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2014 DIGILAW 1113 (PNJ)

Baljit Singh v. Sardara Singh

2014-07-28

RAKESH KUMAR JAIN

body2014
JUDGMENT Mr. Rakesh Kumar Jain, J. (Oral) - This revision petition is filed at the instance of the plaintiff with whom defendant No.1 entered into an agreement to sell the property in dispute through defendant No.2 on 11.8.1993. According to the agreement to sell, different parcels of land belonging to the co-sharers were agreed to be sold. Since, the actual physical possession was not with them, it was decided that as and when the vendors would handover the possession to the purchasers, the sale deed would be executed within one year. Meaning thereby, the land was to be first partitioned, possession was to be delivered to the vendees and then the formal sale deed was to be executed and registered. While the plaintiffs were waiting for the partition, they came to know that the sellers/defendants are trying to alienate the suit property to create third party rights. Resultantly, they filed a simple suit for permanent injunction in order to restrain the defendants from alienating the suit property. During the pendency of the suit, the plaintiffs filed an application under Order 6 Rule 17 of the Code of Civil Procedure, 1908 [for short ‘the CPC’] on 1.12.2008 to convert the suit for permanent injunction to a suit for specific performance but the said application was dismissed by the learned trial Court vide its order dated 28.1.2010 observing that as per Article 54 of the Limitation Act, 1993, the period of limitation for filing a suit for specific performance is of 3 years from the date fixed in the performance or if no such date is fixed then from the date of refusal and since the agreement is of the year 1983 and many years have passed, therefore, the amendment of the plaint was not allowed on the ground of delay as well. As a matter of fact, the learned trial Court has held that the suit is barred by limitation. The petitioner then challenged the said order by way of CR No.1457 of 2010 in which the following order was passed: - “Learned counsel for the petitioner, after arguing at length, seeks permission to withdraw the instant revision petition, with liberty to avail of remedy of separate civil suit, if permissible under the law. Dismissed as withdrawn.” 2. The petitioner then challenged the said order by way of CR No.1457 of 2010 in which the following order was passed: - “Learned counsel for the petitioner, after arguing at length, seeks permission to withdraw the instant revision petition, with liberty to avail of remedy of separate civil suit, if permissible under the law. Dismissed as withdrawn.” 2. After the aforesaid order, plaintiff filed an application under Order 23 of the CPC for withdrawal of the suit with permission to file a suit for specific performance but the said permission has been declined by the learned trial Court vide the impugned order dated 19.10.2012 on the ground that while withdrawing the petition, the High Court had only observed that the petitioner is at liberty to avail of remedy of separate civil suit, if permissible under the law. According to the trial Court, no permission as such was granted by the High Court for the purpose of filing suit for seeking relief of specific performance. 3. Learned counsel for the petitioner has argued that on the strength of the agreement dated 11.8.1993, he could have filed suit for specific performance had there been a date fixed for the purpose of performance of the agreement or the defendant had refused to perform the said agreement. He was actually waiting for the partition of the property in dispute of the defendants and delivery of possession to him for the purpose of execution and registration of the sale deed on payment of balance sale consideration. When he came to know that the defendants are trying to alienate the suit property avoiding the sale in his favour, the suit for permanent injunction was filed in which even stay was granted and when they found that the injunction is not sufficient and they are required to file suit for specific performance, instead of filing separate suit, they filed application for amendment of the plaint seeking prayer of specific performance which has been declined by the trial Court and the High Court did not interfere in the said revision but observed that the plaintiff may, if so advised, file separate suit in accordance with law. It is submitted that till the agreement is in existence, the plaintiffs can always file a suit for specific performance, which may according to the defendants is barred by limitation or otherwise. 4. It is submitted that till the agreement is in existence, the plaintiffs can always file a suit for specific performance, which may according to the defendants is barred by limitation or otherwise. 4. On the other hand, learned counsel for the respondents has vehemently opposed the revision petition and argued that even the suit for permanent injunction was not maintainable because it is specifically mentioned in the paragraph of cause of action that the defendants had refused to abide by the agreement, therefore, cause of action to file suit for specific performance had arisen even at that time. It is also submitted that the plaintiff instead of filing suit for specific performance, which requires fixation of the ad valorem Court fee, filed simple suit for injunction to restrain alienation of the suit land at the hands of the defendants in which they have obtained an order of stay. Learned counsel for the defendants has also argued that once application for amendment of the plaint has been declined by the learned trial Court observing that the application is barred by limitation, permission to file subsequent suit has rightly been declined. 5. I have heard learned counsel for the parties and perused the record. 6. The plaintiff has got an agreement in his favour on the basis of which he can always file suit for possession by way of specific performance subject to the law of limitation. The petitioner has unnecessarily applied for permission from the trial Court for withdrawal of the suit and for filing suit for specific performance even if his suit for permanent injunction is still pending. Because both the suit can run simultaneously on the basis of circumstances in which suits have been filed, it is for the Court to see in a suit for specific performance that it is barred under Order 2 Rule 2 of the CPC or barred under Article 54 of the Limitation Act, 1963 or barred by any other provision of law but there is no bar in filing of the suit. 7. In view thereof, the present revision petition is hereby allowed and the impugned order is set aside. ---------0.B.S.0------------ —————————