1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Writ Petition No. 2395/2007 (Ravish Chandrakumar Chouriya VERSUS Asgar Ali & others) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Shri N.R. Saboo, counsel for the petitioner. CORAM : SMT. VASANTI A. NAIK, J. DATE : OCTOBER 10, 2008. Heard the learned counsel for the petitioner. By this petition, the petitioner impugns the order passed by 6th Joint Civil Judge (Junior Division), Nagpur below Exh.133 on 08.12.2006 rejecting the application filed by the petitioner for amendment of the plaint as also the order passed by the Court on 08.03.2007, below Exh.143, rejecting the application filed by the petitioner for review of the order dated 08.12.2006. The petitioner is the original plaintiff. He had filed a suit on for declaration and permanent injunction against the defendants 02.05.1997. According to the plaintiff, the defendant no.2 was the owner of the suit property and had entered into an oral 2 agreement of sale with plaintiff on 01.04.1997. It is further pleaded by the plaintiff that the agreement was reduced into writing on 18.04.1997. The sale-deed was to be executed within a period of one year on payment of the balance amount of Rs.22,00,000/-. According to the plaintiff, the possession of the part of the property was handed over to the plaintiff at the time of entering into the oral agreement. Since the defendants tried to dispossess the plaintiff from the part of the suit premises, in which the plaintiff was put in possession, the plaintiff instituted a suit for declaration that the defendants had no right to dispossess the plaintiff from the suit premises. The plaintiff also sought the permanent injunction restraining the defendants from dispossessing the plaintiff from the part of the suit premises. On 13.09.2006, an amendment application was filed by the plaintiff under Order VI Rule 17 of the Code of Civil Procedure to incorporate several pleas and certain prayer clauses. The plaintiff sought to incorporate a prayer for a decree for specific performance of contract directing the defendants to 3 execute the sale-deed of the suit house in favour of the plaintiff. By the proposed amendment, it was sought to be pleaded by the plaintiff that the Nagpur Improvement Trust had renewed the lease of the property in favour of the defendant no.1 and since the plaintiff came to know about the renewal of the lease at the time of the filing of the amendment application, the plaintiff had filed the application for amendment of the plaint to seek the relief of the specific performance of contract, as there was no difficulty in executing the sale-deed on the renewal of the lease. The prayer made in the application for amendment was strongly opposed by the defendant no.1. According to the defendant no.1, the amendment was not necessary for determining the real question of controversy between the parties. According to the defendant no.1, a false and frivolous story was being put forth by the plaintiff and the amendment application was liable to be rejected. It was stated in the reply that the plaintiff's suit was earlier dismissed in default and the suit was, in fact, restored because of the no objection of the defendant 4 no.1, who wanted to get rid of the day-to-day mental torture caused by the plaintiff and the suit. According to the defendant no.1, the proposed amendment changed the nature of the suit and there was no justifiable reason to substitute the original suit claim by allowing the plaintiff to seek a decree for specific performance of contract. The trial Court, by the order dated 08.12.2006, rejected the amendment application, which is impugned in the instant petition. A review application filed by the plaintiff was also dismissed. Shri Saboo, the learned counsel for the petitioner, submitted that the trial Court was not justified in holding that the claim of the plaintiff for specific performance of contract was time barred. According to the counsel for the petitioner, in case the trial Court was of the view that the proposed amendment changed the nature of the suit, the Court could have rejected the application but, could not have rejected the application on the ground that the plaintiff's claim for specific performance of contract was time barred. The counsel for the petitioner 5 submitted that the plea of limitation is a mixed question of law and facts, and hence, the Court ought not have observed that the prayer for specific performance of contract was barred by limitation while rejecting the amendment application by the order dated 08.12.2006. The counsel for the petitioner,relied on the judgment reported in 2007(1) Mh.L.J. 331 and specially guideline 21 in paragraph 33 to canvass that the application for amendment of the pleading should not be disallowed merely because it is opposed on the ground that the same is barred by limitation. Mr. Sharif, the learned counsel for the respondent no.1, supported the orders passed by the trial Court on 08.12.2006 and 08.03.2007. It is submitted on behalf of the respondent no.1 that in the plaint filed by the petitioner on 02.05.1997, it was not the case of the plaintiff that the contract could not have been performed in the absence of renewal of the lease in favour of the defendants. According to the counsel for the respondent no.1, the plaint as also the agreement of sale dated 18.04.1997 are totally silent about the execution of the sale-deed after the renewal 6 of the lease in favour of the defendant no.1. It is submitted on behalf of the respondent no.1 that the plaintiff not only wanted to change the nature of the suit but, also wanted to raise false and frivolous pleas which could not have been supported by the alleged agreement of sale dated 18.04.1997. It is submitted on behalf of the respondent no.1 that the trial Court rightly held that the renewal of lease was not a condition precedent for seeking of no objection from the Nagpur Improvement Trust for the execution of the sale-deed, and hence, the trial Court was justified in observing that the proposed prayer clause intended to incorporate a claim which was time barred. I have considered the submissions made on behalf of the parties and have perused the plaint, the amendment application, the reply filed by the defendant no.1 thereto, the alleged agreement of sale dated 18.04.1997 and the impugned orders dated 08.12.2006 and 08.03.2007. As already stated hereinabove, the suit was filed simplicitor for grant of permanent injunction restraining the defendants from interfering with the peaceful possession of the plaintiff 7 over a part of the suit property. The alleged agreement of sale was executed on 18.04.1997 and the suit for permanent injunction was filed on 02.05.1997. For the first time, by the amendment application dated 13.09.2006, the plaintiff wanted to convert the suit for permanent injunction into a suit for grant of a decree of specific performance of contract. The proposed amendment referred to a fact of renewal of lease in favour of the defendant and also the prayer for the grant of specific performance of contract in view of the renewal of lease. A perusal of the alleged agreement of sale dated 18.04.1997 and the plaint filed on 02.05.1997 clearly show that there is no reference to the fact of expiry of lease or renewal of lease. A totally new and inconsistent plea was sought to be raised before the Court by the amendment application dated 13.09.2006. The trial Court was perfectly justified in holding that the proposed amendment changed the nature of the suit as the suit was earlier filed for grant of permanent injunction on the basis of the alleged agreement of sale dated 18.04.1997 and a relief of specific performance of contract was sought by the 8 proposed amendment incorporated in the amendment application dated 13.09.2006. It was obvious from the perusal of the plaint and the alleged agreement of sale dated 18.04.1997 that the prayer made in the amendment application was clearly barred by time. In this background, the trial Court rightly held that the amendment application was liable to be rejected because the amendment changed the nature of the suit and that the prayer for grant of specific performance of contract was also barred by limitation. The trial Court rightly observed that the renewal of lease was not a condition precedent for execution of the sale-deed as could be reflected from the alleged agreement of sale dated 18.04.1997 and the plaint filed by the plaintiff on 02.05.1997. In the peculiar facts and circumstances of the case, it is apparent that the plaintiff wanted to raise a frivolous plea before the trial Court nearly ten years after the filing of the civil suit. The impugned orders passed by the trial Court on 08.12.2006 and 08.03.2007 cannot be found fault with. The judgment reported in 2007(1) Mh.L.J. 331 cannot be made applicable to the facts of the case. 9 For the reasons aforesaid, the writ petition is dismissed with no order as to costs. JUDGE APTE