of the agreement of sale. It is true that MOU was executed on 28-3-
95. Now ex.p.1 MOU is shown to me, on going through the document I state that I have not signed the same. I was present when the said MOU was executed by my father. It is true that on that day plaintiff no.1 has paid Rs.25 thousand to my father towards advance. The sale consideration was agreed RS. 630 per sq. ft. It is not true to suggest that on the date of execution of ex.p.1 my father has delivered the portion of the Suit Schedule property on the northern side to the plaintiff no.1.
4) Now, I have gone through para 3 of ex.p.1. I admit the contents of para No.3 & that my father has delivered possession of the property described in schedule 2 of ex.p.1 to the plaintiff no.1 on that day. It is true that on the basis of MOU Ex.p.1 agreement of sale was executed on 27-4-95 as per Ex.p.2 and Ex.d.2. It is true that plaintiff no.1 has paid Rs.25 thousand under Ex.p.1 and Rs.10 lakhs under Ex.p.2 towards advance to my father. It is true that it was agreed my father has to furnish khata and other Revenue document to show his title and will 6 months date the regular Sale deed was to be executed.
23
5) It is true that one Smt. Amba xxx sale agreement Ex.p.2. It is true that my father has executed supplementary agreement in favour of plaintiff no.1 on 15-9-95 as per Ex.p.3. It is true that under ex.p.3 my father has received further sale consideration amount of Rs.2 lakhs from plaintiff no.1. It is true that on 2-6-96 my father has executed another supplementary agreement in favour of plaintiff no.1 as per ex.p.4 by receiving Rs.3 lakh 25 thousand.
It is true that on 17-10-96 my father has executed another supplementary agreement in favour of plaintiff no.1 as per Ex.p.5 by receiving further advance of Rs.5 lakhs. It is true that on the date of execution of ex.p.5 xxxx 6 weeks time for executing the Sale deed. It is true that as on 15-10-99 my father had received advance amount of Rs.19 lakhs from plaintiff no.1. It is true that as on 15-10-1999 xxx as per ex.p.7 on 20th 98.
6) It is true that whenever property has to be sold the seller has to obtain certificate U/S 230(a)(1) of Income Tax Act. It is true that accordingly my father had applied for certificate on 9- 3-98 as per ex.p.12. It is true that the income tax department had issued the permission on 26-3-98. It is true that along with the application draft Sale deed has to be submitted to the income tax department. It is true that my father has submitted to the income tax department that has agreed the sell the Suit Schedule Property to 24 the plaintiff no.1 at the rate Rs. 450 per sq.ft."
(Emphasis supplied by us)
16. The above admissions of the DW1 in his evidence would clearly indicate that defendant has admitted execution of MOU, agreement of sale, supplementary agreements of sale - Exs.P-1 to P-5, endorsement dated 15.10.1999 as per Ex.P-5(a), receipt of a sum of Rs.19 Lakhs in all towards part of sale consideration and northern portion of suit schedule property namely the property described as Item No.II in MOU dated 28.03.1995 - Ex.P-1 having been delivered to first plaintiff. It is in this background learned trial Judge has rightly held that plaintiffs had proved execution of agreement of sale of suit schedule property in their favour, being in lawful possession of portion of the suit schedule property; and have always been ready and willing to perform their part of the contract. Hence, Issue Nos.1, 2 and Additional Issue No.1 came to be 25 answered in the affirmative. We are of the considered view that findings recorded by the Court below on the aforesaid issues does not suffer from any infirmity either in law or on facts calling for our interference. We are also of the view that evidence tendered by the parties has been rightly appreciated and delved upon by the trial court in this regard. Hence, we answer point Nos.(i) and
(ii) in the negative i.e., against the appellants - defendants and in favour of respondents-plaintiffs and we affirm the same.
RE: POINT Nos.(iii) & (iv):
17. The suit in question has been filed for specific enforcement of Agreement of Sale dated 27.04.1995 - Ex.P-2, Supplemental Agreements dated 15.09.1995 - Ex.P-3, 02.06.1996 - Ex.P-4, 17.10.1996 - Ex.P-5 and 24.02.1997 - Ex.P-13. On account of certain developments having taken place, it resulted in defendant endorsing on Ex.P-5 on 15th October, 1999 as per Ex.P-5(a) to the effect that time for execution of sale 26 agreement was being extended by defendant by six (6) weeks. This fact is also admitted by D.W.1 in his cross- examination dated 14.10.2009 to the following effect:
"5) It is true that one Smt.Amba xxx price was fixed Rs.630 per sq.ft.
It is true that there is an endorsement on the back side of page no.2 in ex.p.5 which is separately marked as ex.p.5(a).
Ex.p.5(c) is my signature. Ex.p.5(b) is the signature of my father. It is true that said endorsement was executed on 15.10.1999 extending 6 weeks time for executing the sale deed. It is true that as on 15.10.1999 my father had received advance amount of Rs.19 lakhs from plaintiff no.1. It is true xxx sent a telegram as per ex.p.7 on 20th 98."
(Emphasis supplied by us)
18. The suit in question came to be filed on 22nd December, 2001 seeking relief of permanent injunction along with two Interlocutory Applications, viz. (i) under Order XXXIX Rules 1, 2 and 3 of the Code of Civil Procedure; and (ii) under Order II Rule 2(3) read with Section 151 of the Code of Civil Procedure, whereunder 27 plaintiffs sought permission of the Court to file the suit for the relief of judgment and decree of permanent injunction against the defendant from interfering with their possession of suit schedule property and they also sought for liberty to claim the relief of specific performance at a later stage. In the affidavit filed in support of said application, at paragraph 3, it was specifically stated to the following effect:
"3. I state that we ought to have sought the relief of specific performance of agreements of sale in the present suit, but we could not claim the said relief in view of the fact that there is immediate danger to the suit schedule property, in as much, as, defendant herein has commenced the demolition illegally of the suit schedule property which should be prevented and restrained immediately and that there is every possibility of defending coming to terms for which we are trying our lever best to explore the possibility with the help of elders and well-
wishers and, therefore, the said relief of specific performance is presently not claimed and deferred presently. Hence the accompanying application for prayer sought therein."28
19. The records of the trial Court disclose that aforesaid application was not disposed. In other words, neither the application has been allowed nor rejected.
The fact remains that plaintiffs had sought for leave of the Court to file the suit for bare injunction without seeking prayer for specific performance. Order II Rule 2 CPC only prevents the splitting up of the claims. It is directed against two evils, the splitting of claims and the splitting of remedies. Granting or refusing to grant leave to sue was within the domain of the trial Court. For reasons best known, said application was not disposed of as already noticed hereinabove. On account of lapse of the Court, if any, parties cannot be made to suffer. In the event of application having been dismissed, plaintiffs might have challenged the same. If answer to this question is yes, then, contours of this appeal itself would have changed on account of order of rejection of aforesaid application having not been challenged by the 29 plaintiffs. However, such a situation has not arisen in the instant case and as such, we would not go into said aspect at all.
20. The defendant has been contending before this Court that even on the date of filing the suit for bare injunction on 22.12.2001, right of the plaintiffs to seek specific performance had become time barred; and subsequent amendment of the plaint to add the prayer for specific performance was barred by limitation and even otherwise, amendment of plaint permitted would not relate back to the date of filing of the suit and these aspects having not been considered by the trial court by raising a specific issue and as such it has resulted in great prejudice to the defendant. It is specifically contended that application for amendment having been filed beyond three (3) years from the date of filing of the suit, prayer for amendment of plaint to seek specific performance ought to have been rejected by trial court.30
Hence, these contentions are examined by us in this appeal by re-appreciating the entire evidence.
21. A suit for specific performance of contract can only be founded on a contract. Article 54 of the Limitation Act, 1963, prescribes the period of limitation for filing a suit for specific performance as three (3) years and said three (3) years time would begin to run as indicated in column No.3. Article 54 reads as under:
Description of Period of Time from
suit limitation which period
begins to run
54. For specific Three years The date fixed
performance of a for the
contract. performance, or,
if no such date
is fixed, when
the plaintiff has
notice that
performance is
refused.
22. A plain reading of the above provision would indicate that a suit for specific performance has to be filed within three (3) years from the date fixed for the 31 performance and if no such date is fixed, when the plaintiff has notice that performance is refused. Where there is no date stipulated for performance and performance has been denied by the defendant, then question that would arise as to when limitation starts. It would commence from the date plaintiff had notice of the performance having been refused. In other words, the limitation of three years would commence or begin to run from the date on which the three years fixed under the agreement would lapse or from the date on which the plaintiff had notice of the performance having been refused. It is in this background the contentions of the parties requires to be examined by us.
23. As already noticed hereinabove in the instant case the defendant has admitted the execution of MOU, the agreement of sale, the supplemental agreement of sale and the endorsement made extending the time for execution of the sale deed as per Exs.P-1 to P-5, P-5(a) and Ex.P-13. In fact, we have already extracted the 32 relevant admissions of DW1 whereunder he has in unequivocal terms admitted the execution of these documents by his father.
24. The trial court records reveal the suit which came to be filed on 22.12.2001 was only for bare injunction and written statement came to be filed on 18.04.2002 admitting execution of MOU agreement of sale and supplemental agreements - Exs.P-1 to P-5, P-
5(a) and P-13. Defendant has contended that as on the date of filing of the suit i.e., 22.12.2001 itself claim of the plaintiffs to seek specific performance had stood barred on the ground that sale agreement is of the year 1995 and suit is filed in the year 2001 and three (3) years had lapsed. In the instant case, time was not the essence of contract. The very fact that parties have entered into supplemental agreements and defendant had executed the supplemental agreements by extending the time is a complete answer to the proposition that time was not the essence of contract. The last endorsement which came 33 to be made by the defendant extending the time was on 15.10.1999 as per Ex.P-5(a). Even for a moment, if the time of three (3) years is said to have commenced from 15.10.1999, it would end on 14.10.2002. In other words, plaintiffs had a right to sue the defendant for the relief of specific performance upto 14.10.2002. As such the suit which came to be filed on 22.12.2001 cannot be held as time barred. It requires to be noticed at this juncture itself that at no point of time the defendant has denied that the execution of agreement of sale, supplemental agreements namely, Exs.P-1 to P-5 and P-
13 had lapsed or he would not execute the sale deed in favour of plaintiffs pursuant to the said agreements.
However, on account of defendant for first time having raised a plea in the written statement filed on 18.04.2002 to the effect that agreements of sale had become infructuous as plaintiffs had failed to perform their part of the contract and plaintiffs were never put in possession of the suit schedule property and defendant 34 had continued in possession of the suit property, it necessitated the plaintiffs to file an interlocutory application on 14.02.2005 for amendment of the plaint to incorporate the prayer for specific performance. Thus, it requires to be examined as to whether the right of the plaintiffs to seek specific performance existed as on the date of filing of the application for amendment. The above said interlocutory application has been perused by us including the affidavit filed in support of said application whereunder at paragraph 4 of the affidavit it is specifically pleaded by the plaintiffs that defendant herein for the first time in unambiguous terms had refused to execute the sale deed in respect of the suit schedule property on the ground that said agreement has become infructuous. It was also specifically pleaded by the plaintiffs that for the first time in the written statement filed on 18.04.2002 defendant had raised such a plea. Hence, contending they came to know that performance was refused by the defendant, amendment 35 of the plaint was being sought to incorporate the relief of specific performance, contending their prayer falls within second part of Column No.3 of Article 54 of the Limitation Act, 1963. Said application came to be opposed by the defendant by filing objections and contending interalia that claim for specific performance of agreement of sale is barred by limitation and valuable right accrued to the defendant cannot be taken away.
25. In this background, when we have a relook to the facts on hand, it would disclose that learned trial Judge while allowing the application for amendment filed by plaintiff by order dated 21.07.2005 has opined as under:
"IA filed by plaintiff under Order VI Rule 17 CPC is allowed. However, the question concerning limitation so far as the relief of specific performance and so far as refund of double the amount are kept open. Amendment is allowed without prejudice to the rights of the defendant."
(emphasis supplied by us) 36 Thus, trial court by aforesaid order, kept open the question concerning limitation, insofar as the relief of specific performance and refund of double the amount claimed by the plaintiffs from defendant. In other words, application for amendment came to be allowed without prejudice to the rights of the defendant. To put it differently, right of the defendant to raise the issue of limitation was kept intact.
26. It is no doubt true that a distinct issue regarding limitation was not framed by the trial court. However, on account of parties being ad-idem on this issue and having tendered evidence subsequent to the amendment being allowed and arguments on behalf of the respective parties having been canvassed, same came to be examined, adjudicated and the plea of limitation has been answered by the trial court vide paragraphs 10 and 11 of the judgment, whereunder it has been held that prayer for specific performance was not barred by 37 limitation. We affirm the said finding for the reasons indicated herein below.
27. At no point of time the defendant had refused to execute the sale deed. The parties are ad-idem on the issue of execution of Exs.P-1 to P-5 and P-13. It could be of benefit to note that a memorandum of understanding - sale agreement as per Ex.P-1 came to be entered into between the parties, whereunder defendant agreed to sell the suit schedule property to the defendant for consideration of Rs.630/- per sq.ft. Under the said agreement vide Clause 3 the defendant - vendor has delivered portion of the suit schedule property namely, northern half portion. It was agreed thereunder that a regular agreement of sale would be entered into between the parties. Pursuant to the same a sale agreement was entered into between the parties on 27.04.1995 as per Ex.P-2 and it was stated that within 60 days from the date of vendor - defendant notifying the purchaser plaintiff about perfecting of title by obtaining 38 khatha and other relevant documents, the sale transaction would be completed. An addendum came to be entered into between parties on 16.09.1995 as per Ex.P-3 whereunder time came to be extended by six months for executing the sale deed. Again on 02.06.1996 another addendum as per Ex.P-4 came to be entered into between the parties, extending the time for execution of sale deed by four months. Thereafter, one more addendum came to be entered into between the parties on 17.10.1996 as per Ex.P-5, whereunder the execution of earlier agreements/addendums/ supplemental agreements came to be confirmed including the receipt of Rs.14 lakhs by the defendant as on the said date. In the meanwhile, the purchaser has got issued a legal notice on 26.09.1996 (not produced before trial court by either of the parties), as a result of which there were discussion between the plaintiffs and defendant resulting in addendum as per Ex.P-5 being entered into between parties. Apart from defendant 39 receiving additional sum of Rs.4 lakhs under Ex.P-5, it was agreed by both the parties, that time schedule for execution of the sale deed would be five months from the date balance consideration is arranged by the plaintiffs payable to the defendant and subject to defendant procuring NOC/permission from Urban Land Ceiling Authorities and Income Tax Clearance Certificate. Defendant could not obtain NOC/permission from Urban Land Ceiling Authority and also Income Tax Clearance Certificate in respect of half portion (northern portion of suit schedule property, which was agreed to be sold under Ex.P-5), yet another addendum to supplemental agreement dated 17.10.1996 was entered into between parties on 24.02.1997 as per Ex.P-13, whereunder the defendant received additional sum of Rs.1 lakh and it was further agreed between the parties that balance sale consideration would be paid by the plaintiffs to defendant within a period of 75 days and when only the vendor by that time procures the requisite 40 NOC/permission from Urban Land Ceiling Authority and Income Tax Clearance Certificate.
28. On account of defendant having not taken steps as agreed to under Exs.P-5 and P-13, plaintiffs got issued a legal notice on 06.03.1998 as per Ex.P-6 and immediately on receipt of said notice, defendant applied for Income Tax Clearance Certificate on 09.03.1998 as required under Section 230A(1) of Income Tax Act, 1961 and the Income Tax Clearance Certificate came to be issued on 26.03.1998 vide Ex.P-12. However, according to plaintiffs, defendant did not come forward to execute the sale deed by receiving the balance sale consideration. Hence, plaintiffs got issued telegraphic legal notice on 20.08.1998 as per Ex.P-7. It is thereafter plaintiffs got issued yet another legal notice on 24.02.1999 - Ex.P-14 calling upon the defendant to receive balance sale consideration and to execute the sale deed. Same was duly acknowledged by the defendant and thereafter on 15.10.1999 defendant endorsed on Ex.P-5 as per 41 Ex.P-5(a) undertaking to execute the sale deed along with his son within six (6) weeks by reiterating the terms and conditions of agreement of sale dated 27.04.1995 - Ex.P-2 and subsequent deeds of addendum and supplemental agreements dated 15.09.1995, 02.06.1996 and 17.10.1996 (Exs.P-3 to P-5). Defendant also admitted that he had executed a Gift deed in favour of his son and as such, he would be executing the sale deed along with his son as per the terms and conditions of agreement within six weeks from the date of said endorsement.
29. It is the specific case of the plaintiffs that when things stood thus, defendant and his son (D.W.1) were promising to execute the sale deed but went on postponing the same and suddenly during December, 2001 had indulged in demolishing the existing structure in the suit schedule property. On this ground, suit for bare injunction along with two interlocutory applications namely, one under Order 39 Rules 1 and 2 42 CPC seeking temporary injunction in aid of the main relief and another under Order 2 Rule 2(3) CPC seeking liberty to claim relief of specific performance of agreement of sale came to be filed. In the written statement that came to be filed on 18.04.2002, for the first time defendant raised the plea of agreement of sale having become infructuous. At this juncture, if we look at the order dated 02.07.2005 which came to be passed on amendment application, we find that trial court had kept open issue of limitation. Thus, both parties being conscious of this fact and with their eyes wide open had gone for trial and tendered their evidence in support of their respective claims. P.W.1 has deposed that after endorsement dated 15.10.1999 as per Ex.P-5(a) came to be made by the defendant and his son, they were under the hope that defendant along with his son would execute the sale deed by receiving balance sale consideration which he did not do. It is also deposed by P.W.1 that on 20.12.2001 at about 12.00 noon, he 43 visited the suit schedule property and found that defendant's daughter along with their henchmen was indulging in demolition of existing structure and when questioned, the rowdy elements who had accompanied her had threatened him. It is also deposed by P.W.1 that for the first time when written statement was filed on 18.04.2002 defendant had denied having put plaintiff in possession of suit schedule property and also denied his liability to execute the sale deed. Though, P.W.1 has been cross examined at length, nothing worthwhile has been elicited from P.W.1 on the issue of limitation. In fact, there is not even a suggestion denying the plaintiff's claim. Whereas, D.W.1 has admitted in his cross examination dated 27.10.2009 that defendant had not issued any notice to the plaintiffs calling upon them to pay the balance consideration. However, D.W.1 has deposed that he had orally informed the plaintiffs that they should pay the balance sale consideration and get the sale deed registered. Except the self serving 44 testimony of D.W.1, no evidence has been tendered by the defendant about any demand having been made by him to the plaintiffs calling upon them to pay the balance sale consideration. The sequential events commencing from execution of Exs.P-1 to P-5 and P-13 as well as endorsement dated 15.10.1999 - Ex.P-5(a) would clearly indicate that at no point of time, defendant had informed the plaintiffs that he would not execute the sale deed. On the other hand, evidence on record would indicate, defendant went on taking time for executing the sale deed, that too, by receiving further advance amounts. It is only on 18.04.2002 in the written statement filed, defendant denied his liability to execute the sale deed in favour of plaintiffs. In other words, refusal on the part of defendant to execute the sale deed came to the knowledge of plaintiffs only when written statement was filed on 18.04.2002 whereunder defendant refused to execute the sale deed. Thus, plaintiffs had notice of performance being refused by 45 defendant only on 18.04.2002 and as such, second part of Article 54 would get attracted. Till said date, plaintiffs had no knowledge about defendant having refused to execute the sale deed. On the other hand, the conduct of the defendant commencing from the date of execution of MOU dated 28.03.1995 - Ex.P-1 till the plaintiffs filed the suit on 22.12.2001 would disclose that defendant has been receiving further amounts of sale consideration and on one pretext or other went on executing addendum or supplemental agreements to MOU - Ex.P-1 and agreement of sale - Ex.P-2, as per Ex.P-3 to P-5, Ex.P-5(a) and Ex.P-13. In this factual scenario, the issue of limitation has been examined.
30. The Hon'ble Apex Court in K. RAHEJA CONSTRUCTIONS LTD. & ANR. V. ALLIANCE MINISTRIES & ORS., reported in 1995 Supp. (3) SCC 17, has held that a belated application to amend the plaint seeking incorporating the prayer for specific performance of the contract in a suit for permanent 46 injunction after seven years from the date of filing of such suit, is to be turned down as the valuable right accrued to the defendant would be defeated. It has been held:-
"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." [at para 4]"
31. The Hon'ble Apex Court in SAMPATH KUMAR vs. AYYAKANNU AND ANR. Reported in (2002) 7 SCC 559 = AIR 2002 SC 3369, was examining as to whether an application for amendment made 11 years 47 after the date of institution of the suit to convert through amendment a suit for permanent prohibitory injunction into a suit for declaration of title and recovery of possession and held:-
"In our opinion, the basic structure of the suit is not altered by the proposed amendment. What is sought to be changed is the nature of relief sought for by the plaintiff. In the opinion of the trial court, it was open to the plaintiff to file a fresh suit and that is one of the reasons which has prevailed with the trial court and with the High Court in refusing the prayer for amendment and also in dismissing the plaintiff's revision. We fail to understand, if it is permissible for the plaintiff to file an independent suit, why the same relief which could be prayed for in a new suit cannot be permitted to be incorporated in the pending suit. In the facts and circumstances of the present case, allowing the amendment would curtail multiplicity of legal proceedings. Order 6 Rule 17 CPC confers jurisdiction on the court to allow either party to alter or amend his pleadings at any stage of the proceedings and on such terms as may be just. Such amendments as are directed towards putting forth and seeking determination of the real questions in controversy between the parties shall be 48 permitted to be made. The question of delay in moving an application for amendment should be decided not by calculating the period from the date of institution of the suit alone but by reference to the stage to which the hearing in the suit has proceeded. Pre-trial amendments are allowed more liberally than those which are sought to be made after the commencement of the trial or after conclusion thereof. In the former case generally it can be assumed that the defendant is not prejudiced because he will have full opportunity of meeting the case of the plaintiff as amended. In the latter cases the question of prejudice to the opposite party may arise and that shall have to be answered by reference to the facts and circumstances of each individual case. No straitjacket formula can be laid down. The fact remains that a mere delay cannot be a ground for refusing a prayer for amendment. 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 on which the application 49 seeking the amendment was filed.
(See observations in Siddalingamma v. Mamtha Shenoy [(2001) 8 SCC 561] .) In the present case the amendment is being sought for almost 11 years after the date of the institution of the suit. The plaintiff is not debarred from instituting a new suit seeking relief of declaration of title and recovery of possession on the same basic facts as are pleaded in the plaint seeking relief of issuance of permanent prohibitory injunction and which is pending. In order to avoid multiplicity of suits it would be a sound exercise of discretion to permit the relief of declaration of title and recovery of possession being sought for in the pending suit. The plaintiff has alleged the cause of action for the reliefs now sought to be added as having arisen to him during the pendency of the suit. The merits of the averments sought to be incorporated by way of amendment are not to be judged at the stage of allowing prayer for amendment.
However, the defendant is right in submitting that if he has already perfected his title by way of adverse possession then the right so accrued should not be allowed to be defeated by permitting an amendment and seeking a new relief which would relate back to the date of the suit and thereby depriving the defendant of the advantage accrued to him by lapse of time, by excluding a period of 50 about 11 years in calculating the period of prescriptive title claimed to have been earned by the defendant. The interest of the defendant can be protected by directing that so far as the reliefs of declaration of title and recovery of possession, now sought for, are concerned the prayer in that regard shall be deemed to have been made on the date on which the application for amendment has been filed." [at paras 7, 9, 10 and 11]
32. Hon'ble Apex Court in the matter of ABDUL REHMAN & ANOTHER vs MOHD. RULDU & OTHERS reported in 2012 AIR SCW 5419 has held when a plea is raised that amendment sought for is time barred it will have to be decided on facts of each case. It has been held that if relief sought by way of amendment by the plaintiffs could be claimed by them by way of a separate suit and on the date of filing of such application for amendment, the suit would be maintainable or in other words, it would not be barred by limitation and would be within the time prescribed under Article 54 of the 51 Limitation Act. In such circumstances, application deserves to be allowed.
33. Hon'ble Apex Court in the matter of PANKAJA & ANOTHER vs YELLAPPA (DEAD) BY LRs AND OTHERS reported in (2004)6 SCC 415 has held there is no absolute bar for rejection of the application for amendment on the ground of limitation, if the basic facts are already laid in the plaint. It has been further held that if such delay has extinguished the right of the party, the judicial discretion will have to be exercised on evaluating the facts obtained in a given case. It is further held:
"13. But the question for our consideration is whether in cases where the delay has extinguished the right of the party by virtue of expiry of the period of limitation prescribed in law, can the court in the exercise of its discretion take away the right accrued to another party by allowing such belated amendments?
14. The law in this regard is also quite clear and consistent that there is no absolute rule that in every case where a relief is barred because of limitation an amendment should not be allowed.52
Discretion in such cases depends on the facts and circumstances of the case. The jurisdiction to allow or not allow an amendment being discretionary, the same will have to be exercised on a judicious evaluation of the facts and circumstances in which the amendment is sought. If the granting of an amendment really subserves the ultimate cause of justice and avoids further litigation the same should be allowed. There can be no straight jacket formula for allowing or disallowing an amendment of pleadings. Each case depends on the factual background of that case."..
34. Hon'ble Apex Court in its authoritative pronouncement in the matter of RAJESH KUMAR AGGARWAL & OTHERS vs K.K.MODI & OTHERS reported in (2006)4 SCC 385 has held that if the basic structure of the suit is not changed, such amendment deserves to be allowed. It has been held:
"17. In our view, since the cause of action arose during the pendency of the suit, proposed amendment ought to have been granted because the basic structure of the suit has not changed and that there was merely change in the nature of relief claimed. We fail to understand if it is permissible for the appellants to file an independent suit, why the same relief which could be prayed for in the new suit 53 cannot be permitted to be incorporated in the pending suit."
35. Hon'ble Apex Court under identical circumstances, in the matter of L.C.HANUMANTHAPPA (SINCE DEAD) REP. BY HIS LEGAL REPRESENTATIVES vs H.B.SHIVAKUMAR reported in (2016)1 SCC 332 has held that if the amendment sought for is barred by limitation as on that date, then question of allowing the application would not arise and it has been further held that if there is no reference in the order allowing the application, to the effect that in a given case, it would warrant non-application of doctrine of relation back, then it cannot be gainsaid by the party opposing the application that amendment allowed should be construed as from a prospective date. It has been held by Hon'ble Apex Court to the following effect:
"20. It is clear that this case belonged to an exceptional class of cases where despite the fact that a legal right made accrued to the defendant by lapse of time, yet this consideration was outweighed by the special circumstances of the case, namely, that no new material fact needed to be added at all, and only an 54 alternative prayer in law had necessarily to be made in view of the original plea in law being discarded."
36. Keeping in mind the above referred authoritative principles enunciated by the Hon'ble Apex Court, it requires to be examined in the instant case as to whether the application for amendment of plaint sought for by the plaintiffs to add the prayer for specific performance was barred by limitation as prescribed under Article 54 of the Limitation Act?
37. In the addendum and supplemental agreement dated 17.10.1996 - Ex.P-5, defendant made an endorsement on 15.10.1999 as per Ex.P-5(a) as already noticed herein above, which would clearly indicate that defendant had admitted execution of gift deed in favour of his son and as such, defendant agreed to execute the sale deed in favour of the plaintiffs along with his son. According to P.W.1, this did not happen and defendant postponed the execution of the sale deed by not taking any steps. On the other hand, during 55 December, 2001 defendant had set up his daughter and his henchmen to demolish the existing structure in the suit schedule property namely, the northern portion of the property, the possession of which had already been delivered to the plaintiffs. In fact, as already noticed herein above, D.W.1 has admitted the delivery of possession of portion of suit schedule property to the plaintiffs by defendant in MOU-Sale agreement dated 28.03.1995 - Ex.P-1, it is stated by the defendant under clause-3 to the following effect:
"3. The VENDOR in lieu of the receipt of Rs.25,000/- (Rupees Twenty Five Thousand only) in Cash has this day delivered to the PURCHASER of portion of the entire suit schedule property which is morefully described in the schedule hereunder forming Northern half portion and the VENDOR has agreed further that as soon as the detailed regular agreement of sale is drawn and executed between the parties and until the regular sale deed is executed and further as and when the further payment are made by the PURCHASER to the VENDOR in terms of the Agreement of Sale, the VENDOR shall hand over the remaining half portion of the Schedule Property by the time regular sale deed is executed, reserving equal right to the PURCHASER 56 to get the remaining half portion of the Schedule Property."
(emphasis supplied by us) In this background, the plaintiffs were perforced initially to file a suit for bare injunction on 22.12.2001 and in the said suit, written statement came to be filed by the defendant on 18.04.2002, wherein for the first time defendant contended that agreement of sale - Ex.P-2 had become infructuous and as such, the plaintiffs having been notified of refusal of performance. Thus, it is the second part of Article 54 would be attracted and the period of limitation of three (3) years would commence from the said date. Thus, the right which had accrued to the plaintiffs to file the suit for specific performance commenced from 18.04.2002 and ended on 17.04.2005. The application for amendment of the plaint having been filed on 14.02.2005, it was well within the period of 3 years and as such, the prayer of the defendant that application for amendment of the plaint should have been rejected, cannot be accepted and consequently, suit 57 being held as barred by limitation by the trial court did not arise and the finding recorded by the trial court in this regard is just and proper.
38. Though a feeble plea has been raised by the learned Advocate appearing for appellants that suit ought to have been filed within three (3) years from the date of agreement of sale dated 27.04.1995 - Ex.P-2, we are of the view that said contention requires to be considered for the purposes of outright rejection, for reasons more than one. The supplemental agreements have been executed on 02.06.1996 and 17.10.1996 - Exs.P-4 and P-5 respectively, which would establish that defendant had continuously assured the plaintiffs that he would execute the sale deed and went on receiving monies, which fact has been reiterated by P.W.1 in his evidence and said evidence has not been rebutted by the defendant. On the other hand, D.W.1 has admitted execution of these documents including the endorsement made by his father (defendant) on 15.10.1999 as per 58 Ex.P-5(a) in Ex.P-5 to the effect they will execute the sale deed within six (6) weeks from said date. By said endorsement, defendant had extended the period for execution of the sale deed by six weeks which period expired on 26.11.1999, and even if period of 3 years is reckoned from said date, the suit ought to have been filed within 3 years i.e., before 25.11.2002. The suit in question came to be filed on 22.12.2001 which is well within the period of 3 years. Hence, contention raised in that regard also cannot be accepted.
39. Insofar as the plea of defendant that doctrine of relation back insofar as amendment of prayer of the plaint is not applicable to the facts on hand also cannot be accepted for two reasons namely, (1) defendant in the original written statement filed has clearly admitted entering into MOU, agreement of sale, supplemental agreements and endorsement made in Ex.P-5 on 15.10.1999 as per Ex.P-5(a) and (2) trial Court after having noticed the plea of defendant in opposing the 59 application for amendment has still allowed the amendment without specifically indicating about non- applicability of doctrine of relation back. On the other hand, trial court has only held that question concerning limitation has been kept open. Hence, point No.(iii) deserves to be answered in the negative by arriving at a conclusion that suit filed by the plaintiffs for specific performance was not barred by limitation. Insofar as point No.(iv) is concerned, trial court was right in allowing the application for amendment of the plaint and said application was not barred by limitation and amendment related back to the date of filing of the suit. RE: POINT NO.(v)
40. Defendant has contended that plaintiffs have not averred in the plaint about their readiness and willingness and in the light of mandate of Section 16(c) of the Specific Relief Act, 1963 plaintiffs are not entitled for the discretionary relief. is a plea which requires to be brushed aside in the light of specific plea raised by the 60 plaintiffs at paragraph No. 5 of the plaint contending specifically that plaintiffs were always ready and willing to perform their part of the contract. It would be apt and appropriate to extract said plea itself to avoid elaboration of the same. It reads:
" 5. The plaintiffs submit that plaintiff No.1 is ever ready and willing to perform his part of contract viz., to pay the balance sale consideration of Rs.4,56,594/- (rupees four lakhs, fifty six thousand five hundred ninety four) and in fact even today also he is ready and willing deposit the balance sale consideration before this Hon'ble Court if the plaintiffs are permitted to do so, to show their readiness and willingness even as on today to perform their part of contract."
(emphasis supplied by us)
41. In fact, plaintiffs at paragraph 7 of the plaint have also pleaded that plaintiffs are ever ready and willing to perform their part of the contract by paying balance sale consideration and it is only defendant who is avoiding to execute the sale deed. In legal notice - Ex.P-6 issued on behalf of first plaintiff, it is clearly 61 indicated that plaintiffs were ever ready and willing to perform their part of the contract.
42. A person seeking relief of specific performance of the contract must manifest his conduct, his blemishness throughout entitling him to the specific relief. If the pleadings manifest with the conduct of the plaintiff entitles him to get the relief on perusal of the plaint, then, plaintiff cannot be denied such relief. Further, plaintiff has to step into the witness box and depose that he has all along been ready and willing to perform his part of the contract and in the instant case, plaintiff has all along been contending he is ready and willing to perform his part of the contract.
43. In the instant case, first plaintiff has clearly stated that he has been ready and willing to pay the balance sale consideration and had also called upon the defendant to execute the sale deed. In the cross examination, there is not even a suggestion made to 62 P.W.1 that he was not ready and willing to perform his part of the contract. In fact, in the cross examination dated 25.03.2008 a question has been put to P.W.1 as to whether he has any documents to show that he was always ready and willing to perform his part of the contract? Same has been replied by P.W.1 as under:
"I have not produced any documents xxx injunction suit only. I have produced copy of the notice, notice sent by telegram and legal notice to show that I was always ready and willing to perform the contract."
Above answer of P.W.1 would indicate that plaintiffs have always been ready and willing to perform their part of the contract but defendant has not come forward. P.W.1 has also denied the suggestion that he never intended to purchase the suit schedule property but was intending to sell it for a higher price after purchasing it. He has also denied a suggestion that he went on taking time to get the sale deed executed.
63
44. For reasons aforestated, point No.(v) is answered in favour of the plaintiffs by holding that plaintiffs have been always ready and willing to perform their part of the contract and finding recorded by the trial court would disclose that it is in consonance with mandate of Section 16(c) of the Specific Relief Act, 1963.
45. The MOU, agreement of sale, supplemental agreements - Exs.P-1 to P-5, P-13 and the endorsement made in Ex.P-5 on 15.10.1999 as per Ex.P-5(a) and the fact that plaintiff has paid substantial amount of sale consideration as agreed and what is to be paid is only a sum of Rs.12,67,483/- would also reflect the conduct of the plaintiff which cannot be construed as tainted or to be doubted to deny the relief of specific performance. On the other hand, defendant claimed that plaintiff ought to have paid a sum of Rs.630/- per sq.ft. for sale of suit schedule property and on account of said amount not being paid, the agreement of sale had lapsed. However, in the cross examination of D.W.1 dated 27.10.2009 64 which is already extracted herein above would indicate that plaintiffs had agreed to pay Rs.630/- per sq.ft. and yet defendant had refused to execute the sale deed in favour of plaintiffs. In fact, defendant has not refused to execute the sale deed and what he has said is that he will have to discuss with the plaintiff. Hence, it would be appropriate to extract the question and answer recorded by the trial court in this regard and it reads:
"Que: Are you ready to execute sale deed if the plaintiffs are ready to pay more than Rs.630/- sq.ft.
What do you say?
Ans: We have to sit and talk."
46. The above admission would clearly indicate that defendant is attempting to extract a pound of flesh from the plaintiffs or in other words, more money seems to be his stand and strategy throughout to frustrate the contract and as such, the relief of specific performance sought for by plaintiffs cannot be refused and trial court has decreed the suit for specific performance and rightly so, which would not call for our interference. 65
47. For the reasons aforestated, we proceed to pass the following:
JUDGMENT
(i) Appeal is dismissed.
(ii) Judgment and decree dated 16.12.2010 passed by XIII Addl. City Civil Judge, Mayohall Unit, Bangalore in O.S.No.16831/2001 is affirmed.
(iii) Parties to bear their respective costs.
(iv) Registry is directed to draw the decree accordingly.
SD/-
JUDGE SD/-
JUDGE DR/sp