Madhya Pradesh High Court
Ramdas Singh vs Smt. Ramshri on 15 January, 2018
THE HIGH COURT OF MADHYA PRADESH
MP-225-2018
(RAMDAS SINGH Vs SMT. RAMSHRI)
2
Gwalior, Dated : 15-01-2018
Shri V.K.Bhardwaj, learned senior counsel, with Shri Rohit
Batham, counsel for the petitioner.
Shri D.D.Bansal, learned counsel for respondents No.3 and 4.
Petitioner, who is plaintiff before the trial Court, has filed this sh petition being aggrieved by order dated 06.01.2018 passed by the e Court of learned Ninth Additional District Judge, Gwalior, whereby ad the learned Ninth Additional District Judge has rejected an application Pr under Order 6 Rule 17 CPC filed by the plaintiff.
The brief facts of the case are that plaintiff had admittedly a hy entered into an agreement for sale with respondents No. 1 and 2 on 18.06.2008. In the year 2011, a suit for declaration and permanent ad injunction was filed by the plaintiff valuing the suit at Rs. 1,80,000/-
M and paying fixed court fee of Rs. 2100/-. Thereafter in the year 2017 defendants No. 3 and 4 filed an application under Order 7 Rule 11 of CPC pointing out that suit for declaration and permanent injunction rt has been filed on the basis of an agreement to sell dated 18.06.2008, ou but the suit is prima facie not maintainable and is liable to be dismissed. It was mentioned in the application that plaintiff was C required to file a suit for specific performance of the agreement and h was required to pay ad valorem Court fee. Since this has not been ig done, therefore, suit is not maintainable and same be dismissed. H In response to this application, reply was filed by the plaintiff in which it is mentioned that plaintiff is willing to pay ad valorem Court fee, and therefore, suit may not be dismissed. This reply is available on record as Annexure P-5. Simultaneously, an application under Order 6 Rule 17 read with Section 151 CPC was filed seeking amendment in the suit with a prayer to add words "suit for specific performance of the agreement" in the title and also liberty to pay additional Court fee. Similarly, relief clause was also sought to be amended and relief for specific performance was sought to be amended. In view of such application as was filed by the plaintiff, trial Court decided the application under Order 6 Rule 17 read with Section 151 CPC and dismissed the same holding that the application cannot be allowed inasmuch as the original cause of action had accrued on 18.06.2008 and the time limit for getting the sale-deed executed as per the said agreement was within one year of execution of the agreement, and therefore, the suit for specific performance should have been filed within three years and that period was over in the year 2012, therefore, if amendment is allowed at this stage, then also plaintiff cannot seek relief for specific performance of the agreement. Trial Court has also sh made a note of the fact that the application has been filed with a view e to delay the proceedings as an afterthought after filing of the ad application under Order 7 Rule 11 CPC.
Pr Learned counsel for the petitioner submits that even if application under Order 6 Rule 17 CPC is dismissed, then also Court a was obliged to grant liberty to the petitioner to pay the deficit Court hy fee. To this, learned counsel for respondents No. 3 and 4 submits that ad application under Order 7 Rule 11 CPC has yet not been decided and M this issue of opportunity of payment of additional fee will arise in the said application.
of Learned counsel for the petitioner has drawn attention of this Court to the relief clause and submits that plaintiff had sought a relief rt for specific performance of the agreement, and therefore, payment of ou Court fee is merely a formality and the discussion made by the trial C Court is superfluous and calls for interference. h Learned counsel for the petitioner has placed reliance on the ig judgment of this Court in the case of Smt. Bharti alies Bhoori Vs. H Lokendra Singh and others as passed in W.P.No.155/2015 whereby this Court has held that upon perusal of the amendment application, neither this Court nor the trial Court can ponder over the merits of the amendment and is required to see only the relevancy of the amendment to the controversy involved in the suit. He has also placed reliance on the judgment of the Supreme Court in the case of Mount Mary Enterprises vs. Jivratna Medi Treat Pvt. Ltd. as reported in 2015(3) M.P.L.J. 494 (SC) wherein the ratio is that amendment application should normally be granted unless by virtue of amendment nature of suit is changed or some prejudice is caused to the defendant. Similarly, reliance has been placed to the judgment of Punjab and Haryana High Court in the case of Tarlok Singh v. Vijay Kumar Sabharwal as reported in (1990) 1 RLR 10 wherein the ratio is that if amendment is allowed by the trial Court to incorporate the plea of possession by specific performance of agreement to sell, then vendor will be at liberty to take a specific plea in the written statement which he will be filing pursuant to the amended plaint that the suit is beyond limitation and that suit was even beyond limitation on the date when the application for amendment was filed. It has been held that after sh amended written statement is filed, the trial Judge will frame proper e issues and dispose of the same according to law.
ad Learned counsel for the petitioner has also placed reliance on the Pr Full Bench judgment of the Patna High Court in the case of Sheopujan Rai Vs. Kesho Prasad Singh as reported in (1924) AIR a (Patna) 310, again where the ratio is that where the plaintiff has hy framed his suit bonafidely believing that consequential relief is not ad open to him and that he is entitled to a declaration, the Court would be M justified in allowing him to amend the plaint even in appeal. However, in the same judgment in para 9 it has been held that there is a class of of cases in which the appellate Court will not allow amendment if the plaintiff has elected to go to trial upon the issue whether the frame of rt the plaint is correct notwithstanding the objection of the defendant that ou the suit offends against the provisions of Section 42 of the Specific C Relief Act.
h Learned counsel for the defendants on the other hand has placed ig reliance on the judgment of the Supreme Court in the case of H Vijendra Kumar Goel Vs. Kusum Bhuwania as reported in (1997) 11 SCC 457 in which under the identical facts and circumstances plaintiff had filed a suit on 21.12.1990 seeking the relief that it be declared that the contract dated 25.3.1985 for the sale of Schedule 'A' land to the plaintiff by the defendant is still subsisting and the defendant by the agreement dated 25.3.1985 is bound to execute and register the sale deed in respect of the Schedule 'A' land in favour of the plaintiff. In the said suit, the appellant has raised the plea that the suit was barred by limitation. The respondent/plaintiff filed an application for amendment which was refused by the trial Court vide order dated 27.8.1993. The High Court in revision by impugned judgment dated 17.4.1995 allowed the said amendment. The question which was posed before the Supreme Court was whether the High Court was justified in allowing said amendment in the plaint which was to the following effect:-
"In relief (a) of para 16 of the plaint the 'full stop' be deleted and after the words 'the plaintiffs' the words, 'and after receiving consideration the defendant be directed to execute and the register sale deed in favour of the plaintiff sh within a period fixed by the court failing which the sale deed e be executed and registered by the court' be added."
ad The Supreme Court after appreciating the contentions raised Pr held that on the date of filing of the application for amendment the suit for specific performance of the contract was barred by limitation in a view of the provisions contained in Article 54 of the Limitation Act, hy 1963 and relying on the judgment of the Supreme Court in the case of ad Muni Lal v. Oriental Fire and General Insurance Co. Ltd. as M reported in (1996) 1 SCC 90 the Supreme Court held that High Court erred in proceeding on the basis that in the plaint the of plaintiff/respondent has made a case for specific performance and nothing new had been sought by way of amendment. It is no doubt rt true that in the plaint plaintiff has made a reference to the agreement ou and his having requested the other party to execute the sale-deed, but C there is nothing in the plaint to show that plaintiff/respondent was h seeking specific performance of the contract. The suit, as framed, is a ig suit for declaration and injunction only. It was sought to be converted H into a suit for specific performance by way of amendment in the plaint in 1993 when the claim for specific performance had become barred by limitation and accordingly the order of the High Court was set aside by the Supreme Court. Placing reliance on such judgments and also on the judgment of the Supreme Court in the case of T.L.Muddukrishana and another vs. Lalitha Ramchandra Rao as reported in (1997) 2 SCC 611 which supports the impugned order, it is submitted that impugned order does not call for any interference.
After going through the pleadings and appreciating the arguments and the case law filed by the rival parties, this Court is of the opinion that in the light of the law laid down by the Supreme Court in the case of Vijendra Kumar Goel (supra) the application under Order 6 Rule 17 CPC has been rightly dismissed inasmuch as through the amendment petitioner sought to change the nature of the pleadings and the relief for specific performance as was sought through the amendment in the year 2017 was clearly barred by limitation. Earlier since petitioner had filed a suit for declaration and injunction, by way of amendment he could not even be permitted to change the nature of the suit as per the law laid down by the Supreme Court in the case of sh Mount Mary Enterprises (supra). Thus, there is no infirmity or e illegality in the impugned order calling for interference. Consequently, ad the petition fails and is dismissed, however, the trial Court shall decide Pr the application under Order 7 Rule 11 CPC without getting influenced by the order of this Court.
a hy (VIVEK AGARWAL) ad JUDGE M of ms/-
rt ou C h ig H MADHU SOODAN PRASAD 2018.01.17 10:09:51 +05'30'