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2012 DIGILAW 810 (PNJ)

Anju Singh v. Kavita

2012-07-02

L.N.MITTAL

body2012
JUDGMENT Mr. L.N. Mittal, J.: (Oral) - Defendant Anju Singh has invoked jurisdiction of this Court by filing instant revision petition under Article 227 of the Constitution of India impugning order dated 26.04.2011 passed by learned Civil Judge (Junior Division), Sonepat thereby dismissing application moved by defendantpetitioner under Order 7 Rule 11 of the Code of Civil Procedure (in short, ‘CPC’) for rejection of the plaint on the ground of bar of limitation. 2. Respondent-plaintiff Kavita filed suit against defendant-petitioner on 18.07.2007 for permanent injunction alleging that the defendant agreed to sell the suit property to the plaintiff vide agreement dated 15.05.2006 and sale deed was to be executed upto 02.08.2006 which was finally extended up to 02.08.2007. Plaintiff moved application for amendment of plaint on 07.02.2008 to seek the relief of specific performance of the agreement because after filing of the suit, the plaintiff became entitled to claim the said relief. The said application was resisted by the defendant. Ultimately the said application was allowed by the trial Court vide order dated 21.08.2010. 3. Defendant moved application under Order 7 Rule 11 CPC for rejection of the plaint alleging that suit for specific performance is barred by limitation because date for execution of the sale deed was never extended from 02.08.2006 to 02.08.2007 and also because amendment of plaint to seek relief of specific performance was allowed on 21.08.2010 when suit to claim the said relief stood barred by limitation as the amendment of plaint would operate from the date of order allowing the amendment. 4. Plaintiff resisted the application and controverted the allegations made therein. 5. Learned trial Court vide impugned order dated 26.04.2011 dismissed the defendant’s application for rejection of the plaint. Feeling aggrieved, defendant has filed this revision petition. 6. I have heard learned counsel for the parties and perused the case file. 7. Counsel for the petitioner reiterated that the suit for specific performance stood barred by limitation when amendment of plaint to claim the said relief was allowed on 21.08.2010 and, therefore, the plaint is liable to rejection. It was contended that amendment of plaint to claim the aforesaid relief would operate from the date of order allowing the amendment. 7. Counsel for the petitioner reiterated that the suit for specific performance stood barred by limitation when amendment of plaint to claim the said relief was allowed on 21.08.2010 and, therefore, the plaint is liable to rejection. It was contended that amendment of plaint to claim the aforesaid relief would operate from the date of order allowing the amendment. Reliance in support of this contention has been placed on judgment of Hon’ble Supreme Court in the case of Tarlok Singh versus Vijay Kumar Sabharwal, 1996(2) Civil Court cases 0480 and judgment of this Court in the case of Narinder Singh & another versus Assa Singh & another, [2010(2) Law Herald (P&H) 1196] : 2010(3) Civil Court Cases 429 (P&H). 8. On the other hand, counsel for respondent-plaintiff contended that the plaintiff moved application for amendment of plaint to claim the relief of specific performance with promptness and without any delay by filing the application on 07.02.2008 and the plaintiff cannot be penalized if the said application was decided on 21.08.2010 i.e. two and half years after it was moved. 9. I have carefully considered the rival contentions. 10. The plaintiff filed suit on 18.07.2007 when according to her averments, she was not entitled to claim the relief of specific performance because date for execution of the sale deed stood extended till 02.08.2007 according to her version. However, when during pendency of the injunction suit, date for execution of the sale deed expired, the plaintiff immediately moved application on 07.02.2008 for amendment of plaint to claim the relief of specific performance. Consequently the amendment would relate back at least to the date of filing of the amendment application and the plaintiff cannot be penalized for the delay in decision of the said application by the trial Court for which defendant respondent was partly responsible as is evident from the zimni orders of the trial Court. 11. In the case of Narinder Singh (supra), the facts were completely different. Plaintiff was entitled to relief of specific performance when the suit was filed but still the plaintiff filed suit for permanent injunction only and did not claim relief of specific performance. The plaintiff moved application for amendment of plaint but even at that stage, the plaintiff did not seek relief of specific performance of the agreement. The said amendment application was allowed. The plaintiff moved application for amendment of plaint but even at that stage, the plaintiff did not seek relief of specific performance of the agreement. The said amendment application was allowed. It was much thereafter that the plaintiff moved another application on 30.10.1980 for amendment of plaint to claim the relief of specific performance. The said application was also allowed. This Court held that even if the suit for specific performance is deemed to be instituted on 30.10.1980 (the date when the amendment application to claim the said relief was moved and not the date when the said amendment application was allowed by the trial Court), even then the suit for specific performance was barred by the limitation. In the instant case, however, when the plaintiff filed suit for permanent injunction, the plaintiff according to her version was not entitled to relief of specific performance of the agreement. Plaintiff with promptness moved application on 07.02.2008 for amendment of plaint to claim the relief of specific performance of the agreement. Consequently the suit for specific performance is deemed to have been instituted on 07.02.2008 when the suit was well within limitation. The plaintiff cannot be penalized for the delay that occurred in the decision of the said application. According to facts and ratio of case Narinder Singh (supra) also, the suit for specific performance shall be deemed to have been instituted when application for amendment of plaint to claim the said relief was moved. Insofar as judgment of Hon’ble Supreme Court in the case of Tarlok Singh (supra) is concerned, the dates of various applications, orders and institution of suit etc. mentioned in the said judgment as given by counsel for defendant-petitioner, are erroneous on the face of it and, therefore, it cannot be said that the suit for specific performance of the agreement shall be deemed to have been instituted when the amendment of plaint was allowed by the trial court and not when the application to seek the said relief by amendment of plaint was moved. 12. For the reasons aforesaid, I find that there is no perversity, illegality or jurisdictional error in impugned order of the trial Court in dismissing the defendant’s application for rejection of plaint. At this stage, it cannot be said that the suit for specific performance of agreement was barred by limitation. 12. For the reasons aforesaid, I find that there is no perversity, illegality or jurisdictional error in impugned order of the trial Court in dismissing the defendant’s application for rejection of plaint. At this stage, it cannot be said that the suit for specific performance of agreement was barred by limitation. The revision petition is thus found to be meritless and is accordingly dismissed. ---------0.B.S.0------------