CR No.315 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.315 of 2009 Date of decision: 21.1.2009 Vijay Singh ......Petitioner Versus Savitri Devi ......Respondent CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Ram Bilas Gupta, Advocate for the petitioner. * * * Rakesh Kumar Garg, J. By way of this revision petition, the petitioner has challenged the order dated 22.12.2008 passed by the Civil Judge (Sr. Division), Faridabad in Civil Suit No.993 of 2000 vide which application for amendment of the plaint, filed by him, has been dismissed. It is averred in the petition that the petitioner filed a civil suit for permanent injunction against the defendant-respondent on the ground that he had purchased the suit property and the full consideration amount had been paid and agreement to sell was executed on 5.7.1999 and physical possession of the property in dispute was also handed over to the petitioner in pursuance thereof and since then the petitioner was in actual physical possession of the suit property. It is further averred that in pursuance of the aforesaid agreement to sell, he requested the respondent to get the sale deed registered in respect of the suit property through legal notice dated 8.2.2000, but instead of getting the sale deed registered in favour of the petitioner, the respondent got registered a false FIR No.149 dated 15.4.2000 under Sections 420/467/468/471/120-B IPC registered CR No.315 of 2009 2 against the petitioner and during the investigation, the police took into possession the original agreement to sell, original receipts of payment and original sale deed in favour of the respondent for proper investigation of the case. The police filed a cancellation report on 17.9.2000 after investigation and further recommended for initiation of criminal proceedings under Section 182 Cr.P.C against the respondent. In the civil suit, the respondent filed written statement. Thereafter, the suit remained pending. It has been further averred that in the original suit, the petitioner though had taken the specific plea that the respondent had refused to get the sale deed registered in his favour but the relief of specific performance could not be prayed for, in the absence of which the relief claimed by the petitioner is incomplete and does not in any way provide an efficacious remedy which was required in the facts and circumstances of the case. The petitioner moved an application for amendment of the plaint so as to convert the suit of permanent injunction into a suit for specific performance of agreement dated 5.7.1999 by way of amendment of various paragraphs of the plaint. The trial Court vide impugned order dated 22.12.2008 has dismissed the aforesaid application for amendment which is under challenge in this revision petition before this Court. Learned counsel for the petitioner has vehemently argued that the amendment sought by the petitioner was necessary for the purpose of determining the real question in controversy between the parties and therefore, the amendment of pleadings should have been allowed by the trial Court especially in view of the fact that rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the Court. In support of this contention, learned counsel for the petitioner has placed reliance upon a CR No.315 of 2009 3 judgment of the Hon'ble Supreme Court in the case of Rajesh Kumar Aggarwal and others v. K.K.Modi and others 2006(2) RCR (SC) 577. There is no dispute with the proposition as stated in the aforesaid judgment of the Hon'ble Supreme Court of India. However, the facts of he present case are different. Undisputedly, the suit for permanent injunction was instituted by the petitioner in the year 2000 seeking decree of permanent injunction against the defendant. The agreement on the basis of which the applicant-petitioner is seeking amendment of pleadings by converting a suit of permanent injunction into a suit for specific performance of agreement is dated 5.7.1999. Photocopy of the agreement attached with the plaint of the aforesaid suit reveals that no date was fixed for execution and registration of sale deed but it was stipulated on behalf of both the parties that as and when the plaintiff will ask the defendant, she will execute the sale deed in favour of the plaintiff. Admittedly, the plaintiff asked the defendant on 28.3.2000 to execute the sale deed in his favour but the defendant failed to do so. Thus, the cause of action to file suit for specific performance of the agreement dated 5.7.1999 arose to the petitioner on 28.3.2000 when the plaintiff-petitioner asked the defendant to execute the sale deed in his favour and the defendant refused to execute the sale deed. Limitation for filing the suit for specific performance of the agreement to sell is admittedly three years. Thus, from the aforesaid date i.e. 28.3.2000, the petitioner could either file a separate suit for specific performance of agreement within three years or move an application for amendment of the present suit for converting it into a suit for specific performance of the agreement. However, the present application has been moved after a period of 8 years from the date the cause of action for filing the suit for specific performance had arisen. Thus, the suit of the plaintiff-petitioner for specific performance of the agreement is barred by CR No.315 of 2009 4 limitation at this stage. It is well settled that a relief which the applicant- petitioner wants to seek by way of amendment, if barred by limitation, cannot be allowed. In the case of South Konkan Distilleries and another v. Prabhakar Gajanan Naik and others 2008(4) RCR (Civil) 513, it has been held that amendment of pleadings cannot be allowed if a fresh suit on an amended claim was barred by limitation. The relevant observations of the Hon'ble Apex Court in the aforesaid case are reproduced hereinafter below: “Considering the facts of the case and the nature of amendment claimed and the principles laid down by this Court in L.J. Leach & Co.Ltd. v. M/s Jardine Skinner & Co. AIR 1957 SC 357 and other decisions of this Court, as referred to herein earlier, we are of the view that if a suit was filed on the amended claim, it was an admitted position that the said claim was barred by limitation, the question of allowing the amendment of the written statement and the counter claim, in the facts and circumstances of the case, could not arise at all. Accordingly, the Courts below were fully justified in rejecting the application for amendment of the written statement and the counter claim.” Thus, the amendment sought by the petitioner could not be allowed. Moreover, the grounds taken by the petitioner in support of this case are also not tenable. Admittedly, the original documents i.e. agreement to sell etc. were in custody of the police and therefore, the petitioner was at liberty to summon those documents through the process of the Court or could have proved those documents by way of secondary CR No.315 of 2009 5 evidence with the permission of the Court, as admittedly, he was in possession of the photostat copy of the agreement to sell, receipt etc. which he submitted along with the suit for permanent injunction. Thus, no fault can be found with the impugned order rejecting the prayer of the petitioner for amendment of his suit. Dismissed. January 21, 2009 (RAKESH KUMAR GARG) ps JUDGE