Research › Search › Judgment

Madhya Pradesh High Court · body

2017 DIGILAW 928 (MP)

Rakesh v. Anurag

2017-08-23

VIVEK RUSIA

body2017
ORDER 1. Petitioner has filed the present petition being aggrieved by the order dated 7.3.2015 by which his application under Order 6 rule 17 of the CPC has been rejected. 2. Facts of the case, are as under : An agreement to sale dated 1.3.2009 was executed between the plaintiff and defendant No.1 for sale of land bearing Survey No.15/1 (New No.15/12) area 0.90 hectare in total consideration of Rs.10.00 lac. According to the plaintiff, at the time of agreement, an amount of Rs.1.00 lac was paid and thereafter Rs.2.00 lacs was paid. The defendant No.1 took a loan of Rs.6.00 lacs by mortgaging the said suit property and another agreement dated 31.8.2009 was executed between the plaintiff and defendant No.1 by which the agreement dated 1.3.2009 was renewed. 3. In the month of September' 2010, the plaintiff came to know that defendant No.1 has sold the suit property to defendants No.2 to 5 by registered sale deed dated 19.10.2010 by concealing the agreement with the plaintiff. That on 13.8.2012, the plaintiff filed the suit for declaration and permanent injunction that the sale deed dated 19.10.2010 be declared null and void and the defendant be restrained to interfere into his peaceful possession. In the said plaint in para 12, the plaintiff has reserved his right to file suit for specific performance. 4. After notice, the defendants No.1, 2 and 5 and defendants No.3 and 4 filed their written statement denying the averments made in the plaint. 5. Before framing the issues in the plaint, the plaintiff filed an application under Order 6 rule 17 of CPC seeking amendment in paras 12 and 14 to the effect that a decree of specific performance of a contract be also granted in his favour. The said application was opposed by the respondent. 6. Vide order dated 7.3.2017, learned trial Court has rejected the application on the ground that the relief of specific performance has become time barred, therefore, same cannot be permit, hence, the present petition before this Court. 7. Shri V.A. Katkani, learned counsel appearing on behalf of the petitioner submits that the petitioner/plaintiff has already reserved his right to seek the relief of specific performance at the time of filing of the suit. 7. Shri V.A. Katkani, learned counsel appearing on behalf of the petitioner submits that the petitioner/plaintiff has already reserved his right to seek the relief of specific performance at the time of filing of the suit. The suit is at very initial stage, therefore, amendment is permissible and he is free to make amendment in the plaint and by way of amendment, he is seeking relief of specific performance, therefore, learned trial Court ought to have allowed him. In support of his contention he has placed reliance over the judgment passed in the case of Shiv Kumar v. Ramkatori and others, reported in 1977 JLJ 33 and in case of Dhanwanti Devi (Smt) v. Jagdish Goyal, reported in 1996(II) MPWN 323. Shri Raghav Shrivastava, learned counsel for the respondent has refuted the argument of Shri V.A. Katkani by submitting that under Order 2 rule 2, it is mandatory for the plaintiff to include whole of claim in one suit and if the plaintiff omits to claim any relief, then he shall not afterward sue in respect of the portion, so omitted or relinquish. He can omit for one relief for which the leave of the Court is required, therefore, the trial Court has not committed any error while rejecting the application. In support of his contention, he has placed reliance over the judgment passed in the case of Muni Lal v. The Oriental Fire and General Insurance Company Ltd. and another, reported in (1996)1 SCC 90 and in case of Van Vibhag Karamchari Griha Nirman Sahkari Sanstha Maryadit (Regd) v. Ramesh Chander and others, reported in (2010)14 SCC 596 . 8. The plaintiff has filed the suit for declaration and permanent injunction on the basis of agreement to sale dated 1.3.2009 and 31.8.2009. He has challenged the sale deed dated 19.10.2010 executed between the defendant No.1 and defendants No.2 to 4. If the plaintiff in plaint pleaded that on 25.7.2011 he came to know that the defendant No.1 has executed the sale deed in favour of the defendants No.2 to 4 and thereafter, on 1.6.2011, he obtained the certified copies of the sale deed from the office of Sub-Registrar, therefore, the cause of action to file the suit accrued in favour of the plaintiff started in the month of May' 2011. Article 54 of the Limitation Act provides the limitation of 3 years for filing the suit for specific performance. Article 54 of the Limitation Act provides the limitation of 3 years for filing the suit for specific performance. Order 1 rule 2, specifically provides that the every suit shall include whole of the claim which the plaintiff is entitled to make and it further provides if the plaintiff omits to sue then, same shall be treated that he has relinquished his claim. Order 2 rule 2 sub rule (3) entitles the person to omit the relief with the leave of the Court. 9. In the present case, the plaintiff has reserved his right in para 12 of the agreement but did not sought the leave from the Court at the time of filing of the suit, therefore, under Order 2 rule 2, he has treated to be omitted or relinquish his right in respect of suit for specific performance. 10. The apex Court in case of Van Vibhag Karamchari Griha Nirman Sahkari Sanstha Maryadit (supra), has held that the plaintiff who has omitted the relief of specific performance in the year 1991 should not be allowed to sue on the same cause of action which omitted to include when he filed the suit. Paras 30, 31 and 33 is reproduced below : “30. This Court is, therefore, of the opinion that the appellant had the cause of action to sue for specific performance in 1991 but he omitted to do so. Having done that, he should not be allowed to sue on that cause of action which he omitted to include when he filed his suit. This Court may consider its omission to include the relief of specific performance in the suit which it filed when it had cause of action to sue for specific performance as relinquishment of that part of its claim. The suit filed by appellant, therefore, is hit by the provisions of Order 2 rule 2 of the Civil Procedure Code. 31. Though the appellant has not subsequently filed a second suit, as to bring his case squarely within the bar of Order 2 rule 2, but the broad principles of Order 2 rule 2, which are also based on public policy, are attracted in the facts of this case. 33. 31. Though the appellant has not subsequently filed a second suit, as to bring his case squarely within the bar of Order 2 rule 2, but the broad principles of Order 2 rule 2, which are also based on public policy, are attracted in the facts of this case. 33. In K. Raheja Constructions Ltd. and another v. Alliance Ministries and others, reported in 1995 Suppl.(3) SCC 17, this court held that an application for amendment filed 7 years after the filing of the suit to include the plea of specific performance, would not defeat the valuable rights of limitation accruing to the other side. In that case, the factual position was somewhat similar to the present case and this Court held that when a plea for specific performance was not included in the original suit, it could not be included after a period of 7 years having regard to Article 54 of the Limitation Act. (Para 4 at pg. 18-19).” 11. The apex Court in case of Muni Lal (supra), has held that plaintiff cannot be permitted to amend the plaint after the suit was barred by limitation during the pendency of the proceedings in the appellate Court or the second appellate Court. Para 6 is reproduced below : “On a consideration of this case in its proper perspective, we of the view that granting of amendment of plaint seeking to introduce alternative relief of mandatory injunction for payment of specified amount is bad in law. The alternative relief was available to be asked for when the suit was filed but not made. He cannot be permitted to amend the plaint after the suit was barred by limitation during the pendency of the proceeding in the appellate Court or the second appellate court. Considered from this perspective, we are of the opinion that the District Court and the High Court were right in refusing the prayer of amendment of the suit and the Courts below had not committed any error of law warranting interference.” 12. In view of the above, admittedly, the plaintiff has filed an application for amendment seeking relief of specific performance on 17.1.2017. He was having the knowledge of the sale deed executed between the defendant No.1 and defendants No.2 to 4 in May' 2014. In view of the above, admittedly, the plaintiff has filed an application for amendment seeking relief of specific performance on 17.1.2017. He was having the knowledge of the sale deed executed between the defendant No.1 and defendants No.2 to 4 in May' 2014. Agreement to sale between the plaintiff and defendant No.1 is dated 1.3.2009, therefore, the relief in respect of specific performance is time barred, hence, the trial Court has not committed any error while rejecting the application. Petition fails and is hereby dismissed.