THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL REVISION PETITON NO.4406 OF 2009 DATED: 08-02-2011. Between I.Syed Asif Ali and two others … Petitioners And I.Dr.V.T.Vikram Aditya and others …Respondents THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL REVISION PETITON NO.4406 OF 2009 ORDER: This revision under Article 227 of the Constitution of India is directed against the order, dated 29-08-2009, in I.A.No.183 of 2009 in O.S.No.461 of 1999, on the file of the XVI Additional Chief Judge, Hyderabad, whereunder and whereby the application filed under order VI Rule 17 CPC to amend the plaint, was allowed. 2. The above application was filed to amend the plaint by adding at the beginning of the relief, directing the 1st defendant to specifically perform his part of contract on the ground that though averred in the plaint about their ready and willing to perform their part of contract and there is nothing more to be performed in terms of contract from their side and the respondents are directed to vacate and handover the physical possession of the property and although the suit has been valued for the specific performance under Section 39 of A.P. Court Fees and Suits Valuation Act, 1956 but in the relief portion by inadvertence and due to lack of legal knowledge, the words ‘specifically to be performed’ have not been pleaded which have gone unnoticed. 3. The trial Court after considering the material on record, came to the conclusion that the petitioner-plaintiff is entitled for the amendment sought for and accordingly allowed the application. 4. Learned counsel appearing for the petitioners herein contended that the relief of specific performance is barred by limitation and to get over the limitation, the present application was filed, that the plaintiff has not come to the Court with clean hands by filing necessary amendment at the earliest opportunity, that the entire evidence was completed and the arguments were heard and the matter was reserved for judgment, that later on some clarification, the Court suo-moto re-opened the suit and at that point of time, the present application was filed with a view to get over the limitation, that no reasons were assigned by the trial Court for allowing the amendment application and hence, she prays to set aside the impugned order. 5. On the other hand, learned counsel appearing for the respondents contended that the petitioners are not aggrieved by the impugned order, that the 1st defendant who is said to be the aggrieved party did not file any counter and written statement in the suit in the trial Court disputing the reliefs claimed by the plaintiff, that a pleading has been specifically mentioned in the plaint with regard to averments that are required for grant of relief under specific performance and that when the larger relief of possession was prayed for, the relief of specific performance is a minor relief, which can be granted under Order VII Rule 7 CPC, that the impugned order is completely in accordance with law and absolutely, there are no grounds to interfere with the same. 6. Originally, the suit was filed in the year 1999 for the relief of delivery of physical possession of two bedroom flats on the first floor of premises bearing No.12-2-37/18 situated at Mehdipatnam, Hyderabad and pass a decree for Rs.5,00,000/- and for mesne profits at the rate of Rs.25,000/- per month. The entire evidence was let in by both the parties and the counsel representing the parties advanced their arguments. It is not in dispute before this Court that upon hearing the arguments of both sides, the suit was reserved for judgment. Thereafter, on some clarification on an issue, the trial Court suo-moto re-opened the suit. At that point of time, the present application was filed on 06-08-2009 seeking the relief of specific performance of development agreement. Rule 17 of Order VI of CPC declares that the Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just. It also states that such amendments should be necessary for the purpose of determining the real question in controversy between the parties. If the party in spite of due diligence could not file the amendment, such a amendment can be allowed even after the trial is commenced. But for the purpose of present facts of the case, the proviso to Order VI Rule 7 has no application. The law laid down by the Supreme Court prior to amendment is that amendment of pleadings should be allowed liberally, but at the same time, when there is a valuable right accrued to the party, that cannot be taken away by virtue of amendment. 7. Learned counsel appearing for the respondents placed reliance on the decision reported in CHANDER KANTA BANSAL V RAJIND SINGH ANAND [1], wherein it was held thus: “It is clear that unless the party takes prompt steps, mere action cannot be accepted and file a petition after the commencement of trial. As mentioned earlier, in the case on hand, the application itself came to be filed only after 18 years and till the death of her first son Sunit gupta, Chartered Accountant, had not taken any step about the so-called agreement. Even after his death in the year 1998, the petition was filed only in 2004. The explanation offered by the defendant cannot be accepted since she did not mention anything when she was examined as witness” There is no dispute about the proposition of law laid down by the apex Court that the power to allow the amendment has to be construed liberally so as to advance justice among the parties. 8. He further relied on a decision reported in PENDYALA NARASIMHAM V PENDYALA VENKATA NARASIMHA RAO [2], wherein it was held thus: “It is now well recognized that amendments should be allowed in order to effectively adjudicate upon the real issues arising in a case. It would be permissible to allow an amendment even if a fresh suit is barred on the amended claim if special circumstances exist. It was pointed out in Charan Das V Amir Khjan by the Privy Council: ‘ that there was full power to make the amendment cannot be disputed and though such a power should not as a rule be exercised where the effect is to take away from a defendant a legal right which has accrued to him by lapse of time, yet there are cases where such considerations are outweighed by the special circumstances of the case.’ That being the legal position there cannot be any insuperable difficulty to allow a plaintiff to amend the plaint seeking an alternative relief in furtherance of justice and if it does not involve the other side in real hardship. In Sultan Abdul Kadir v Mohammad Esuf Rowther in a suit which was based on the ownership of the property and which was bound to fail because of the result of previous litigation, the plaintiff was allowed to amend the plaint asking for partition based upon the claim of co-ownership. The learned Judges remarked that since a suit for partition, if properly constituted would not lie, the proper course for the Court was to permit the plaintiff to rectify the mistaken course on which he has embarked.” Even if the above principle is to be accepted, it must be shown that there must be special circumstances exist for the purpose of amendment of pleadings. There are no such special circumstances pleaded in the affidavit filed in support of the application. Therefore, the above decision has no application to the present facts of the case. 9. He further relied on a decision reported in PANKAJA AND ANOTHER V YELLAPPA (DEAD) BY LRS. AND OTHERS [3], wherein it was held thus: “The law in this regard is also quite clear and consistent that there is no absolute rule that in every case where a relief is barred because of limitation an amendment should not be allowed. Discretion in such cases depends on the facts and circumstances of the case. The jurisdiction to allow or not allow an amendment being discretionary the same will have to be exercised in a judicious evaluation of the facts and circumstances in which the amendment is sought. If the granting of an amendment really subserves the ultimate cause of justice and avoids further litigation the same should be allowed. There can be no straight jacket formula for allowing or disallowing an amendment of pleadings. Each case depends on the factual background of that case.” So, from the above decision, it is clear that the grant of relief as prayed for under Order VI Rule 7 CPC is a discretionary one and that discretion has to be exercised judiciously and it is also observed that each case depends upon the factual back-ground of that case. That is a case where a suit was filed for recovery of possession and during the pendency of the suit, some portion of the land was occupied. The amendment sought for was with regard to occupation of that land after filing of the suit. Therefore, the above decision has no application to the present facts of the case. 10. He further relied on a decision reported in SURINDER SINGH V KAPOOR SINGH (DEAD) BY LRS AND OTHERS [4], wherein it was held thus: “Section 12(3) of the Act is a beneficial provision so far as the purchasers are concerned. In the instant case, in view of the findings of fact arrived at by the High Court, the decree for specific performance of contract in respect of the entire suit land could not have been granted as the Appellant herein was not authorized by his sister to enter into the agreement for sale. The relinquishment of claim as contemplated under Section 12(3)(ii) of the Act as regard performance of the remaining part of the contract and all rights to compensation need not specifically be pleaded and can be made at any stage of the litigation. Such a plea can also be raised at the appellate stage. Delay by itself, it is trite, may not stand in the way of the plaintiff from claiming the relief unless the defendant establishes prejudice” Even the above decision shows that the delay by itself may not stand in the way of the plaintiff claiming the relief unless the prejudice is shown. Therefore, the above decision has no application to the present facts of the case. 11. He further relied on a decision reported in DHANPAL BALU LHAWALE AND OTHERS V ADAGOUDA NEMAGOUDA PATIL (DEAD) BY PROP.LRS [5], wherein it was held thus: “During the pendency of this appeal, I. A. No. 1 under Order 6 rule 17 read with Section 151 of the CPC has been filed by the appellant seeking to amend the prayer clause in the special Leave Petition as originally laid. The amendment sought is reproduced below: "in the circumstances obtaining in this case, this Hon. Court be pleased to set aside the judgment of the Hon'ble High Court of Karnataka in R. S. A. No. 73/97 dated 7. 4. 99 by granting the relief of injunction in favour of the petitioners or in the alternative this Hon'ble Court be pleased to grant an order directing the respondent to hand over possession of the suit schedule property to the petitioners. " IN the facts of the case, we are of the opinion that this amendment application needs to be allowed in the face of the fact that, as of today, the claim of the plaintiff respondent, adagouda Nemagouda, on the basis of the will and in the alternative, on the basis of a tenancy has been rejected and his status is only that of a trespasser” Considering the facts of that case, the amendment sought for in the petition was allowed. There is no dispute about the proposition of law laid down by the apex Court. 12. He further relied on a decision reported in MECHINENI CHOKKA RAO V SATTU SATTAMMA [6], wherein it was held thus: “The question seems to be a mixed question of law and fact, having regard to the matrix of the case as set out in the plaint. Per se if the suit is barred by limitation, there can be no difficulty for the Court to dismiss the suit on that ground, notwithstanding the absence of any plea in regard thereto inter alia in the written statement filed by the adversary but if the matter requires some evidence for effective adjudication of the point of limitation, the plaintiff cannot be non-suited at the threshold and it is only at the culmination of hearing of the suit, the point of limitation can be adjudicated upon. When that being the view, the principle that relief is barred by limitation and, therefore, amendment cannot be allowed, will not uniformly apply to all cases. Where the point of limitation is a mixed question of law and fact, the amendment can be allowed, appears to be the law on the point. I am reinforced in my above view by a judgment of the Apex Court in Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil, AIR 1957 SC 363 = 1957 SCR 595, Ragu Thilak D. John v. S. Rayappan, 2001 (2) ALD 31 (SC) = (2001) 2 SCC 472 and Name Rama Murthy v. Ravula Somasundaram, (2005) 6 SCC 614.” There is no dispute about the proposition of law laid down by the this Court. Once the amendment sought for is purely a question of law, such an amendment cannot be allowed. The right accrued to the defendant cannot be taken away by allowing such amendment. If limitation aspect is a mixed question of law and fact, then opportunity shall be given to the party to adduce evidence. In this case, as seen from the facts as pleaded by both parties, it cannot be said that it is a mixed question of law and fact. The suit was filed basing upon development agreement purported to have been executed between the plaintiff and defendants on 01-06-1992. But as seen from the averments, it is clear that development agreement, dated 01-06-1992 is between the 1st defendant and the plaintiff. The 1st defendant agreed to construct two bedroom along with proportionate undivided share in the common area and 1st defendant has to commence the contructions and complete the multi storied building within 18 months from the date of the agreement i.e., 31st December, 1993. That means time is the essence of contract. According to the averments of the plaint, the plaintiff has to perform his part of contract in pursuance of that agreement and the 1st defendant is not agreeing to perform his part of contract. The limitation commences three years from the date of failure on the part of the 1st defendant to perform his part of contract. Therefore, the suit has to be filed within three years from the date of agreement, i.e., 31-12-1993. The suit was filed in the year 1999. It is averred in the plaint that 1st defendant sought extension of period and therefore, plaintiffs extended the period till 30-11-1995. It is further averred that in pursuance of two letters, plaintiffs further extended time till 31-05-1997 orally. Finally plaintiffs demanded the 1st defendant to perform his part of contract and ultimately demanded the defendants to deliver vacant possession on 28-12-1998. If the averments in the plaint are to be accepted, the last demand was made on 28-12-1998 for enforcement of contract. Under Article 54 of Limitation Act, 1963, for specific performance of contract, the period of limitation is three years from the date fixed for the performance, or if no such date is fixed when the plaintiff has notice that the performance is refused. Under Part I of above Article, the time fixed for performance of contract was 31-12- 1993. If this is taken into consideration, the suit is clearly barred by limitation. Even assuming for a moment that II part is applicable, three years period would commence from the last date of demand i.e., 28-12- 1998. The present application to amend the pleadings was filed on 06- 08-2009. Therefore, on the own of plaintiff, the relief sought for to amend the plaint is clearly law of limitation. A right has been accrued to the defendants with regard to filing of the suit after the prescribed period of time. No explanation is forthcoming as to why the plaintiff has not raised his little finger when the suit is pending for the last ten years and as a matter of fact when the evidence has been adduced and arguments have been advanced and the suit was reserved for judgment. In the absence of any explanation, filing of a petition like the present one should be deprecated. No doubt, a plea has been taken in the plaint that the plaintiff demanded specific performance of contract on 01-06-1992 and for delivery of flats by the 1st defendant. The cause of action arises from the date of demand of three years. There is no specific mention with regard to refusal of defendant in pursuance of the agreement. As seen from the plaint, it is clear that the said agreement was extended from time to time by the 1st defendant. Even assuming for a moment that, that is the cause of action for the plaintiff to file the suit, it can be said that it was filed within three years from that date. Therefore, at belated and fag end of the trial, the present application was filed. No doubt, a specific plea has been taken in the plaint that the plaintiff demanded specific performance of contract dated 01-06-1992, but the 1st defendant did not deliver the said flats and have been avoiding on one pretext or the other, but that is not enough o file a petition to amend the prayer for specific performance after lapse of 10 years. 13. Learned counsel for the respondent contended that since the suit was valued for the specific performance and for possession, the Court fee is paid for main relief and in view of the fact that specific performance is a minor relief, the same can be granted. But the same cannot be accepted for the simple reason that no Court fee has been paid for recovery of possession and no Court fee is paid under Section 39 (a) of A.P. Court Fees and Suits Valuation Act, 1956. Even assuming for a moment that payment of Court fee can be rectified even by the trial Court, but in view of this abnormal delay, which has not been explained at all, it can be considered to be serious laches on the part of the plaintiff for denying the benefit of amending the plaint because such a course is to be allowed, a right accrued to the defendant should be defeated and to get over the limitation, the present application appears to have been filed. There is no question of mixed law and fact involved in this case. It is purely question of law with regard to filing of suit for specific performance, which is totally barred by limitation. Such is the case, allowing the application at a belated stage is totally unsustainable. The trial Court has not at all given any reasons in the impugned order as to why the amendment application under Order VI Rule 7 CPC has to be allowed. In the absence of any reasons, the impugned order is liable to be set aside. 14. Accordingly, the Civil Revision Petition is allowed setting aside the order, dated 29-08-2009, in I.A.No.183 of 2009 in O.S.No.461 of 1999, on the file of the XVI Additional Chief Judge, Hyderabad. The observations, if any, made in this revision are only for the purpose of disposal of the present revision and uninfluenced by any of the observations or findings in this revision, the trial Court shall dispose of the suit in accordance with law basing on the admissible evidence available on record. No order as to costs. -------------------- K.C.BHANU, J DATED: 08-02- 2011 Hsd [1] (2008) 5 SCC 117 [2] 1962 (1) ALT 425 [3] (2004) 6 SCC 415 [4] (2005) 5 SCC 142 [5] (2009) 7 SCC 457 [6] 2006 ALD (1) 116