Punjab-Haryana High Court
Gian Chand vs Bimal Kumar on 14 September, 2012
Author: L. N. Mittal
Bench: L. N. Mittal
C. R. No. 1365 of 2012 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Case No. : C. R. No. 1365 of 2012
Date of Decision : September 14, 2012
Gian Chand .... Petitioner
Vs.
Bimal Kumar .... Respondent
CORAM : HON'BLE MR. JUSTICE L. N. MITTAL
* * *
Present : Mr. S. S. Panag, Advocate
for the petitioner.
Ms. Puja Chopra, Advocate
for the respondent.
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L. N. MITTAL, J. (Oral) :
Plaintiff Gian Chand, aggrieved by order dated 07.01.2012 (Annexure P-5), passed by learned Civil Judge (Junior Division), Ludhiana, thereby dismissing application (Annexure P-3) moved by plaintiff for amendment of plaint, has filed this revision petition under Article 227 of the Constitution of India to challenge order Annexure P-5.
Plaintiff-petitioner has filed suit on 27.06.2007 against defendant-respondent Bimal Kumar vide plaint dated 22.06.2007 (Annexure C. R. No. 1365 of 2012 2 P-1) inter alia for mandatory injunction to comply with agreement/family settlement dated 22.07.2004 and to hand over vacant possession of the suit property to the plaintiff and for execution of requisite sale deed and also for permanent injunction. It has been primarily pleaded that as per impugned agreement/family settlement dated 22.07.2004, the plaintiff had to pay Rs.38,00,000/- to the defendant, who received Rs.3,00,000/- at the time of execution of the agreement and balance amount of Rs.35,00,000/- was to be paid on or before 05.02.2005, which was also the date stipulated for execution of the sale deed.
Defendant moved application dated 04.08.2007 (Annexure P-2) under Order 7 Rule 11 of the Code of Civil Procedure (in short - CPC) for rejection of plaint inter alia on the ground that ad valorem court fee on value of the suit property has not been paid and that suit for injunction is not maintainable because the plaintiff has to seek relief of specific performance of the impugned agreement.
The plaintiff moved application dated 12.05.2011 (Annexure P-
3) for amendment of plaint to claim the relief of specific performance of the impugned agreement along with other consequential amendments including valuation of the suit and payment of ad valorem court fee on the sale consideration mentioned in the agreement. The said application was opposed by defendant by filing reply (Annexure P-4). Learned trial court C. R. No. 1365 of 2012 3 has dismissed the amendment application vide order Annexure P-5, which is under challenge in this revision petition at the hands of the plaintiff.
I have heard learned counsel for the parties and perused the case file.
Counsel for the petitioner contended that deficiency in court fee can be made good at any time, and therefore, proposed amendment of plaint cannot be rejected merely because ad valorem court fee was not paid on the original plaint. Reliance in support of this contention has been placed on judgment of Hon'ble Supreme Court in the case of A. Nawab John and others vs. V. N. Subramaniyam reported as 2012 (3) Recent Apex Judgments (R. A. J.) 430. It was also argued that whether the instant suit to claim relief of specific performance of the agreement has become time barred or not can be adjudicated after trial of the suit after proposed amendment of plaint is allowed.
On the other hand, counsel for defendant-respondent contended that the defendant in application dated 04.08.2007 (Annexure P-2) specifically pleaded that the plaintiff has to seek relief of specific performance of the alleged agreement and had to pay ad valorem court fee, but in spite thereof, amendment application (Annexure P-3) was moved almost four years thereafter on 12.05.2011 and by then, suit to claim the relief of specific performance of the agreement had become time barred, and C. R. No. 1365 of 2012 4 therefore, proposed amendment of plaint has been rightly declined by the trial court.
I have carefully considered the rival contentions.
As regards payment of ad valorem court fee, there is no dispute with the proposition that if the trial court finds that proper court fee has not been paid, liberty has to be given to the plaintiff to pay the deficient court fee and if he still fails to pay the same, then and only then, the plaint may be rejected under Order 7 Rule 11 CPC.
However, as regards amendment of plaint, it is undisputed that the defendant moved application dated 04.08.2007 (Annexure P-2) cautioning the plaintiff that he had to seek the relief of specific performance of the agreement and also to pay ad valorem court fee. In spite thereof, the plaintiff did not wake up and remained in deep slumber. Plaintiff woke up almost after four years to move application dated 12.05.2011 (Annexure P-
3) for amendment of plaint. However, by then, the suit to claim the relief of specific performance had become time barred even as per averments of the plaintiff himself made in plaint (Annexure P-1). According to the plaintiff's averments, the sale deed was to be executed on or before 05.02.2005. Consequently, suit for specific performance of the agreement could be instituted within three years thereof i.e. up to 05.02.2008. It is thus manifest that suit to claim the relief of specific performance had become hopelessly C. R. No. 1365 of 2012 5 time barred when amendment application dated 12.05.2011 was moved by the plaintiff. Consequently, nothing is required to be adjudicated upon after trial of the suit in this regard. If the question of limitation had been debatable, the contention raised by counsel for the petitioner could perhaps be accepted. However, when it is evident from the averments of the plaintiff himself that suit to claim relief of specific performance had hopelessly become barred by limitation, when amendment application was moved, the amendment cannot be allowed so as to leave the question of limitation to be adjudicated upon after amendment of plaint and after trial of the suit.
For the reasons aforesaid, I find no merit in this revision petition. Impugned order of the trial court does not suffer from any perversity, illegality or jurisdictional error so as to call for interference in exercise of supervisory power under Article 227 of the Constitution of India. The revision petition is meritless and is accordingly dismissed.
Before parting with the order, it is made clear that I have not expressed any opinion on merits of defendant's application (Annexure P-2) or on maintainability of the original suit in the present form. The same may be adjudicated upon by the trial court in accordance with law without being influenced by any observation in this order.
C. R. No. 1365 of 2012 6
September 14, 2012 ( L. N. MITTAL ) monika JUDGE