JUDGMENT : NARENDRA KUMAR VYAS, J. 1. The appellant/defendant No. 3 has filed the first appeal under Section 96 of the Code of Civil Procedure against the judgment and decree dated 7-3-2022 passed by the 7th Additional District Judge, Durg, District Durg in Civil Suit No. 3A/2018 by which the learned trial court has allowed the suit filed by the respondent No. 1/plaintiff for getting vacant possession of plot No. 13 situated at Indira Market, Durg after removing the shop debris. 2. The parties have been described as per their status in the suit. 3. The brief facts, in nutshell, are that the defendant No. 1 Municipal Corporation, Durg owns and possesses properties at Indira Market, Durg. Defendant No. 1 Municipal Corporation Durg has given shop No. 2 to plaintiff on lease in the year 1973 to run his business in which plaintiff is running a business in the name of Usha General Stores. On 13-1-1987 defendant No. 1 held a general council meeting wherein Municipal Corporation has taken a decision to allot open space behind shop to the shop owners. 14 shop owners have submitted joint application before the defendant No. 1 for allotment of the open space behind their shop. As per general council meeting held on 13-1-1987, the said application was allowed with a condition that for ground floor premium payment of Rs. 1,00,000/- premium for first floor payment of Rs. 35,000/- and apart from these premium payments, these people have to pay Rs. 250/- and 150/- per month as rent for ground and first floor respectively. It has been further averred that in the year 1989 defendant No. 1 allotted the shop No. 13 situated at Indira Market, Durg to plaintiff and in pursuance thereof plaintiff has paid Rs. 25,000/- on 15-11-1989 to defendant No. 1 and obtained receipt thereof also. 4. It has been further contended that Defendant No. 1 has also issued memo on 7-6-1997 wherein consent from the plaintiff was obtained for construction in the open space behind Shop No. 2 from his own expenditure which has been consented by the plaintiff. This will be referred to as suit property in the foregoing paragraphs. 4. It has been further contended that Defendant No. 1 has also issued memo on 7-6-1997 wherein consent from the plaintiff was obtained for construction in the open space behind Shop No. 2 from his own expenditure which has been consented by the plaintiff. This will be referred to as suit property in the foregoing paragraphs. It has been further averred that although defendant No. 1 allotted plot No. 13 situated at Indira market to the plaintiff, but the defendant No. 3 unauthorizedly took possession of the same and in order to save his illegal possession defendant No. 3 filed Writ Petition No. 2740 of 1997 before Hon'ble High Court of Madhya Pradesh wherein the following order has been passed on 10-04-2000: “In this writ petition filed under Articles 226 and 227 of the Constitution of India, prayer made by the petitioner is to quash the eviction notice (Annexure P/2) whereby the petitioner has been asked to vacate the shop presently in his occupation. It is the grievance of the petitioner that although he was promised to be allocated a shop, but without allocating the same, petitioner has been asked to vacate the shop permanently in his occupation. Mr. Pathak appearing on behalf of the petitioner states that during the pendency of the writ petition, although a shop has been allocated to him, but the said allocation is illegal. He prays for withdrawal of the writ petition with liberty to challenge the order allocating the shop in his favour in accordance with law.” 5. Again, defendant No. 3 has filed writ petition before Hon'ble High Court of Chhattisgarh which was registered as W.P. No. 4619 of 2000 which was subsequently withdrawn wherein this court has passed the following order on 19-3-2013: “By this petition filed under Article 226 of the Constitution of India, petitioner substantially has prayed quashment of the allotment order Annexure P3 and further direct the respondent to allot a shop from the shops which are going to be constructed at the place occupied by the petitioner. Learned counsel for the petitioner submits that petitioner has filed civil suit for partition of title on the ground of adverse possession, therefore, he seeks to withdraw the petition. Consequently, the petition is dismissed as withdrawn.” 6. Learned counsel for the petitioner submits that petitioner has filed civil suit for partition of title on the ground of adverse possession, therefore, he seeks to withdraw the petition. Consequently, the petition is dismissed as withdrawn.” 6. It has been contended that defendant No. 3 concealing the aspects of filing writ petitions, has filed a Civil Suit No. 8-A/2013 before the trial court for grant of decree on the basis of adverse possession over the suit property before the trial court. It has been further averred that as soon as the information was brought to the notice of the plaintiff that the defendant No. 3 has filed a Civil Suit No. 8A/2013, he moved an application under Order 1 Rule 10 CPC for impleading plaintiff as party to the suit which was rejected by the trial court on 30-11-2013 against which the plaintiff has filed W.P. (227) No. 923/2013 which was disposed of by this court granting liberty to the plaintiff to file a fresh application before the trial Court for impleading himself as party to the case. The plaintiff again moved an application under Order 1 Rule 10 read with Section 151 of CPC before the trial court which was rejected by the Additional District Judge, Durg, against which the plaintiff has filed Writ Petition (227) No. 209 of 2016 which was rejected by this court on 8-3-2017. It has been further contended that the plaintiff has also filed Writ Petition No. 2024 of 2014 (Sanjay @ Tillumal Mohnani vs. State of Chhattisgarh) which was withdrawn on 17-10-2014 on the count that Defendant No. 3 has already filed Civil Suit No. 8A/2013 before the District Court, Durg. The plaintiff has explained the cause of action and pendency of litigation between plaintiff, defendants No. 1 and 3 in detail to plead that the suit is within limitation. 7. Thereafter, plaintiff sent a legal notice under Section 401 of Nagar Palik Nigam Act, 1956 to defendant No. 1 on 4-4-2017 but despite receiving this legal notice, defendant No. 1 did not provide him the relief, thereafter the present suit has been filed. The plaintiff has filed the civil suit for specific performance of contract by ejecting the defendant No. 3 who has encroached the suit property without any legal right and for removal of the debris. 8. The plaintiff has filed the civil suit for specific performance of contract by ejecting the defendant No. 3 who has encroached the suit property without any legal right and for removal of the debris. 8. The defendant No. 3 has filed his written statement on 27-10-2018 denying the allegation made in the plaint mainly contending that the plaintiff is in possession of the Shop No. 2 situated at Indira Market, Durg since 1973. It has been further contended that the suit is barred by limitation and it has also been contended that defendant No. 3 has filed Civil Suit No. 18A of 2012 on 13-12-2012 (the civil suit re-numbered as Civil Suit No. 8A/2013) wherein the plaintiff has filed an application under Order 1 Rule 10 CPC which has been rejected by learned 6th Additional District Judge. It has been further contended that the application filed by the plaintiff for impleading the defendant No. 3 under Order 1 Rule 10 of CPC has been rejected on 4-5-2015 and again it has been rejected on 6-2-2016, against that the petitioner has filed writ petition before this court which was rejected vide order dated 8-3-2017 passed by this court with cost of Rs. 5000/- therefore, the above civil suit is not only fraudulent on the part of the plaintiff. It has been further contended that the subject matter of the civil suit No. 8A/2013 pending before the 6th Additional District Judge is also a subject matter of present suit filed by the plaintiff which can be verified by the written statement filed by the defendant No. 1 Municipal Corporation, Durg in Civil Suit No. 8A/2013. It has also been further contended that Defendant No. 3 has also applied for small shop and deposited Rs. 1000/- and in compliance of the order passed by the Hon'ble High Court of MP, a small shop has been allotted to him which was marked as 29/E but in big shop No. 13, the plaintiff is in illegal possession of shop, against which defendant No. 3 has preferred Writ Petition No. 4619 of 2000 before Hon'ble the High Court of MP which is still pending, therefore, prayed for dismissal of the suit. 9. Defendant No. 1 Municipal Corporation, Durg has not filed any written statement. 9. Defendant No. 1 Municipal Corporation, Durg has not filed any written statement. On the pleadings of the parties, learned trial court has famed as many as four issues, which are as under: (i) Whether the plaintiff is entitled to get vacant possession of shop as constructed in disputed property i.e. plot No. 13 situated at Indira Market, Durg? (ii) Whether plaintiff by virtue of specific performance is entitled to get a relief of making construction over disputed property after granting possession of it from defendant No. 1? (iii) Whether the suit of plaintiff is barred by law? (iv) Any other relief? 10. The plaintiff to substantiate his averment has examined witnesses namely Tillumal @ Sanjay Mohnani (PW-1), Anil Ballewar (PW-2), Ishwardas Lohani (PW-3) and Mohanlal Jain (PW-4) and exhibited documents; lease deed (Ex.P/1), Minutes of General Council Meeting (Ex.P/2), receipt of Municipal Corporation, Durg (Ex.P/3), memo of Municipal Corporation (Ex.P/4), orders of High Court of MP (Ex.P/5, P/6 and P/7), orders of High Court of CG (Ex.P/8 to P/11), certified copy of written statement filed in Civil Suit No. 8A of 2012 by the Municipal Corporation (Ex.P/12), notice, receipt and acknowledgment of postal order (Ex.P/13 to P/16), the application filed under Right to Information Act (Ex.P/17) and memo of Municipal Corporation, Durg (Ex.P/18 and 19) and certified copy of decision dated 7-2-2019 (Ex.P/20). 11. Defendant No. 1/Municipal Corporation Durg has examined Prakash Chander Tiwari as DW-1/1 and exhibited the documents as per list. 12. Defendant No. 3 himself has examined as DW-1 Mohammad Suberati and Narayan Dass (DW-2) and exhibited documents; details of shop owners (Ex.D/1), memo dated 15-3-2019 issued by the Municipal Corporation, Durg (Ex.D/2), memo dated 14-3-2019 (Ex.D/3), receipt given by the Municipal Corporation dated 15-3-2019 (Ex.D/4), copy of the order passed by this court in W.P. (227) No. 209/2016 (Ex.D/5), order dated 3-2-2018 passed by the District Judge, Durg (Ex.D/6), memo issued by the Tahsildar, Durg (Ex.D/7), memo dated 14-7-2017 issued by the Tahsildar Durg (Ex.D/8), voters list (Ex.D/9), receipt given by the Municipal Corporation dated 17-11-2021 (Ex.D/10), application under Right to Information Act and Article-A (Ex.D/11), Khasra (Ex.D/12), map (Ex.D/13), certified copy of memo of appeal (Ex.D/14), copy of the order dated 19-1-2021 (Ex.D/15 and the order dated 9-7-2019 (Ex.D/16). 13. 13. Tillumal @ Sanjay Mohnani (PW-1) in his examination-in-chief has reiterated the stand taken by him in the plaint and this witness was cross examined by the defendant No. 1 Municipal Corporation. In the cross examination he has stated that the Municipal Corporation Durg has allotted shop No. 29/E to the defendant No. 3 but he has not accepted the same and he has deliberately taken possession over the land behind the shop despite allotted to the plaintiff. This witness was also cross examined by Defendant No. 3 wherein he has stated in Para-32 that there was a direction for deciding both the cases at one place and the suit filed by Defendant No. 3 has been decided but the suit filed by him is still pending. This witness was asked by the counsel of Defendant No. 3 that despite sanction granted to him for construction, why he has not constructed the shop over the place and on being asked this witness stated that in the open space defendant No. 3 is in possession of the property, therefore, he could not start the construction work. Even after rejection of his application filed under Order 1 Rule 10 CPC by the trial court, why he has filed a civil suit, he has stated that the open space which has been allotted to him is in illegal possession of defendant No. 3, therefore, he has filed the civil suit. 14. Anil Ballewar (PW-2) who was also doing business in the Indira Market, Durg, has been examined by plaintiff and in his examination-in-chief by way of affidavit he has supported the case of the plaintiff. This witness was cross examined by Defendant No. 1 wherein he has stated that there was a dispute with regard to vacant shop of the plaintiff, therefore, possession has not been given to the plaintiff by the Municipal Corporation. He has also stated that the defendant No. 3 was allotted a small shop No 29E by the Municipal Corporation. He has admitted that after allotment of shop No. 29E, Defendant No. 3 has not vacated the possession of open space behind which is in his possession even after allotment of shop No. 29E. 15. He has also stated that the defendant No. 3 was allotted a small shop No 29E by the Municipal Corporation. He has admitted that after allotment of shop No. 29E, Defendant No. 3 has not vacated the possession of open space behind which is in his possession even after allotment of shop No. 29E. 15. Witness of Defendant No. 2 Municipal Corporation has supported the case of the plaintiff and also stated in examination-in-chief that Defendant No. 3 is in illegal possession over the open space of the land which has been allotted to the plaintiff on 7-6-1997 as per terms of the Municipal Corporation. This witness was cross examined by the plaintiff and in the cross examination he has stated that the suit filed by Mohammad Suberati has already been rejected and he has also admitted that even after dismissal no possession has been taken from defendant No. 3 because present suit is pending. He has also admitted that the shop No. 29E has been allotted to Defendant No. 3 but he has not taken possession of that land. 16. Defendant No. 3 himself examined as DW-1 and in examination-in-chief by way of affidavit as provided under Order 18 Rule 4 of CPC he has reiterated the stand which he has taken in the written statement. This witness was cross examined by the plaintiff wherein he has admitted that the suit filed by him on the basis of adverse possession has already been rejected, against which the appeal has been preferred. He has also admitted that he is not aware whether the appeal filed by him has already been dismissed or not. He has also admitted that even after dismissal of the suit filed by him, still he is in possession of the suit property. He has stated that he has nowhere stated before the court that if another shop is allotted to him he will vacate the possession. He has denied that the Municipal Corporation has allotted him shop at vegetable market. He has denied that he has taken possession over the shop No. 29E even after allotment. He has also stated that shop No. 29E situated at vegetable market has been allotted to other person. 17. He has denied that the Municipal Corporation has allotted him shop at vegetable market. He has denied that he has taken possession over the shop No. 29E even after allotment. He has also stated that shop No. 29E situated at vegetable market has been allotted to other person. 17. Learned trial court after appreciating the evidence, material on record and considering the law has allowed the suit and directed the defendant No. 3 to vacate possession behind shop No. 13 and also removed debris. Against the judgment and decree dated 7-3-2022 the Defendant No. 3 has preferred First Appeal before this court mainly contending that the judgment and decree passed by the learned trial court is illegal, erroneous and contrary to law and it has also been contended that the trial court has committed illegality in allowing the suit though the suit is not maintainable. It has also been contended that the suit has not been properly valued for specific performance of contract and ad-velorem court has not been paid, therefore, the suit is not tenable. It has been further contended that the plaintiff without complying with the provisions of Section 401 of the Municipal Corporation Act, 1956 has filed the suit, therefore the suit is not maintainable as no notice to defendant No. 1 was served. He would further submit that learned trial court committed gross illegality in holding that service of notice on the Commissioner, Municipal Corporation will be presumed to be a service of notice on Municipal Corporation. He would further submit that the suit is barred by limitation. He would further submit that the appellant has also filed suit prior to filing of the suit for suit property and the first appeal arises out of judgment and decree passed by the trial court is still pending before this court, therefore, the judgment and decree passed by the trial Court is bad-in-law and deserves to be set aside. It has been further submitted that the learned trial court without framing issue on specific performance of contract has decided the suit which is not permissible in view of law laid down by Hon'ble the Supreme Court, therefore, the judgment and decree deserves to be set side by this court. It has been further submitted that the learned trial court without framing issue on specific performance of contract has decided the suit which is not permissible in view of law laid down by Hon'ble the Supreme Court, therefore, the judgment and decree deserves to be set side by this court. He would further submit that the trial court has failed to appreciate the pleadings, there is no pleadings or evidence showing the readiness and willingness on the part of the plaintiff. The documents filed by the plaintiff specially Ex.P3 and P/4 shows that the ownership of the property will remain with the Municipal Corporation and the said document cannot be construed to be a document of title. Even the said document cannot be construed as the letter of allotment, because as per the terms and conditions of the said letter the construction will be raised and thereafter the lease deed in respect of the said construction/shop will be executed in favour of the allottee. He would further submit that the trial court has failed to appreciate Section 29 of the Contract Act. The learned trial court ought to have appreciated that indefinite contract cannot be enforceable in law. To buttress his arguments, he has relied upon the decisions of Hon’ble Madhya Pradesh High court in the case of Laxminarayan and Others vs. Shivnarayan, 1966 MPLJ 329 , Rame Gowda vs. M. Varadappa Naidu, (2004) 1 SCC 769 , Balraj Taneja vs. Sunil Sadan, AIR 1999 SC 3381 and Somakka vs. K.P. Basavraj, 2022 SCC Online SC 736. 18. Learned counsel for the plaintiff/respondent No. 1 would submit that since there is encroachment of the appellant/defendant No. 3, therefore, the possession could not be delivered to the plaintiff/respondent No. 1. Thereafter the writ petition at the instance of the appellant/defendant No. 3 was filed before the Hon’ble High Court of MP and during pendency of the writ petition the appellant/defendant No. 3 prayed before the Hon’ble court that if the Municipal Corporation Durg allots a new shop then he will remove the encroachment. On the basis thereof Municipal Corporation allotted him a new shop i.e. 29E. He would further submit that despite of allotment, the appellant/defendant No. 3 did not remove the encroachment and again filed a writ petition which was ultimately withdrawn in the year 2012 with liberty to file a civil suit. On the basis thereof Municipal Corporation allotted him a new shop i.e. 29E. He would further submit that despite of allotment, the appellant/defendant No. 3 did not remove the encroachment and again filed a writ petition which was ultimately withdrawn in the year 2012 with liberty to file a civil suit. He would further submit that the trial court after close scrutiny of the evidence of defendant No. 3 has disbelieved the version of the defendant No. 3, however, it is found that the plaintiff's claim is not only supported with documents but also supported by the version of defendant No. 1 Nagar Palika Nigam Durg. He would further submit that in Para 15 and 22 the learned trial court scrutinized the point of limitation and issue No. 3 and found that the suit of plaintiff is within the limitation and suit is not barred, by limitation and rejected the objection of the appellant/defendant No. 3 on the point of limitation. It has been further contended that the trial court after examining the each and every pleading, documentary evidence and deposition of the parties, came to conclusion that the plaintiff has proved its case. He would further submit that the defendant No. 3 has admitted that his suit on the ground of adverse possession has already been dismissed and the objections taken by the defendant No. 3 are not tenable. He would further submit that the appellant/defendant No. 3 is encroacher and there is no illegality or perversity in the judgment and decree passed by the trial court and prayed for dismissal of the appeal. 19. Learned counsel for defendant No. 2/Municipal Corporation as well as State counsel have supported the judgment and decree passed by the trial court. 20. This court has admitted the appeal on 21-3-2022 and vide its order dated 7-4-2022 has directed that status quo as it exists today at 1200 noon shall be maintained till the next date of hearing and fixed the case for final hearing in motion hearing list on 4-5-2022. 20. This court has admitted the appeal on 21-3-2022 and vide its order dated 7-4-2022 has directed that status quo as it exists today at 1200 noon shall be maintained till the next date of hearing and fixed the case for final hearing in motion hearing list on 4-5-2022. This court considering the submissions of the parties and considering the order passed by this court in earlier round of litigation has directed that the Municipal Corporation, Durg to file a detailed affidavit indicting whether any shop is available to allot to Mohammad Suberati in pursuance of the order dated 19-2-1999 and any steps have been taken by the Corporation for allotting the shop to the appellant also, whether he has taken any steps for complying with the order dated 19-2-1999. Even if he has not complied whether any shop is available there, he can be accommodated as per policy/rate applicable today and thereafter fixed the case on 11-5-2022. 21. In compliance of the order passed by this court, Municipal Corporation Durg has filed a detailed affidavit satisfying the query raised by this court wherein they have stated that the appellant after 10-2-1999 has not taken any steps to occupy the suit shop No. 29E, in the meanwhile, one Mohammad Yusuf Chowhan has filed W.P. No 164 of 2002 which was decided on 5-10-2017 and in pursuance of the order, shop No. 29E has been given to Mohammad Yusuf Chouhan for which direction was given by the Joint Director, Town Administration and Development Durg to Commissioner, Municipal Corporation Durg vide letter dated 19-1-2018. the letter dated 7-6-2018 was issued in pursuance of the order passed by this court, therefore, the said plot No. 29E is not available for allotment, however, certain shops are ready for allotment as per the two lists enclosed herewith, in case the appellant gives consent and ready to pay the charges as per policy/rate applicable today as ordered on 4-5-2022, then any of the shop can be allotted to the appellant, subject to following reservation i.e. in case of choosing shop reserved for women candidate then it can be allotted in the name of the wife of appellant and also enclosed the list indicating the list wherein shops are available. 22. I have heard learned counsel for the parties and perused the record with utmost satisfaction. 23. 22. I have heard learned counsel for the parties and perused the record with utmost satisfaction. 23. From the evidence adduced by the appellant/defendant No. 3 and material placed on record, it is quite vivid that the suit property was never allotted to defendant No. 3 and he was allotted shop No. 29E which he has not accepted as admitted by him in the evidence, whereas in the evidence adduced before the trial court it is quite vivid that the plaintiff has categorically stated that the lease deed agreement (Ex.P/1) which was from 1-4-1983 to 31-3-2012 by which shop No. 2 and open area behind the shop plot No. 13 area 16 x 12 sq. ft. has been allotted to the appellant. In view of an application submitted by the land owners to the Commissioner, Municipal Corporation/defendant No. 1 for grant of lease of open place behind their respective shops which has been granted lease to them in pursuance of resolution passed by the General Council Meeting after paying premium of Rs. 1,50,000/- and lease deed was valid for 30 years. The rent was fixed at Rs. 250/- per month on the terms of earlier lease. Thereafter, vide memo dated 7-6-1997 (Ex.P/4) he was granted permission to carry out construction work in the open place. It is further reflected from the record that no document has been filed before the trial court to demonstrate that open place has been allotted to the defendant No. 3, therefore, it is quite vivid that the appellant has encroached the land which was allotted to the plaintiff. 24. The submission made by learned counsel for defendant No. 3 that no proper issue has been framed by the learned trial court with regard to specific performance of contract, therefore, the judgment and decree passed by the trial court deserves to be set aside, is incorrect proposition of law and facts. 24. The submission made by learned counsel for defendant No. 3 that no proper issue has been framed by the learned trial court with regard to specific performance of contract, therefore, the judgment and decree passed by the trial court deserves to be set aside, is incorrect proposition of law and facts. As from the evidence and material placed on record, it is quite vivid that the plaintiff in the plaint has specifically pleaded in paragraph 20 of the plaint that for the reasons mentioned in the plaint, it is necessary that defendant No. 1 be directed to perform the specific performance of contract by constructing the shop in the suit property or vacant possession of the suit property i.e. plot No. 13, Indira Market Durg be handed over to him and he be allowed to carry out the construction over it as the defendant No. 3 without any rhyme or reason has encroached the land. 25. From the written statement filed by the defendant No. 3, it is quite vivid that in his written statement filed before the trial court, he has nowhere denied the pleadings made by the plaintiff and only he has stated in paragraph 11 which is reply to clause 15 to 17 to the plaint that plaintiff’s suit is time barred, as such, the registration of the case, is illegal. No denial to the agreement executed between the plaintiff and defendant No. 1 has been raised by the defendant No. 3 in the written statement. Therefore, it is not required for the trial court to frame specific issue for specific performance of contract. Even the plaintiff and defendants led evidence in their support, the parties went to trial court knowing well that they were required to prove. They have adduced evidence of their choice in support of their respective claims, evidence has been considered by the court below. The appellant cannot now turn around and say that the evidence should not be looked into. This is against well accepted principle, as such the contention raised by the learned counsel for the defendants No. 2 and 3 that the matter may be remanded back for framing the issues with regard to specific performance of contract, is deserves to be rejected. This is against well accepted principle, as such the contention raised by the learned counsel for the defendants No. 2 and 3 that the matter may be remanded back for framing the issues with regard to specific performance of contract, is deserves to be rejected. Even otherwise, the learned trial Court on pleading of the parties has framed issue No. 2 whether plaintiff by virtue of specific contract if entitled to get a relief of making construction over the disputed property after granting possession of it from defendant No. 1. It covers framing of the issue with regard to specific performance of contract. On this count also, the submission made by defendant No. 3 cannot be considered. 26. Hon’ble the Supreme Court in the case of Kali Prasad Agarwall and Others vs. Bharat Coking Coal Limited and Others, AIR 1989 SC 1530 : (1989) Supp. (1) SCC 628 has held at paragraphs 16 and 17 as under: “16. It was, however, urged for the appellants that there is no proper pleading or issue for determination of the aforesaid question and the evidence let in should not be looked into. It is too late to raise this contention. The parties went to trial knowing fully well what they were required to prove. They have adduced evidence of theft choice in support of the respective claims. That evidence has been considered by both courts below. They cannot now turn round and say that the evidence should not be looked into. This is a well accepted principle. 17. In Kunju Kesavan vs. M.M. Philip and Others, (1964) 3 SCR 634 , this Court has stated (as summarized in the head-note at p. 637): “The parties went to trial, fully understanding the central fact whether the succession as laid down in the Ezhava Act applied to Bhagavathi Valli or not. The absence of an issue, therefore, did not lead to a material sufficient to vitiate the decision. The plea was hardly needed in view of the fact that the plaintiff stated in his replication that the “suit property was obtained as makka-thayam property, by Bhagavathi Valli under the Ezhava Act.” The subject of exemption from Part IV of the Ezhava Act, was properly raised in the trial court and was rightly considered by the High Court.” 27. The plea was hardly needed in view of the fact that the plaintiff stated in his replication that the “suit property was obtained as makka-thayam property, by Bhagavathi Valli under the Ezhava Act.” The subject of exemption from Part IV of the Ezhava Act, was properly raised in the trial court and was rightly considered by the High Court.” 27. Learned counsel for defendant No. 3 would submit that the suit is barred by limitation as the lease deed/agreement was executed on 08.12.1998 and the suit has been filed by the plaintiff on 08.05.2017, whereas Article 54 of the Limitation Act prescribes three years period for filing of a suit for specific performance of contract, as such, it is hopelessly barred by limitation. 28. From bare perusal of the Article 54 of the Limitation Act, it is clear that period of limitation is three years and time from which period begins to run is the date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused. The allotment of the open place was done in favour of the plaintiff on 08.12.1998 (Ex.P/1 and P/2) and vide memo dated 07.06.1999 (Ex.P/4) permission was granted to the plaintiff for construction behind the shop No. 2 on its own expenses, but no fixed time period for construction of the shop was given to the plaintiff and the defendant No. 3 who has encroached the land, has filed various litigation before Hon’ble High Court of Madhya Pradesh and this court as mentioned in paragraph 17 of the plaint which was not disputed by defendant No. 3. From the material was placed on record, it is evident that the last litigation was disposed of by this Court on 08.03.2017 (Ex.P/11) by disposing of W.P. (227) No. 209 of 201 and thereafter the plaintiff has issued notice to the defendant No. 1 Municipal Corporation for specific performance of contract on 03.04.2017 and thereafter, he has field the suit, as such the suit is within limitation. The finding recorded by the trial court with regard to limitation raised by defendant No. 3 has been decided by it after appreciating the evidence, material on record, which is neither perverse nor contrary to the record warranting any interference by this court, therefore, the finding recorded by the trial court that the suit is not barred by limitation is legal and justified and the plaintiff is entitled to get protection under Section 14 of the Limitation Act, 1963. 29. Further contention of learned counsel for defendant No. 3 that suit is barred by limitation and Section 14 of the Limitation Act would not be made applicable because Section 14 provides that if the litigant was pursuing his remedy before the court not having jurisdiction then only the time spent in the said litigation will be condoned. It has been further contended that in the instant case neither there is any pleading in the plaint nor the plaintiff has raised the said issue. In absence of pleadings and any prayer for extending the benefit of Section 14 is not still applicable. In support of his argument, he has relied upon the judgment of Hon’ble High Court of Madhya Pradesh in the case of Niranjan Singh vs. Board of Revenue, 1974 MPLJ 526 wherein it has been held in Para 6 as under: “6. At the, we may observe that it is only Section 5 of the Limitation Act, 1963 which can be involved by a party in the matter of extension of time regarding an appeal filed beyond limitation. Section 14 of the Limitation Act, 1963, applies to suits only, although its principle has been applied by law courts to appeals, but the resort is necessarily to Section 5 of the Limitation Act, 1963.” 30. On the other hand, learned Senior Advocate for defendant No. 3 would submit the submission made by learned counsel for defendant No. 3 that the suit is barred by limitation, is incorrect submission of the facts. On the other hand, learned Senior Advocate for defendant No. 3 would submit the submission made by learned counsel for defendant No. 3 that the suit is barred by limitation, is incorrect submission of the facts. He would submit that the learned trial court while holding that the suit is not barred by limitation, has categorically considered the pleadings made in Para 18 of the plaint wherein the plaintiff has explained the period from 13-1-1987 to 5-4-2017 and has pleaded that cause of action arose on 13-1-1987, 15-11-1989 and 7-9-1997 and after withdrawing W.P. No. 2740 of 1997 and 4619 of 2000 at High Court of MP at Jabalpur and before this court and after filing of Civil Suit No. 8A/2013 by the defendant No. 3 wherein Municipal Corporation has submitted its reply on 2-3-2013 stating that the suit property has been allotted to the plaintiff and the last writ petition was decided by this court on 8-3-2017. He would further submit that after issuance of notice on 4-4-2017 defendant No. 1 has not filed reply to the said notice and has filed civil suit which is within limitation. He would further submit that this fact has not been denied by the defendant No. 3 in his written statement. No specific denial has been made by the defendants, but merely bald statement was made that the suit is barred by limitation, but this fact pleaded by the plaintiff in the plaint with regard to limitation, has been fully proved before the trial court. 31. In order to appreciate the submissions of learned counsel of appellant/defendant No. 3, it is necessary to see the Section 14 of the Limitation Act, 1963 which reads as under: 14. Exclusion of time of proceeding bona-fide in court without jurisdiction: (1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (3) Notwithstanding anything contained in Rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the court under rule 1 of that Order where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court or other cause of a like nature. Explanation: For the purposes of this section: (a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted. (b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding. (c) misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction. 32. Hon’ble Supreme Court in the case of United Bank of India vs. Naresh Kumar and Others, (1996) 6 SCC 660 has held in Para 9 as under: “9. In cases like the present where suits are instituted or defended on behalf of a public corporation, public interest should not be permitted to be defeated on a mere technicality. Procedural defects which do not go to the root of the matter should not be permitted to defeat a just cause. There is sufficient power in the Courts, under the Code of Civil Procedure, to ensure that injustice is not done to any party who has a just case. As far as possible a substantive right should not be allowed to be defeated on account of a procedural irregularity which is curable.” 33. Hon’ble Supreme Court in the case of Consolidated Engineering Enterprises vs. Principal Secretary, Irrigation Department and Others, (2008) 7 SCC 169 has in paragraphs 21, 22 and 23 as under: “21. As far as possible a substantive right should not be allowed to be defeated on account of a procedural irregularity which is curable.” 33. Hon’ble Supreme Court in the case of Consolidated Engineering Enterprises vs. Principal Secretary, Irrigation Department and Others, (2008) 7 SCC 169 has in paragraphs 21, 22 and 23 as under: “21. Section 14 of the Limitation Act deals with exclusion of time of proceeding bona fide in a court without jurisdiction. On analysis of the said section, it becomes evident that the following conditions must be satisfied before Section 14 can be pressed into service: (1) Both the prior and subsequent proceedings are civil proceedings prosecuted by the same party. (2) The prior proceeding had been prosecuted with due diligence and in good faith. (3) The failure of the prior proceeding was due to defect of jurisdiction or other cause of like nature. (4) The earlier proceeding and the latter proceeding must relate to the same matter in issue. (5) Both the proceedings are in a court. 22. The policy of the section is to afford protection to a litigant against the bar of limitation when he institutes a proceeding which by reason of some technical defect cannot be decided on merits and is dismissed. While considering the provisions of Section 14 of the Limitation Act, proper approach will have to be adopted and the provisions will have to be interpreted so as to advance the cause of justice rather than abort the proceedings. It will be well to bear in mind that an element of mistake is inherent in the invocation of Section 14. In fact, the section is intended to provide relief against the bar of limitation in cases of mistaken remedy or selection of a wrong forum. On reading Section 14 of the Act it becomes clear that the legislature has enacted the said section to exempt a certain period covered by a bona-fide litigious activity. Upon the words used in the section, it is not possible to sustain the interpretation that the principle underlying the said section, namely, that the bar of limitation should not affect a person honestly doing his best to get his case tried on merits but failing because the court is unable to give him such a trial, would not be applicable to an application filed under Section 34 of the Act of 1996. The principle is clearly applicable not only to a case in which a litigant brings his application in the court, that is, a court having no jurisdiction to entertain it but also where he brings the suit or the application in the wrong court in consequence of bona fide mistake or (sic of) law or defect of procedure. Having regard to the intention of the legislature this Court is of the firm opinion that the equity underlying Section 14 should be applied to its fullest extent and time taken diligently pursuing a remedy, in a wrong court, should be excluded. 23. At this stage it would be relevant to ascertain whether there is any express provision in the Act of 1996, which excludes the applicability of Section 14 of the Limitation Act. On review of the provisions of the Act of 1996 this Court finds that there is no provision in the said Act which excludes the applicability of the provisions of Section 14 of the Limitation Act to an application submitted under Section 34 of the said Act. On the contrary, this Court finds that Section 43 makes the provisions of the Limitation Act, 1963 applicable to arbitration proceedings. The proceedings under Section 34 are for the purpose of challenging the award whereas the proceeding referred to under Section 43 are the original proceedings which can be equated with a suit in a court. Hence, Section 43 incorporating the Limitation Act will apply to the proceedings in the arbitration as it applies to the proceedings of a suit in the court. Sub-Section (4) of Section 43, inter-alia, provides that where the court orders that an arbitral award be set aside, the period between the commencement of the arbitration and the date of the order of the court shall be excluded in computing the time prescribed by the Limitation Act, 1963, for the commencement of the proceedings with respect to the dispute so submitted. If the period between the commencement of the arbitration proceedings till the award is set aside by the court, has to be excluded in computing the period of limitation provided for any proceedings with respect to the dispute, there is no good reason as to why it should not be held that the provisions of Section 14 of the Limitation Act would be applicable to an application submitted under Section 34 of the Act of 1996, more particularly where no provision is to be found in the Act of 1996, which excludes the applicability of Section 14 of the Limitation Act, to an application made under Section 34 of the Act. It is to be noticed that the powers under Section 34 of the Act can be exercised by the court only if the aggrieved party makes an application. The jurisdiction under Section 34 of the Act, cannot be exercised suo motu. The total period of four months within which an application, for setting aside an arbitral award, has to be made is not unusually long. Section 34 of the Act of 1996 would be unduly oppressive, if it is held that the provisions of Section 14 of the Limitation Act are not applicable to it, because cases are no doubt conceivable where an aggrieved party, despite exercise of due diligence and good faith, is unable to make an application within a period of four months. From the scheme and language of Section 34 of the Act of 1996, the intention of the legislature to exclude the applicability of Section 14 of the Limitation Act is not manifest. It is well to remember that Section 14 of the Limitation Act does not provide for a fresh period of limitation but only provides for the exclusion of a certain period. Having regard to the legislative intent, it will have to be held that the provisions of Section 14 of the Limitation Act, 1963 would be applicable to an application submitted under Section 34 of the Act of 1996 for setting aside an arbitral award.” 34. Hon’ble Supreme Court in the case of Kalpraj Dharmashi and Another vs. Kotak Investment Advisors Limited and Another, (2021) 10 SCC 401 has held in Para 67 and 84 which read as under: “67. Hon’ble Supreme Court in the case of Kalpraj Dharmashi and Another vs. Kotak Investment Advisors Limited and Another, (2021) 10 SCC 401 has held in Para 67 and 84 which read as under: “67. Perusal of the aforesaid would therefore reveal, that the Court has clearly rejected the objection raised by the Revenue in M.P. Steel Corporation (supra) which was raised relying on the judgment of this Court in the case of Parson Tools and Plants (supra). This Court observed, that the time during which the applicant was prosecuting such application before the wrong court can be excluded, provided the proceeding in the wrong court was prosecuted bona fide, with due diligence. This Court distinguished the judgment in the case of Parson Tools and Plants (supra) on the ground, that the period provided for filing a revision under the U.P. Sales Tax Act was sufficiently long period of 18 months, beyond which it was the policy of the legislature not to extend limitation any further. Relying on the Consolidated Engineering Enterprises (supra), it has been observed, that there is a vital distinction between extending time and condoning delay. It was further observed, that like Section 34 of the Arbitration Act, the period provided in Section 128 of the Customs Act did not lay down a long period for preferring an appeal. As such, it would be unduly harsh to exclude the principles contained in Section 14 of the Limitation Act. Relying on Consolidated Engineering Enterprises (supra) it was observed, that there is a difference between exclusion of a certain period altogether under principles of Section 14 and condoning the delay. It has been observed, that when a certain period is excluded by applying the principles contained in Section 14, there is no delay to be attributed to the appellant and the limitation period provided by the statute concerned, continues to be the stated period and not more than the stated period. It was therefore held, that the principle of section 14, which is a principle based on advancing the cause of justice would certainly apply to exclude time taken in prosecuting proceedings which are bona fide and pursued with due diligence but which end without a decision on the merits of the case. 84. This Court clearly held, that the decision in the case of the Popular Construction Co. 84. This Court clearly held, that the decision in the case of the Popular Construction Co. (supra) cannot be construed to mean as a ruling, that provisions of Section 14 of the Limitation Act are also not applicable to an application challenging an award under Section 34 of the Act. It has been held, that in the Arbitration Act, there is no express provision excluding application of the provisions of Section 14 of the Limitation Act to an application filed under Section 34 of the Arbitration Act for challenging the award. It has further been found, that there is fundamental distinction between the discretion to be exercised under Section 5 of the Limitation Act and exclusion of the time provided in Section 14 of the said Act. It was held, that the power to excuse delay and grant an extension of time under Section 5 is discretionary, whereas under Section 14, exclusion of time is mandatory, if the requisite conditions are satisfied. It held, that the effect of Section 14 is that in order to ascertain what is the date of expiration of the “prescribed period” the days excluded from operating by way of limitation, have to be added to what is primarily the period of limitation prescribed.” 35. The trial court, after considering the facts from various litigations has recorded a finding that the suit is not barred by limitation which is neither illegal nor suffers from any perversity warranting any interference by this court. Considering all the aspects of the matter and taking into consideration the material placed on record, I do not find any illegality or perversity in the judgment and decree passed by the trial court. 36. Considering all the aspects of the matter and taking into consideration the material placed on record, I do not find any illegality or perversity in the judgment and decree passed by the trial court. 36. Learned counsel for defendant No. 3 would submit that notice was not issued to the Municipal Corporation as required under Section 401 of the Municipal Corporation Act, 1956 as it has been issued in the name of ^^eq[; vfHk;Urk Jheku vk;qDr uxj ikfyd nqxZ** and the Corporation is always represented through Commissioner not through the ^^eq[; vfHk;Urk Jheku vk;qDr uxj ikfyd nqxZ** He would further submit that as per Section 401 of the Municipal Corporation Act, 1956, the suit should have been instituted within a period of six months including the service of notice on the Municipal Corporation whereas in the instant case, the suit has not been filed within six months from the date of occurrence of the cause of action as shown in Para No. 17 of the plaint and Ex.P/13, the notice issued by the plaintiff, therefore, the suit for want of proper notice, is not maintainable deserves to the dismissed. Lastly he would submit that notice was not issued properly to the Commissioner, therefore, the defect cannot be cured and in support of his submission he would rely upon the judgment of this court in the case of Shyam Kishor Agrawal vs. Commissioner, Nagar Palik Nigam, Raipur, 2015 (3) CGLJ 198 wherein this court has held in Para 18 as under: “18. Now reverting back to the facts of the present case and by applying the principle of law laid down by the Madhya Pradesh High Court in aforesaid cases Prabharani, 1999 AIR (MP) 223 and Putli Bai, 1964 JLJ 464 to the facts of present case, it would appear that notice Ex.P/5 dated 11-2-1998 was addressed and severed to the Commissioner, Municipal Corporation, Raipur and thereafter suit was instituted against the Commissioner, Municipal Corporation, Raipur as such no notice was served to the Municipal Corporation before institution of suit as mandatory required under Section 4012(1) of the Act of 1956. Thus the suit filed without serving notice to the Municipal Corporation under the aforesaid provision was clearly not maintainable for want of valid notice in view of law laid down in the aforesaid cases and thereafter, the trial court was absolutely justified in dismissing the suit for want of notice as provided in Section 401(1) of the Act of 1956 and the First Appellate Court is also perfectly justified in affirming the finding of the trial court and dismissing the appeal field by the appellant/plaintiff as such no substantial question of law is involved for determination as required under Section 100(4) of Code of Civil Procedure 1908.” 37. To appreciate the submission made by learned counsel for defendant No. 3, it is expedient for this court to examine Section 401 of the Municipal Corporation Act, 1956 and Order 29 of CPC which read as under: “401. Notice, limitation and tender of amends in suit against Corporation: (1) No suit shall be instituted against the Corporation, the Mayor-in-Council, or any Corporation officer or servant, or any person acting under the direction of the Corporation, the Mayor-in-Council or any municipal officer or servant, in respect of any act done or purporting to have been done in pursuance or execution or intended execution of this Act, or in respect of any alleged neglect or default in the execution of this Act or any rule or bye-law made thereunder until the expiration of one month next after notice in writing has been delivered or left at the chief Corporation office or at the residence of such officer, servant, or person standing with adequate particulars: (a) the cause of action. (b) the name and residence of the intending plaintiff and of his advocate, pleader or agent, if any, for the purpose of the suit. (c) the relief which he claims. (2) Every such suit shall be commenced within six months next after the accrual of the cause of action, and the plaint therein shall contain a statement that a notice has been delivered or left as required by sub-section (1). (3) If the Corporation or any person to whom any notice is given under sub-section (1) has tendered sufficient amends to the plaintiff before the suit is instituted, the suit shall be dismissed. (3) If the Corporation or any person to whom any notice is given under sub-section (1) has tendered sufficient amends to the plaintiff before the suit is instituted, the suit shall be dismissed. (4) If the defendant in any such suit is the Commissioner or any other Corporation officer or servant, payment of any sum or part thereof payable by him in or in consequence of the suit may, with the sanction of the Mayor-in-Council, be made from the Municipal Fund.” Rule 1 Order XXIX of Code of Civil Procedure 1908 “Subscription and verification of pleading” In suits by or against a corporation, any pleading may be signed and verified on behalf of the corporation by the secretary or by any director or other principal officer of the corporation who is able to depose to the facts of the case. Rule 2 Order XXIX of Code of Civil Procedure 1908 “Service on corporation” Subject to any statutory provision regulating service of process, where the suit is against a corporation, the summons may be served: (a) on the secretary, or on any director, or other principal officer of the corporation. (b) by leaving it or sending it by post addressed to the corporation at the registered office, or if there is no registered office then at the place where the corporation carries on business.” 38. From bare perusal of the aforesaid provisions, it is quite vivid that the notice (Ex.P/13) was issued to the Municipal Corporation on 3-4-2017 in the name of Chief Executive, Commissioner, Municipal Corporation Durg and the Municipal Corporation has never raised this objection about the alleged shortcoming in the notice, therefore, the defendant No. 3 cannot agitate that no proper notice was issued to the Municipal Corporation as it was for the Municipal Corporation to raise objection about alleged illegality of issuance of notice, but no such averment has been raised by them. On the other hand, they have supported the case of the plaintiff and in the evidence adduced before the trial Court, the witness examined by the witness namely Prakash Chandra Thawani, Assistant Engineer and Nodal Officer of the Municipal Corporation has clearly stated that vide order dated 07.06.1997, the shop allotment was done in favour of the plaintiff as per the terms of the Corporation wherein defendant No. 3 has illegally encroached it, thus, the judgment cited by the defendant No. 3 is distinguishable on the facts and circumstances of the case. 39. Learned counsel for defendant No. 3 would submit that against the dismissal of the earlier Civil Suit No. 6288A/2012 (decided on 07.02.2019) filed by him for declaration of possession on count of adverse possession by the learned trial Court, he has preferred First Appeal No. 97/2019 (Mohd. Suberati vs. State of C.G. and Others) wherein Hon’ble Division Bench vide its order dated 09.07.2019 has rejected the prayer for grant of injunction and only observed that the appellant shall not be evicted except by due process of law. Thereafter, the Hon’ble Division Bench vide order dated 19.01.2021 has disposed of the application under Order 39 Rule 1 and 2 of the CPC as I.A. No. 01 has already been disposed on 09.07.2019. Even otherwise, in the present case, the defendant No. 3 has challenged the judgment and decree passed by the trial Court by which the learned trial Court has granted decree of specific contract in favour of the plaintiff directing defendant No. 2 to get vacant possession of the open space behind the shop allotted to the petitioner whereas in the First Appeal No. 97/2019 he is claiming title over adverse possession, both are different cause of action though belong to the same property, but both the suits are different in nature and does not affect of merit of each case. Even otherwise, it is pertinent to mention that in this appeal the plaintiff of the present suit is not party to the case. As such, the contention raised by learned counsel for defendant No. 3 that during pendency of First Appeal No. 97/2017, this Court should not proceed, deserves to be rejected. 40. Accordingly, the appeal being devoid of merit deserves to be and is hereby dismissed. No order as to costs. 41. A decree be drawn up accordingly. 42. Interim relief granted earlier stands vacated. 40. Accordingly, the appeal being devoid of merit deserves to be and is hereby dismissed. No order as to costs. 41. A decree be drawn up accordingly. 42. Interim relief granted earlier stands vacated. 43. Pending applications, if any, stand disposed of.