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8. Having discussed the law on the point ­ Let us examine whether the two reliefs that the plaintiff seeks to include by way of proposed amendments deserve to be allowed. Let us first deal with the 1st Amendment i.e inclusion of relief of specific performance. Amendment qua relief of Specific Performance The Plaintiff by way of amendment endeavours to seek specific performance of agreement to sell dated 24.10.2008. As per Article 54 of the Limitation Act, 1963 Specific Performance of a contract can be sought within 3 years of date fixed for performance or if no date is fixed for performance of the contract then within 3 years of date of refusal or knowledge of such refusal. In the present case the plaintiff has stated that he approached the defendant no.1 for execution of sale documents on 7.11.2008, again on 14.11.2008 but to no avail, infact on 15.11.2008 the defendants even tried to forcibly dispose him. Hence it can be fairly said that the plaintiff had notice that the defendant no.1 had no intentions to perform his part of the contract on the said date. The present amendment petition was moved on 19.07.2012, which is beyond a period of three years from the date of refusal or knowledge of refusal to perform the contract, hence as on date barred by limitation. Hence Relief qua Specific Performance is time barred. A right that has accrued to the defendant by virtue of law of limitation cannot be allowed to be defeated lightly. Another ground for denying the relief to the plaintiff is the utter lack of diligence which is writ large on the face of the record. Issues were framed in the instant case on 03.12.2009 and the matter was fixed for PE for 11.03.2010, after more than two years of matter being fixed for evidence, present amendment application came to be filed in 2012. The legislative mandate of not allowing readily amendments which are made after trial has commenced is very clear from the introduction of proviso to O.6 R 17 which reads :­ "Provided that no application for amendment shall be allowed after the trial has 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." A bare perusal of the proviso would reveal it is couched in a mandatory form. The Court's jurisdiction to allow such an application is taken away unless conditions precedent thereof are satisfied viz. it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before commencement of the trial.

In the present case the plaintiff has failed to satisfy the court that the relief of specific performance could not have been raised inspite of due diligence before the commencement of trial. There is no cogent reason as to why the relief of specific performance was not sought earlier. The mischief of proviso to O.6 R 17 is clearly attracted, and further the remedy as on date is barred by limitation, consequently amendment qua relief of specific performance stands disallowed. Amendment qua relief of declaration The Second relief that the defendant wants to seek is the declaration as to invalidity of subsequent sales of the property done by the defendant no.1. This fact as per the plaintiff has come to his knowledge after the defendant filed his written statement. A perusal of the record would reveal that the written statement came to be filed on 23.1.2009, and the present amendment application has been moved after commencement of trial on 19.07.2012 i.e more than three years after plaintiff first came to know about the transactions. This proposed amendment is also barred by limitation as per Article 58 of the Limitation Act, which lays down that for a suit for declaration the period of limitation is three years from the date when the right to sue first accrues. In the present case the plaintiff's right to seek a declaration of that string of documents first arose when these subsequent sales came to his knowledge, which is after filing of the written statement. Hence as on date of application for amendment i.e 19.07.2012 the relief of declaration against proposed defendants is time barred. It is settled law that provisions of Order 6 Rule 17 cannot be permitted to be used to defeat the law of limitation, and a right that has accrued to a party by lapse of limitation cannot be taken away. The Court is cognizant of the fact that the rule wherein a time barred relief is not allowed to be included by way of amendment, is not of universal application and under extreme circumstances court may still allow the amendment if the ends of justice so demand. However I do not find the present case to be one such case. Court has to balance equities from the point of view of both the parties. Even otherwise since the trial in the matter has commenced the proviso to O.6 R 17 is also attracted the plaintiff has failed to satisfy the court as to why the amendments were not taken up soon after the filing of the Written Statement. Although the court has to be liberal in matter of grant of amendments and hypertechnical, but legislative policy in the introduction of Proviso to O.6 R 17 cannot be lost sight of. In this regard reference may be had to relevant excerpts from Salem Advocates vs Union Of India (2005) 6 SCC 344 .