IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No. 2648 of 1983 Date of Decision: 9.03.2010 Narinder Singh and another. .......Appellants through Shri M.S.Rakkar, Senior Advocate with Shri Pritam Singh Bath, Advocate. Versus Assa Singh and another. ....... Respondent No.1 through Shri Arun Jain, Senior Advocate with Shri Anupam Sharma, Advocate. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. This Regular Second Appeal is directed against judgment & decree dated 17.9.1983 passed by the Additional District Judge,Hoshiarpur (hereinafter described as `the first appellate Court') whereby the appeal of the defendant-respondent no.1 was accepted and the judgment & decree dated 9.1.1981 of the Additional Senior Sub Judge, Hoshiarpur (referred to hereinafter as `the trial Court') were set aside. Initially, Narinder Singh and Gurdial Singh (since deceased and R.S.A.No.2648 of 1983 -2- .... represented by Narinder Singh, his legal representative) had filed a suit for perpetual injunction requiring respondent no.1 and one Smt.Chanan Devi (since deceased and represented by her legal heirs) not to interfere in their possession over the suit property. It was pleaded that vide agreement dated 5.1.1976, respondent no.1 had agreed to sell the property to them in equal shares for a consideration of Rs.50,000/- and that a sum of Rs.30,000/- was received by him as earnest money at the time of execution of the agreement to sell, while remaining amount of Rs.20,000/- was to be paid on or before 15.6.1976, which was the date fixed for execution of the sale deed. It was further pleaded that actual possession of the suit property was delivered to the plaintiffs at the time of entering into this transaction, but respondent no.1 failed to execute and register the sale deed before the appointed date and, therefore, the time for doing so was extended up to 30.6.1977 by executing a fresh agreement dated 4.6.1976. The suit property was comprised in two portions and the one situated in village Dihana was previously in part possession of one Diwan Chand as tenant and the plaintiffs had alleged that they had taken possession thereof as sub-tenant under said Diwan Chand. A receipt with regard to surrender of possession was stated to have been executed by Diwan Chand. Since respondent no.1 was alleged to have violated the terms of the agreement to sell and was threatening to dispossess the plaintiffs, they were constrained to file the suit. Upon notice, respondent no.1 appeared and contested the suit. He denied any agreement to sell in favour of the plaintiffs and also denied the receipt of any money from them. The possession of the plaintiffs was R.S.A.No.2648 of 1983 -3- .... also denied. It was pleaded that Joginder Singh son of Waryam Singh of village Dihana was in possession of the land measuring 26 kanals and 8 marlas situated in village Mauja Mazara as tenant at will, whereas the land situated at village Dihana was possession of one Parkash son of Milkhi Ram of that village, out of which, land measuring 4 kanals 2 marlas was sold to Smt.Chanan Devi, who was in possession thereof through said Parkash as her tenant. Smt.Chanan Devi also contested the suit and pleaded that she was bona fide purchaser with value and she did not have any notice of any prior claim of the plaintiffs. It was further pleaded that she was in actual possession of the land purchased by her. On 7.3.1979, the plaintiffs moved an application under Order 6 Rule 17 read with Section 151 of the CPC for amendment of the plaint so as to introduce a prayer for possession of the land which was described in the plaint, as an alternative prayer. That application was allowed on 28.3.1979 and in this manner, two pleas were introduced by the plaintiffs by incorporating paragraphs 6-A and 6-B in the plaint wherein it was pleaded that the plaintiffs were ready and willing to comply with the terms of the agreement dated 5.1.1976. It was further pleaded that Smt.Chanan Devi was instigating respondent no.1 not to execute the sale deed in favour of the plaintiffs and she could not be considered to be a bona fide purchaser as she had knowledge of the agreement to sell in their favour. The sale deed in favour of Smt.Chanan Devi was also denied. The amended plaint was put to respondent no.1 and R.S.A.No.2648 of 1983 -4- .... Smt.Chanan Devi and both of them denied the averments made therein. On 30.10.1980, another application for amendment of the plaint was moved by the plaintiffs to introduce a plea of specific performance of agreements to sell dated 5.1.1976 and 4.6.1976. This amendment was allowed by the trial Court subject to payment of costs. As a result of this amendment, the complexion of the suit was transformed into that of a suit for specific performance by way of possession. The averments made in the amended plaint were again denied by respondent no.1 and Smt.Chanan Devi. On the pleadings of the parties, the following issues were framed:- 1. Whether defendantno.1 executed an agreement dated 5.1.76 for sale of the land in suit in favour of the plaintiffs for a consideration of Rs.50,000/-?OPP 2. If issue No.1 is proved, whether an earnest money of Rs.30,000/- was paid at the time of the execution of the agreement?OPP 3. If issue no.1 and 2 are proved, what were the other terms of agreement?OPP 4. Whether a fresh agreement was executed on 4.6.76 with the consent of the parties? If so, what were the terms of the agreement and what is its effect?OPP 5. Whether the plaintiffs took the physical possession of the land in suit on 5.1.76 and the plaintiffs are owners in R.S.A.No.2648 of 1983 -5- .... possession of the land in suit on 5.1.76and the plaintiffs are owners in possession of the land in suit?OPP 6. Whether the defendant No.2 is a bona fide purchaser for value without notice of a part of the land in suit measuring 4 kanals 2 marlas?OPP 7. Whether the suit is not maintainable in the present form?OPD 8. Whether the suit is not within time?OPD 9. Whether the suit is bad for non-joinder of the necessary parties?OPD 10. Whether the plaintiffs are entitled to the injunction prayed for?OPP 10-A. Whether the plaintiffs are entitled to possession of suit land in the alternative?OPP 10-B. Whether the plaintiffs have always been ready and willing to perform their part of the contract?OPP 10-C. Whether the suit of the plaintiffs is barred by time?OPD 11.Relief. The trial court, on appraisal of the entire evidence on record, decreed the suit and directed the specific performance of the agreement to sell in their favour. On appeal, the first appellate Court reversed the findings of the trial Court and dismissed the suit of the plaintiffs. Hence, this Regular Second Appeal. R.S.A.No.2648 of 1983 -6- .... Learned counsel for the appellants contended that the findings of the first appellate Court are erroneous as it observed that the prayer for specific performance which was made on 30.10.1980 was barred by limitation, whereas the amendment of a plaint would relate back to the filing of the suit. To support this contention, he placed reliance on a judgment of the Supreme Court in Jai Jai Ram Manohar Lal Versus National Building Material Supply, Gurgaon, AIR 1969 S.C. 1267. He submitted that the amendment of plaint was allowed on 30.10.1980 subject to payment of costs and once the defendants had accepted the costs, they were precluded from contesting the amendment as being barred by limitation. In support of this submission, he relied on a Division Bench judgment of this Court in Amar Singh Versus Perhlad and others, AIR 1989 P&H 229. On the basis of the above contention/ submission, learned counsel for the appellants urged that the appeal be accepted and the impugned judgment & decree passed by the first appellate Court may be set aside. To the contrary, learned counsel for respondent no.1 contended that the findings recorded by the first appellate Court do not warrant any interference as the suit for specific performance was clearly barred by time in view of the fact that the amendment was sought by the plaintiffs much belatedly. In support of this contention, he placed reliance on a judgment of the Supreme Court in Tarlok Singh Versus Vijay Kumar Sabharwal, 1996 P.L.J. 237 (S.C.). I have thoughtfully considered the rival contentions and have R.S.A.No.2648 of 1983 -7- .... gone through the impugned judgments, as also the records of the Courts below. If the facts of the instant case are to be seen, then it is apparent that the plea of specific performance of the agreement to sell was available to the plaintiffs when they had filed the suit for perpetual injunction seeking to restrain respondent no.1 from interfering in their possession over the suit property. The agreement to sell contemplated the execution of the sale deed or or before 15.6.1976, which time was extended by mutual consent by another agreement dated 4.6.1976 up to 30.6.1977. The plaintiffs did not make any prayer for specific performance of the agreement to sell, even though such a right existed in their favour on the date of filing of the suit, subject, of course, to their showing that respondent no.1 had failed to perform his part of the agreement and that he had a legally enforceable right to seek such a relief. The first amendment was sought by the plaintiffs on 7.3.1979 and only a limited prayer was introduced to say that they were always ready and willing to perform their part of agreement, but at that stage also, they did not seek any prayer for specific performance of the agreement, which was ultimately done on 30.10.1980. In these circumstances, the plea of the plaintiffs that the amendment would relate back to the date of filing of the suit would clearly be a plea which can be termed to be non-palatable, more-so when Article 54 of the Schedule to the Limitation Act,1954, which lays down the period of limitation for enforcing a contract, reads as under:- “For specific performance of a contract the period of limitation R.S.A.No.2648 of 1983 -8- .... is 3 years. The limitation begins to run from the date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.” In view of the afore-quoted provisions of Article 54, I am not inclined to accept the plea of the plaintiffs that the amendment which was introduced on 30.10.1980 and by which the entire complexion of the suit which was originally filed for perpetual injunction, was transformed into a suit for specific performance of the agreement to sell, would relate back to the filing of the original suit. It was clearly a plea, which, though available to the plaintiffs, was not availed of by them and when the prayer for specific performance was introduced, it was beyond the period of three years and was barred by time in view of the limitation prescribed under Article 54 above. In Tarlok Singh Versus Vijay Kumar Sabharwal (supra), their Lordships of the Supreme Court observed as under:- “......We find force in the stand of the appellant. We think that parties had, by agreement, determined the date for performance of the contract. Thereby limitation began to run from April 6,1986. Suit merely for injunction laid on December 23,1987 would not be of any avail nor the limitation began to run from that date. Sit for perpetual injunction is different from suit for specific performance. The suit for specific performance in fact was claimed by way of amendment application filed under Order 6 Rule 17 CPC on September 12,1979. It will operate only on the application R.S.A.No.2648 of 1983 -9- .... being ordered. Since the amendment was ordered on August 25,1989 the crucial date would be the date on which the amendment was ordered, by which date, admittedly, the suit is barred by limitation. The Courts below, therefore, were not right in decreeing the suit.” The above observations of the Apex Court are clearly attracted to the facts of the instant case. Learned counsel for the plaintiffs then submitted that even if the Court comes to the conclusion that the suit was barred by limitation, yet, the delay in invoking the plea of specific performance could not be considered to be fatal to the case of the plaintiffs for the simple reason that the delay was not of the kind that could result in the defeat of their right to seek specific performance of the agreement to sell. I am not in agreement with this contention as well because the plaintiffs were very well in the know of the fact that they had a right to get the specific performance of the agreement in the year 1978 when they had filed the suit because it was filed after one year of the date fixed for execution of the sale deed, i.e., 30.6.1977 and the benefit of amendment was availed of by them in the year 1980 and in these circumstances, the Courts below would have been very well within their right to decline the prayer for specific performance and to have resorted to the relief of compensating the plaintiffs under Section 20 of the Specific Relief Act,1963 (for short, `the Act'). A person, who seeks specific performance of an agreement to sell, must show promptness in getting enforced the agreement to sell by way of R.S.A.No.2648 of 1983 -10- .... such prayer. Merely because a suit is filed within limitation bringing the agreement within the ambit of jurisdictional law of limitation does not necessarily result in an inevitable and forgone conclusion that the agreement has to be enforced. The Court,in these circumstances, has to evaluate whether in the interregnum, some factors have intervened resulting in an inequitable situation in the event of such an agreement is enforced or not and the Courts would be justified in exploring the grant of discretionary relief under the provisions of Section 20 of the Act, which exercise must be judiciously undertaken to accommodate the interest of the litigating parties which are by that stage in an acute state of divergence. In the instant case, some of the portion of the suit property has already been alienated to Smt.Chanan Devi and, therefore, the specific performance of the agreement to sell in favour of the plaintiffs has become impossible because it has come in evidence that she was not having any prior notice of such an agreement and, thus, she was a bona fide purchaser. A feeble attempt was then made by the learned counsel for the plaintiffs to raise an argument that the finding that the agreement to sell is valid has not been questioned by respondent no.1 and nor has he questioned the finding that the plaintiffs were always ready and willing to perform their part of agreement and, therefore, there was no option with the Courts below, but to grant the relief of specific performance of the agreement and a direction should have been given to respondent no.1 to execute the sale deed in their favour. This argument cannot be accepted in view of the fact that the R.S.A.No.2648 of 1983 -11- .... prayer for specific performance was made belatedly after expiry of limitation, which amendment ought not to have been allowed in the first instance, as the relief which was sought was clearly hit by the bar of limitation. On the basis of the above discussion, I do not find any ground to interfere with the impugned judgment & decree and the appeal is dismissed being without any merit. March 9,2010 ( Mahesh Grover ) “SCM” Judge