Karnataka High Court
L K Trust vs M/S Radhakrishna Khandasari Sugar ... on 21 December, 2018
Author: S.G.Pandit
Bench: S.G.Pandit
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF DECEMBER 2018
BEFORE
THE HON'BLE MR.JUSTICE S.G.PANDIT
WRIT PETITION No.50189/2018 (GM-CPC)
BETWEEN:
L K TRUST
(REGISTERED TRUST)
NO.9, SESHADRI ROAD
BENGALURU - 560009
REP. BY ITS TRUSTEE
SRI K L SWAMY
AGED ABOUT 72 YEARS
S/O LATE K LAKSHMANSA.
... PETITIONER
(BY SRI ABHINAV R, ADV.)
AND:
1. M/S. RADHAKRISHNA KHANDASARI
SUGAR FACTORY
21 MILE STONE
BENGALURU-MYSORE ROAD
BILEKEMPANAHALLI
BIDADI HOBLI
RAMANAGARAM TALUK
RAMANAGARAM DISTRICT- 562109
REP. BY ITS MANAGER.
2. SRI DWARAKA PRASAD
AGED ABOUT 89 YEARS
S/O SRI RAMPRASAD
2
3. SMT. BHARATHI BHAI
AGED ABOUT 64 YEARS
W/O SRI GOPALADSA
4. SMT. VIMALA BHAI
AGED ABOUT 69 YEARS
W/O SRI KANGYALAL
5. SRI BANKATLAL
AGED ABOUT 59 YEARS
S/O SRI DWARAKA PRASAD
6. SRI RADHASHYAM AGARWAL
AGED ABOUT 69 YEARS
S/O SRI SRINIVAS
7. SRI ARUN KUMAR
AGED ABOUT 54 YEARS
ALL ARE R/O NO.15-2-356
MUKTIYAR GANJ, HYDERABAD
TELANGANA - 500 012.
... RESPONDENTS
(BY SRI V SRINIVASA RAGHAVAN, SR.ADV. FOR
SRI NIKHILESH RAO M, ADV. FOR C/R1 & R3)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH
ANNEXURE-A NAMELY THE ORDER DTD:12.10.2018 PASSED
BY LEARNED ADDITIONAL CIVIL JDUGE AND JMFC AT
RAMANGARA IN I.A.NO.7 IN O.S.NO.398/2008 AND ALLOW
THE APPLICATION FILED UNDER ORDER VI RULE 17 OF THE
CODE OF CIVIL PROCEDURE 1908 [I.A.7] BY ALLOWING THE
PRESENT W.P.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED ON 20/11/2018 COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING:
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ORDER
Petitioner is before this Court under Article 227 of the Constitution of India, against rejection of I.A.No.7 filed under Order VI Rule 17 of CPC in O.S.No.398/2008 on the file of the Additional Civil Judge and JMFC at Ramanagara.
2. The petitioner is plaintiff and respondents are defendants in O.S.No.398/2008 initially filed for judgment and decree of permanent injunction to restrain the defendants from interfering with possession of the plaintiff over the suit schedule property. Subsequently by way of amendment to the plaint, the plaintiff included the prayer to declare that the plaintiff is entitled to protection under Section 53A of the Transfer of Property Act (hereinafter referred to as 'the Act' for short) from dispossession of the suit schedule property by the defendants or anybody claiming under them. When the matter stood at the stage of plaintiff's evidence, the plaintiff filed I.A.No.7 under 4 Order VI Rule 17 of CPC to include paragraphs 10A to 10C, to add regarding cause of action after paragraph 11 and also to add the following prayer as prayer-1:
"Wherefore, the plaintiff prays this Hon'ble Court to pass a decree of specific performance of Agreement of Sale dated 16-12-1991, directing the defendants to execute a registered sale deed in respect of suit schedule property in the name of the plaintiff by receiving the balance sale consideration and by delivering all the original documents. In the event of failure on the part of the defendants to do so, for the Sale Deed to be executed and registered in respect of suit schedule property in favour of the Plaintiff, through the process of this Hon'ble Court."
In the affidavit filed in support of the application it is stated that the plaintiffs are in possession of the suit schedule property. The plaintiff was always been ready and willing to complete the transaction. Since there were certain internal misunderstandings/disputes amongst the defendants and since they were not able to hand over the original documents for inspection, the execution of the 5 sale deed was being postponed by the defendants. Further it is stated that defendant No.3 during the pendency of the suit along with her husband executed sale deeds in favour of the third parties. As the said events have occurred during the pendency of the suit, the amendment could not be sought earlier. The plaintiff also stated that the amendment sought for is based on the plaint averments already made and subsequent developments with respect to the schedule property during the pendency of the suit and stated that it does not constitute a new case. Moreover it is stated that the amendment sought is absolutely necessary for the proper and final adjudication of all the issues involved in the suit between the parties. The amendment sought is based on the continuing cause of action since the refusal to execute the sale deed in favour of the plaintiff by the defendants is demonstrated by the execution of the two sale deeds dated 30-08-2016 in favour of third parties.
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3. The respondents/defendants filed detailed objections to the application for amendment contending that the application is highly belated and filed with the sole intention of taking away the admissions made in the plaint. It is stated that when there is a direction to decide the suit within an outer limit of one year in W.P.No.22773/2016 and when the matter is posted for plaintiffs' evidence, the plaintiff has filed the application only to drag on the proceedings. It is also contended that the proposed amendment would change the very nature of the suit and new case is being introduced that too after several years after filing the suit.
4. The suit one filed initially for injunction is converted to declaration of right under Section 53A of Act and now by proposed amendment, the amendment sought is for specific performance of agreement of sale of the year 1991. The respondents/defendants also stated that when the plaintiff sought amendment to include prayer for 7 declaration of their right under Section 53A of the Act, they did not chose to seek prayer for specific performance, now ten years after filing of the suit and 27 years after the date of agreement, the plaintiff is seeking for specific performance, which on the face of it is barred by limitation. The written statement was filed in the year 2010 itself wherein they averred to indicate refusal to perform the contract as claimed by the plaintiffs and plaintiffs' rights being denied.
5. The trial Court on consideration of the application and the objections, by impugned order dated 12-10-2018 rejected the application holding that the proposed amendment is barred by limitation and it would defeat the rights of the defendants. The only question that arises for consideration in this writ petition is -Whether the order passed by the trial Court in the facts and circumstances of the case requires interference?
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6. Heard the learned counsel for the petitioner Sri.Abhinav R and learned Senior Counsel Sri.V.Srinivas Raghavan along with Sri.Nikhilesh Rao, advocates appearing for caveator/respondents No.1 and 3.
7. Learned counsel for the petitioner submits that the trial has not yet commenced in the suit and cause of action for seeking prayer for specific performance arose during the pendency of the suit when defendant No.3 executed the sale deed to third parties on 30-08-2016. Further the learned counsel submits that the cause of action arose only when the sale deed was executed in favour of third parties which amounts, refusal to execute sale deed in favour of the plaintiff. Further he submits that the plaintiff was always ready and willing to complete the transaction, but for non-handing over of original documents by the defendants execution of Sale Deed got postponed. The amendment sought is based on the plaint averments already made and he would further submit that 9 basic structure of the suit would neither change nor the cause of action. The amendment is necessary for proper adjudication of the issues involved in respect of the suit schedule property once for all. Learned counsel submits that the trial Court did not properly appreciate the facts and contentions urged by the plaintiffs. He further submits that the court below committed an error in getting into the merits of the amendment and defense raised by the defendants. Learned counsel further submits that the finding of the trial Court is erroneous and is equally perverse. He also submits that the question of limitation could have been made an issue for trial. Hence, he prays for allowing the petition. In support of his contention, he relies upon a decision of the Hon'ble Supreme Court reported in (2002) 7 SCC 559, in the case of SAMPATH KUMAR V/S AYYAKANNU AND ANOTHER held as under:
"9. Order 6, Rule 17 of the CPC confers jurisdiction on the court to allow either party to alter or amend his pleadings at any stage of the 10 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 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 case 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.
10. 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 11 appropriate case 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 of which the application seeking the amendment was filed. (See observations in Siddalingamma V. Mamtha Shenoy (2001) 8 SCC
561).
11. 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 12 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 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."
9. Nextly he relies upon paragraphs 11 and 12 of the decision reported in (2009) 5 SCC 462 in the case of AHMADSAHAB ABDUL MULLA (2) (DEAD) BY PROPOSED LRS. v/s BIBIJAN AND OTHERS, which reads as under:
"11. The inevitable conclusion is that the expression `date fixed for the performance' is a crystallized notion. This is clear from the fact that the second part "time from which period begins to 13 run" refers to a case where no such date is fixed. To put it differently, when date is fixed it means that there is a definite date fixed for doing a particular act. Even in the second part the stress is on `when the plaintiff has notice that performance is refused'. Here again, there is a definite point of time, when the plaintiff notices the refusal. In that sense both the parts refer to definite dates. So, there is no question of finding out an intention from other circumstances.
12. Whether the date was fixed or not the plaintiff had notice that performance is refused and the date thereof are to be established with reference to materials and evidence to be brought on record. The expression `date' used in Article 54 of the Schedule to the Act definitely is suggestive of a specified date in the calendar. We answer the reference accordingly. The matter shall now be placed before the Division Bench for deciding the issue on merits."
10. Per contra, learned Senior Counsel for the respondents/ defendants submits that the application for amendment is highly belated and is filed seeking for prayer for specific performance after 27 years from the date of execution of the agreement, which on the face of it, 14 is barred by time. Further learned counsel submits that the proposed amendment would change the nature of the suit and the relief sought by proposed amendment is entirely on a different cause of action. He submits that the entire basic structure of the suit would be changed. The suit initially filed is for injunction which was subsequently amended to declare right under Section 53A of the Act and now under the present application, relief is sought for specific performance. The plaintiff is not diligent in prosecuting the case and the defendants in their written statement have indicated at paragraph 4 and 5 as follows:
"4. All the four agreements provided that the sales under all the four agreements should be completed within 6 months from 16.12.91 i.e., the date of agreement. Till today the plaintiff trust has not taken any steps whatsoever for completing the sale transaction and has not come forward to pay balance amount payable by it for completing the sale transaction.15
5. Although the sales ought to have been completed within six months from 16.12.91, even after 19 years, the plaintiff has not taken any steps whatsoever for the purpose of completing the sale transaction and has not offered to pay the balance of sale consideration."
11. The above averments coupled with averments made at paragraph 8 that the plaintiff-trust has lost its right to enforce agreement of sale not only by its conduct but also by the fact that the limitation for enforcement of the contract has expired, would demonstrate that the defendants had refused to execute the sale deed in favour of the plaintiff. Therefore, he submits that at least from the date of filing the written statement, the plaintiff ought to have filed the application for amendment within the time prescribed. Further, it is the submission of the learned Senior Counsel that the alienation of suit schedule property by the third defendant would not change the situation since the refusal to execute is writ large in the written statement filed by the defendants. 16 Learned Senior Counsel relies upon the decisions of the Hon'ble Supreme Court with regard to limitation under Article 54 of the Limitation Act, 1963 to contend that from the alleged date of trying to dispossess, limitation would commence. In a case reported in (2015) 5 SCC 223 in the case of RATHNAVATHI AND ANOTHER v/s KAVITA GANASHAMDAS, the Hon'ble Supreme Court at paragraphs 41, 42, 43, 44, 45 has held as under:
"41. Article 54 of the Limitation Act which prescribes the period of limitation for filing suit for specific performance reads as under:
"54. For specific Three The date fixed for the performance years performance, or, if no such date of a contract. is fixed, when the plaintiff has notice that performance is refused."
42. Mere reading of Article 54 of the Limitation Act would show that if the date is fixed for performance of the agreement, then non-compliance of the agreement on the date would give a cause of action to file suit for specific performance within three years from the date so fixed. However, when no such date is fixed, limitation of three years to file a 17 suit for specific performance would begin when the plaintiff has noticed that the defendant has refused the performance of the agreement.
43. The case at hand admittedly does not fall in the first category of Article 54 of the Limitation Act because as observed supra, no date was fixed in the agreement for its performance. The case would thus be governed by the second category viz., when plaintiff has a notice that performance is refused.
44. As mentioned above, it was the case of the plaintiff that she came to know on 02.01.2000 and 09.01.2000 that the owner of the suit house along with the so-called intending purchaser are trying to dispossess her from the suit house on the strength of their ownership over the suit house. This event was, therefore, rightly taken as starting point of refusal to perform the agreement by defendant no.2, resulting in giving notice to defendant no.2 by the plaintiff on 6.3.2000 and then filing of suit on 31.3.2000.
45. In the light of the foregoing discussion, we uphold the findings of the High Court and accordingly hold that the suit filed by the plaintiff for specific performance of the agreement was 18 within limitation prescribed under Article 54 of the Limitation Act."
12. Learned Senior Counsel further relies upon a decision reported (1997) 11 SCC 457 in the case of VIJENDRA KUMAR GOEL v/s KUSUM BHUWANIA to contend that conversion of suit for declaration and injunction to one of specific performance, when claim for specific performance had become barred by limitation, is impermissible. Paragraphs 3 and 4 of the judgment reads as under:
"3. Shri Rajeev Dhavan, the learned Senior Counsel appearing for the appellant, has submitted that on the date of filing of the application for amendment a suit for specific performance of the contract was barred by limitation in view of the provisions contained in Article 54 of the Limitation Act, 1963 and the High Court was in error in allowing the amendment and to convert a suit for declaration into a suit for specific performance after the expiry of the period of limitation prescribed for filing of the suit for specific performance. In support of his submission Shri Dhavan has placed reliance 19 on the decision of this Court in Muni Lal V. Oriental Fire & General Insurance Co.Ltd. wherein this Court has upheld the order disallowing amendment of the plaint and has laid down that under Order 6 Rule 17 CPC an amendment cannot be allowed in cases after the suit was barred by limitation during the pendency of the proceedings.
4. In the instant case the High Court appears to have proceeded on the basis that in the plaint the plaintiff-respondent has made out a case for specific performance and nothing new had been sought for by way of amendment. We have perused the plaint. We are unable to agree with the said view of the High Court. It is no doubt true that in the plaint the plaintiff-respondent has made a reference to the agreement and his having requested the appellant to execute the sale deed. But there is nothing in the plaint to show that the plaintiff-respondent was seeking specific performance of the contract. The suit, as framed, is a suit for declaration and injunction only. It was sought to be converted into a suit for specific performance by the plaintiff- respondent by way of amendment in the plaint in 1993 when the claim for specific performance had become barred by limitation. The submission of Shri Dhavan is that even on the date of the filing of 20 the suit, the claim for specific performance was barred by limitation. We do not propose to go into that question.".
13. With regard to due diligence, learned Senior Counsel relies upon a decision reported in (2008) 5 SCC 117 in the case of CHANDER KANTA BANSAL v/s RAJINDER SINGH ANAND. Paragraphs 11, 13, 17 of the judgment reads as follows:
"11. In order to find out whether the application of the defendant under Order 6 Rule 17 for amendment of written statement is bonafide and sustainable at this stage or not, it is useful to refer to the relevant provisions of CPC. Order 6 Rule 17 reads thus:
"17. Amendment of pleadings.- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:
Provided that no application for amendment shall be allowed after the trial has 21 commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."
This rule was omitted by the Code of Civil Procedure (Amendment) Act, 1999. However, before the enforcement of the Code of Civil Procedure (Amendment) Act, 1999, the original rule was substituted and restored with an additional proviso. The proviso limits the power to allow amendment after the commencement of trial but grants discretion to the court to allow amendment if it feels that the party could not have raised the matter before the commencement of trial in spite of due diligence. It is true that the power to allow amendment should be liberally exercised. The liberal principles which guide the exercise of discretion in allowing the amendment are that multiplicity of proceedings should be avoided, that amendments which do not totally alter the character of an action should be granted, while care should be taken to see that injustice and prejudice of an irremediable character are not inflicted upon the opposite party under pretence of amendment.
12. XXXXXXX 22
13. The entire object of the said amendment is to stall filing of applications for amending a pleading subsequent to the commencement of trial, to avoid surprises and the parties had sufficient knowledge of the other's case. It also helps in checking the delays in filing the applications. Once, the trial commences on the known pleas, it will be very difficult for any side to reconcile. In spite of the same, an exception is made in the newly inserted proviso where it is shown that in spite of due diligence, he could not raise a plea, it is for the court to consider the same. Therefore, it is not a complete bar nor shuts out entertaining of any later application. As stated earlier, the reason for adding proviso is to curtail delay and expedite hearing of cases.
14. XXXXXX
15.XXXXXX
16.XXXXXX
17. It is clear that unless the party takes prompt steps, mere action cannot be accepted and file a petition after the commencement of trial. As mentioned earlier, in the case on hand, the application itself came to be filed only after 18 years and till the death of her first son Sunit Gupta, 23 Chartered Accountant, had not taken any step about the so-called agreement. Even after his death in the year 1998, the petition was filed only in 2004. The explanation offered by the defendant cannot be accepted since she did not mention anything when she was examined as witness."
14. Learned Senior Counsel also relied upon decision reported in (2013) 9 SCC 485 in the case of MASHYAK GRIHNIRMAN SAHAKARI SANSTHA MARYADIT v/s USMAN HABIB DHUKA AND OTHERS to contend that belated amendment applications shall not be allowed without considering the factual aspect. Paragraph 8 of the judgment reads as follows:
"8. Indisputably, Respondent 1-plaintiff was the office-bearer of the Society at the relevant time and by resolution taken by the Society Respondent 1 was authorized to complete the transaction. Hence, it is incorrect to allege that Respondent 1- plaintiff was not aware about the transaction of 1989. Moreover, before the institution of the suit in the year 2010, the plaintiffs allegedly came to know about the conveyance deed dated 8-2-1989, sometime in the year 2009, but relief was not 24 sought for in the plaint which was filed much later i.e. 14-10-2010. The High Court has not considered these undisputed facts and passed the impugned order on the general principles of amendment as contained in Order 6 Rule 17 of the Code of Civil Procedure. Hence we do not find any ground for allowing the amendment sought for by the plaintiffs which was not only a belated one but was clearly an afterthought for the obvious purpose to avert the inevitable consequence. The High Court has committed serious error of law in setting aside the order passed by the trial court whereby the amendment sought for was dismissed. The impugned order of the High Court cannot be sustained in law."
15. Further, he relied on decision reported in (2010) 14 SCC 596 in the case of VAN VIBHAG KARMACHARI GRIHA NIRMAN SAHKARI SANSTHA MARYADIT (REGISTERED) v/s RAMESH CHANDER AND OTHERS to contend that amendment shall not be allowed where it alters the character of the suit. Paragraphs 32 and 33 reads as follows:
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"32. Even though the prayer for amendment to include the relief of specific performance was made about 11 years after the filing of the suit, and the same was allowed after 12 years of the filing of the suit, such an amendment in the facts of the case cannot relate back to the date of filing of the original plaint, in view of the clear bar under Article 54 of the Limitation Act. Here in this case, the inclusion of the plea of specific performance by way of amendment virtually alters the character of the suit, and its pecuniary jurisdiction had gone up and the plaint had to be transferred to a different court.
This Court held in Vishwanbhar v.
Laxminarayan, if as a result of allowing the amendment, the basis of the suit is changed, such amendment even though allowed, cannot relate back to the date of filing the suit to cure the defect of limitation (SCC at pp.168-69, para 9). Those principles are applicable to the present case.
33. In K.Raheja Constructions Ltd. V. Alliance Ministries, this Court held that an application for amendment filed 7 years after the filing of the suit to include the plea of specific performance, would not defeat the valuable rights of limitation accruing to the other side. In that case, the factual position was somewhat similar to the 26 present case and this Court held that when a plea for specific performance was not included in the original suit, it could not be included after a period of 7 years having regard to Article 54 of the Limitation Act (SCC at pp.18-19, para 4)."
16. The suit one filed initially is for permanent injunction against the defendants, subsequently the plaintiff filed amendment application claiming the relief of protection under Section 53A of the Act from dispossession of the schedule property. The written statement is filed by the defendants on 19-06-2010. The suit averments would indicate that in part performance of the contract, the defendants have delivered the possession of the suit schedule property to the plaintiff. It is also the averment in the plaint that the first defendant has attempted to obtain change of katha of the suit schedule property in their individual names with a malafide motive of knocking away the suit property from the plaintiff. The defendants in their written statement have made it clear that sale should be completed within six months from 16- 27 12-1991 i.e., the date of agreement and no steps have been taken by the defendants for completing the sale transaction. It is also stated that even after 19 years, the plaintiffs have not taken any steps for completing the sale transaction. At paragraph 8 of the written statement it is stated that the plaintiff-Trust has lost its right to enforce agreement of sale not only by its conduct but also by the fact that limitation for enforcement of the contracts has expired. Learned Senior Counsel appearing for the respondents referring to Section 54 of the Limitation Act submitted that even though there is no mention of the date for performance of the contract, by conduct of the defendants and more particularly by virtue of written statement averments, the defendants have made it clear that the plaintiff-Trust has lost its right to enforce the agreement by virtue of expiration of limitation. The Hon'ble Supreme Court while dealing with AHMADSAHAB ABDUL MULLA case (supra) has observed that when the case falls under second category of Section 54 of the Act, 28 that where date is not mentioned for performance of agreement, the threat of dispossession nor act of the defendants, would have to be looked into. In the case on hand, the suit itself is filed initially on the allegation that the defendants are trying to dispossess the plaintiff from the suit schedule property with an ulterior motive of gaining unlawfully and making hectic efforts to take over forcible possession of the suit schedule property. The said averment coupled with the written statement averments by the defendants, it is clear that the defendants have refused to perform the contract entered into between the parties in the year 1991. More over, the plaintiff filed application for amendment to include the prayer for protection under Section 53A of the Act on an earlier point of time, which was allowed by this Court in W.P.No.22773/2016 observing that the amendment application cannot relate back to the date of suit but to the date of filing of the application. More precisely para 11 of that order reads as follows:
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"11. For the reasons stated above, the writ petition is allowed, subject to payment of costs of Rs.5,000/- payable by the plaintiff to the third defendant. The impugned order dated 23-03-2016 on I.A.No.3 made in O.S.No.398/2008 on the file of the Additional Civil Judge and JMFC, Ramanagara is quashed. I.A.No.3 filed by the plaintiff is allowed. However, it is made clear that the amended application cannot relate back to the date of the suit but to the date of filing of the application. All the contentions raised by the defendants with regard to limitation and provisions of Section 53A of the Transfer of Property Act are kept open to both the parties to be urged before the Trial Court."
17. From the above observations of this Court, it is clear that on the prayer regarding protection of possession under Section 53A of the Act, this Court has left open the question of limitation for urging the same at the time of trial. From the principles laid down by the Hon'ble Supreme Court with regard to consideration of amendment application wherein the question of limitation is raised, if it could be made out on the face of record, that it is barred by time, the amendment shall not be allowed. 30 In the case on hand, the agreement is entered into between the plaintiff and defendants on 16-12-1991; suit for permanent injunction is filed on 14-11-2008; the written statement is filed on 19-06-2010 indicating that the plaintiff has not taken any steps for completing the sale transaction even after 19 years and indicating that the plaintiff has lost right to enforce the agreement of sale on the fact that limitation for enforcement of contract has expired; subsequently application for amendment is filed by the plaintiff under Order VI Rule 17 of CPC to include prayer for declaration of protection of possession under Section 53A of the Act and while allowing the said amendment, this Court kept open the question of limitation, observing that the amendment would come into effect from the date of filing of the application, would clearly demonstrate that the relief sought in the proposed amendment for specific performance of the agreement dated 16-12-1991 is barred by time.
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18. Secondly, the applicant is not diligent and also there is no reasons in the affidavit filed in support of the application with regard to due diligence on the part of the plaintiff, why he could not seek amendment earlier. Due diligence as held by the Hon'ble Supreme Court in CHANDER KANTA BANSAL case (supra), is action reasonably expected and ordinarily exercised by a person who seeks to satisfy a legal requirement or to discharge an obligation. Further it would also mean taking prompt steps or action. In the case on hand, as already observed above, written statement is filed on 19-06-2010 wherein the defendants have made it clear that the plaintiff has not taken any steps for completing the sale transaction even after 19 years and they have also made it clear that the plaintiff has lost right to enforce the agreement by virtue of limitation. The present application for amendment is filed on 27-02-2018 more than 8 years after filing of the written statement. Order 6 Rule 17 of CPC makes it clear that when amendment of pleading is sought 32 after commencement of trail, the party seeking amendment shall satisfy the Court with regard to due diligence on his part for allowing the application. In the case on hand also the petitioner/plaintiff is not diligent in prosecuting the suit, as could be seen from the sequence of events stated supra.
19. Thirdly, the nature of suit initially filed is for permanent injunction which was subsequently amended seeking protection of possession under Section 53A of the Act which was allowed by this Court keeping open the question of limitation to be urged at the time of trial. Now, the application filed under Order VI Rule 17 of CPC is to amend the plaint to include the prayer seeking specific performance of agreement of sale dated 16-12-1991. The basic structure of the suit for permanent injunction and suit for specific performance of agreement are entirely different. Further, if the proposed amendment is allowed, nature of the suit would change from the suit for 33 permanent injunction and protection of possession under Section 53A of the Act to that of specific performance of contract. In a suit for specific performance, the pleading itself would be different wherein the plaintiff will have to aver with regard to readiness and willingness on his part and failure on the part of the defendants to perform their part of contract. The Hon'ble Supreme Court in the case of VAN VIBHAG KARMACHARI GRIHA NIRMAN SAHKARI SANSTHA MARYADIT (REGISTERED) has held that when a plea for specific performance was not included in the original suit, it could not be included after a period of seven years having regard to Article 54 of the Limitation Act, which would aptly apply to the case on hand. The trial Court has rightly rejected I.A.No.7 for amendment holding that the proposed amendment is barred by limitation even though it is a question of law and fact. On the face of it and from the sequence of events narrated above would demonstrate that the proposed amendment is barred by limitation. Accordingly, the question is 34 answered in the negative. No ground is made out by the petitioner to interfere with the impugned order under Article 227 of the Constitution of India. Accordingly, the writ petition is dismissed.
SD/-
JUDGE mpk/-*bms