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2012 DIGILAW 395 (CAL)

Kali Narayan Roy v. Dilip Kumar Roy Choudhury

2012-05-02

PRASENJIT MANDAL

body2012
Judgment :- Prasenjit Mandal, J. This application is at the instance of the defendant No.2 and is directed against the Order dated February 7, 2006 passed by the learned Civil Judge (Junior Division), 5th Court, Alipore in Title Suit No.271 of 1981 thereby allowing an application for amendment of the plaint. The short fact is that the plaintiffs/opposite parties herein instituted a suit being Title Suit No.271 of 1981 for a decree for specific performance of contract against the defendant No.1 in respect of an immovable property and for permanent injunction against the defendants and other consequential reliefs. On the other hand, the defendant No.2/petitiner herein instituted a suit being Title Suit No.401 of 1982 against the plaintiffs/opposite parties herein for recovery of possession, permanent injunction and other reliefs. The two suits are being tried analogously and the suits are at the stage of recording evidence on behalf of the defendants. At that stage, on September 2, 2005 an application for amendment of the plaint was sought for and that application was allowed by the impugned order. Being aggrieved, this application has been filed. Now, the question is whether the impugned order should be sustained. Upon hearing the learned Counsel for the parties and on going through the materials-on-record, I find that the said two suits were filed by the plaintiffs of Title Suit No.271 of 1981 and by the defendant No.2 of the said suit in the year 1981 and 1982 respectively and the said suits are at the stage of recording evidence on behalf of the defendants. In the earlier suit, that is, Title Suit No.271 of 1981, the plaintiffs have prayed for the following reliefs:- a) a decree for Specific Performance of Contract directing the defendant no.1 to execute and register conveyance in favour of the plaintiffs upon receipt of the balance of Contractual amount of consideration within a specified period failing which to have it done through Court; b) a decree for Permanent Injunction restraining the defendants from disturbing the peaceful possession and enjoyment of the suit property; c) a decree for all costs of the suit; d) such other relief or reliefs as the plaintiffs may be found to be entitled to. Over almost the selfsame property, the plaintiff (petitioner herein) of Title Suit No.401 of 1982 has sought for the following reliefs:- (1) For a decree for recovery of khas possession against defendants who are rank trespassers for the land in suit in Schedule ‘B’ and declaration of plaintiffs title thereof (2) For permanent injunction restraining the defendants from making and construction on suit land (3) For mandatory injunction for removal of structure in suit land. (4) For damages from 9.4.81 upto recovery of khas premises (5) For costs of the suit with interest (6) For other relief or reliefs in which the plaintiff s entitled to in law and equity. In Title Suit No.401 of 1982, the petitioner herein has specifically contended that the plaintiff had purchased the suit property by a Sale-Deed dated August 29, 2001 and got possession over the land delivered by the vendor. It may be noted herein that the plaintiffs of Title Suit No.271 of 1981 sought for relief for specific performance of contract against Sudhanshu Sekhar Bhattacharjee (defendant No.1) only and for permanent injunction against the said Sudhanshu Sekhar Bhattacharjee and the petitioner herein. Therefore, from the above facts and circumstances, it is explicit that both the parties knew very well about the contentions of the other parties in their pleadings. At the stage of recording of evidence of the D.W. the application for amendment dated September 2, 2005 came up from the side of the plaintiffs of Title Suit No.271 of 1981 seeking the relief of a decree for specific performance of contract against the defendant no.2. While disposing of the said application for amendment, the learned Trial Judge has observed that if the proposed amendment is allowed, the nature and character of the suit shall not be changed. I fully agree with such findings. Mr. Bidyut Kumar Banerjee, learned Senior Advocate appearing for the petitioner has contended that according to Article 54, limitation runs from the date when the defendant purchased the property in 1981 as indicated above and/or knowing such fact at least from the plaint of the Title Suit No.401 of 1982. I fully agree with such findings. Mr. Bidyut Kumar Banerjee, learned Senior Advocate appearing for the petitioner has contended that according to Article 54, limitation runs from the date when the defendant purchased the property in 1981 as indicated above and/or knowing such fact at least from the plaint of the Title Suit No.401 of 1982. The plaintiffs/opposite parties herein did not seek for amendment of the plaint within the period of limitation of 3 years at least from the date of filing of the suit and as such, relief of the decree for specific performance of contract against the defendant No.2 is barred by limitation according to Article 54 of the Limitation Act. On the other hand, Mr. Gopal Ghosh, learned Advocate appearing for the petitioner has submitted that the reliefs sought for by the plaintiffs of Title Suit No.271 of 1981 are as per provisions of Section 19 of the Specific Relief Act and so, a suit for specific performance of contract may be enforced against any other person claiming under the vendor by a title arising subsequently to the contract except a transferee for value who has paid money in good faith and without notice of the original contract. So, in view of the provisions of Section 19 of the Specific Relief Act, plaintiffs of Title Suit No.271 of 1981 are entitled to seek for relief for a decree of specific performance of contract against the petitioner herein also. Mr. Ghosh has also contended that the learned Trial Judge has rightly observed that if the proposed amendment is granted it will not cause change of the nature and character of the suit and appropriate costs have been granted. He has also referred to the decision of Paramanand Agarwal & Anr. v. Parmeshwar Das Agarwal & Ors. reported in 2010(3) CHN (Cal) 982 and thus, he submits that amendment should be allowed when the fundamental character of the suit would not be changed by the proposed amendment nor has any valuable right accrued to the opposing first defendant-amendment allowed. With due respect to Mr. Ghosh, I am of the view, that this decision will not be applicable because this decision did not deal with the provisions of Section 54 of the Limitation Act. With due respect to Mr. Ghosh, I am of the view, that this decision will not be applicable because this decision did not deal with the provisions of Section 54 of the Limitation Act. In the instant case, the application for amendment having been filed long after the lapse of the period of limitation as provided under Article 54 of the Limitation Act, the same should have been rejected by the learned Trial Judge on the ground being barred by the law of limitation. But, the learned Trial Judge did not consider the question of limitation whether the prayer for amendment as sought for should be allowed at the belated stage. As indicated above, while filing the suit (in Title Suit No.271 of 1981) the plaintiffs sought for a decree for specific performance of contract against the defendant No.1, namely, Sudhanshu Sekhar Bhattacharjee only. The plaintiffs did not seek any relief of decree for specific performance of contract even knowing the contention that the subsequent purchaser i.e. the petitioner has claimed that he had purchased the suit property on April 29, 2005 and got possession over the same. So, the limitation, at least, runs from the date when the second suit, that is, the Title Suit No.401 of 1982 had been filed by the defendant No.2/peritioner herein as per Article 54 of the Limitation Act. The limitation to claim the relief of a decree for specific performance of contract against the petitioner is for 3 years as per Article 54 of the Limitation Act. In this respect, the reliance may be placed on the decisions of Van Vibhag Karamchari Griha Nirman Sahakari Sanstha Maryadit (Regd.) v. Ramesh Chander & Ors. reported in AIR 2011 Supreme Court 41 and T.L. Muddukrishana and anr. v. Smt. Lalitha Ramchandra Rao reported in AIR 1997 Supreme Court 772. Accordingly, I am of the view that the learned Trial Judge has committed errors of law in arriving at a conclusion in allowing the said application for amendment of the plaint. The impugned order, therefore, cannot be supported. In that view of the matter, the application succeeds. It is, therefore, allowed. The impugned order is hereby set aside. The application for amendment of the plaint dated September 2, 2005 stands rejected. The learned Trial Judge shall proceed with the suit from that stage. The impugned order, therefore, cannot be supported. In that view of the matter, the application succeeds. It is, therefore, allowed. The impugned order is hereby set aside. The application for amendment of the plaint dated September 2, 2005 stands rejected. The learned Trial Judge shall proceed with the suit from that stage. Since the two suits are very old, the learned Trial Judge is directed to dispose of the two suits within a period of 3 months from the date of communication of this order to him. Considering the circumstances, there will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking. S