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2005 DIGILAW 393 (ORI)

Kamala Padhan v. Harihar Mishra

2005-06-24

L.MOHAPATRA

body2005
JUDGMENT L. MOHAPATRA, J. : The plaintiffs have filed this writ appli¬cation challenging the order dated 18.1.2002 passed by the learned Civil Judge (Junior Division), Bargarh in Title Suit No. 85 of 2001 rejecting the petition filed by the petitioners under Order 6, Rule 17 of the Code of Civil Procedure (in short “C.P.C.’) for amendment of the plaint as well as the judgment and order dated 13.8.2003 passed in Civil Revision No. 5 of 2002. 2. The petitioners have filed a suit for injunction and compensation and also seeking relief in respect of right to discharge rain water. On perusal of the plaint it also appears that the plaintiff-petitioners have pleaded adverse possession over the suit land and have also set up an alternate case of right of easement by prescription. While filing the suit in the year 2001, no prayer was made for specific performance of contract. In an application filed under Order 6, Rule 17 C.P.C., the plaintiff-petitioners sought for amendment of the plaint and in the proposed amendment, they sought for adding some persons as defendants and including the prayer for specific performance of contract/compensation for non-performance of contract and also a change in the date of cause of action. The said petition was resisted by the defendant-opposite parties on the ground that the prayer for specific performance of contract was time-barred and the change in the date of cause of action would change the nature and character of the suit. The trial Court found that the prayer for specific performance of contract is time-barred and the change sought for in the date of cause of action would change the nature and character of the suit and accordingly rejected the petition. 3. Shri Pujari, learned counsel appearing for the peti¬tioners, submitted that in the petition for amendment there is no averment as to when there was an agreement between the petition¬ers and Late Lambodar Nayak for sale of the disputed land and in absence of any such material, the trial Court could not have come to a conclusion that the prayer for specific performance of contract is time-barred. In support of his contention, Shri Pujari also produced a copy of the petition for amendment. 4. In support of his contention, Shri Pujari also produced a copy of the petition for amendment. 4. Shri Mohapatra, learned counsel appearing for the contesting opposite parties, on the other hand, submitted that the so-called agreement for sale having been executed much prior to the filing of the suit, there was no difficulty on the part of the plaintiff-petitioners to pray for specific performance of contract at the time of filing of suit. Having not done so, the plaintiffs cannot be allowed to include such a prayer by way of an amendment. It was also contended by Shri Mohapatra that the claim for specific performance of contract is time-barred as borne out form record and therefore a time-barred claim cannot be allowed to be incorporated by way of amendment. 5. On perusal of the petition for amendment, it appears that the plaintiff-petitioners sought for three amendments in the plaint. The first one is impletion of the legal heirs of Late Lambodar Nayak with whom it is alleged by the plaintiffs that an agreement for sale was executed. The second prayer for amendment is to include the relief of specific performance of contract/compensation for non-performance of contract and the third prayer for amendment is with regard to the change in the date of cause of action. Form the plaint, it appears that in paragraph 4 the plaintiff-petitioners have specifically averred that Late Lambodar Nayak for legal necessity sold the suit lands to the plaintiff No. 1 for a consideration of R. 1,000/- (Rupees one thousand) and received Rs. 800/- (Rupees eight hundred) in cash on 16.10.1966 and delivered possession to the plaintiffs. The plaintiff No. 1 as Karta of the family duly executed a document to that effect on that date and it was agreed between the parties that on receipt of the balance sum of Rs. 200/- (Rupees two hundred), registered sale deed would be executed. This being the admitted position in the plaint, the question that requires to be considered is, whether the prayer for inclusion of the relief of specific performance of contract can be allowed after lapse of more than thirty-five years. The answer is obviously “No”. The claim of specific performance of contract admittedly is time-barred and therefore a time-barred claim cannot be permitted to be incorporated in the plaint by way of amendment. The answer is obviously “No”. The claim of specific performance of contract admittedly is time-barred and therefore a time-barred claim cannot be permitted to be incorporated in the plaint by way of amendment. Accordingly, I do not find any infirmity in the order of the trial or the revisional Court in refusing the aforesaid prayer for amendment. If the said prayer for amendment is refused, there is no necessity of impleading the legal heirs of Late Lambodar Nayak as parties to the suit and accordingly, the said prayer has also rightly been refused. So far as the last prayer with regard to the change in date of cause of action is concerned, I also do not find any infirmity in the orders passed by the Courts below since any change in the date of cause of action will give rise to the question of limitation and accordingly, the same shall change the nature and character of the suit. 6. In view of the reasons stated above, I do not find any merit in this writ application and the same is accordingly dis¬missed. There shall, however, be no order as to costs. Application dismissed.