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2009 DIGILAW 537 (AP)

Razia Sirajuddin, Visakhapatnam v. Eskay Builders

2009-08-06

L.NARASIMHA REDDY

body2009
Judgment : The first respondent filed O.S.No.2054 of 2005 in the Court of the IV Junior Civil Judge, City Civil Court, Hyderabad against the petitioner and the second respondent for the relief of perpetual injunction in respect of the suit schedule property. Shortly thereafter, it filed I.A.No.238 of 2006 under Order 6 Rule 17 read with Section 151 C.P.C. with a prayer to permit it to amend the plaint. The purport of the amendment was to incorporate the prayer for specific performance of an agreement of sale, dated 15.11.1993. The application was opposed by the petitioner on several grounds, including that of limitation and maintainability. Through its order, dated 08.03.2007, the trial Court allowed the I.A. Hence, this civil revision petition. Sri S. Niranjan Reddy, the learned counsel for the petitioner, submits that the amendment would have the effect of permitting a relief, which is clearly barred by limitation. He submits that the agreement is of the year 1993 and the G.P.A. which accompanied it was cancelled hardly within one year and a relief cannot be claimed more than one and half decades thereafter. His other contention is that the understanding of the petitioner as well as the first respondent was that the agreement, dated 15.11.1993, is the one for development and not for sale at all and in that view of the matter, the relief of specific performance is totally impermissible. Sri D. Prakash Reddy, the learned Senior Counsel for the first respondent, on the other hand, submits that the application for amendment is filed within three years from the date on which the petitioner expressed his intention of not honouring the agreement and thereby, it is within limitation. He contends that the trial Court itself has left that question to be dealt with, at proper stage. The learned Senior Counsel further submits that the nature of the document or the rights that flow out of it, is a matter, which needs to be dealt with, on the basis of evidence adduced by the parties, and it cannot be said that the amendment is untenable in law. Both the counsel have relied upon precedents in support of their contentions. The suit, as originally filed, was the one for the relief of perpetual injunction. The first respondent filed an application for amendment of the plaint, to incorporate the plea of specific performance. Both the counsel have relied upon precedents in support of their contentions. The suit, as originally filed, was the one for the relief of perpetual injunction. The first respondent filed an application for amendment of the plaint, to incorporate the plea of specific performance. The petitioner opposed the same on three grounds, namely, limitation, purport of the agreement, and pecuniary jurisdiction of the trial Court. So far as the first ground is concerned, the trial Court itself left that to be decided at the stage of trial and treated it as triable issue. It is always open to the petitioner to put forward his contention as to the limitation vis-à-vis the prayer that is incorporated through the amendment. As regards the purport of the agreement, namely whether it was a developmental agreement or an agreement of sale, no final view can be expressed at this stage. By its very nature, that question needs recording of oral and documentary evidence and it would be possible for the Court to express any view only after the trial. Therefore, the plea raised by the petitioner in this regard cannot be sustained. Suffice it to say that it shall be open to both the parties to lead evidence in support of their respective pleas. The learned counsel for the petitioner did not plead the question as to the pecuniary jurisdiction. In case the Court finds that as a consequence of the amendment, it loses pecuniary jurisdiction, it shall always be open to it, to return the plaint, to be presented before a proper Court. Inasmuch as the trial of the suit did not commence, the proviso to Order 6 Rule 17 C.P.C. does not get attracted. Hence, the civil revision petition is dismissed. It is, however, directed that the order under revision shall not be treated as the one expressing opinion on any of the issues involved and it shall be open to the parties to put forward their respective contentions during the course of trial. The petitioner is granted 30 days from today to file additional written statement dealing with the amendment incorporated in the plaint. There shall be no order as to costs.